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David You are so right. It seems that we as a population have given up on personal responsibility and expect "our guardian", whoever that is, to look out for us.I don't understand it but maybe that is because of my age. I take responsibility for what I post. Frankly I do not post ANY family pictures on the internet and that includes facebook. Talk about swimming up stream. Doug   In a message dated 7/6/2018 2:54:20 PM Eastern Standard Time, decann@infionline.net writes:   I tend to agree with Pat that this issue will almost surely be appealed, but I have a friend who will not like this AT ALL. He gets furious about people who put very personal or other pictures of their kids and the like on Facebook and elsewhere, where anyone who knows how to use a computer can download them and use them for any purpose they choose. Nothing decided by a judge on the subject will make everyone happy, but I just think people need to take control of the situation themselves and put more limits on the photos they put online. David -----Original Message----- From: Pat Asher <pjroots@att.net> Sent: Friday, July 6, 2018 1:44 PM To: Copyright-L <copyright@rootsweb.com> Subject: [COPYRIGHT] Court Rules Copying Photos Found on Internet is Fair Use The following article appeared in Dick Eastman's 7/6/18 Newsletter. See it online at www.eogn.com "This ruling will affect many genealogists who are building or are maintaining web sites: "A Virginia federal court has made a decision that photographers won’t be happy to hear: the court ruled that finding a photo on the Internet and then using it without permission on a commercial website can be considered fair use. "In the United States, whether or not a use of copyrighted material without permission can be considered fair use (17 U.S. Code § 107) depends on four main factors: (1) the purpose and character of the use (including whether it’s “transformative” and commercial vs. non-commercial), (2) the nature of the copyrighted work, (3) how much of the work is used, and (4) how much the use affects the market and/or value of the work. "After considering these four factors, District Judge Claude M. Hilton of the Eastern District of Virginia concluded that the paintiff’s [sic] use of Brammer’s photo fit the criteria for fair use. "I suspect this is not the final answer. I am certain this ruling will be appealed. "This story has become a major news story. You can find dozens of web sites describing it by starting at: https://duckduckgo.com/?q=Court+Rules+Copying+Photos+Found+on+Internet+is+Fa ir+Use&t=h_&ia=images." Pat Asher _______________________________________________ _______________________________________________ Email preferences: http://bit.ly/rootswebpref Unsubscribe and Archives https://mailinglists.rootsweb.com/listindexes/search/copyright/ Privacy Statement: https://ancstry.me/2JWBOdY Terms and Conditions: https://ancstry.me/2HDBym9 Rootsweb Blog: http://rootsweb.blog RootsWeb is funded and supported by Ancestry.com and our loyal RootsWeb community

I tend to agree with Pat that this issue will almost surely be appealed, but I have a friend who will not like this AT ALL. He gets furious about people who put very personal or other pictures of their kids and the like on Facebook and elsewhere, where anyone who knows how to use a computer can download them and use them for any purpose they choose. Nothing decided by a judge on the subject will make everyone happy, but I just think people need to take control of the situation themselves and put more limits on the photos they put online. David -----Original Message----- From: Pat Asher <pjroots@att.net> Sent: Friday, July 6, 2018 1:44 PM To: Copyright-L <copyright@rootsweb.com> Subject: [COPYRIGHT] Court Rules Copying Photos Found on Internet is Fair Use The following article appeared in Dick Eastman's 7/6/18 Newsletter. See it online at www.eogn.com "This ruling will affect many genealogists who are building or are maintaining web sites: "A Virginia federal court has made a decision that photographers won’t be happy to hear: the court ruled that finding a photo on the Internet and then using it without permission on a commercial website can be considered fair use. "In the United States, whether or not a use of copyrighted material without permission can be considered fair use (17 U.S. Code § 107) depends on four main factors: (1) the purpose and character of the use (including whether it’s “transformative” and commercial vs. non-commercial), (2) the nature of the copyrighted work, (3) how much of the work is used, and (4) how much the use affects the market and/or value of the work. "After considering these four factors, District Judge Claude M. Hilton of the Eastern District of Virginia concluded that the paintiff’s [sic] use of Brammer’s photo fit the criteria for fair use. "I suspect this is not the final answer. I am certain this ruling will be appealed. "This story has become a major news story. You can find dozens of web sites describing it by starting at: https://duckduckgo.com/?q=Court+Rules+Copying+Photos+Found+on+Internet+is+Fa ir+Use&t=h_&ia=images." Pat Asher

