Wichita, KS asked in Copyright and Intellectual Property for Kansas

Q: I am looking to publish a family history and genealogy using an aerial photo of the family farm as the front cover.

I can identify the photography company, but have not been able to locate them through state and library records. The picture was take in 1955. I doubt I'm going to sell many copies, but am concerned about copyright infringement.

1 Lawyer Answer
Griffin Klema
Griffin Klema
  • Intellectual Property Lawyer
  • Tampa, FL

A: This is a tricky situation. Copyright infringement is strict liability, so your intent not to infringe doesn't save you from a possible claim of infringement. Whether the image is actually subject to a copyright claim is unclear, since it was created before 1978. If it was published or registered before 1978, then any copyright is most likely expired. If it was not published or registered before 1978, then a copyright may still be alive and well. If you really need to know, hire an IP lawyer who can give you more specific guidance.

Now, practically what you could do (even though it still would not save you from a claim), would be to explicitly note in the publication that you pursued diligent efforts to locate the copyright claimant/creator but were unable to do so, and invite anyone claiming rights to the image to contact the publisher to arrange for payment of a reasonable royalty. That's pretty risky, since you're essentially admitting copyright infringement if there is a valid/unexpired copyright, but would be helpful to show that your infringement was not in bad faith (and thus limit your possible liability). The obvious alternative is not to use the image! Maybe take a new photo? That way you'll have a clearer right to use it. BUT, there may be other considerations in whatever photo you do use, such as hidden trademark issues (unique identifying features in the image that function as a mark that is still being used in commerce). Good luck!

1 user found this answer helpful

Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.