rights to use of vintage photographs?

[Archive]

Posted By: E, Daniel

How does this work? Are vintage baseball photos and their reproductions available to be used by anyone who wishes to, privately or commercially? Or are the photos/images the property of the original photographer or company that commissioned them?
If I were to want to use a baseball image from a photo as the background for my business card, or on a web site I run, or for an auction magazine I might create, what do I need to know about whether I can legally use a vintage baseball photgraphic image?

Really appreciate any help.


Daniel

[Archive]

Posted By: davidcycleback

If you use an image from the Library of Congress site, they tell you what are the rights. As they are the LOC, they know better than anyone. Most of their old photos, including of Cobb and Honus Wagner, can be reprinted by average Joes.

A lot of it depends on how you use the image. If you are writing an informational article about 1953 Topps, you can reprint a picture of the card you are talking about. That's known as fair use-- you're acting as journalist. If you are auctioning or selling an item, you can picture what you are selling. Mastro and REA catalogs are filled with pics of Ruth and Cobb and Joe Namath-- all stuff for sale. However, if you are making and selling home made 1953 Topps Mickey Mantle T-shirts at the ball park, you might get into trouble-- both from Topps and the Mantle estate. If you are reprinting photos of a living famous Sports Illustrated photographer on the front page of your website and the photographer finds out, he may complain. If you put an unauthorized photo of Cal Ripken with Orioles emblem on the cover of your mass-market book, you may have a complaint. If you write a Beckett informational article about Ripkens' rookie cards, picturing a 1982 Fleer Ripken is fair use. And, of course, you can picture the Ripken card on eBay when you sell.

With photos that are really old, say 1800s, there is no problem. Copyrights have run out on these. Put as many Joseph Hall photos on your website as you desire. You can probably market a King Kelly T-shirt and no one will complain. I think you can make a magazine filled with Old Judge images. If you are using old T206 images or old Ty Cobb photos on your non-commercial informational website, I doubt anyone will complain.

I don't think anyone cares what you use on your business card. Someone with copyright has to care and complain for there to be a complaint. If you make Ty Cobb T-shirts for sale, someone from the Cobb estate might complain. If you make Ty Cobb themed personal business car ds, I doubt anyone will care. If you start selling your business cards on eBay as memorabilia, then someone might care.

From a practical standpoint, there has to be a copyrights holder who complains for there to be a complaint. If no rights holder has a problem with what you are doing, there can't be a complaint. If you write a nice review of the new Upper Deck product, not only will Upper Deck not complain they may appreceate the publicity. Not only do you have a journalistic write to write an article about the cards, but Upper Deck will be glad you did. If you reprint an 1870s cabinet card of a common MLB player, I doubt there will be a rights holder who will complain. In fact, there probably is no rights holder to complain. No complaint from a rights holder means there is no complaint.

Thinking about what photos you can and cannot reprint before you reprint them is good, and something some people don't do. For many photos you will know you have fair use and will go ahead (auction catalog, 1800s photos, informational card article, etc). With some photos you may wonder and ask around. That's the right way to do it. With modern photos, I have asked the photographers if I cold reprint their images-- and, guess what, they sometimes say yes. I asked a famous Vogue magazine photographer if I could use three of his photos for a book I was writing. Not only did he say yes and emailed me high quality images scanned from the original negatives, but thanked me for wanting to include his old images in a book.

[Archive]

Posted By: Max Weder

CMG worldwide states it acts for the following players or their estates, zealously protecting their rights to publicity. It is not copyright, as David suggests, as copyright lies with the person who took the photo. The right to publicity arises typically out of state law (17 states in 2002 had such legislation), and CMG alleges rights ending 75 years after the person' death (which is I believe the longest period among the states).

There are numerous arguments about when such rights exist and when they have to be licensed. The California Supreme Court decided the famous Three Stooges case in 2001 and the US Supreme Court refused a review. T-shirts were sold with Larry, Curly and Moe, and the artist couldn't argue freedom of expression to avoid the statutory right the estates of the Stooges.

http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2002/01/08/MN111182.DTL

And I wouldn't be too sure about long ago players like King Kelly, as CMG suggests it has the right to act for Alexander Cartwright's estate in this area, so some other firm might be looking out for King, whereever he is now.



Max

http://www.cmgworldwide.com/clients.html

(Baseball)
Babe Ruth
Lou Gehrig
Jackie Robinson
Honus Wagner
Ty Cobb
Tony Lazzeri
Don Drysdale
Billy Martin
Walter Johnson
Cy Young
Walter Maranville
Roy Campanella
Mel Ott
Burleigh Grimes
Grover Alexander
Gil Hodges
Satchel Paige
Edd Roush Casey Stengel
Rogers Hornsby
Eddie Collins
Rube Marquard
Dizzy Dean
Lefty Grove
Frank Chance
Tris Speaker
George Sisler
Christy Mathewson
Mickey Cochrane
"Shoeless" Joe Jackson
Carl Hubbell
Jimmie Foxx
Thurman Munson
Pie Traynor
Johnny Mize Herb Pennock
John Evers
"Smoky" Joe Wood
"Wee" Willie Keeler
Zack Wheat
Leo Durocher
Ralph Kiner*
Don Larsen
Carl Erskine*
Jim Palmer*
Bob Feller*
Eddie Mathews
Enos Slaughter
Fergie Jenkins*
Monte Irvin*
Harmon Killebrew* Early Wynn
Lou Brock*
Mordecai "Three-Finger" Brown
Pee Wee Reese
Tommy John*
Alexander Cartwright

[Archive]

Posted By: Dan Bretta

I wonder if I could get away with making a Nebraska Indians baseball team T-shirt?

