Legal Question in Intellectual Property in New York
copyright and ownership of photographs
My husband has a collection of photos that used to belong to his ex-wife. She is the model in the photos. Messy divorce, blah blah, and now they don't speak. The ex-wife forgot about the prints and because of the divorce terms (that everyone has their stuff, and no further division would be made), technically now they belong to my husband. (she has retained several things since the separation that were clearly his, citing that they are now hers because of the terms of the divorce settlement)
Anyway, the ex is now demanding that the photos be returned to her stating that they are unauthorized copies & that she is the owner of the copyright . I could not find a record of any copyright under her name. we are not certain who the photographer was. the pictures are from years ago (the '80s) and I'm pretty sure the negatives were destroyed by our basement's moisture problem, leaving just these prints as the only record of the images.
Does my husband have rights of ownership of the actual original hard-copy prints, the ones in our possession that were printed in the '80s? And most importantly - who owns the copyright if these prints are the only remaining identifying material for this copyright?
Thank you so much!
2 Answers from Attorneys
Re: copyright and ownership of photographs
In the absence of an agreement to the contrary by the person who took the photrographs, the photogtapher would have a claim to the copyright of the photo and the right to make copies, etc. The ownership of the physical prints is different. You know that old saying that possession is nine-tenths of the law? Because of the divorce decree you're a lot closer to ten-tenths. I imagine the ex can claim that you're husband defaruded her in not disclosing he had the photos, that it wasn't her intention to give up ownership, etc., but I doubt she'd prevail. What you cannot do freely is copy the photos (distributing them on the Internet is copying and therefore a potential infringement), make posters of the photos, or anything else that a copyright owner would be entited to do. If you don't care about the photos other than to annoy the ex, see if there's a deal to be made.
Re: copyright and ownership of photographs
The question of who owns the copyright (normally the photographer) isn't the sole issue about which you should be concerned. If there is commercial exploitation of the photographs, absent a release by the model (the ex) there could be a substantial problem.
If this is just a domestic disagreement, then it's not hard to resolve - but if there is commercial use, the issues are much more complex, and you should consult an experienced intellectual property attorney.
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