this is what photons do to silver on the film the moment you press the button on the film based photo camera. This is why actual photographer has the copyright. The fact that more light can destroy the image until it is developed has the same effect on copyright as the fact that cassette recording can be destroyed by magnetic field.

>Undeveloped film is arguably not a tangible medium suitable for communication and this film is obviously not being developed by its author. The development process of film renders it suitable for copy.

are you trying to say that Kodak development shops own copyright for 99% of the photos made in the US in the second half of the 20th century?

Errm. No. In fact it is excellent for communication, seeing that it withstood being in its undeveloped state for decades and still preserves the original image. Registration, not development creates the copyrighted work.

You can abandon property just fine but you can't abandon copyright (see: http://en.wikipedia.org/wiki/Abandonment_%28legal%29#Abandon... ), (you can abandon a trademark by not defending it but that's different). You can actively sign something into the public domain but copyright infringement cases typically have a very important date attached to them: when you became aware of the infringement.

> Would you claim that all the "abandonware" games still belong to their original owners and deny people the right to use them as well?

Technically, yes.

And on top of that if your interpretation were true then someone else could claim copyright on these games now that they are 'abandoned'.

Which of course isn't true.

You really are apparently neither a lawyer nor a photographer and should consult an experienced one if you are pursing either as a hobby or profession.

Copyright can certainly be abandoned. It does not always require an overt statement. See for example National Comics Pub. v. Fawcett Pub., 191 F.2d 594, 598 [0]

[edit] I was going to discuss abandonware of game content and its use in new works but that is a much longer discussion. You can follow up if you are interested.

[0] https://casetext.com/case/national-comics-pub-v-fawcett-pub-...

In the judgement [which I only skimmed the first page or two of] is this:

>'It is of course true that the publication of a copyrightable "work" puts that "work" into the public domain except so far as it may be protected by copyright. That has been unquestioned law since 1774;2 and courts have often spoken of it as a "dedication" by its "author or proprietor."'

Which is not true any longer. Production of a work now acquires copyright (eg under TRIPs) which publication in itself can not forfeit nor dispose of.

Similarly in the judgement it is clear that under the past regime affixation of a copyright notice was required. This is a central element to the case it seems.

Because of the central features relying on specifics of the law that no longer apply it seems there is very little if anything in this judgement that would bind, or indeed inform, a present day decision.

>You really are apparently neither a lawyer nor a photographer //

Hmm. You might be a photog, I'm guessing not.

FWIW I am neither.

I'm not sure why you're citing the Berne Convention it seems pretty uncontroversial. Are you suggesting negatives aren't a "material form" of fixation for an image? Initially you said:

>"Undeveloped film is arguably not a tangible medium suitable for communication" (shawn-butler, https://news.ycombinator.com/item?id=8905254) //

Can you point out where TRIPs or the USC requires "suitable for communication"? Better would be to cite current caselaw that discusses this "suitability" clause.

>"You can't claim copyright on that which is not authorable nor transmittable.. i.e. in a medium that can be copied." (shawn-butler, above) //

These conditions are quite unrelated. You can certainly claim copyright on sculptures, such as the Angel of The North, and on buildings which are not "transmittable" to any useful degree. A "work" is necessarily the product of an author for the purposes of all copyright legislation I've seen as elsewise they are not "works" for the purposes of that legislation. Truism and error by turns.

I can create a work by splattering baked-beans on my wall. It's authored. It is not transmittable except by secondary reproduction. It can be copied. If you take a print from those beans, by pressing paper on my wall, then you create a (reversed) image which is a derivative work. You may have made a lovely piece of paper and taken great care over making the print but it is I who created the initial work which you "copied" [ie derived your work from]. Whilst you have perhaps acquired a copyright in your print (by your creative production of it, say) it relies on my creative work and so is derivative. You could not lawful sell or reproduce your work without satisfying my conditions for license (until my copyright expires of course).

FWIW in the OP the Universal Copyright Convention gives the developer of the photos 10 years of protection as a minimum IIRC for this first publication of the original photographer's works.

[OT: I'm sure your arrogant insinuations as to the inexperience of others do not progress the discussion. If there is some material error then IMO you'd do well to point it out directly rather than insinuate it by way of ad hominem commentary.]

