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File talk:Mae West LAT.jpg

Latest comment: 13 years ago by Lupo

I don't think this image description is correct.

I believe the photographer was Eugene Robert Richee (1896-08-21 – 1972-04-21),[1] studio photographer for Paramount from 1925 to 1935.[2] At least Getty has two similar images of Mae West taken by him in 1932, where she wears the same dress and, as far as I can see, the same jewelry: [3] and [4]. If so, it appears that the photo is a promo photo for Night After Night.

The image here is a crop of a full-length portrait shown on various other websites, such as [5], [6] (large size), or [7]. There is, by the way, another photo of Mae West in this dress, possibly taken at the same shooting: [8].

Even if this image here was found in the LA Times archive, this is by no means an LA Times photo.

As to licensing, the claim that this had been originally been published without copyright notice is unsupported. The original copyright would probably have been Paramount's (as a "work made for hire", as Richee was employed by Paramount at that time, if I understood that right). Not all of these film promo photos were published with notices, for instance [9] rather clearly says at the bottom "Copr. [year illegible] Motion Picture Corporation. Permission granted for Newspaper and Magazine reproduction. (Made in U.S.A.)" If copyrighted originally, the question then becomes whether that copyright was ever renewed. We have no evidence either way on both aspects. Lupo 11:45, 8 June 2010 (UTC)Reply