[Archive]

Posted By: mike

As a long time lurker and 1st time poster maybe David can answer this for me. How can the 2 sellers on Ebay get away with buying old baseball yearbooks, reprint them and resell them without breaking copyright laws? Thanks, Mike P.S. Great Forums

[Archive]

Posted By: davidcycleback

I don't know what yearbooks you are talking about, but copyrights might be being broken. Again, it would be up to the copyrights holder to bring a copyrights suit. Topps could sue unauthorized reprinters on eBay, though I'm not aware they have. You or I could not bring this copyright suit as we don't hold the rights.

eBay generally frowns upon unauthorized knockoffs and copyright infringement, so that could be an angle used to try and remove those homemade 1952 Topps Mickey Mantles and such. These unlicensed homemade reprints shouldn't being offered on eBay at all. It doesn't matter that a seller correctly identifies a card as a reprint.

[Archive]

Posted By: mike

Ebay seller mtnmarv item number 190198641436, just one of many auctions of yearbooks reproduced from originals. Also Ebay seller gabbyheidi item number 320216659880, same thing all items for sale reproduced. Just seems like something illegal about doing this. Thanks, mike

[Archive]

Posted By: Joann

Actually Dan, if you are looking for info or connections to these old players or their descendents, then making and selling T-shirts with the images might be the best way yet to flush them out of the weeds!

You never know - once money gets involved strange things happen. Someone sees it and says something to someone else or whatever and boom. There's your player or descendent, coming right to you.



J

[Archive]

Posted By: Dan Bretta

I've actually had one descendant - a granddaughter of a former Nebraska Indian player contact me for info about her grandfather. I had never heard his name before and have found nothing in my research, but she has a cabinet photo of the team with her grandfather in it. She found me through a google search. So the more I talk about the NI the more my name becomes linked with the team on the net. It pays to let people know what your interests are. I get a heads up on just about everything in my area of interest that pops up on ebay. For that I am gracious to all who put up with my incessant blabbering about my Nebraska baseball focus.

[Archive]

Posted By: davidcycleback

The way people will get into trouble reproducing Yankees symbols or Mickey Mantle portraits is when they are directly profiting from the reproductions of copyrighted or trade marked stuff. If you sell unauthorized Yankees T-shirts, Brett Favre jackets or Natalie Portman coffee mugs online, you could hear from someone's lawyer. You're illegally making a profit off of someone else's image and name.

If you put a picture of Natalie Portman on your non-commercial baseball card history website because you think she's cute, I doubt anyone will care. Probable worst case scenario would be someone will ask you to remove the picture. It's improbable someone would sue you over it if you promptly remove the image, as you aren't using the image to make money. I'm not saying you have a right to put that Natalie Portman image on your the site, but that, real world-wise, it's improbable you would be sued over it.

I think one could report the mentioned yearbooks to eBay as a rights infringement for and see what eBay does. eBay might surprise you and pull them. As mentioned before, a new way concerned eBayers could try and deal with unauthorized reprints on eBay is reporting them as rights infringements. The yearbook reprint I saw was a Yankees yearbook with the big Yankees logo on front. You or I, or presumably the seller (I'm assuming he's not Hank Steinbrenner), can't make and sell commercial products with the Yankees logo on front without the Yankees' permission. This is similar to the unauthorized Yankees T-shirts and Favre jackets I mentioned.

[Archive]

Posted By: E, Daniel

for their knowledge.


Daniel

[Archive]

Posted By: Corey R. Shanus

What was said about 19th century photographs I think needs some amplification. While the original image is no longer protected by copyright, certain REPRODUCTIONS of them may be. For example, in Ken Burns book "Baseball" is depicted the daguerreotype of Cartwright with the Knicerbockers. I do not believe you would be able to make up, say, a business card depicting this reproduction of Burns. He has copyrighted it. You would have to find another image of the Knickerbocker dag that is not under copyright protection. Where David's point is most applicable concerns the owners of the original 19th images. They can reproduce to their hearts delight because they are basing their reproductions on the original images, which are no longer under copyright protection.

[Archive]

Posted By: boxingcardman

(featuring nude models) was a fair use. Important factors: The Ninth Circuit considered Google’s use of thumbnails as “highly transformative” noting that a search engine transforms the image into a pointer directing a user to a source of information (versus the image’s original purpose: entertainment, aesthetics, or information). This transformative use outweighs any commercial factors regarding Google’s ability to earn money from placement of ads on the search results page. The court’s reasoning –that “a search engine provides an entirely new use for the original work,” — re-affirmed the principles established in the Ninth Circuits decision in Kelly v. Arriba Soft, see below (Perfect 10, Inc. v. Amazon.com, Inc., No. 06-55405 (9th Cir. 12/3/07).

* Fair use. It was a fair use, not an infringement, to reproduce Grateful Dead concert posters within a book. Important factors: The Second Circuit focused on the fact that the posters were reduced to thumbnail size and reproduced within the context of a timeline. Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006).


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