It pains me to see him unwrapping paper-backed rolls of film in room light, then using a strobe to document the appearance of the the roll (before developing). The fogging you see at the top and bottom edges of some rolls is from light leaking around the edges of loosely-rolled spools; it happens even with modern 120 roll film. There's a good chance he's fogging some of the rolls due to his handling.
I was actually watching him do that and I was thinking the same thing. I don't know anything about developing but I was thinking that if the casing has even a tiny crack then the camera flash would ruin at least one photo.
The nice thing to do would be to send him a friendly email and tell him about it. Maybe he just doesn't realize it.
Hey! I know that clicky clicky sound well as you ratchet on the film onto the wheel I even have a similar style developer tank only a bit smaller.
I really miss doing that it's been I get 20 years since I've developed any film it's amazing how time flies. Digital photography just doesn't have the soul of actual film photography it's missing the physical connection. Although I don't miss the stink of the fixer.
It's 120 rollfim too for medium a format camera which would give a nice image since it quite a bit larger and has more surface area than a 35mm negative.
For such old film I figured this would have been done in a lab not in a kitchen I'd be concerned with water temperature with such old film. Maybe even soak the film in water to let it hydrate a bit maybe since he indicate they rolls may stick they've been rolled up for so long.
I do wish I had a better method to scan my old negatives and skip the printing part I did try it without much success in the mid 1990s with my first flatbed scanner.
Interesting stuff! It makes me want to pick up the old cameras again.
I know this sounds a bit "get off my lawn" even for only being in my late 20s, but I REALLY enjoyed darkroom time in high school photography classes and photography personally lost some of its magic to me when I switched. I was a senior just as digital was making its moves, but nothing was quite as satisfying as the trials and tribulations of meticulously processing film in that tiny little room.
Nothing quite as cool as dropping what seemed like a blank piece of paper into some chemicals and watching it transition into an actual photograph.
Yeah, on the other hand, I never had easy access to a good darkroom after leaving school and pretty much ended up shooting color slides for a number of years--which meant, in practice, that I pretty much just shot slides on some vacations.
The combination of digital photography and the ease of sharing really got me back into doing photography as a more routine thing. And the capabilities of modern digital gear are just so amazing. I still remember all the chemical manipulations I would go through to get decent results from B&W at ISO 1600 or maybe a little faster. Today, I can easily surpass that in color with the twist of a dial.
I'm 32, re-discovered film photography only about 12 months ago, and almost exclusively shoot film today. You should check out a website I built a couple months ago that has a fairly extensive list of public darkrooms and photo labs that can still process film: http://www.ishootfilm.org/businesses.
You know no one is disallowing you from using whichever tools and methods you want, right? Just as people are welcome to write assembler code, you are allowed to go back to oldschool photography. There is a reason, however, people generally will move on to more convenient things.
> Digital photography just doesn't have the soul of actual film photography it's missing the physical connection.
Indeed! I just recently bought a couple of old 35mm SLR bodies and lenses to get back into film photography. With film, photography is certainly more deliberate and slower-paced. I also enjoyed darkroom work (years ago) as much, if not more, than taking photos. The darkroom was a nice, quiet place that was very relaxing.
Oh, wow! Those words triggered an immediate visceral recall of that very smell from some 25 years ago. I'd forgotten about it, and wouldn't have thought of it until you brought it up.
Oddly, since I associate it with good times and fond memories, I don't find the smell offensive, but the accuracy with which your words triggered its recall is fascinating!
>I do wish I had a better method to scan my old negatives and skip the printing part I did try it without much success in the mid 1990s with my first flatbed scanner.
You can get this done for you relatively cheaply (about 25 cents per frame). I actually have a slide/neg scanner that's out on loan but I decided a while back to just send my scanning out. It was never going to all get done if I waited until I got around to it.
What I like about them is they are obviously taken by an amateur (I don't profess to be any good myself!). Things like wonky horizon lines stand out to me and help bring a bit more or a human connection to these photos and events depicted I otherwise feel quite disconnected from.
They remind me of photos for example my family and friends take on holiday, and make me realise it's just pure luck that it wasn't me, my family or friends who found ourselves in those difficult years.
I've read about this project before. This isn't the first collection of film from a soldier's belongings that he has located. The most melancholy thought, for me, is that there is likely only one reason why the images were never developed by their creator.
For me those photos really help breathe life into that period of time, making it appear as more than just a series of abstract Wikipedia articles. Look at the contrast of those soldiers waiting next to a railroad against the fine architecture of the downtown. Today some of those folks are someone's feeble old grandpa telling stories of the old days, but look at how young and full of life they were in those pictures.
I'm a little disappointed that the top comment chain consists of belaboring the finer points of copyright statutes.
..Which makes the story more interesting actually. I wonder if he had had any chance to write down his plan/thought of his journey while taking photos. Another interesting part is, how they saved the rolls during the war, how it is transferred back to USA..
Exactly. There was one specific case I recall where a duffle was found in the corner of an attic, unopened, and contained a soldier's belongins and a number of film rolls. I could only imagine the emotions that had driven the person who tossed the bag, unexamined, up into an attic and left it there for decades.
No need to be melancholy. That glorifies killing. Do you have the same sad feelings for the Paris gunmen that were killed? There's no fundamental difference between them. Remember of course what the purpose of the allies in WWII was - "to preserve our way of life" or so we won't "all be speaking German". It's not clear that tens of millions had to be be killed for that aim - only to end up with more tens of millions killed by the communist states that became successful as a result.
This makes me wonder if photos left on an SD card now would still be readable in 70 years... considering the relative fragility of modern flash memory (guaranteed retention specs are at less than a decade now), I'm not so optimistic.
This is something I worry about regardless of the specific storage media type.
