united-states copyright intellectual-property
Copyright with circular referrals
<p>Alice is hoping to use image X, which is posted online on a popular photo-sharing site under the account of Organization B, labeled with copyright and "All Rights Reserved."  Alice's intended use might be considered "fair use" but she's not sure, so asking for permissions just to be sure.  Also, the image is a photo which appears to have been taken to document normal conditions at a particular location which appears to be more or less generally accessible to the public.  It does not appear especially artistic nor are the contents depicted unique enough to be visibly recognizable as a particular point in time.  </p>

<p>Alice contacts organization B requesting permission for use of the image.  Organization B responds by saying "That's actually not our photo; we got it from Org C."  Org C owns the land where the photo was taken.  Alice then contacts Org C, and the rights manager says "Sorry, we've checked and that's definitely not our image.  We'd generally say ask Org B instead, but recognizing the circularity, we have no further recommendations." </p>

<p>What are the consequences of Alice's options?  It seems like they include...</p>

<ol>
<li>Use the image, on the grounds that probably nobody will claim copyright, because the most obvious potential copyright holders expressly disclaim ownership, and an individual might be unlikely to care (and in this particular case, possibly unlikely to recognize the image as uniquely theirs).  An individual photographer could also be deceased, leaving no heirs intimately familiar with the work enough to claim copyright.   Alice would be willing to take the image down if requested to do so. </li>
<li>Spend a lot more time developing the fair use argument.</li>
<li>Avoid any use of the image, because no copyright claimant can be found.</li>
<li>...? </li>
</ol>

<p>While "avoid engagement in anything potentially even a bit risky" (option 3) seems to be the safest strategy in general, lawyers sometimes explain the risks to clients who then make an informed decision to take some small risk anyway, because they may be outweighed (here, by e.g. the illustrative value of the image).  What are the risks associated with Alice's options?</p>

<p>I would recommend a variant of option 1:</p>

<p>Alice should use the image with a comment that she has tried and failed to find the copyright holder for it (possibly also mentioning that Org B and C have both disclaimed copyright).</p>

<p>I have seen this done in actual printed books sold for money.  As you refer to "taking it down", that suggests the image is going to be used on a non-commercial website.  I think the chances that the original copyright holder is going to come along and sue for damages is very small.  (They may demand an acknowledgement, or that the image be removed - but that's fine.)</p>

<p>Under the Federal Copyright Act of 1976, photographs are protected by copyright from the moment of creation and that the photographers have the exclusive right to reproduce their photographs (which includes the right to control making of copies of their photographs). Unless one has express permission from the photographer, no one can copy, distribute (including scanning and sharing), publicly display (online or offline), or create derivative works from photographs.</p>

<p>How to get obtain legal copies of professional photographs:</p>

<ul>
<li>To contact the photographer or copyright owner</li>
<li>To contact the institution where the photograph was clicked.</li>
<li>To use the Photographer Registry Website to locate a photographer or copyright owner at www.PhotographerRegistry.com.</li>
</ul>
