[Closed] Commercial value of picture

Bug bump.

Does the photo include images of people? Do you have their permission for it to be used by a third party?

The request is for an image of someone who's been dead for forty years. We use it on our website. The image is actually nearly ninety years old, the photographer also died many years ago.

In that case, do you own the copyright anyway?

Absolutely not sure!

The image is credited to the original photographer who died in 1965, he and his brother were commercial photographers. The club has used the image for fifty years, I've no record of how we came to have unrestricted use of it, I've only been involved on the admin side for ten years, most likely one of those "gentleman's agreements" that never got written down and was because of the charitable donations. Image copyright lasts 70yrs after the death of the photographer so we are within that time frame.

Much of the photographer's work is now "in the possession of" one of the major climbing clubs but I don't know if they have the copyright to those. I'm asking.

My feeling is that if a commercial concern is going to benefit in some way then a donation along the same lines is at least "in the right spirit" even if legally we couldn't enforce it.

Unless you have evidence to the contrary - ie that copyright has been assigned to the club- then really its a question the deceased photographers estate. The rights of their work and any income it generates is going to be part of someone’s inheritance,

but in the context of the request- do you really think a paper is going to pay anything let alone anything significant? They’re doing the right thing by asking - but if the answer to their request is that using the image will cost money then they just won’t bother using it.

I’ve sold a few photos but it’s just a sideline. Each time the buyer offers a price and I’ve either accepted or asked for more. It’s ranged from €100 a photo for a bike company to €500 for Playboy. I’ve filled out an invoice with cost, description of the photo and usage rights. Which I made up and they never questioned. Thinking of it I’ve never been asked to prove ownership or if the people in the photos have given permission.

Hope that helps a bit.

Leave it open?

"Sure, you're welcome to use it in return for a reasonable donation to [our charity]."

You're not sure if you really own the image and you don't turn a profit anyway. I'd kick it back over the fence, I always thought it a bit weird to be mandating the value of a donation. They've done the honourable thing in asking in the first place so let them work out what they think is 'reasonable'.

It’s not your image to sell or give away.

Tell the paper the information you’ve detailed here and let them decide if it’s worth the effort to track down the copyright owner.

At the moment I don’t know if we have the right to allow its use, free or commercial, it’s something I’m trying to find out. My assumption is that we don’t but if we do then being able to say something along the lines of “please make a donation to one of these charities” we need to have an idea as to what to suggest though no donation or one of a paltry nature could be seen as bad publicity on their part 😉

As I said, I’ve no idea of the history of the ownership/copyright of the image so it is something that needs clearing up anyway regardless of how we proceed in this instance.

The paper/website have a history of using images without permission (big clue).

Of course we might only have been given permission to use the image for print material not the web since it wasn’t even an idea fifty years ago.

I don’t intend to rush into this despite their “urgent “ imprecations I get the feeling it’s a nice to have image for a question so hardly vital for the answer

So is the answer then not "the image isn't ours so we don't know"?

Have you paid anyone to use the image?

They’ve probably got a rate card and I doubt there’s much in the way of negotiation to be had.

<span style="font-size: 0.8rem;">I would also suggest that if you leave it open and ask for a donation to charity, they’ll donate sod all.</span>

Ask what their rate card is, and if it’s too little just walk away, warning them that any unauthorised use will see a bill of 10x the proposed fee.

As I said, I’ve no idea of the history of the ownership/copyright of the image so it is something that needs clearing up anyway regardless of how we proceed in this instance.

I think that up to now you've either had the authority to use the image or you haven't but you've been able to do so without complaint - lets face it the descendants / estate of a deceased photographer are not necessarily going to remember and recognise every or even any photo that person took in their career let alone one taken 90 years ago.

So for your own purposes if you don't know now whether your club are rights-holders for the image you'll probably never find out - even if you're not you'll probably be able to get away with it in perpetuity because anyone with a claim on the copyright is either unaware that they have it (just as you're unaware whether you have it or not) or unaware that you're using it.

If you sell a  license for its use more widely you're maybe creating a situation where the question of rights might come to that persons / those people's attention - it takes the spirit of the use of the photo beyond any gentlemen's agreement that might once have been made whether its documented or not. Using an image without permission and selling that image without permission are too different things. It makes the difference between being pleasantly surprised that grandad's photos are still used and appreciated by his friends and their club and unpleasantly surprised when they seem them being used commercially without their knowledge.

Its not the front cover of a sunday supplement, its not a double page spread souvenir edition - use or not of this image is not going to sell more papers -  they'll be offering little or no money if you ask for it and they'll manage perfectly fine without out it - they'll just have to do some work to fill that  space on the page, you know, write some words or something.

There's definitely the "let sleeping dogs lie" aspect to things.

I think I've found the most likely source of us being allowed to use it - the photographer's daughter and one of our club's founders both wrote for the same department of The Guardian and for the same area, in fact it's likely they knew each other outside that area of work as well. Both are now long dead so we can't ask them. TBH our use of the image is one of those things that's just been accepted as being "OK" without having any legal agreement about it and no-one's thought about sorting it out until now. Obviously without being sure of its legal status we can't sell on/permit use.

We've no intent to profit from the image but equally since there's a benefit to the paper using the image - they wouldn't be asking otherwise - then that benefit has a price and if monies are to change hands then they might as well go to a charity.