I have all my photos on my hard drive backed up onto a two drive mirrored NAS device and uploaded to a third party cloud based backup service. Many of them also have low resolution versions posted on Facebook and Flickr. But I still worry that in 70 years no trace will be left of these photos.
Printed photos sitting in a photo book with each photo in its own plastic sleeve that is stored in a dry location away from light won't last forever, but it will probably last 70 years. My digital photos have to constantly be backed up and copied over time. Cloud backup services and social media websites will go out of business. Both the drives in my NAS will eventually fail, along with the drive in my PC. For these photos to survive, someone has to perpetually do work to keep them around.
Sometimes I wonder if, despite the fact that camera phones means we take an absolutely immense amount of pictures relative to other periods of time, if in 100 years there will be more photos from 1985-1995 than 2005-2015, just because the older photos were printed and stored in photo books.
At some point I should probably print my most important photos.
> Printed photos sitting in a photo book with each photo in its own plastic sleeve that is stored in a dry location away from light won't last forever, but it will probably last 70 years.
Funny you should worry about 70 years when we have ink-on-paper things that have lasted hundreds of years and are still readable. According to this list of oldest surviving documents[1], preserved copies of a newspaper from 1609 exist. Oldest known book (but not sure if paper or not) is over 900 years old.
So yeah, barring direct physical damage, 70 years is nothing.
The SD cards may hold the data that long, but I don't think it's likely that it will be accessible. To computer enthusiasts with legacy hardware/software maybe. I shoot on film and I know that even my negatives will eventually fade. Photography has taught me to enjoy life because everything eventually ends.
SD cards are a simple serial interface that is well-documented at the block-device layer; the filesystem will likely be some variant of FAT, and I doubt the JPEG standard will be entirely forgotten, so while hardware like SD card readers may not be produced commercially anymore by then, anyone with the right knowledge can still make one.
This is, of course, supposing that the rather scary situation of heavily-locked-down devices and completely-restricted access to knowledge has not occurred...
> To computer enthusiasts with legacy hardware/software maybe.
All you need is one person that can access it. Do you know of any technology that we can no longer access?
They are lots of great stories about the hard work people had to do to access them (the video scans of the moon for example) but none that I know of that failed.
How long was the "guaranteed spec" on this film, do you think?
SD cards easily survive the kind of rough handling that would destroy a film; I can imagine the contacts corroding to the point where you'd have to replace them to read it, but the plastic casing is close to indestructible, and the stored data should be inert. Of course many will be lost or destroyed, but I would happily bet on any random SD card outlasting any random piece of film from the same era.
reading articles like this where SD cards have survived being boiled, trampled, washed and dunked in coffee or cola, makes me think its not impossible for certain SD cards stored in the right conditions to last possibly centuries
Never mind robustness, they're horribly easy to lose. I put a blank microSD card on my coffee table the other day and lost it instantly.
Re: photos, I think that long term security requires long term care, prioritisation of the important few for printed copies, and reviewing every few years. All of which take time and effort. :(
The recovery of these images is a great story to be sure, but the WWII photos remind me of the kind of photos that I usually take: terrible ones. Mostly just pictures of uninspired landscapes, buildings, and nondescript groups of people. Glad to know that ineptitude with a camera began long before they became ubiquitous.
Waiting for chow, waiting for a range, waiting for the trucks to come back .. and waiting .. and waiting .. but nobody told any _drivers_ they needed to make a second run to pick up twenty marines and a small mountain of gear.
Then it started raining. Too bad the tents were in the first load.
Yay Hacker News. Top thread: what is the legality of who owns this film? Second thread: debating the longevity of flash memory. Third thread (no responses): direct link to content. Last thread (no replies): the only person who directly engages with the content of the linked article even remotely.
I really don't understand these comments pointing this out. Generally these "issues" tend to iron themselves out after some time. Now you could add "One comment completely ignoring the topic at hand" (referring to your comment).
The overlapped images: are these simply because the film didn't wind a fill frame?
Also: "Copyright of All Images On This Website is Owned By The Rescued Film Project."
I have doubts about this statement. Can someone with more expertise in this matter explain? It seems to me that the photographer holds the copyright unless the copyright was properly transferred. Simple discovering the film and processing it does not a copyright holder make.
EDIT: there form for donating unprocessed film contains the following: "By donating your rescued film to The Rescued Film Project […] you agree to release full print and publish copyright of all images recovered from the film to The Rescued Film Project and it’s proprietor(s)."
This suggests to me that someone else may have obtained and donated the film to TRFP.
> I have doubts about this statement. Can someone with more expertise in this matter explain? It seems to me that the photographer holds the copyright unless the copyright was properly transferred. Simple discovering the film and processing it does not a copyright holder make.
I'd say you are 100% in the right here, the problem will be to find the person or their heirs to assert their claim.
I definitely do not think that finding the film is enough to stake a claim this broad.
Which has an interesting take on images with doubtful copyright status (selfie taken by a monkey, owner of the camera tried to assert copyright).
Thinking about it a bit more, if the original maker of the images or their heirs were to be nasty they could likely file for infringement of their rights.
Personally I think what the guy did was great, they're amazing images but asserting copyright goes one step too far. Maybe his argument is that by buying the film he owns the rights?
I definitely do not think that finding the film is enough to stake a claim this broad.
In the absence of case law, I wouldn't be so sure. In the US there was a case that was decided last year that might imply otherwise. A somewhat "famous artist" (Richard Prince) used a photo by a relatively "unknown photographer" (Patrick Cariou) and "transformed" it by printing it much larger, splotching the subjects eyes with paint, and superimposing a guitar: http://newsgrist.typepad.com/.a/6a00d8341c66f153ef01157010d2...