The following article appeared in Dick Eastman's 7/6/18 Newsletter. See it online at www.eogn.com "This ruling will affect many genealogists who are building or are maintaining web sites: "A Virginia federal court has made a decision that photographers won’t be happy to hear: the court ruled that finding a photo on the Internet and then using it without permission on a commercial website can be considered fair use. "In the United States, whether or not a use of copyrighted material without permission can be considered fair use (17 U.S. Code § 107) depends on four main factors: (1) the purpose and character of the use (including whether it’s “transformative” and commercial vs. non-commercial), (2) the nature of the copyrighted work, (3) how much of the work is used, and (4) how much the use affects the market and/or value of the work. "After considering these four factors, District Judge Claude M. Hilton of the Eastern District of Virginia concluded that the paintiff’s [sic] use of Brammer’s photo fit the criteria for fair use. "I suspect this is not the final answer. I am certain this ruling will be appealed. "This story has become a major news story. You can find dozens of web sites describing it by starting at: https://duckduckgo.com/?q=Court+Rules+Copying+Photos+Found+on+Internet+is+Fair+Use&t=h_&ia=images." Pat Asher

This is just to let you know the RootsWeb mailing lists are functioning again. Feel free to post any questions you may have been sitting on while they were off line. The Archives are being re-populated, but due to their size, it is going to take some time. Pat Asher List Admin

At 03:02 PM 10/23/2015, Cliff Lamere via wrote: >There’s an article of interest >at > >http://www.smithsonianmag.com/smart-news/co >urt-ruling-legalizes-google-books-180956997/?no-ist ><http://www.smithsonianmag.com/smart-news/court-ruling-legalizes-google-books-180956997/?no-ist> > > >The article begins > >After a decade of >court battles ><http://www.librarycopyrightalliance.org/storage/documents/google-books-litigation-tree-16oct2015.pdf>, >Google's massive book-scanning project has >finally been deemed legal. On Friday, a >three-judge panel in the Second Circuit sided >with the tech giant, declaring that its project >to digitize library books is within the >boundaries of fair use. > >the judges ruling is >quoted as >Snippet view, at best and after a >large commitment of manpower, produces >discontinuous, > >tiny fragments, amounting in >the aggregate to no more than 16% of a >book. > >This does not threaten the rights >holders with any significant harm to the value >of their copyrights or diminish their harvest of >copyright revenue. > >This has interest for >genealogists, since as a group we “capture” >a lot of stuff and happily pass them on, >sometimes publishing them for our own >purposes. Lots of potential issues with that, >including plagiarism and copyright >infringement. >This ruling, however, seems to >define what constitutes “fair use”, and is >probably applicable to a lot of what >genealogists (in general) do in the furtherance >of our hobby interests. > >I have seen people >presenting entire books on the web (say a >hundred pages) of recently published material, >and say that it was fair use. >This seems to >draw the line a bit more finely—16% of the >work (16 pages in our hundred page >example). For most of us, that will do quite >nicely. > >The ruling focuses on Google’s use >of “snippets” or small portions of text >provided for purposes of review. Google argued >that digitizing the books into “snippets” >had changed the material. The Judge seems to >have agreed with their argument. > >No question, >here, other than it would be interesting to see >peoples thoughts on this, and the implications >of this ruling for genealogists. > The Google decision does not change the previous decision in HARPER & ROW v. NATION ENTERPRISES, 471 U.S. 539 (1985) https://supreme.justia.com/cases/federal/us/471/539/case.html in which the Supreme Court ruled that publishing the "heart" of a soon to be published book (even though only a few words) was copyright infringement. While Google only scans published works -- the corollary is that the four factors enumerated in Title 17, Section 107 of U.S. Copyright law still apply to each unique claim of infringement: 1) Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes. 2) Nature of the copyrighted work. 3) Amount and substantiality of the portion used in relation to the copyrighted work as a whole: 4) Effect of the use upon the potential market for or value of the copyrighted work: IOW, as Cliff said, the Google decision does NOT say that 16% is always okay and is not infringement. It says only that the copying and making available in this particular instance is not infringement. Pat Asher

