I should probably know this but I don’t. Who holds copyright to rose photos in catalogs of companies that went out of business? I ask because on HMF there are some names with no photo. I have a catalog showing the flower in its original ideal form. In some cases I also have the plant and can perhaps produce a photo under my conditions. I know that after 50 or 80 years or whatever, for the works of individuals things go off copyright. And I know that corporations have to renew copyright, as for instance with choral music. But what happens when the owner closes up shop, retires, and dies, or the firm goes bankrupt and is sold off?
Any help in finding a rose photo copyright clearing house would be appreciated.
My non-authoritative understanding, in a nutshell:
If it’s older than Mickey Mouse (1923), it’s in the public domain.
If it’s from 1923-1935, it was subject to a requirement that the copyright be renewed after 28 years. In the case of books, this was neglected over 90% of the time. Example: The American Rose Annual for 1935 needed renewal in 1963 and didn’t get it, so it appears to be in the public domain now. There are databases, like one at Stanford for looking such things up, and you’ll probably find no renewals on catalogs at all.
Anything which was copyrighted in 1936 or later is probably still under copyright, since the renewal requirement was effectively ended in 1964. In the case of defunct companies, intellectual property rights would presumably have been sold off during the liquidation process, but I have no tips for locating current owners.
Larry, my career was in marketing, both offline and online. The catalog company would have held the copyright on these photos. Since the catalog company is out of business…
If another company bought them, contact the new company for permission to use the photos.
If the original company was family owned, can you contact the family for permission to use?
If no one bought them and there is no way to contact the original company owners, then use the photos, but caption them as follows: “Source: catalog”.
That way, if anyone challenges your use of the photos, you can show a good faith effort to properly attribute them to their original owners. And you can show that there was no way to contact the original owners for permission to use.
As soon as possible, take your own photos of these roses, or obtain permission to use from another photo owner.
Thank you Cathy. My problem is I don’t know if the catalog company is out of business, only the rose grower/seller. Unless of course that the grower actually prepared their own catalog and simply hired a printer. Copyright is often simply left implicit, and not shown anywhere in the typical commercial catalog.
For sure I will photograph the roses that I have. But we as a community have a large trove of photos that are close to the original date of introduction and not from mistakenly ID’d pics. I think we could upgrade significantly if we got together systematically to do this. Some college libraries likely have collections of some of these too.
Suggestions welcome. Unfortunately rose catalogs are not Life magazine that gets resold in thrift shops. We need to find persistent long term growers through rose societies. Someone around 90 who has grown for 60 years or so and is a saver of stuff would be ideal. I only go back to the 60s with my couple dozen.
Just had a though. Perhaps C-P, or others still in business would be willing to dig into their archives and grant permission for ones that they have as originals.
I think this is a grey area. You’re not exactly stealing if you’re giving credit where it’s due. You’re not making a profit. And archiving to sites like HelpMeFind becomes important so lost roses can be rediscovered again.
It’s totally up to your discretion. Make sure you cite where the picture originally came from. Be willing to remove the pic if the people who hold the rights ask you so.
Hi-
Copyright normally rests with the photographer, and catalogues and other media get a license from the photographer to use the images. That license can be exclusive or non-exclusive at the photographer’s discretion. An exception would be if the catalogue had its own staff photographer, then you could negotiate with the catalogue; otherwise you’d need to find the photographer.
Using someone else’s image, even with credit, is not legal without permission from the copyright holder.
I agree that amassing a pool of correctly-labeled, good-quality rose images would be a boon to the community and the industry. There might be two ways of going about this: RHA could get into the stock photography business, setting up its own site and licenses and revenue collection etc, or RHA or its members could sell their photos on an existing stock photography site. Alamy was once the domain of specialized scientific photographers as well as general stock photography; I don’t know if that’s still the case.
A word of caution: this would be more an act of community service than a fund-raiser. I can tell you as a photographer that there is no longer a lot of money to be made in the stock photography world, though a little cash would be raised.
Larry, can you please publish a list of the roses on Help Me Find that you are especially interested in? As a retired Internet Marketing Manager, I am pretty good at searching, and might be able to find links to photos of those roses. If all you want to do is look at the roses’ appearance, this will not be a problem.
I would say the ideal is to get a picture of everything on HMF, but that’s a fantasy. So I’d go for those with some importance to the community like the AARS, various European gold medals, or works of famous breeders to help understand how they put together and distributed a breeding program. I know we’re out of luck with most everything that disappeared before say 1920 because color in books and catalogs was extremely limited before that. McFarland, with his Roses of the World for instance would be a good place to begin.