You should seek relevant legal advice if you have further questions on this pretty accepted point of law. If you wanted to say pursue a suit for damages against an infringer for taking a work seemingly in the public domain that as proper holder you have explicitly abandoned under the theory that "abandonment doesn't exist." I think any experienced attorney would inform you that you face an uphill battle to say the least but it is always about the specifics.

You raised the topic of Berne not me. I provided a quotation to show that the point of material fixation remains the same whether under USC or its treaty obligations. TRIPs leaves it to members to decide what material fixation means. In the US that means a work must be tangibly expressible, in a fixed medium, i.e. copyable.

http://www.copyright.gov/circs/circ01.pdf might be less technical and provide you the info you need regarding what generally "suitable" for copyright in the US means:

>> Several categories of material are generally not eligible for federal copyright protection. These include among others:

works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded) >>>

In case you don't understand, and please don't be insulted as I hate to be pointing out the obvious, but you seem not to grasp that undeveloped film != negatives. You use the terms interchangeably when that is the very point under consideration, e.g. undeveloped film : negative :: improvisational speech : recorded performance

Others in the thread have argued that exposing film to light : recorded performance meriting copyright, but I think that is tenuous because undeveloped film can not be viewed, disseminated.

Negatives are normally created under the direction of the photographer or her employer in order to disseminate images and are definitely works of authorship subject to copyright. Undeveloped film is arguably not and simply property, and the article is about the purchase at auction or yard sale of undeveloped film. The photographer, being long deceased, is definitely not the one creating the negatives. The purchaser of the film is. I hope that is clear.

Sculptures/architecture are most certainly subject to duplication especially when on public display. Sorry, you seem to be going off the rails here and with "baked-beans on a wall", and I have no interest in following; my interest in the topic has waned.

> Sorry, you seem to be going off the rails here and with "baked-beans on a wall", and I have no interest in following; my interest in the topic has waned.

Would it be possible for you to - whether you're wrong or right doesn't enter into it - at least be civil?

For the record, there is nothing civil about your pretense of offering false opinion as fact in nearly every frontage discussion topic bordering on "law" on HN.

You are just wrong more often than you are right. Sorry if pointing that out is uncivil but it a disservice to the community. Even if you use a downvote brigade to cover your mistakes, you should be responsible for dispensing "opinionated" advice about legal issues.

See Burrow-Giles Lithographic company v. Sarony, 111 US 53 - Supreme Court 1884, quoting Nottage v. Jackson, 11 QBD 627, High court 1883:

Brett, M.R., said, in regard to who was the author: "The nearest I can come to, is that it is the person who effectively is as near as he can be, the cause of the picture which is produced, that is, the person who has superintended the arrangement, who has actually formed the picture by putting the persons in position, and arranging the place where the people are to be — the man who is the effective cause of that."

Lord Justice Cotton said: "In my opinion, `author' involves originating, making, producing, as the inventive or master mind, the thing which is to be protected, whether it be a drawing, or a painting, or a photograph;" and Lord Justice Bowen says that photography is to be treated for the purposes of the act as an art, and the author is the man who really represents, creates, or gives effect to the idea, fancy, or imagination.

https://scholar.google.com/scholar_case?case=177944096715959...

For starters, the bit you quote doesn't at all sound like it supports the assertion you're making. A film negative absolutely is a tangible medium of expression, certainly suitable for communication.

And, according to the same website you reference[0]:

"Ownership of a 'copy' of a photograph –- the tangible embodiment of the 'work' –- is distinct from the 'work' itself –- the intangible intellectual property. The owner of the 'work' is generally the photographer or, in certain situations, the employer of the photographer."

It's pretty clear from this that the copyright is attached to the not-all-that-tangible "work" created when the photographer presses the shutter on his/her camera.

[0] http://www.copyright.gov/help/faq/faq-fairuse.html#copying

>> A film negative absolutely is a tangible medium of expression, certainly suitable for communication. >>

That is correct. A film photographer has negatives produced for the purpose of dissemination and in some cases directs in great detail how those negatives are produced. This is not the case in this story/article.

Undeveloped film, which is the topic of the article at hand does not have any copyright. It was never "authored" as a duplicable work until the new owner of the film (whoever bought it at yard sale or auction) had the negatives created.

And that new owner assigned his copyright to the images produced by the found film / restoration society via its terms and conditions.

Let's put a tech spin on it since this is still HN, apart from the people who go around down voting informative posts because they disagree or want to hide posts that make their own look foolish.

