Claim against me for selling old photographs

'Is it legal', 'can I do this' type questions and discussions.
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dance621
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Claim against me for selling old photographs

Post by dance621 » Wed Oct 30, 2019 1:16 pm

Hi, I'm new here and would appreciate some advice. I purchased a collection of 30,000 1980's photographs from an american auction house a few years back. The collection was the property of a famous Hollywood reported and are mostly candid shots of him with stars at parties or just the stars. I am now selling these photos from the UK on eBay.

I have been contacted by the executor of the estate of one of the photographers who took some of these photos (presumably for the Hollywood reporter). They are claiming I have no right to sell these photos. I am not reproducing any of the photos and I am just selling the photos from the collection of the reporter. The ebay listing has a low resolution image of each photo in its listing.

I have always assumed that I am allowed to sell something that was legally created in the 1980s and that it does not violate copyright of the photographer but would appreciate some clarification.

Regards

James

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AndyJ
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Re: Claim against me for selling old photographs

Post by AndyJ » Wed Oct 30, 2019 6:12 pm

Hi James,

You are in the right here. These photographs are your legal possessions and you can sell, give away or destroy them in any way you wish. In the USA this is known as the first sale doctrine, and here in Europe as the exhaustion of rights doctrine.
Even if by chance the photographs were given to the reporter with certain terms attached, such as that he was not to further distribute them, you would not be bound by any such undertaking, and the photographer's estate would need to sue the estate of the reporter. Even if they won, it would not affect your ownership of the photographs.

There is an entirely separate discussion to be had about who might actually own the copyright in the first place. In a similiar way to UK law, the US 1976 Copyright Act gives ownership of copyright to the employer where the work is done for hire. Unlike the position in the UK, this provision is wider than just applying to full employees, such as a staff photographer, and can under certain circumstances include commissioned work. If this photographer was a genuine freelance and only sold licences to use his work, then he would probably have retained all his rights. However, it is not impossible that he may have sold the copyright to a particular publisher who wanted to ensure they obtained the exclusive rights to the photographs. While in some cases such rights can revert to the original author, he or she would have needed to claim them back at an appropriate break point.

As for the thumbnails images used to advertise these photographs on ebay, that is expressly permitted by section 63 of the Copyright Designs and Patents Act 1988. The US Copyright Act does not contain a similar express exemption, but there is a well-known court case called Perfect10 Inc v Google Inc which established that a similar provision exists under US law.

So to summarise, they haven't got a leg to stand on. However don't be surprised if they use ebay's VeRo facility to get your listings taken down. If they do, you should issue a counter-notice.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

dance621
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Re: Claim against me for selling old photographs

Post by dance621 » Fri Nov 01, 2019 3:31 pm

Many thanks, That's great to hear.

James

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