Bill, You wanted opinions about how this ruling would affect genealogists. I disagree that it would now be legal to put 16 pages of a 100-page book on the internet. Nor do I think, based on the recent court ruling, that doing so could be considered to be fair use. Google books has a great number of public domain books which give you more than a snippet view. For the books considered in this court ruling, Google does not post 16 whole pages for viewing, nor even a single whole page. Instead, it has divided most pages of a book into eight snippets (about three consecutive lines). One snippet per page, and one page in every 10, is not made available to Google's search engine. It is not possible for a person to access all of the snippets at once, and Google does not allow you to see the full page from which the snippet came. A search for a word or phrase will only get you 1-3 snippets from the entire book (although you are apparently able to learn how many times the search term appears in the book). Additional searches with other words will return other snippets, however. This is very different from putting full pages online verbatim. Parts of the court ruling are very interesting. I have extracted large excerpts from it (which is allowable because it is a federal document). You can read them below. Or, read the entire ruling at: http://webcache.googleusercontent.com/search?q=cache:qDEicdhBVDkJ:www.ca2.uscourts.gov/decisions/isysquery/b3f81bc4-3798-476e-81c0-23db25f3b301/1/doc/13-4829_opn.pdf+&cd=2&hl=en&ct=clnk&gl=us UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT Authors Guild v. Google, Inc. (Decided: October 16, 2015) "Through its Library Project and its Google Books project, acting without permission of rights holders, Google has made digital copies of tens of millions of books, including Plaintiffs’, that were submitted to it for that purpose by major libraries." "Google’s Library Project, which began in 2004, involves bi-lateral agreements between Google and a number of the world’s major research libraries. Under these agreements, the participating libraries select books from their collections to submit to Google for inclusion in the project. Google makes a digital scan of each book, extracts a machine-readable text, and creates an index of the machine-readable text of each book. Google retains the original scanned image of each book, in part so as to improve the accuracy of the machine-readable texts and indices as image-to-text conversion technologies improve." "Since 2004, Google has scanned, rendered machine-readable, and indexed more than 20 million books, including both copyrighted works and works in the public domain. The vast majority of the books are non-fiction, and most are out of print. All of the digital information created by Google in the process is stored on servers protected by the same security systems Google uses to shield its own confidential information." "The Google Books search function also allows the user a limited viewing of text. In addition to telling the number of times the word or term selected by the searcher appears in the book, the search function will display a maximum of three “snippets” containing it. A snippet is a horizontal segment comprising ordinarily an eighth of a page. Each page of a conventionally formatted book in the Google Books database is divided into eight non-overlapping horizontal segments, each such horizontal segment being a snippet. (Thus, for such a book with 24 lines to a page, each snippet is comprised of three lines of text.) Each search for a particular word or term within a book will reveal the same three snippets, regardless of the number of computers from which the search is launched. Only the first usage of the term on a given page is displayed." "Google’s program does not allow a searcher to increase the number of snippets revealed by repeated entry of the same search term or by entering searches from different computers. A searcher can view more than three snippets of a book by entering additional searches for different terms. However, Google makes permanently unavailable for snippet view one snippet on each page and one complete page out of every ten—a process Google calls “blacklisting.”" "Google also disables snippet view entirely for types of books for which a single snippet is likely to satisfy the searcher’s present need for the book, such as dictionaries, cookbooks, and books of short poems. Finally, since 2005, Google will exclude any book altogether from snippet view at the request of the rights holder by the submission of an online form." "Under its contracts with the participating libraries, Google allows each library to download copies—of both the digital image and machine-readable versions—of the books that library submitted to Google for scanning (but not of books submitted by other libraries)." Cliff Lamere ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Bill Willis via wrote: >Hi > >There’s an article of interest at > >http://www.smithsonianmag.com/smart-news/court-ruling-legalizes-google-books-180956997/?no-ist <http://www.smithsonianmag.com/smart-news/court-ruling-legalizes-google-books-180956997/?no-ist> > >The article begins > >After a decade of court battles <http://www.librarycopyrightalliance.org/storage/documents/google-books-litigation-tree-16oct2015.pdf>, Google's massive book-scanning project has finally been deemed legal. On Friday, a three-judge panel in the Second Circuit sided with the tech giant, declaring that its project to digitize library books is within the boundaries of fair use. > >the judges ruling is quoted as >Snippet view, at best and after a large commitment of manpower, produces discontinuous, > >tiny fragments, amounting in the aggregate to no more than 16% of a book. > >This does not threaten the rights holders with any significant harm to the value of their copyrights or diminish their harvest of copyright revenue. > >This has interest for genealogists, since as a group we “capture” a lot of stuff and happily pass them on, sometimes publishing them for our own purposes. Lots of potential issues with that, including plagiarism and copyright infringement. >This ruling, however, seems to define what constitutes “fair use”, and is probably applicable to a lot of what genealogists (in general) do in the furtherance of our hobby interests. > >I have seen people presenting entire books on the web (say a hundred pages) of recently published material, and say that it was fair use. >This seems to draw the line a bit more finely—16% of the work (16 pages in our hundred page example). For most of us, that will do quite nicely. > >The ruling focuses on Google’s use of “snippets” or small portions of text provided for purposes of review. Google argued that digitizing the books into “snippets” had changed the material. The Judge seems to have agreed with their argument. > >No question, here, other than it would be interesting to see peoples thoughts on this, and the implications of this ruling for genealogists. > >Bill > > >