On appeal, it was concluded that this was fair use, there was no copyright infringement, and that Cariou had no claim against Prince or right to collect royalties:
It's not the same, but I wouldn't want to bet that a court would have decided otherwise if Prince had started with Cariou's negative and had done the work in the darkroom rather than on the easel. Which would imply that it's not even necessary for the film to be lost or abandoned, and that mere access could be enough. And the parties settled the case after the appeal, so there is no chance that the Supreme Court will clarify it further until something else similar makes it to them.
That work was creative, as opposed to what the developers did, which was (probably) not creative, and therefore falls under the rubric of there not being a 'sweat of the brow copyright' in American law:
> Work performed on a public domain item, known as sweat of the brow, does not result in a new copyright. This is the judgment of Project Gutenberg's copyright lawyers, and is founded in a study of case law in the United States. This is founded in the notion of authorship, which is a prerequisite for a new copyright. Non-authorship activities do not create a new copyright.
Now, they're only talking about public domain works, which these photographs may or may not be (if there was a copyright on them in 1945, for example, it was not renewed in a timely fashion; Night of the Living Dead is public domain because its copyright wasn't renewed, and it's newer than WWII), but I would be completely shocked if this doctrine didn't apply here at all.
http://www.law.cornell.edu/copyright/cases/36_FSupp2d_191.ht... Bridgeman Art Library v Corel Corp is the most recent caselaw I know on this and judges that faithful reproduction doesn't acquire a new copyright. However, the case in hand is transformative to some degree, it is not an unexposed negative that is being reproduced - I think a new right could well be established in the work (the photos each themselves) as the [manual] production from negatives is not merely mechanical but has a [small] degree of creative input.
From what I can establish NPG came to an agreement out of court with Wikipedia and did not prosecute the alleged tortuous infringement - NPG instead made lots of images available for free and started asking for donations. This suggests that NPG found no merit in pursuing the claim that the works (expensive hi-def "scans" of old paintings) had copyright.
That said I don't think a decision to this end, in the UK, would automatically transfer over and say that the photos here have no new copyright.
You're exactly right; this isn't entirely cut-and-dried, and there's a chance a court could rule in a way that would surprise me.
However, I don't entirely see how a court could come to the conclusion that merely developing film is creative, and I don't see how a court could rule that a new copyright was created if the work done wasn't creative.
Indeed, manual development does have some creative aspects but primarily it's technical IMO. It's a strange thing that it's probably more "creative" than some use of a point-and-click camera, say, but that the camera use would be considered creative enough to have made a work.
Agree with you the more I think about it TBH - developing film is not transformative of itself.
The bar for "creative work" is exceptionally low. Taking an off-center snapshot of a famous painting in the public domain may be sufficient to have copyright on a derivative work. It may be prohibited by the museum for you to do so, but the copyright is probably valid, and they will certainly assert their copyright in the licensed version.
While the underlying data in a phone book cannot be copyright, the choice of page numbering is copyrightable. I don't think it's any stretch that an artist would gain protection for a new print made from an old negative, particularly if they did any selective exposing.
Being transformative is a criterion for deciding fair use (which this may or may not be), but is not necessary to gain copyright as a derivative work. While I feel slapping a restrictive copyright notice on these images is somewhat reprehensible, I would not bet against it being upheld.
The only question you need to ask yourself is this: if there is an expression here then that expression would have to move the needle from 'derivative work' to 'sufficiently new creation to warrant individual copyright'.
Since the predicted outcome of developing a film is that you get what was on the other side of the lens during exposure and any skilled darkroom operator would be able to accomplish this and end up with more or less the same result I think that it would be quite a stretch to argue that this is in fact a creative act.
It's work. It's skilled, but it is not creative (though those passionate about darkrooms will likely disagree, but that's their problem, the law is what it is). You could likely find thousands of people with the required skills and all of those would barring accidents come up with the exact same negatives as a result of the development process.
If you take a negative and you purposefully change it to reduce its fidelity then that might be a creative act. But if you do it to a negative that you did not expose you're still going to end up (most likely, not 100%, this depends on the degree of modification) with a derivative work, the case you cite above has lots of changes rather than just a change in exposure or coloring or new photographic elements that weren't present in the old image and hand drawn bits it has all of them. It's clearly a mash-up of several elements of which the original photograph admittedly makes up a sizeable chunk but definitely not 100% of it.
Your 'off-center snapshot' is a new photograph which deliberately changes the composition of the original and has a larger chance of being deemed original (a better example would be say a photograph of the inside of a museum gallery depicting a number of artworks at once).
But the copyright on a derivative work lies squarely with the holder of the original copyright.
In this case the images are as close to an accurate reproduction as you could get.
So, either the person that developed these images has taken images that were in the public domain, has within his rights made a website that displays these pictures but has in error (either deliberate or through a misunderstanding of the law) placed a copyright sign underneath them.
Or the original photographer has those copyrights, which have been subsequently (presumably) passed on to his/her estate.
The latter is likely not the case since (1) this is an American photographer and (2) in those days copyright still needed to be registered afaik. But let's for the sake of the argument assume that this is the case then they, not the person that made the website would hold the copyright.
So either way I don't think that copyright notice is legitimate.
Say you lose an SD card with a bunch of pictures on it that does not automatically transfer the rights to those pictures to the finder or to anybody who subsequently buys that SD card from the person who found it. Copyright does not work that way, it flows from the act of creation.
The only question you need to ask yourself is this: if there is an expression here then that expression would have to move the needle from 'derivative work' to 'sufficiently new creation to warrant individual copyright'.
I don't think that's the right way to view it. Contrary to the common perjorative usage of 'derivative', a 'derivative work' has a full individual copyright. The difference is that that publishing the work might also infringe on the rights of the original. For example, in Cariou everyone posits that Prince holds a copyright to his derivative works. The only question in the case is whether their usage of the original falls under fair use. But whether fair use or not, they remain derivative works.
But the copyright on a derivative work lies squarely with the holder of the original copyright.