Imagine a contemporary digital camera with no "film" but one that cryptographically encrypts the sensor image with the owner's key to non-volatile RAM/storage.

That data is not subject to copyright. It in principle cannot be copied or transmitted as an image. It can be stolen and copied for example violating property rights, or maybe "shown" as performance art but that's about it. The image itself (the creative work) cannot be viewed by others.

Now the photographer decrypts it into a regular RAW or JPG or whatever file format that is easily transmitted / copied. That image is "authored" by the photographer and cannot be duplicated without his consent. The author has copyrights in that work/image.

This is simply wrong. The image is fixed in a tangible form upon the negative at the moment the shutter closes and terminates the exposure. The necessity of washing it in a development bath later in order to view the film does not in any way transfer authorship to the person doing the development. As JacquesM points out elsewhere, the image was sufficiently 'fixed' as to last for decades on the undeveloped film.

I've included a link in another comment to you upthread referring to the 1880s court case which delineates the basis for authorship of a picture belonging to the photographer as opposed to the printmaker.

Undeveloped film meets none of these criteria even though the light has been "fixed" on the film. Are you disputing that images can be viewed, transmitted, etc until negatives have been created, authoring a work that can be copied?

It is not a trivial matter either. Consider computer source code. Let's call that expressive, fine. That binary machine code is "copyright" even though no one can read it has caused amounts of untold grief.

A link to a case in 1884? A commenter after my own heart! Thanks for sharing. However, that seminal case affirming copyright status to art photography has little to say regarding whether undeveloped film has the same status. In fact, according to its reasoning that has since been deemed faulty it requires that the "film" be developed to see the subject matter (must be artistic).

The issue was lithographs (images) of Oscar Wilde were duplicated without photographer consent produced from plates (developed film).

What a hipster: http://www.oscarwildeinamerica.org/Resources/14N.jpg

I certainly think there's an aesthetic dimension to the development of film. I've sat there waiting for an image to show up on a tintype as well as on more conventional substrates. However, the process of a development is fundamentally one of transcription (with all the possibilities for selective amplification/suppression) rather than one of authorship. If I hand you an undeveloped photograph of a landscape to process, not only will you not be able to turn it into a portrait, but you won't know what the content is until the development process is mostly complete; you are in the same sort of position as a recording engineer who can modulate the fidelity with which a musical performance is recorded to tape, but who does to thereby become an originator - s/he does not choose what is to be recorded, or perform that rendition of a composition, notwithstanding the skill involved in accurately transcribing the sound to tape.

ISTM that you're overly hung up on the 'expression' aspect to the point that you think authorship occurs at the moment of expressibility. I mention the tape analogy because an audio recording can not be perceived directly after fixation; you could wave a magnetometer over tape, stare at the grooves on a record, or view a printout of the waveform, but none of these would recreate the original acoustic information (although they would allow reconstruction of it). Acoustic expression only occurs when the recording is brought into proximity with a sensor and transducer - an apparatus of some kind. And whether the recording can be heard properly depends on the configuration of that apparatus - set the volume to high or too low and even the best recording will be rendered to a cacophony or a ghostly whisper. I suggest to you that the development stage of photography is no more than a chemical apparatus and the role of the lab technician is largely one of monitor rather than author.

While a skillful darkroom technician can take unexposed film and create new images from scratch by 'painting' on film and photopaper in the darkroom, and likewise can modify the content of exposed film using similar techniques, the possibility of creativity does not mean that all darkroom work is necessarily creative. Back to the case of these WW2 pictures, the darkroom technician's role is essentially one of discovery - the very absence of prior knowledge about the content precludes any sort of intentionality about the result, and intentionality is the essence of authorship.

Yes, if they were developing film creatively they would have some ownership. But, that is why the "publication" of the images by a film lab is done under the express direction of a photographer. There is a contract in force and terms agreed when you develop film using a service.

That is also how film labs avoid getting entangled in lawsuits, child porn, etc.

I am not so much hung up on 'expression' as copying / reproducibility. If it can't be duplicated or copied, or understood / perceived by audience copyright will not apply.

So undeveloped film is not subject to copyright.

Expression however does probably play a larger role in my thinking due to the copyright of binary software which is indeed absurd.

Thanks for helpful comments

  Undeveloped film is arguably not a tangible medium suitable for communication and this film is obviously not being developed by its author. The development process of film renders it suitable for copy.