Hi There’s an article of interest at http://www.smithsonianmag.com/smart-news/court-ruling-legalizes-google-books-180956997/?no-ist <http://www.smithsonianmag.com/smart-news/court-ruling-legalizes-google-books-180956997/?no-ist> The article begins After a decade of court battles <http://www.librarycopyrightalliance.org/storage/documents/google-books-litigation-tree-16oct2015.pdf>, Google's massive book-scanning project has finally been deemed legal. On Friday, a three-judge panel in the Second Circuit sided with the tech giant, declaring that its project to digitize library books is within the boundaries of fair use. the judges ruling is quoted as Snippet view, at best and after a large commitment of manpower, produces discontinuous, tiny fragments, amounting in the aggregate to no more than 16% of a book. This does not threaten the rights holders with any significant harm to the value of their copyrights or diminish their harvest of copyright revenue. This has interest for genealogists, since as a group we “capture” a lot of stuff and happily pass them on, sometimes publishing them for our own purposes. Lots of potential issues with that, including plagiarism and copyright infringement. This ruling, however, seems to define what constitutes “fair use”, and is probably applicable to a lot of what genealogists (in general) do in the furtherance of our hobby interests. I have seen people presenting entire books on the web (say a hundred pages) of recently published material, and say that it was fair use. This seems to draw the line a bit more finely—16% of the work (16 pages in our hundred page example). For most of us, that will do quite nicely. The ruling focuses on Google’s use of “snippets” or small portions of text provided for purposes of review. Google argued that digitizing the books into “snippets” had changed the material. The Judge seems to have agreed with their argument. No question, here, other than it would be interesting to see peoples thoughts on this, and the implications of this ruling for genealogists. Bill

Perhaps. I doubt that you could completely remove all evidence of the “colorization process”. As was pointed out, their work probably modifies the images in ways that they would be able to detect. Some of that may be hap chance—leftovers that show the image was reprocessed. But some of that might be deliberate (such as inserting a watermark into the image such as Google does, or perhaps something more sophisticated, and less easily detected.) But of course, as long as this is a purely theoretical discussion, it doesn’t matter whether you are right or wrong. Bill > On Apr 10, 2015, at 6:19 PM, hwedhlor <hwedhlor@cox.net> wrote: > > Bill, > > Assuming copyright protection were granted to the colorized Matthew Brady shots, then of course any use of those colorized photos would require the permission of the copyright holder. However, if the modifications that qualified an image for copyright protection were removed, then I maintain that the resulting image reverts to the public domain, rather than retain protection in the absence of any evidence of creativity on the part of the colorizer. > > Applying the logic of the court in your example I wonder if that court would have protected the public domain status of the Matthew Brady photos as vigorously as it did the copyrighted status of that news photo? Basing the court's decision in your example on the original status of the photograph one would surmise that original status might be protected from infringement due to derivative modification. > > I'm in complete accord with you on both the easy availability of public domain Matthew Brady images, and the pointlessness of recovering the original image from a colorized version, particularly if there has been some other unique modification to the public domain version. > > John > > > On 10-Apr-15 4:19 AM, Bill Willis via wrote: >> There was a recent case where an artist used copyrighted news photographs in his art, and modified them for “aesthetic and artistic considerations”. That seems mostly to have meant he colorized them and added graphic elements to make whatever point he was making. >> The original news photos were copyrighted, and the copyright holder sued for infringement. Not entirely surprisingly (though it was a surprise to the artist), the courts ruled in favor of the copyright owner. >> >> In this case the person claiming copyright has done the same thing, only they’ve claimed copyright based on their artistic modification of original photographs out of copyright I would think if you removed those modifications from their version of the photograph you’d be in the same position as the artist in the above instance….ie, you’d be violating copyright of the person who colorized the Mathew Brady photographs in the first place.—assuming they indeed had a valid copyright claim. >> >> Unmodified versions of Mathew Brady photographs are not exactly hard to find on the web (Library of Congress web site should have many examples, all free of copyright). It seems pointless to try to recover the original from the supposedly copyrighted versions, unless there’s something unique in the colorized photos that you want to retain. In which case, that’s the reason they’ve copyrighted those modified Mathew Brady Photographs. Whether they’d have a problem with you fiddling with “their” images, is another matter. Perhaps it would depend in part on what you intended to do with them. >> >> Bill >> >> >> >>> Pat, >>> >>> Thank you for your clarification. >>> >>> Lacking a finding of fact in a colorization case, and >>> wishing to remain above board, I conclude that Civil War >>> events that were photographed in black and white, and are in >>> the public domain, but which are presented online in >>> colorized format, and claimed as copyright protected by the >>> presenter, could legitimately be used by anyone if the user >>> eliminated the color that was applied to original images. >>> >> >> >> ------------------------------- >> To unsubscribe from the list, please send an email to COPYRIGHT-request@rootsweb.com <mailto:COPYRIGHT-request@rootsweb.com> with the word 'unsubscribe' without the quotes in the subject and the body of the message >