We're at the limits of my knowledge, but I don't think this would be the interpretation under US law. Instead, I think the holder of the original has no automatic claim to the copyright on the derivative, but would likely prevail in a suit against the infringer to collect damages. I'll try to research more. Thanks for your followup.
That's a major alteration of the source image though, not an all out effort to preserve as much of the original as possible so I don't think that it applies. Interesting case though.
"Personally I think what the guy did was great..."
Indeed. I'm glad we now have this additional snapshot of history. And I'd be happy to donate to cover some costs here. But I'm also wary of the copyright claim such that my donation would be contingent on clarifying the claim-- provide an explanation as to how copyright was obtained; step the notice down a bit; etc
"such that my donation would be contingent on clarifying the claim"
If you contact them and ask about that please post a comment or blog post detailing what they say. It would be interesting to hear their perspective and how strongly worded and convicted it is.
Maybe his argument is that by buying the film he owns the rights?
As we learned in the SCOX vs. Novell trial, copyright can never be transferred without a full description of the items and rights being transferred in writing.
"Maybe his argument is that by buying the film he owns the rights?"
As I mentioned in one of my comments they also developed the film which if not done correctly would result in images that wouldn't look the same as they do now. [1] The film without development has no creative appeal other than the appeal of a film canister.
[1] As anyone who has done photography with a darkroom knows (I have and development is part of what you get just like picture composition is.)
The film carries within it all that you could get out of it even after developing. You can't get something out that wasn't in in the first place and the whole goal here is to change the output as little as possible. It's fidelity what is appreciated here, not creative license to solarize the film or do something else with it other than to try to extract the information with as little loss as possible.
It's a mostly mechanical process, if you follow the recipe then the predicted outcome is the same, no matter who does the developing.
"Dodging and burning are terms used in photography for a technique used during the printing process to manipulate the exposure of a selected area(s) on a photographic print, deviating from the rest of the image's exposure. In a darkroom print from a film negative, dodging decreases the exposure for areas of the print that the photographer wishes to be lighter, while burning increases the exposure to areas of the print that should be darker"
I'm not saying that there can't be artistry in the darkroom. I'm saying that in this particular case such artistry would likely not be appreciated. And since you don't know what is on the film in the first place it is very hard to manipulate it in such a way. That requires a lot of pre-existing knowledge about what is on the film.
I spent a ton of time in the darkroom of my dad when I was a kid and it's all lots of fun but in the end what wasn't in front of the camera lens is not going to magically appear on the developed film or the prints. At best you'll end up with a derived work, at worst you're destroying a bit of history.
IANAL but the word you're looking for is "derivative works". In order to develop film, you need to take someone else's work and apply your original interpretation to it.
This is definitely the most stretched interpretation of the term 'derivative work' that I've ever encountered.
Developing a negative does not create 'a derivative work', since developing film is not 'interpreting' it in an original way, it for the most part is chemistry. Do it the same way twice you get the same result.
You can prove that to yourself by cutting a roll of film horizontally in half and then developing the two halves independently using the same recipe. If you do it all by the book they'll come out in such a way that the two film halves can be reconnected to give you the whole images.
Have you ever done darkroom photography? (I have and have made money doing that).
And if so, just to be clear, you are claiming that there is no difference in results from someone with experience and someone "just following a recipe?".
> Have you ever done darkroom photography? (I have and have made money doing that).
Sure.
> And if so, just to be clear, you are claiming that there is no difference in results from someone with experience and someone "just following a recipe?".
Oh, definitely there can be a difference. But that difference will never amount to the person in the darkroom being able to supercede the copyright claim of the original photographer.
Are you saying that there is some form a originality done by operating a darkroom, where the result can be distinguished from reproductions, clones, or forgeries of the photograph.
If its a reproduction of a photography, its no more original, in a copyrightable sense, than creating a forgery. Such actions might require high skill, but high skill is not what make works copyrightable.
Negative development is a pretty mechanical process by default, and yes I still shoot on film as well as digital and I love my lab. I think a good analogy is the editing, design, and typesetting of a book - it's visible on every single page and certainly affects perception of the work in multiple respects, but still a long way from being equivalent to authorship.
Even to the extent that development of a film is copyrightable, it's entirely derivative of the original exposure and certainly can't be considered to subsume it for authorship purposes.
"When does copyright start? Do I have to register the work with the government?
Copyright status is automatic upon creation of your original creative work in a fixed, tangible form. Registration with the U.S. Copyright Office is not necessary for copyright status and protection, though registration is needed in order to pursue an infringement claim in court."
Too late to edit but I messed up that sentence. It should have been "But the photos are not going to show anything the original photographer did not put in there."
Copyright of photos is always a tricky subject that I could never get my head around. What about the folks in the photo, would they also not be copyright holders as well of the photo as they are part of the creation. Even tricker is if the photos contains items that are copyrighted, how is this dealt with?
Mix them with copyright by photographers (and now apparently by developers if we're to believe some in this thread) and you can feed a pack of lawyers for years.
I'm torn between whether it's more entertaining or more frustrating to watch programmers argue about copyrights, particularly when their arguments are a priori, and premised on a misunderstanding of how the laws actually work.
Copyright protection attaches to a work as soon as it is fixed in a tangible medium by an author. Undeveloped film is arguably not a tangible medium suitable for communication and this film is obviously not being developed by its author. The development process of film renders it suitable for copy.
"A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission." [0]
Also this would essentially be abandoned property. You can abandon copyright just like any other property right. Trademarks can also similarly be abandoned.
Would you claim that all the "abandonware" games still belong to their original owners and deny people the right to use them as well?
>Copyright protection attaches to a work as soon as it is fixed in a tangible medium by an author.
this is what photons do to silver on the film the moment you press the button on the film based photo camera. This is why actual photographer has the copyright. The fact that more light can destroy the image until it is developed has the same effect on copyright as the fact that cassette recording can be destroyed by magnetic field.
