Use of negatives
September 19, 2011 | 25,00 EUR | answered by Dr. Dr. Danjel-Philippe Newerla
Hello,
I have the opportunity to purchase negatives that are said to be from the 1950s. They show a famous Hollywood actress. However, they are not the originals, but professionally created negatives from photographing. This was commissioned by an American photographer (author) at the time. The photographer passed away in the 1980s. The negatives were handed over to a close friend before his death to realize a joint book project, which never materialized.
These negatives are now available for purchase from the widow of the close friend.
I myself do exhibitions (around the person in the negatives). An acquisition is therefore not uninteresting, but the question of use remains. As mentioned, the negatives are not the originals but created by photographing, which was very common at the time to provide press agencies, newspaper publishers, and film studios with a basis for high-quality photo prints.
Before making a purchase, I would like to legally protect myself, so I would like to ask what I can actually do with them?
For example, am I allowed to make a large-format print for each negative to show it as supplementary visual material on the wall in my exhibitions? And how does it work with prints on postcards to sell them as part of the exhibition? (-only as part of the exhibition, as part of the exhibition collection under fair use, so not intended for commercial purposes in any other way)
Is there actually a copyright or author's right on negative copies, or does creating a negative (from the original image or from the original negative) already count as a modifying measure similar to when artists use motifs, for which there is then no copyright from the author's side?
Thank you for your support.
Best regards
Dear inquirer,
Thank you for your inquiry. I would like to answer it as follows:
You have already raised the relevant questions here. All the intended uses you mentioned involve copyright-relevant processes.
In other words, you may proceed as intended only if the actual author (in this case, likely the photographer who took the original photos) agrees, or if creating the negatives resulted in an independent work in terms of copyright, so that the consent of the original photo's author is no longer necessary.
By presenting the (original) negatives, it would initially be assumed that the owner of the negatives is also the author of the respective photos.
I have attached an interesting link to a discussion of a relevant court ruling in this regard:
http://www.damm-legal.de/ag-duesseldorf-anscheinsbeweis-der-urheberschaft-an-einem-foto-durch-vorlage-von-negativen-auch-die-vollmachtslose-abmahnung-kann-erfolgreich-sein
However, it is still unclear who holds the copyright to the negatives.
It is also important to note that these are not the original negatives, but rather artificially created negatives through photographing.
In this case, it would be important to determine how faithful the negative is to the original. If it closely resembles the original negative, the copyright for publication would generally belong to the owner of the original negative/photo.
If there are deviations, and the artist has made a certain artistic interpretation, this would indicate an independent copyright work, making the use generally unproblematic.
To make a final assessment, the negative and the original would need to be examined. Unfortunately, this is not possible in a remote initial consultation, so I strongly advise you to consult a colleague experienced in copyright law locally to resolve this matter definitively.
I hope I have provided you with some initial legal guidance and wish you success and all the best!
I would like to conclude by pointing out the following:
The legal advice I have provided is based solely on the information you have provided. It is only an initial legal assessment of the situation, and cannot replace a comprehensive evaluation of the facts. Adding or omitting relevant information can lead to a completely different legal assessment.
I hope my explanations have been helpful. Feel free to reach out to me through the follow-up option if needed.
Have a pleasant Monday afternoon!
Kind regards from the North Sea coast,
Dipl.-Jur. Danjel-Philippe Newerla, Attorney
kanzlei.newerla@web.de
Fax: 0471/140244
Tel: 0471/140240 or 0471/140241