Pat, You're right on the money with my intentions. I have zero intent to use the colorized versions in any manner, but was interested in whether such colorized images could be protected by copyright. John Z. On 10-Apr-15 6:17 AM, Pat Asher via wrote: > At 06:49 PM 4/9/2015, you wrote: >> Interesting case. You propose making a black and white derivative from >> a colorized derivative which may have a valid copyright. If the colored >> copy is manipulated with a graphics program to create the black and >> white, I believe you won't be taken back to the original photo. >> Additional shading would occur in the areas which had been colorized. >> You would end up with a different, though similar black and white >> version. I suspect that the original prints would be clearer. >> >> If the colorized version held a copyright, I doubt that you technically >> would have the right to make the black and white copies. > Technically <g> I suspect you may be straining at a gnat here. If the > photo was colorized using a graphics program, while the choice of > colors might be original, any additional shading introduced by the > graphics program as a result of the colorization process would not be > copyrightable original authorship, but the unavoidable result of a > mechanical process. <IMO> > > I agree that a first generation (original) digital print will always > be clearer than one that has been manipulated, and since Brady's > images are widely available on the web in their uncolorized > incarnations, using one from a source that does not claim copyright > makes more sense. > > That said, I am not sure John wanted to use any of the prints from > the site that had colorized them, but was merely curious as to > whether the site had the right to claim copyright of their colorized versions. > > Pat A. > > > ------------------------------- > To unsubscribe from the list, please send an email to COPYRIGHT-request@rootsweb.com with the word 'unsubscribe' without the quotes in the subject and the body of the message >

Diana, I agree with you. I have no intention of reverse-engineering the colorized photos as I have copies of the originals that are in the public domain. My concerns were purely philosophical in that the colorizers claim copyright of the original black and white images because they are on their web site. A claim to which I object. Additionally I was interested in opinions on whether removing the color from colorized images would cause the images to revert to the public domain. :-) John On 10-Apr-15 5:42 AM, Diana Gale Matthiesen via wrote: > You should always take it as a given that the copyright holder cares. > > If you think they might not, nothing is standing in the way of you contacting > them and getting their written permission to use them. If you're afraid of > asking because they might say, no, that is your good sense telling you that > using them without permission is wrong. > > The solution here is to go back to the original, unmodified photos. If the > originals are in the public domain, you are free to do what you want with them, > and someone else's copyright on an altered version ceases to be an issue. > > IMO. > > Diana > >> -----Original Message----- >> From: copyright-bounces@rootsweb.com [mailto:copyright-bounces@rootsweb.com] >> On Behalf Of Cliff Lamere via >> Sent: Thursday, April 09, 2015 6:49 PM >> To: hwedhlor; copyright@rootsweb.com >> Subject: Re: [COPYRIGHT] Copyrighting colorized old photos >> >> John, >> >> Interesting case. You propose making a black and white derivative from >> a colorized derivative which may have a valid copyright. If the colored >> copy is manipulated with a graphics program to create the black and >> white, I believe you won't be taken back to the original photo. >> Additional shading would occur in the areas which had been colorized. >> You would end up with a different, though similar black and white >> version. I suspect that the original prints would be clearer. >> >> If the colorized version held a copyright, I doubt that you technically >> would have the right to make the black and white copies. However, would >> the copyright holder really care? You could ask for permission to solve >> that problem, or even request that you be sent the original photo in >> digital format. >> >> Cliff >> > > ------------------------------- > To unsubscribe from the list, please send an email to COPYRIGHT-request@rootsweb.com with the word 'unsubscribe' without the quotes in the subject and the body of the message >