>Undeveloped film is arguably not a tangible medium suitable for communication and this film is obviously not being developed by its author. The development process of film renders it suitable for copy.
are you trying to say that Kodak development shops own copyright for 99% of the photos made in the US in the second half of the 20th century?
> Copyright protection attaches to a work as soon as it is fixed in a tangible medium by an author. Undeveloped film is arguably not a tangible medium suitable for communication
Errm. No. In fact it is excellent for communication, seeing that it withstood being in its undeveloped state for decades and still preserves the original image. Registration, not development creates the copyrighted work.
You can abandon property just fine but you can't abandon copyright (see: http://en.wikipedia.org/wiki/Abandonment_%28legal%29#Abandon... ), (you can abandon a trademark by not defending it but that's different). You can actively sign something into the public domain but copyright infringement cases typically have a very important date attached to them: when you became aware of the infringement.
> Would you claim that all the "abandonware" games still belong to their original owners and deny people the right to use them as well?
Technically, yes.
And on top of that if your interpretation were true then someone else could claim copyright on these games now that they are 'abandoned'.
That is property, the image was not disseminated to you or anyone else by looking at the film. It was developed into a negative and digitized in order to disseminate copies.
You really are apparently neither a lawyer nor a photographer and should consult an experienced one if you are pursing either as a hobby or profession.
Copyright can certainly be abandoned. It does not always require an overt statement. See for example National Comics Pub. v. Fawcett Pub., 191 F.2d 594, 598 [0]
[edit] I was going to discuss abandonware of game content and its use in new works but that is a much longer discussion. You can follow up if you are interested.
The case you cite is under previous legislation that is highly pertinent and alters the reasoning. The judgement is from 1951. In-or-around 1980s (? can't remember exactly) the US signed up to the Berne Convention and so joined the majority of the rest of the world in not requiring registration to acquire copyright protection.
In the judgement [which I only skimmed the first page or two of] is this:
>'It is of course true that the publication of a copyrightable "work" puts that "work" into the public domain except so far as it may be protected by copyright. That has been unquestioned law since 1774;2 and courts have often spoken of it as a "dedication" by its "author or proprietor."'
Which is not true any longer. Production of a work now acquires copyright (eg under TRIPs) which publication in itself can not forfeit nor dispose of.
Similarly in the judgement it is clear that under the past regime affixation of a copyright notice was required. This is a central element to the case it seems.
Because of the central features relying on specifics of the law that no longer apply it seems there is very little if anything in this judgement that would bind, or indeed inform, a present day decision.
>You really are apparently neither a lawyer nor a photographer //
Hi thanks for commenting and appreciate your honesty in noting that you lack the understanding of the citation, didn't read it anyway, but wanted to share your thoughts based on your own information in an unrelated context.
The citation was simply regarding the existence of abandonment / forfeiture of copyright which the parent said did not exist and then later edited. It was not intended to have bearing on "present-day." Sorry if that was unclear.
Regarding the Berne convention... The same reasoning applies to TRIPs (Article 2 Section 2) [0]
(2) It shall, however, be a matter for legislation in the countries of the Union to prescribe that works in general or any specified categories of works shall not be protected unless they have been fixed in some material form.
You can't claim copyright on that which is not authorable nor transmittable.. i.e. in a medium that can be copied.
I'm not sure why you're citing the Berne Convention it seems pretty uncontroversial. Are you suggesting negatives aren't a "material form" of fixation for an image? Initially you said:
Can you point out where TRIPs or the USC requires "suitable for communication"? Better would be to cite current caselaw that discusses this "suitability" clause.
>"You can't claim copyright on that which is not authorable nor transmittable.. i.e. in a medium that can be copied." (shawn-butler, above) //
These conditions are quite unrelated. You can certainly claim copyright on sculptures, such as the Angel of The North, and on buildings which are not "transmittable" to any useful degree. A "work" is necessarily the product of an author for the purposes of all copyright legislation I've seen as elsewise they are not "works" for the purposes of that legislation. Truism and error by turns.
I can create a work by splattering baked-beans on my wall. It's authored. It is not transmittable except by secondary reproduction. It can be copied. If you take a print from those beans, by pressing paper on my wall, then you create a (reversed) image which is a derivative work. You may have made a lovely piece of paper and taken great care over making the print but it is I who created the initial work which you "copied" [ie derived your work from]. Whilst you have perhaps acquired a copyright in your print (by your creative production of it, say) it relies on my creative work and so is derivative. You could not lawful sell or reproduce your work without satisfying my conditions for license (until my copyright expires of course).
FWIW in the OP the Universal Copyright Convention gives the developer of the photos 10 years of protection as a minimum IIRC for this first publication of the original photographer's works.
[OT: I'm sure your arrogant insinuations as to the inexperience of others do not progress the discussion. If there is some material error then IMO you'd do well to point it out directly rather than insinuate it by way of ad hominem commentary.]
False. Abandonment certainly does still exist. There is a large body of widely-accepted case law on the matter. There have even been recent legislative initiatives, both foreign and domestic, attempting to extend abandonment to all "orphaned" works none of which have met with much success to my knowledge.
You should seek relevant legal advice if you have further questions on this pretty accepted point of law. If you wanted to say pursue a suit for damages against an infringer for taking a work seemingly in the public domain that as proper holder you have explicitly abandoned under the theory that "abandonment doesn't exist." I think any experienced attorney would inform you that you face an uphill battle to say the least but it is always about the specifics.