This is a longterm project. I wouldn’t expect it to be a revenue stream, but a labor sink.
HMF has lots of mislabeled pics I’m sure, if color is the key and sometimes even flower shape and texture. But we as photo donors don’t know any better than to believe what we were told by marketers, whether a big-name grower of the local five and dime. Honest mistakes happen. Good examples: Dr Huey as Shafter, or several things masquerading as LaFrance, only one of which at best can be correct. Getting back to original publicity photos, though often somewhat a gilded lily, is still a start.
One of the first roses I grew was Better Times, a sport of, ultimately, Columbia the classic florist rose. I got them very cheap from a florist clearing a greenhouse in about 1959. Too tender for my climate of course, and who was I to know whether that was the real name? Three years ago I got 4 bushes at Big Lots, every one of which was mislabeled. Last year I got ( at H.D.) some potted to use as flowers for a dinner, so names didn’t matter, but again 3 of 4 were mislabeled.
It’s likely to be a semi-futile effort in so far as the true identities are concerned which are less certain the further back in time one goes.
Moreover, the practices of extant nurseries are suspect as well. I recently had a discussion with a large regional cut flower producer that happened to list a particular rare cultivar as being used in their production lines. It turned out that they pulled the name out of their $## to avoid patent problems (actually, they looked up similar roses on HMF and picked one).
I’ve got decades worth of Kordes catalogs and a few others like Huber that have spectacularly good photos of their offerings. I’d love to digitize them for HMF if somebody wants to do the legwork of asking permission. For that matter, I’d guess that Kordes would provide scans for the purpose. Sprechen Sie Deutsch?
I was hoping that we could use some quality control. That is, find legit catalogs of yore, and assume that their producers were at least moderately honest in their representations of their wares. That’s why I’d go for the oldest, preferably the original introducer, if that is possible. I know that all the pics are somewhat idealized, just as the foliage never was affected by disease or insect. Still it is better than the confusion that’s going on right now with the pulling of names from (was that word HAT?). It’s just that I keep seeing things on HMF that I rather doubt. Latest example- Better Times, sport of Briarcliff, sport of Columbia should have the same form with slightly different color. And as I fadedly recall after 50 years, a very fine high-centered florist’s rose in a striking color. I might have a color slide of it somewhere in the 3500 my mother left me.
Every such effort is semi-futile, or perhaps nearly totally futile if you want to capture everything. But I’d settle for say 10,000 or so correctly labeled cultivars, even the main 5,000 that have remained continually available, and not been resurrected with flimsy pedigrees.
[quote=“Larry Davis”]I should probably know this but I don’t. Who holds copyright to rose photos in catalogs of companies that went out of business? quote]
Larry, attached is a photo of Multnomah, one of the roses you asked about. A rose friend from Facebook scanned this photo from the 1950 Rose Annual.
[Admin note - Photo deleted - please refrain from posting images for which the owner’s permission has not been explicitly granted.]
Well, I did at least learn there is a photo of it somewhere. My Rose Annuals only go back to the early 60s and that series isn’t in any library close at hand. But an example of what HMF could probably do with some cooperation from ARS if they are indeed the holder of copyright. Actually that ought to be a relatively easy target. ARS could simply post everything in the annuals from before say 1975 which is 40 years ago, on their own website. I can’t imagine it would equal a loss of revenue because how many people will pay $$ for old photos of unavailable roses. My interest would be to see how this or that rose compares to its offspring in features that show in the photo. Unfortunately that usually doesn’t include growth habit of the bush, frequency of repeat bloom, even flowering architecture, such as the length of canes on repeat blooms, tendency to single or clustered flowers, stuff like that.
Is there a way to systematically search old Rose Annuals for photos without possessing your personal copy? I don’t know of any digitized versions of any but the very earliest ones. If we even knew what is there, it would be helpful. It is legal to have a copy of a photo for your own personal use in research. So there is nothing illegal about getting a copy. The sticky point comes when there might be what amounts to “publication” involved.
It is hard to know where to begin to do due diligence on old books such as Roses of the World some 80 years after publication. Publishers have come and gone and there isn’t s simple copyright clearinghouse that I know of for non-scientific literature.
It should be possible to claim “fair use”, especially under exception 1. for “scholarship, or research”. I once found one of my photos on Wikipedia with the fair use disclaimer. I didn’t complain. Then again, I didn’t complain when I found another of my pictures on a Russian web page without attribution. It certainly did not interfere with the “potential market for or value of” that picture.