Bill, Assuming copyright protection were granted to the colorized Matthew Brady shots, then of course any use of those colorized photos would require the permission of the copyright holder. However, if the modifications that qualified an image for copyright protection were removed, then I maintain that the resulting image reverts to the public domain, rather than retain protection in the absence of any evidence of creativity on the part of the colorizer. Applying the logic of the court in your example I wonder if that court would have protected the public domain status of the Matthew Brady photos as vigorously as it did the copyrighted status of that news photo? Basing the court's decision in your example on the original status of the photograph one would surmise that original status _might_ be protected from infringement due to derivative modification. I'm in complete accord with you on both the easy availability of public domain Matthew Brady images, and the pointlessness of recovering the original image from a colorized version, particularly if there has been some other unique modification to the public domain version. John On 10-Apr-15 4:19 AM, Bill Willis via wrote: > There was a recent case where an artist used copyrighted news photographs in his art, and modified them for “aesthetic and artistic considerations”. That seems mostly to have meant he colorized them and added graphic elements to make whatever point he was making. > The original news photos were copyrighted, and the copyright holder sued for infringement. Not entirely surprisingly (though it was a surprise to the artist), the courts ruled in favor of the copyright owner. > > In this case the person claiming copyright has done the same thing, only they’ve claimed copyright based on their artistic modification of original photographs out of copyright I would think if you removed those modifications from their version of the photograph you’d be in the same position as the artist in the above instance….ie, you’d be violating copyright of the person who colorized the Mathew Brady photographs in the first place.—assuming they indeed had a valid copyright claim. > > Unmodified versions of Mathew Brady photographs are not exactly hard to find on the web (Library of Congress web site should have many examples, all free of copyright). It seems pointless to try to recover the original from the supposedly copyrighted versions, unless there’s something unique in the colorized photos that you want to retain. In which case, that’s the reason they’ve copyrighted those modified Mathew Brady Photographs. Whether they’d have a problem with you fiddling with “their” images, is another matter. Perhaps it would depend in part on what you intended to do with them. > > Bill > > > >> Pat, >> >> Thank you for your clarification. >> >> Lacking a finding of fact in a colorization case, and >> wishing to remain above board, I conclude that Civil War >> events that were photographed in black and white, and are in >> the public domain, but which are presented online in >> colorized format, and claimed as copyright protected by the >> presenter, could legitimately be used by anyone if the user >> eliminated the color that was applied to original images. >> > > > ------------------------------- > To unsubscribe from the list, please send an email to COPYRIGHT-request@rootsweb.com with the word 'unsubscribe' without the quotes in the subject and the body of the message

At 06:49 PM 4/9/2015, you wrote: >Interesting case. You propose making a black and white derivative from >a colorized derivative which may have a valid copyright. If the colored >copy is manipulated with a graphics program to create the black and >white, I believe you won't be taken back to the original photo. >Additional shading would occur in the areas which had been colorized. >You would end up with a different, though similar black and white >version. I suspect that the original prints would be clearer. > >If the colorized version held a copyright, I doubt that you technically >would have the right to make the black and white copies. Technically <g> I suspect you may be straining at a gnat here. If the photo was colorized using a graphics program, while the choice of colors might be original, any additional shading introduced by the graphics program as a result of the colorization process would not be copyrightable original authorship, but the unavoidable result of a mechanical process. <IMO> I agree that a first generation (original) digital print will always be clearer than one that has been manipulated, and since Brady's images are widely available on the web in their uncolorized incarnations, using one from a source that does not claim copyright makes more sense. That said, I am not sure John wanted to use any of the prints from the site that had colorized them, but was merely curious as to whether the site had the right to claim copyright of their colorized versions. Pat A.

You should always take it as a given that the copyright holder cares. If you think they might not, nothing is standing in the way of you contacting them and getting their written permission to use them. If you're afraid of asking because they might say, no, that is your good sense telling you that using them without permission is wrong. The solution here is to go back to the original, unmodified photos. If the originals are in the public domain, you are free to do what you want with them, and someone else's copyright on an altered version ceases to be an issue. IMO. Diana > -----Original Message----- > From: copyright-bounces@rootsweb.com [mailto:copyright-bounces@rootsweb.com] > On Behalf Of Cliff Lamere via > Sent: Thursday, April 09, 2015 6:49 PM > To: hwedhlor; copyright@rootsweb.com > Subject: Re: [COPYRIGHT] Copyrighting colorized old photos > > John, > > Interesting case. You propose making a black and white derivative from > a colorized derivative which may have a valid copyright. If the colored > copy is manipulated with a graphics program to create the black and > white, I believe you won't be taken back to the original photo. > Additional shading would occur in the areas which had been colorized. > You would end up with a different, though similar black and white > version. I suspect that the original prints would be clearer. > > If the colorized version held a copyright, I doubt that you technically > would have the right to make the black and white copies. However, would > the copyright holder really care? You could ask for permission to solve > that problem, or even request that you be sent the original photo in > digital format. > > Cliff >