You raised the topic of Berne not me. I provided a quotation to show that the point of material fixation remains the same whether under USC or its treaty obligations. TRIPs leaves it to members to decide what material fixation means. In the US that means a work must be tangibly expressible, in a fixed medium, i.e. copyable.
http://www.copyright.gov/circs/circ01.pdf might be less technical and provide you the info you need regarding what generally "suitable" for copyright in the US means:
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Several categories of material are generally not eligible for federal copyright protection. These include among others:
works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)
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In case you don't understand, and please don't be insulted as I hate to be pointing out the obvious, but you seem not to grasp that undeveloped film != negatives. You use the terms interchangeably when that is the very point under consideration, e.g. undeveloped film : negative :: improvisational speech : recorded performance
Others in the thread have argued that exposing film to light : recorded performance meriting copyright, but I think that is tenuous because undeveloped film can not be viewed, disseminated.
Negatives are normally created under the direction of the photographer or her employer in order to disseminate images and are definitely works of authorship subject to copyright. Undeveloped film is arguably not and simply property, and the article is about the purchase at auction or yard sale of undeveloped film. The photographer, being long deceased, is definitely not the one creating the negatives. The purchaser of the film is. I hope that is clear.
Sculptures/architecture are most certainly subject to duplication especially when on public display. Sorry, you seem to be going off the rails here and with "baked-beans on a wall", and I have no interest in following; my interest in the topic has waned.
Copyright abandonment has to be explicit, you can't just say a copyright on something was abandoned by the creator because they did not do something. They have to explicitly do something (such as, but not limited to placing the creation in the public domain).
> Sorry, you seem to be going off the rails here and with "baked-beans on a wall", and I have no interest in following; my interest in the topic has waned.
Would it be possible for you to - whether you're wrong or right doesn't enter into it - at least be civil?
There was absolutely nothing uncivil in any comment on this thread. The rhetoric was fact-based and direct appropriate to the topic.
For the record, there is nothing civil about your pretense of offering false opinion as fact in nearly every frontage discussion topic bordering on "law" on HN.
You are just wrong more often than you are right. Sorry if pointing that out is uncivil but it a disservice to the community. Even if you use a downvote brigade to cover your mistakes, you should be responsible for dispensing "opinionated" advice about legal issues.
Undeveloped negatives are considered tangible for legal purposes, and the creation of the negative has been considered the primary work of authorship almost cince the inception of photography:
See Burrow-Giles Lithographic company v. Sarony, 111 US 53 - Supreme Court 1884, quoting Nottage v. Jackson, 11 QBD 627, High court 1883:
Brett, M.R., said, in regard to who was the author: "The nearest I can come to, is that it is the person who effectively is as near as he can be, the cause of the picture which is produced, that is, the person who has superintended the arrangement, who has actually formed the picture by putting the persons in position, and arranging the place where the people are to be — the man who is the effective cause of that."
Lord Justice Cotton said: "In my opinion, `author' involves originating, making, producing, as the inventive or master mind, the thing which is to be protected, whether it be a drawing, or a painting, or a photograph;" and Lord Justice Bowen says that photography is to be treated for the purposes of the act as an art, and the author is the man who really represents, creates, or gives effect to the idea, fancy, or imagination.
Undeveloped film is arguably not a tangible medium suitable for communication and this film is obviously not being developed by its author. The development process of film renders it suitable for copy.
For starters, the bit you quote doesn't at all sound like it supports the assertion you're making. A film negative absolutely is a tangible medium of expression, certainly suitable for communication.
And, according to the same website you reference[0]:
"Ownership of a 'copy' of a photograph –- the tangible embodiment of the 'work' –- is distinct from the 'work' itself –- the intangible intellectual property. The owner of the 'work' is generally the photographer or, in certain situations, the employer of the photographer."
It's pretty clear from this that the copyright is attached to the not-all-that-tangible "work" created when the photographer presses the shutter on his/her camera.
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A film negative absolutely is a tangible medium of expression, certainly suitable for communication.
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That is correct. A film photographer has negatives produced for the purpose of dissemination and in some cases directs in great detail how those negatives are produced. This is not the case in this story/article.
Undeveloped film, which is the topic of the article at hand does not have any copyright. It was never "authored" as a duplicable work until the new owner of the film (whoever bought it at yard sale or auction) had the negatives created.
And that new owner assigned his copyright to the images produced by the found film / restoration society via its terms and conditions.
Let's put a tech spin on it since this is still HN, apart from the people who go around down voting informative posts because they disagree or want to hide posts that make their own look foolish.
Imagine a contemporary digital camera with no "film" but one that cryptographically encrypts the sensor image with the owner's key to non-volatile RAM/storage.
That data is not subject to copyright. It in principle cannot be copied or transmitted as an image. It can be stolen and copied for example violating property rights, or maybe "shown" as performance art but that's about it. The image itself (the creative work) cannot be viewed by others.
Now the photographer decrypts it into a regular RAW or JPG or whatever file format that is easily transmitted / copied. That image is "authored" by the photographer and cannot be duplicated without his consent. The author has copyrights in that work/image.
Undeveloped film, which is the topic of the article at hand does not have any copyright. It was never "authored" as a duplicable work until the new owner of the film (whoever bought it at yard sale or auction) had the negatives created.
This is simply wrong. The image is fixed in a tangible form upon the negative at the moment the shutter closes and terminates the exposure. The necessity of washing it in a development bath later in order to view the film does not in any way transfer authorship to the person doing the development. As JacquesM points out elsewhere, the image was sufficiently 'fixed' as to last for decades on the undeveloped film.
I've included a link in another comment to you upthread referring to the 1880s court case which delineates the basis for authorship of a picture belonging to the photographer as opposed to the printmaker.
It is not "simply wrong." Do not get "fixated" on materially fixed. The point is to be fixed in a tangible form of expression, that can be communicated / disseminated / published and most importantly copied.
Undeveloped film meets none of these criteria even though the light has been "fixed" on the film. Are you disputing that images can be viewed, transmitted, etc until negatives have been created, authoring a work that can be copied?
