Who owns that photo?

I just had a photo sent to me by someone saying it cannot be used without their permission.  The photo is about 100 years old.  I was a bit bemused, as I thought the owner of a photo was the person to created the photo, and I was pretty sure the copyright would have run out by now.  This led me to some investigation.  Firstly it depends upon the country you are in, so I look at Australian copyright.

Here is what wikipedia says
Copyright expiration in Australia is generally either 50 or 70 years after a work was created. The law has evolved over the years, and photographs are treated differently from other published work. Generally, anonymous works pre 1955 are no longer copyright. If the author is known it is 50 years after the author's death if pre 1955 or 70 years if post 1955.
Copyright for works other than photographs are based on when the creator dies, while photographs are public domain if taken before 1955.
For more extensive information go to copyright.org.au and here are the key points about photos:
• Generally, copyright in photos lasts for the life of the creator plus 70 years.
• Copyright has expired in photos taken prior to 1 January 1955.
• Ownership of a photo varies depending on the circumstances under which it was taken.
• You will not own copyright just because you own the camera.
• Photographers also have moral rights in relation to their works.
Moral Rights
Creators of copyright works, including photographers, have “moral rights” in relation to their works.  These are separate from copyright. Moral rights impose certain obligations on people who use a copyright work.  As a photographer you have the right to be attributed as creator of your photos;
It's interesting to know that, in most cases, neither the person in the photo or the possessor of the photo do not own its copyright.  The creator of the photo (the photographer) does.  So can this person insist on having the right to say if it the photo is to be used?  Short answer is no, as it is well out of copyright, but I would always err on the side of not publishing if someone is very sensitive to  publication. 

As genealogists we do have to be careful I think to make sure we don't hurt other people's feelings, so tread lightly.   Never publish the photo of someone alive without their permission, particularly on social media sites.  The reason for this is that there are some unscrupulous people out there who may use it the wrong way.  Its common courtesy anyway!

Here is a photo well out of copyright, taken in England, of one of the Heard family, but I have no idea who.  I do love the photo though, particularly the hat and umbrella!

You may notice a watermark in the bottom right corner (no C for copyright however!) this is just so that if it is used elsewhere the viewer will know where it came from.


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