17 U.S.C. § 107
Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
The situation with respect to ‘fair use’ of photographs is much less concrete than it is with text or even audio recordings. For instance it is possible to excerpt text and audio whereas how does one excerpt a photo (’ amount and substantiality of the portion’)?
Does our website constitute a ‘nonprofit educational purpose’ since we lack non-profit certification (503c-1)?
The ‘teaching’ exception is a pretty flimsy foothold too. For example a teacher can’t copy and distribute parts of a textbook to students even if they collect it after the lesson is completed because the act has commercial economic impact on the publisher. It comes down to degree and interpretation and that can only be determined on a case by case basis.
The bottom line is that guessing over the prospects of a fair use exception as an invitation to litigation.
I did once have some correspondence with the ARS over a permissions request, btw. I recall that they do not claim copyright over content produced by contributors which is to say that the contributor holds the copyright for their original work.
Thank you Karl and Don for sharpening the focus. The rules about fair use are as you say mostly on a case by case basis. There is a pragmatic point in there too. Publishers won’t bother going to court to collect $10.00 if it costs them $1000. I hope neither would any of us.
We make copies of journal articles for classes. That is perfectly legal on a “one-time” basis, because often you only decide to use the article the night before the (advanced) class and contacting a publisher and getting permission takes weeks to months. We also use fragments from articles, with proper attribution. That includes data presented in graphs and figures. The rationale is that the data itself is not copyright, only the mode of presentation is. the data is a statement about the world, such as the speed of light, or the density of a substance. There have been quite a few cases about private companies repackaging federally acquired results and charging fees for them.This has eventually led to the NIH insisting that all results published with their support must be made freely available within some reasonable time such as six months. And most government data is available somewhere for free, but sometimes without the fancy cover.
However, photos are treated more like a work of art, or a cartoon. You might be able to use one cartoon from an anthology (a small sampling from a big book in this case), but you need to be careful with a single cartoon from the daily paper (the only instance of its kind). To do what I would like to do, we have to assume that we are dealing with works of art. If old enough they may be public domain if there has never been an attempt to keep them in copyright. Otherwise we need to make a best effort to contact the copyright holder and ask permission. I did ask permission from the original authors when I put a figure or two into the newsletter, while citing a scientific article. They had no way to make any money on the use of the image really, and they were happy to share their work.
I woudl hope that if we can find Rose Annual contributors, they would be happy to share their work, including photos.
When I served on the American Rose Society’s Historical Committee, my pet project was to organize a group of volunteers to digitize the old Rose Annuals and have the ARS sell them on a CD or DVD. I thought that we had the ARS approval until when we were ready to start when their legal team said No, the Copyright belongs to the J. Horace McFarland (family), see for example:
I find it confusing that apparently nobody checked on renewal, since I don’t see any indication that the older ones are still under copyright. Between 1922 and 1977, the McFarland family only renewed copyrights on three items: Memoirs of a Rose Man, and two editions of Roses of the World in Color. (There were only about a dozen rose books published during that time which had their copyrights renewed; letting them expire was by far the usual thing to do at the time.)
s_hardy Thank you for the update. But the family still would hold the copyrights for the annuals after 1923? until some time in the 40s (I gave away all of my Annuals so I cannot check when he stopped copyrighting them).
“95 years from publication for works published 1964–1977; 28 (if copyright not renewed) or 95 years from publication for works published 1923–1963 (Copyrights prior to 1923 have expired, not including copyrights on sound recordings published prior to Feb 15, 1972, covered only under state laws.)”
Thank you Henry, and S-Hardy. I hadn’t seen a copyright renewal listing database. I went googling and found that the U./S. Copyright Office has a very useful brochure. That seems to suggest that older books, whose copyright was not renewed, have in fact come into the public domain. That appears to apply to anything before 1964. Hence older catalogs, for which copyright was not renewed, would be public domain. Of course the trick is to verify that the catalog publisher was the holder of copyright, rather than simply someone who got permission from a photographer or a hybridizer.
If a rose is attached to a government publication, it would not be copyright. that doesn’t do us much good I suppose, unless patents happen to have decent color photos attached.
Probably time for ARS to review their position. It may be correct that the JH MCFarland was copyright holder. But if they didn’t renew it, they gave it up, for anything prior to 1964. So who holds copyright for everything since 1964 is the question.
Larry do you have a reference for 1964?
The old Annuals (prior to 1924) are available for free download through Google e-Books. I would expect that they would have through 1963 if your source is accurate.