It is not a trivial matter either. Consider computer source code. Let's call that expressive, fine. That binary machine code is "copyright" even though no one can read it has caused amounts of untold grief.
A link to a case in 1884? A commenter after my own heart! Thanks for sharing. However, that seminal case affirming copyright status to art photography has little to say regarding whether undeveloped film has the same status. In fact, according to its reasoning that has since been deemed faulty it requires that the "film" be developed to see the subject matter (must be artistic).
The issue was lithographs (images) of Oscar Wilde were duplicated without photographer consent produced from plates (developed film).
Again, if it were not fixed until developed then labs would often acquire copyright by default. what you're missing about this case is the location of the artistic authorship at the neus of intentionality, ie where the photographer chose and possibly arranged) the subjet, framed and lit, made decisions about exposure etc. By contrast, the best developer int he world can't express any opinion about the content of an undeveloped film until it has sat in a developer bath for some minimum length of time.
I certainly think there's an aesthetic dimension to the development of film. I've sat there waiting for an image to show up on a tintype as well as on more conventional substrates. However, the process of a development is fundamentally one of transcription (with all the possibilities for selective amplification/suppression) rather than one of authorship. If I hand you an undeveloped photograph of a landscape to process, not only will you not be able to turn it into a portrait, but you won't know what the content is until the development process is mostly complete; you are in the same sort of position as a recording engineer who can modulate the fidelity with which a musical performance is recorded to tape, but who does to thereby become an originator - s/he does not choose what is to be recorded, or perform that rendition of a composition, notwithstanding the skill involved in accurately transcribing the sound to tape.
ISTM that you're overly hung up on the 'expression' aspect to the point that you think authorship occurs at the moment of expressibility. I mention the tape analogy because an audio recording can not be perceived directly after fixation; you could wave a magnetometer over tape, stare at the grooves on a record, or view a printout of the waveform, but none of these would recreate the original acoustic information (although they would allow reconstruction of it). Acoustic expression only occurs when the recording is brought into proximity with a sensor and transducer - an apparatus of some kind. And whether the recording can be heard properly depends on the configuration of that apparatus - set the volume to high or too low and even the best recording will be rendered to a cacophony or a ghostly whisper. I suggest to you that the development stage of photography is no more than a chemical apparatus and the role of the lab technician is largely one of monitor rather than author.
While a skillful darkroom technician can take unexposed film and create new images from scratch by 'painting' on film and photopaper in the darkroom, and likewise can modify the content of exposed film using similar techniques, the possibility of creativity does not mean that all darkroom work is necessarily creative. Back to the case of these WW2 pictures, the darkroom technician's role is essentially one of discovery - the very absence of prior knowledge about the content precludes any sort of intentionality about the result, and intentionality is the essence of authorship.
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Again, if it were not fixed until developed then labs would often acquire copyright by default.
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Yes, if they were developing film creatively they would have some ownership. But, that is why the "publication" of the images by a film lab is done under the express direction of a photographer. There is a contract in force and terms agreed when you develop film using a service.
That is also how film labs avoid getting entangled in lawsuits, child porn, etc.
I am not so much hung up on 'expression' as copying / reproducibility. If it can't be duplicated or copied, or understood / perceived by audience copyright will not apply.
So undeveloped film is not subject to copyright.
Expression however does probably play a larger role in my thinking due to the copyright of binary software which is indeed absurd.
Ok, then this is a matter of me using incorrect terminology: my assertion is that the undeveloped film, which has been exposed to light via the creative act of taking a photograph, is itself is "good enough" to be copyrightable.
Undeveloped film is arguably not a tangible medium suitable for communication and this film is obviously not being developed by its author. The development process of film renders it suitable for copy.
If it is not tangible; that is, there is no significant change between unexposed and exposed film, how do you explain how the process of development works?
To add to the copyright conversation, assuming the work is covered under U.S. law [1] then wouldn't it be covered under the Copyright of 1909 law [2]? This law only granted copyright for 60 years, which means copyright would have expired no later than 2005.
> "The overlapped images: are these simply because the film didn't wind a fill frame?"
Yes - it's hard to appreciate how far camera tech has come since the 40s, and presumably also a typical soldier isn't bringing a high-end 35mm camera into the field.
More specifically, if there's play in the gears of the winding mechanism then you'll get a lot of variance when it comes to inter-frame space.
> "I have doubts about this statement. Can someone with more expertise in this matter explain?"
It doesn't have to be nefarious - they can assert copyright over the scans of the film without asserting copyright over the original images themselves (though in this case it does look like if you donate film they want the whole shebang).
It's like recording a cover - your recording itself has a separate copyright regardless of the copyright status of the song upon which it is based.
Like a cover song there could be some legal issues between the scanner and the copyright owner of the original film images, but presumably they sort this out between themselves.
More specifically, if there's play in the gears of the winding mechanism then you'll get a lot of variance when it comes to inter-frame space.
NO! This is old 120 format film--just a roll of film with paper backing. On his camera, you probably just looked through the red window on the back at the frame number. If you forgot to wind, double exposure. The Holga toy camera from Lomo still works this way today.
On medium format film - I can't tell if this is 120, 220, or 620, or something like 616 - many cameras can take pictures of varying width. For example, on a camera that makes 6x9, or 6x7 pics, you might be able to put in a masking attachment and make 6x6 pictures. If you forget to put the attachment, you might think you're shooting 6x6 shots and advance the film accordingly, but you'll actually make wider shots which overlap at the edges.
You are correct to have doubt. While it is criminally illegal to falsely claim copyright, there is almost no chance of prosecution. And the only entity able to sue under civil law would be the heirs of the photographer, who are unlikely to know that they hold the copyright. The public, while potentially deprived of the the ability to make use of the work, is not deemed to "have standing".