There was a recent case where an artist used copyrighted news photographs in his art, and modified them for “aesthetic and artistic considerations”. That seems mostly to have meant he colorized them and added graphic elements to make whatever point he was making. The original news photos were copyrighted, and the copyright holder sued for infringement. Not entirely surprisingly (though it was a surprise to the artist), the courts ruled in favor of the copyright owner. In this case the person claiming copyright has done the same thing, only they’ve claimed copyright based on their artistic modification of original photographs out of copyright I would think if you removed those modifications from their version of the photograph you’d be in the same position as the artist in the above instance….ie, you’d be violating copyright of the person who colorized the Mathew Brady photographs in the first place.—assuming they indeed had a valid copyright claim. Unmodified versions of Mathew Brady photographs are not exactly hard to find on the web (Library of Congress web site should have many examples, all free of copyright). It seems pointless to try to recover the original from the supposedly copyrighted versions, unless there’s something unique in the colorized photos that you want to retain. In which case, that’s the reason they’ve copyrighted those modified Mathew Brady Photographs. Whether they’d have a problem with you fiddling with “their” images, is another matter. Perhaps it would depend in part on what you intended to do with them. Bill > Pat, > > Thank you for your clarification. > > Lacking a finding of fact in a colorization case, and > wishing to remain above board, I conclude that Civil War > events that were photographed in black and white, and are in > the public domain, but which are presented online in > colorized format, and claimed as copyright protected by the > presenter, could legitimately be used by anyone if the user > eliminated the color that was applied to original images. >

John, Interesting case. You propose making a black and white derivative from a colorized derivative which may have a valid copyright. If the colored copy is manipulated with a graphics program to create the black and white, I believe you won't be taken back to the original photo. Additional shading would occur in the areas which had been colorized. You would end up with a different, though similar black and white version. I suspect that the original prints would be clearer. If the colorized version held a copyright, I doubt that you technically would have the right to make the black and white copies. However, would the copyright holder really care? You could ask for permission to solve that problem, or even request that you be sent the original photo in digital format. Cliff ~~~~~~~~~~~~~~~~~~~~~~~~~~~ hwedhlor via wrote: >Pat, > >Thank you for your clarification. > >Lacking a finding of fact in a colorization case, and >wishing to remain above board, I conclude that Civil War >events that were photographed in black and white, and are in >the public domain, but which are presented online in >colorized format, and claimed as copyright protected by the >presenter, could legitimately be used by anyone if the user >eliminated the color that was applied to original images. > >On 09-Apr-15 5:43 AM, Pat Asher via wrote: > > >>At 08:56 PM 4/8/2015, you wrote: >> >> >>>I created nothing. I'm seeking an interpretation as to whether the >>>"colorization" of a public domain monochromatic (B&W) photograph can >>>be copyright by the person who performs the colorization >>>process? In my opinion such a work is obviously derivative, but I >>>would like to hear from others with possible experience in such matters. >>> >>>The images in question are all photographs taken by the Matthew >>>Brady Photography organization during the Civil War. A commercial >>>organization has colorized many of those images and now claims >>>copyright of the derivative images. I'm curious whether they are >>>within their rights with such a claim? I believe that once an image >>>is in the public domain it is not subject to copyright. I believe >>>if that is the case that derivative work based on those public >>>domain images is likewise not subject to copyright. >>> >>> >>John, >> >> >>

Pat, Thank you for your clarification. Lacking a finding of fact in a colorization case, and wishing to remain above board, I conclude that Civil War events that were photographed in black and white, and are in the public domain, but which are presented online in colorized format, and claimed as copyright protected by the presenter, could legitimately be used by anyone if the user eliminated the color that was applied to original images. On 09-Apr-15 5:43 AM, Pat Asher via wrote: > At 08:56 PM 4/8/2015, you wrote: >> I created nothing. I'm seeking an interpretation as to whether the >> "colorization" of a public domain monochromatic (B&W) photograph can >> be copyright by the person who performs the colorization >> process? In my opinion such a work is obviously derivative, but I >> would like to hear from others with possible experience in such matters. >> >> The images in question are all photographs taken by the Matthew >> Brady Photography organization during the Civil War. A commercial >> organization has colorized many of those images and now claims >> copyright of the derivative images. I'm curious whether they are >> within their rights with such a claim? I believe that once an image >> is in the public domain it is not subject to copyright. I believe >> if that is the case that derivative work based on those public >> domain images is likewise not subject to copyright. > John, > > Per <http://copyright.gov/circs/circ14.pdf> > > "To be copyrightable, a derivative work must incorporate some or all > of a preexisting 'work' AND ADD NEW ORIGINAL COPYRIGHTABLE AUTHORSHIP > TO THAT WORK." [emphasis added] > > "The copyright in a derivative work covers only the additions, > changes, or other new material appearing for the first time in the > work. Protection does not extend to any preexisting material, that > is, previously published or previously registered works or works in > the public domain or owned by a third party. > > "As a result, it is not possible to extend the length of protection > for a copyrighted work by creating a derivative work. A work that has > fallen into the public domain, that is, a work that is no longer > protected by copyright, is also an underlying 'work' from which > derivative authorship may be added, but the copyright in the > derivative work will not extend to the public domain material, and > the use of the public domain material in a derivative work will not > prevent anyone else from using the same public domain work for > another derivative work." > > Whether "colorization" constitutes "new original copyrightable > authorship" or not would require a finding of fact by a judge and/or > jury. But if such finding was (or has already been) made, copyright > extends only to the new authorship (colorization). As the above makes > clear, the underlying work (original photograph) remains in the public domain. > > Pat Asher > > > > > ------------------------------- > To unsubscribe from the list, please send an email to COPYRIGHT-request@rootsweb.com with the word 'unsubscribe' without the quotes in the subject and the body of the message >