I was unaware of the other similar images, but I was doing some research earlier today and determined that if it was an LA Times photo, then it does appear to be correctly licensed as they didn't renew copyrights until their issues from 1958. If it is instead a film promo photo, there appears to be a presumption that it was not published with a copyright notice, see the sources provided in the "Additional copyright information" section of File:Muni Chain.jpg. VernoWhitney (talk) 01:11, 9 June 2010 (UTC)Reply
One could assume that a publicity photo marked, "Permission granted for Newspaper and Magazine reproduction," would not have been renewed for the reasons given on other publicity photos. Anyway, this isn't that hard to check since I'm close to a copyright depository that has all filings and renewals published. I've often used it, but the parking is a pain. I also noted the actual numbers of photograph copyrights filed and the renewals, and the renewals to first filings ratio was miniscule, maybe 1 to 100. And the actual number of photos filed, compared the the number of photos published each year in books, magazines, and newspapers, would be about 1 in 100,000 if I had to estimate. BTW, the book that printed the photo was published by the Los Angeles Times, so it's reasonable to assume that they had all rights. They may have bought the photo from the studio, which seems logical for major stars in candid shots. --Wikiwatcher1 (talk) 02:23, 9 June 2010 (UTC)Reply
Might be OK license-wise. Wikiwatcher1 usually quotes Eve Light Honthaner, The Complete Film Production Handbook, Focal Press, 2001, ISBN 0240804198; p. 211.:
"Publicity photos (star headshots) have traditionally not been copyrighted. Since they are disseminated to the public, they are generally considered public domain, and therefore clearance by the studio that produced them is not necessary.
and Nancy E. Wolff, The Professional Photographer's Legal Handbook By Nancy E. Wolff, Allworth Communications, 2007, ISBN 1581154771, p. 55.:
"There is a vast body of photographs, including but not limited to publicity stills, that have no notice as to who may have created them."
I'll add to this some more references from legal cases and treatises:
The PACA discussion basically has it right: if such a photo was distributed to newspapers for reproduction, that was a "general publication" under the 1909 Copyright Act and thus the photo needed an explicit © notice. So, if there wasn't one, the photo is indeed in the public domain in the U.S. Hence we'd need some evidence that indeed publication occurred without © notice.
Very interesting is the following quote from the affirmation in Milton H. Greene Archives, Inc. v. BPI Communications, Inc., 320 Fed. Appx. 572 (9th Cir. 2009):
"For the pictures at issue that were submitted to studios and publicists but were not used as broadly as the others or at all, the general publication doctrine still applies, because "an authorized offer [was] made to dispose of the work in any such manner even if . . . such disposition [did] not in fact occur." Id. (emphasis added). Distribution of the photographs was not a limited publication, because Greene provided the photographs with "the right of diffusion, reproduction, [or] distribution.""
The "[id]" on the first phrase refers to Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 4.04 (1978).
So, it suffices that the film studio distributed the photo without © notice to newspapers and magazines; it is not a necessary condition that the newspapers actually printed the photo! Hence, we may assume that a photo found in some newspaper archive was distributed with the permission for reproduction in that newspaper. The difficulty is then to show that there was no copyright notice on the photo when it was distributed to the newspapers. It was probably not necessary for the newspapers to print the photo with a separate accompanying © notice, though: a global © notice for the whole newspaper as a collective work is sufficient under the 1976 Copyright Act, c.f. 17 USC 404(a)—although these are promotional photos they are not "advertisements" in the proper sense and thus do not need an individual © notice. However, I would need to check how that worked under the 1909 Copyright Act...
However, we need to be careful, because other photos may have been distributed not to newspapers and magazines, but for instance to movie theatres. In that case, the distribution may have been only a "limited publication", which is not a "publication" at all in the sense of the 1909 Copyright Law. See e.g. Commons:Deletion requests/File:George Sanders-Debra Paget-Movie Still.jpg: that photo was clearly marked "licensed for display only in connection with the exhibition of this [movie] picture at your theatre. Must be returned immediately thereafter". For a limited publication, the criteria are that the work was distributed only to a selected group (this is the case: movie theatre operators) for a selected purpose (yes, display while the movie was shown at that cinema) without the rights of further reproduction, distribution, or sale (no evidence that theatre operators got these rights; indeed the notice suggests the contrary). As the PACA and Wolff explain, all three criteria must be fulfilled, otherwise it's not a "limited publication", but for that image, it looked as if that was indeed true.
I guess we should write all that down somewhere. I'll keep looking for useful stuff so that we can make a good case that such photos are in the public domain. Just let's be careful... Lupo 10:41, 10 June 2010 (UTC)Reply
Carl Lindberg has kindly pointed me to another useful discussion of such promo photos:
(Yes, despite the title it's not just about "film stills" (i.e., single frames from films) but also discusses "photo stills".) That seems to support the reasoning laid out here, including the "limited publication" thing.
However, there is also Abend v. MCA, Inc., 863 F.2d 1465 (9th Cir. 1988), affirmed by the U.S. Supreme Court under the name Stewart v. Abend, 495 U.S. 207 (1990). (The affirmation is more about the question of renewal). Abend v. MCA is interesting here because it clarifies how © notices on collective works worked under the 1909 Copyright Law: a single global notice for the whole collection (such as a newspaper) was sufficient to ensure copyright also for single contribution within the collection (such as a promo photo printed in a newspaper). See also s:Gaiman_v._McFarlane, where the Abend v. MCA' case is referenced. Somehow, Abend v. MCA seems to go against the Nimmer §4.04 reference above: the author in this case was granted a copyright, although he himself never had explicitly copyrighted his story; it was copyrighted only by virtue of having been published originally in a collection that had a global copyright notice. But that was sufficient. I don't know yet what to make of this, but it's not reassuring... the analogy between the story and promo photos is rather close:
  • the author sends its story to the publisher without copyright notice, the publisher published the story in a collection with notice, and the story is considered properly copyrighted, and
  • the studio sends its promo photo to publishers without copyright notice, they do or do not publish the photo, with or without copyright notice for the whole collective work (newspaper, magazine), and the photo is deemed not copyrighted.
Somehow, methinks these two cases are at odds with each other. Does anybody know what Nimmer §4.04 (1978) is based on? What cases are given there as references? And did newspapers back then actually carry copyright notices in the masthead? If they didn't, I could understand the difference, because then the newspapers also would have published the photos without notice, and thus it would really depend on whether the studio distributed the photo with or without notice to the publishers. Or is it a difference between sending the item to only one publisher (story) or many (promo photo)? I'll keep trying to untangle this... Lupo 08:27, 11 June 2010 (UTC)Reply