The seminal paper on the topic calls this "copyfraud":
Copyfraud
Jason Mazzone, University of Illinois College of Law
Brooklyn Law School, Legal Studies Paper No. 40
New York University Law Review, Vol. 81, p. 1026, 2006
Abstract:
Copyfraud is everywhere. False copyright notices appear on
modern reprints of Shakespeare's plays, Beethoven's piano
scores, greeting card versions of Monet's Water Lilies, and
even the U.S. Constitution. Archives claim blanket
copyright in everything in their collections. Vendors of
microfilmed versions of historical newspapers assert
copyright ownership. These false copyright claims, which
are often accompanied by threatened litigation for
reproducing a work without the owner's permission, result
in users seeking licenses and paying fees to reproduce
works that are free for everyone to use.
Copyright law itself creates strong incentives for
copyfraud. The Copyright Act provides for no civil penalty
for falsely claiming ownership of public domain materials.
There is also no remedy under the Act for individuals who
wrongly refrain from legal copying or who make payment for
permission to copy something they are in fact entitled to
use for free. While falsely claiming copyright is
technically a criminal offense under the Act, prosecutions
are extremely rare. These circumstances have produced fraud
on an untold scale, with millions of works in the public
domain deemed copyrighted, and countless dollars paid out
every year in licensing fees to make copies that could be
made for free. Copyfraud stifles valid forms of
reproduction and undermines free speech.
Congress should amend the Copyright Act to allow private
parties to bring civil causes of action for false copyright
claims. Courts should extend the availability of the
copyright misuse defense to prevent copyright owners from
enforcing an otherwise valid copyright if they have engaged
in past copyfraud. In addition, Congress should further
protect the public domain by creating a national registry
listing public domain works and a symbol to designate those
works. Failing a congressional response, there may exist
remedies under state law and through the efforts of private
parties to achieve these ends.
If I'm reading the information on your provided link correctly, then no, the photographer can not claim copyright - precisely because they are orphaned works. In the U.S. there have been bills, but no legislation to change this.
Any pictures taken in the course of carrying out military service on behalf of the US might automatically be in the public domain for copyright purposes, I think, as the person would be an employee of the US government by definition. I don't know exactly how this plays out for military personnel but I'd imagine you waive a lot of private citizen rights when you set off on a tour of duty.
Museums in most cases do not own the copyright to the works in their collections, yet they often pretend they do to be able to charge higher processing fees.
A newly typeset and printed copy of Alice in Wonderland does have copyright protection. The presentation has transformed the (public domain) text enough to qualify for protection. Someone chose fonts, letter sizes, line lengths, book size... You can't go making photocopies of that particular work and sell them without infringing.
You can, however, take the original text, which is now in the public domain, and typeset and print your very own Alice in Wonderland book. And now you hold a copyright on a presentation of Alice in Wonderland.
I think what they are referring to is the presentation of the photos (for lack of a better way to put it). Best way to describe it is that it's similar to the copyright that a company (back in the day) that created what is known as a reverse phone directory. That's where you could find someone's phone number by address (or address by phone number). The point being that even though all the info is public (anyone can input same info from a free phone directory) the act of organizing it and displaying it in a certain way (reversed by address as only one example) gives you copyright over the presentation of the material. So you can't grab that wholesale.
Another example that I can think of is dnjournal.com which publishes a list of domain sales which they gather primarily (but not exclusively) from easily available info from other sources (like sedo.com). So you are free to do the same from the same sources. However you can't take the list they created, that is lift it from their site, and publish it without violating their copyright.
There may of course be some other principle involved obviously but off the top the above seems possible.
Edit: Appears what I am referring to is possibly a version of "derivative" work:
I think this also goes under "the golden rule" meaning he who has the gold rules. The film was undeveloped so someone could argue that that act was instrumental in making the pictures able to be seen (seems like a scotus grade discussion). The original owner took the pictures but he never created the image which people see. The image was created by the person who now claims copyright. Without the developing there are no images. May not win but perhaps most importantly a leg to stand on.
But they claim copyright on "all images" on the site. This would have the implication that simply pulling the images off the site (and not using their web site presentation) for use anywhere else would be infringement. Does their scanning of the photos add such a transformative element that they hold copyright on these images? Perhaps it could but I don't believe that it does in this case.
As to the phone number lookup examples, lists of facts cannot be protected under copyright. My understanding is that this extends to indexes of facts as well. Though there may indeed be a presentation or transformative element (which may have copyright protection), the underlying facts (and their indices) do not have copyright protection. I've seen many websites attempting to make this claim with lists, and they make it technically non-trivial to copy the data from their site, but should such a case actually make it to court, I don't think the claim would hold water.
"Does their scanning of the photos add such a transformative element"
Keep in mind also that they did more than scanning. They took undeveloped film and developed it first. (Which took effort and skill with old film). Without that development the pictures would not exist (see my updated "edit").
"I've seen many websites attempting to make this claim with lists, and they make it technically non-trivial to copy the data from their site, but should such a case actually make it to court, I don't think the claim would hold water."
This is not unusual since most things don't end up in court and what you are trying to do is attempt to scare someone into not taking a chance of infringing. Example is a few years ago we got notices to pay $650 for some images on a website we had from getty images for something that came off of a cd in the 90's (clip art) that was clearly purchased with a license. Getty had no right to do that but they "sprayed and prayed" hoping that some people would pay the $650. Of course it wouldn't hold up in court but there is no doubt that some companies (not ours) paid the $650 (or whatever the amount was don't remember). Nobody goes to court over $650 and hires a lawyer to defend etc.
When I take my roll of film to the chemist for the. To run through their machine; or I send it off to a lab; or I develop it myself; the copyright for the images still stay with me.
Why does developing the film give them any rights?