At 08:56 PM 4/8/2015, you wrote: >I created nothing. I'm seeking an interpretation as to whether the >"colorization" of a public domain monochromatic (B&W) photograph can >be copyright by the person who performs the colorization >process? In my opinion such a work is obviously derivative, but I >would like to hear from others with possible experience in such matters. > >The images in question are all photographs taken by the Matthew >Brady Photography organization during the Civil War. A commercial >organization has colorized many of those images and now claims >copyright of the derivative images. I'm curious whether they are >within their rights with such a claim? I believe that once an image >is in the public domain it is not subject to copyright. I believe >if that is the case that derivative work based on those public >domain images is likewise not subject to copyright. John, Per <http://copyright.gov/circs/circ14.pdf> "To be copyrightable, a derivative work must incorporate some or all of a preexisting 'work' AND ADD NEW ORIGINAL COPYRIGHTABLE AUTHORSHIP TO THAT WORK." [emphasis added] "The copyright in a derivative work covers only the additions, changes, or other new material appearing for the first time in the work. Protection does not extend to any preexisting material, that is, previously published or previously registered works or works in the public domain or owned by a third party. "As a result, it is not possible to extend the length of protection for a copyrighted work by creating a derivative work. A work that has fallen into the public domain, that is, a work that is no longer protected by copyright, is also an underlying 'work' from which derivative authorship may be added, but the copyright in the derivative work will not extend to the public domain material, and the use of the public domain material in a derivative work will not prevent anyone else from using the same public domain work for another derivative work." Whether "colorization" constitutes "new original copyrightable authorship" or not would require a finding of fact by a judge and/or jury. But if such finding was (or has already been) made, copyright extends only to the new authorship (colorization). As the above makes clear, the underlying work (original photograph) remains in the public domain. Pat Asher

At 05:08 PM 4/8/2015, hwedhlor via wrote: >If a monochromatic photograph is in the public domain, may a >person who "colorizes" such a photograph then copyright the >resulting color image? Did you create something that represents original authorship? Or did you create a derivative work (a colorized version) based on someone else's original authorship? If your work is derivative, and the original from which you created your derivative work is not in the public domain, you need the original author's permission to publish your derivative work. Pat A.

Hi Pat, I created nothing. I'm seeking an interpretation as to whether the "colorization" of a public domain monochromatic (B&W) photograph can be copyright by the person who performs the colorization process? In my opinion such a work is obviously derivative, but I would like to hear from others with possible experience in such matters. The images in question are all photographs taken by the Matthew Brady Photography organization during the Civil War. A commercial organization has colorized many of those images and now claims copyright of the derivative images. I'm curious whether they are within their rights with such a claim? I believe that once an image is in the public domain it is not subject to copyright. I believe if that is the case that derivative work based on those public domain images is likewise not subject to copyright. John Zimmerman Mesa, Arizona On 08-Apr-15 2:59 PM, Pat Asher via wrote: > At 05:08 PM 4/8/2015, hwedhlor via wrote: >> If a monochromatic photograph is in the public domain, may a >> person who "colorizes" such a photograph then copyright the >> resulting color image? > Did you create something that represents original authorship? Or did > you create a derivative work (a colorized version) based on someone > else's original authorship? > > If your work is derivative, and the original from which you created > your derivative work is not in the public domain, you need the > original author's permission to publish your derivative work. > > > Pat A. > > > ------------------------------- > To unsubscribe from the list, please send an email to COPYRIGHT-request@rootsweb.com with the word 'unsubscribe' without the quotes in the subject and the body of the message >