Historic Photos Copyright Law question?

Question

If a photo image in taken before 1923 and is in the public domain, is it legal to use a digital image if a historic society holds the original or asks for a fee? Is it legal to not pay the fee? Is it legal for them to charge a fee? For example.... you see the same Civil War photos on many books and web pages. Did all those people pay a fee?? I doubt it, otherwise writers would have to pay hundreds or thousands of dollars when writing history books that include photos. Thanks

Answer 1

As you mention, works prior to 1923 are in the public domain.  Thus, if you are able to obtain a work that was published prior to 1923, then you are free to use it without any recourse from the original copyright holder.

That being said, copyright has nothing to do with the sale of the medium containing the work.  For example, if you go to any big box bookstore like Barnes and Noble, you will notice many books that contain works that were published prior to 1923.  Or let's say I have a first edition copy of a book published prior to 1923.  I am free to sell that as well.  

In other words, don't confuse copyright of the expressive material (e.g., words, music, images, etc.) with the actual object containing the material (e.g., books, records, dvds, etc.).  Just because copyright of the material expires doesn't mean the object containing the material automatically becomes free.

There may be free ways to obtain copies of the photos you want.  But a historic society can certainly charge you if you want one of their photos.

Edit:  In your first example, the image can be freely copied because the image is in the public domain.

In your second example, copying the image, assuming it is under copyright, would be copyright infringement.