QUESTION OF THE MONTH: Using Found Archival Material

QUESTION

Dear CSM:

I'm working on a movie that is part doc/part fiction, using the photos and letters of a man (who is now deceased) that were found in a photo album discovered in a second-hand store (like Goodwill). The photo album is not copyrighted, nor was it published. The man has been dead for about 14 years, and I've been unable to locate any of his family through a cursory internet search. Am I working with material that is usable?

Thanks,

John

ANSWER

Dear John,

Everything is automatically granted a copyright if there is something tangible attached to it. In other words, while you cannot copyright an idea, you can write the idea down and then it has a copyright. Please check The U.S. Copyright Office list of frequently asked questions for more details about the nature of copyright. That being said, simply because you found the item does not necessarily mean you have the right to use it. This link, answering a question about copyrighting a diary, may offer some insight as well.

You may also want to look at copyright information on "orphan works."

What the Statement of Best Practices in Fair Use offers are guidlines on what documentary filmmakers consider fair and reasonable application of Fair Use. If you are using the material simply for artistic puropses to further your story, that is most likely outside of the situations the statement describes. Michael Donaldson, a lawyer who works with us on this issue, published an extremely helpful book, Clearance and Copyright, which any fiction or documentary filmmaker would find useful.

--The Center for Social Media

For more answers please visit our Frequently Asked Questions.