My point on this wasn't to try and say that if the image was now Public
Domain that you had no rights, but rather that your legal position is
possibly much more tenuous (and expensive...) than if the image was still
Copyright.

Hypothetical:

IF you hold/own some images in your collection that are now old enough that
Copyright on them has expired and they are now Public Domain, you are
potentially faced with this issue:

You may (and hopefully do) OWN the original images. Now IF they were still
in Copyright you would also have a lot of control and protection over what
happened with any copies of this images - that is the Copy Rights. You can
control how many uses/copies of something may be made, what geographic
regions, etc etc, and be compensated for those uses. As either the author of
those works, or if a transfer of Copyright took place when you took
ownership of the works, as the owner of the Copyright, the Copyright Act (US
and Canada here) works very much in your favour. You are protected by it
against all sorts of forms of infringement and unauthorized use, with all
sorts of legal remedies under the Act.

Now, move on to our scenario, you own the works (images) but they are old
enough that Copyright has expired and they are now Public Domain. In this
situation the weight of the Copyright Act is somewhat reversed and it falls
much more towards the rights of the "public" as opposed to the owner of
works/images.

Lets' say you sell/provide copy prints of that original photograph to the
public. You are NOT selling the original image/print/negative, which you
still physically own, but you are selling duplicate prints. If the original
was still Copyright, you could control how those duplicates/copies were
used. But if that original is now Public Domain, you have virtually no
control (and certainly no protection under the Copyright Act) as to how
those copies may later be used. Property rights don't pertain in this case -
you still have the original - people aren't using the original. In fact
copying of those duplicate images is now explicitly permitted by the
Copyright Act - once those duplicates/copies leave you, you have little
legal recourse.

You can try and control them under some form of contract law regarding any
written agreement you might make with someone you supply those copies to.
But they now have the weight of the Copyright Act on their side. So it
becomes an expensive and difficult legal case to make - especially if your
agreement isn't watertight (which is unlikely for each and every potential
circumstance).

A silly example - your museum is loaned Michelangelo's David for display -
copyright in that work has obviously expired. Lets say the owners (?) of the
work jealously guard the reproduction rights to images of that statue. So,
you can forbid any photography when it is exhibited to prevent that. But
let's say you did permit photography. Someone comes to the show, takes a
picture and later makes postcards. There is very little you could do about
it, as there are no Copy Rights that protect the image of that statue any
longer.

Now - in the case of the original post on this, if the original images are
still Copyright, you may well have a case (and all the above is moot). First
thing to do is register copyright (which should have already been done) -
this gives you much more statutory protection and damages. Then talk to an
IP lawyer. Either way, it can get expensive...

tim a

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