A lot of wiki-style family tree sites are very particular about copyright on family photos. I tried to educate myself about the issues around copyright, and found this post by The Legal Genealogist, really helpful. There're a lot of complicated permutations that people ask her about in the comments, but here is what I came away with:

Misconceptions -- There are three people we think about when it comes to who "owns" a picture; the person who legally owns a physical copy of the picture, the person whose face is in the picture, and the photographer who took the picture.

Only the photographer and his or her estate and heirs matter.

Under current (as of 1978) U.S. law, the rights to distribute any photographic image belong to the photographer and last for 70 years after his or her death. On top of that, the legal heir(s) to the estate of the photographer could inherit and renew those rights.

So in the case of old posed pictures that were taken by commercial studios, you can't actually assume they are out of copyright and legal to publish on the web.


In the case of family photos snapped by Great Grandpa, you may not own the rights to those, either. Who was in his will? He probably didn't specifically will his photographic rights to anyone, but they would have gone to whomever the will said gets "all the rest and residue of my estate". So some relative of yours might own those rights and not even know it.


In the Legal Genealogist's post there's discussion of a lot of different scenarios, but these are the ones that seemed most applicable to me. So that's the law, what's the reality? The reality, of course, is that you're not likely to be sued for putting up or copying century-old studio pictures. But you also can't complain when someone copies your photo by claiming you own the copyright. It might be out of copyright, but that's not the same as you owning the copyright. Also, if a website asks "Do you own the rights to post this image?" you should at least know what the true answer is, regardless of what you decide to say. :)

When it comes to Great-Grandpa's snapshots, those arguments are likely to be within the family. Lawsuits seem unlikely, but it still seems like a good idea to have a clue who might be the actual rights owner. Maybe just get permission from them.

I am lucky that many of my immediate family branches have few twigs. Snapshots taken by quite a few of my great-grandparents have almost no one but me to inherit the rights. I have been going through the pictures I have online and attaching "copyright info". If I don't own the copyright, I don't necessarily take the photo down, but I let anyone who might copy it know its status. So here are some examples of what I've been adding to my photos:

"This photo was taken by [-----] [-----], who died in 1955, so the photo isn't out of copyright until 2025. If the rights descended to his heirs, there are only myself, my uncle and my cousin to own them, and all of us give permission for the image to be copied and used with or without attribution."

"I do not own the copyright to this photo. Copy at your own risk."

"This photo was taken in a studio about 1880. The photographer has undoubtedly been dead longer than 70 years, but it is possible his descendants still own the rights."

Yes, I did email my uncle and cousin to ask if they cared if old photos get shared on the internet. They both gave a bemused, "Of course not," which I have put aside for the record, just in case. :)
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genealogy: Cover of the Register for Alameda County 1904 (Default)
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