Upon closer reading it appears that Abend v. MCA isn't relevant here because it deals with a special case. Apparently the magazine that published the story was only granted the right to magazine publication of the story, and in such cases the global notice for the magazine was considered to cover also individual stories, even if printed without individual notice. Promo stills that are distributed to newspapers with the right of reproduction and distribution will always fail the last part of the test for limited publication, and thus will be generally published and would thus need a copyright notice the moment this publication occurred. And apparently U.S. law considers this publication to occur when the photo is given to newspapers, not when it is actually printed.
Another case dealing with "limited" versus "general" publication is the famous Martin Luther King case, which adds a special twist: his speech was deemed to have been only subject to a limited publication because "case law indicates that distribution to the news media, as opposed to the general public, for the purpose of enabling the reporting of a contemporary newsworthy event, is only a limited publication." (emphasis added by Lupo). Although tangible printed copies of the speech were given to numerous news media, it was considered not generally published. (The other aspect of that case—that performing the speech was not a general publication either—is not of interest in the context of promo stills.) I don't think this case has any impact on promo stills, because these were not distributed to enable "the reporting of a contemporary newsworthy event" but rather without restriction and with the intent to bolster reporting on films and actors of the studio in general with additional visual elements.
Or put differently: the promo stills distributed to newspapers fail the third part of the test for limited publication: they were distributed to newspapers with the right to reproduce them in general. (Though perhaps or even probably without the right to re-distribute or sell them.) So, even if the criteria "selected group" and "limited purpose" would be fulfilled, the reproduction permission not linked to a special precise event would still make the photos "generally published". By contrast, Martin Luther King's speech passes all three components: distributed to only a select group (news media representatives; not the general public), for a select purpose (reporting on a current event), and without the rights to further reproduce, distribute, or sell the printed speech.
Sorry about any confusion; I confused myself for a moment with that Abend v. MCA case.
To sum up so far: promo stills found in newspaper archives may be assumed to have gotten there by a distribution from a studio with the right to reproduce the photo, and thus no "limited publication" occurred. Hence distributing promo photos to newspapers was a "general publication", and thus such photos needed © notices. And following the Milton Greene Archives v. BPI Communications case this publication occurred when the photos were given to the newspapers, not when they were printed (if at all). To show that they didn't have such a notice at that time might be really hard and would require physical access to the newspaper archive. But according to the secondary literature mentioned initially, most did indeed not have copyright notices. So it looks as if indeed promo stills from before 1978 might be fair game for us. Lupo 22:54, 11 June 2010 (UTC)Reply
Well, that's a pretty good example of due diligence, if I saw one! Great job!. One of the links you gave, "Thompson, K.: "Report of the Ad Hoc Committee of the Society For Cinema Studies, "Fair Usage Publication of Film Stills"", had some good material in the section "Publicity Photographs." It quoted noted film industry author Gerald Mast's book, Film Study and the Copyright Law (1989) p. 87:
According to the old copyright act, such production stills were not automatically copyrighted as part of the film and required separate copyrights as photographic stills. The new copyright act similarly excludes the production still from automatic copyright but gives the film's copyright owner a five-year period in which to copyright the stills. Most studios have never bothered to copyright these stills because they were happy to see them pass into the public domain, to be used by as many people in as many publications as possible.
That's a pretty significant bit of logic, IMO, since a movie studio is in the business of making and selling movies, and anything that helps promote the sale of the film or its actors, cannot by definition "hurt" the studio in any competitive way. The article itself adds, "It might be argued that . . . the reproduction of publicity stills in a scholarly context enhances rather than detracts from the commercial value of the original film." The conclusion they came to:
There has been no litigation or legislation to set precedents for fair use of frame enlargements and publicity photos. It appears, moreover, that this situation will persist. Legal decisions based on future court cases might help illuminate this question, but, given the difficulty of proving that such illustrations diminish the commercial viability of a film or of derivative products, it seems unlikely that such a case will be initiated. --Wikiwatcher1 (talk) 05:20, 12 June 2010 (UTC)Reply
Right; I think a studio distributing a photo to multiple newspapers etc. would be deemed general publication, thereby requiring a notice on those copies; an author sending an article to one specific newspaper for publication would not be, at least until actually being published in the newspaper (at which point the newspaper notice would cover it, albeit with an erroneous name, as far as third parties were concerned). As far as someone reading the newspaper, they probably have no reason to presume a difference -- each would appear to be copyrighted. You would need access to the prints as distributed by the film studio of the publicity stills to see if they had a notice or not. In either case though, I think the original author would have had to register their work properly for protection beyond 28 years; I'm not sure a newspaper renewal would cover it again -- and in any case, many newspapers never renewed issues from this era anyways. So, copyright would seem to rest on whether the original prints had a notice, and if so, then if copyright was renewed. Both sound like rare practice for that sort of work in those days, but neither is impossible. Renewal records are now online here; look in the years for both 27 and 28 years after the initial publication -- if not there, then we can probably say PD. Carl Lindberg (talk) 15:27, 12 June 2010 (UTC)Reply
In part of my earlier research I already checked for anything published in the LATimes or owned by their parent company Times-Mirror Co. and found nothing regarding any particular image or general renewals, so if the image was only sent to the Times, then it's clear. VernoWhitney (talk) 17:12, 15 June 2010 (UTC)Reply
A completely unrelated side note: The copyright on the movie itself has been renewed: [11], original copyright 1932-10-13 (L3335), renewed 1959-10-20 (R244380). Now that (finally!) these renewal records are online, should we start noting such information somewhere in en-WP film articles (for movies from before 1964?) or on their talk pages? Lupo 09:07, 16 June 2010 (UTC)Reply
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