I am an art director and designer. I'd like to use a photograph that was taken by commercial photographer who says he sold exclusive rights for the particular photo to the agency who commissioned it, Wells, Rich, & Green. However, this agency is no longer in business and the photographer can't find any remnants of it! The photo was used in a promotion for a paper company (in 1992) and they have no record of it (not even a printed sample of it) so I'm sure they don't have any rights. SO, do the rights revert to the photographer and can he sell limited use of the photograph to me? I'd appreciate help with this because the photo is perfect for the job I have at hand!

Gail,

I'll field this one and Daniel can correct me if I am wrong.  Agencies generally secure rights as agents for their client.  Accordingly, the dissolved agency does not own the right, the paper company does.  The fact that the paper company has no record of the transaction does  not change this.  If you you use the image and they later find proof of their ownership they could come after you.  I would suggest that you explain the situation to the paper company and get their written permission before going ahead.

JERRY RAPP
g e r a l d  &  c u l l e n  r a p p, I n c.  
http://www.theispot.com/rep/rapp
gerald@rappart.com
   

...and it's copyright, as in "copy right" -- having the "right" to "copy" is the whole idea.

Not copywrite.

Joel

Hi Gail
   Does the photographer remember signing an agreement. If he/ she didn't then the agency gets first rights, which means they have the rights for one year. Not forever. Perhaps I am wrong on that but I'm sure someone will correct me if I am.

Well and succinctly put, Jerry.  The only thing I would add is that the rights could revert, or could have reverted, to the photographer, if he had had a clause in his contract with the agency describing the conditions under which they would revert to him. Book publishing contracts, for instance, frequently take all rights for the duration of the book being in print, and revert the rights to the author six months after the book goes out of print.  

The photographer in this case did not do that. The mere fact that the agency does not exist any longer does not cause rights to revert; there is always a successor at interest, whether that be the agency which acquires the old agency's assets and good will, or the client on whose behalf the agency purchased the rights.  The ownership is not contingent on the owner's adequate or inadequate recordkeeping.  

Jerry is absolutely right to suggest that you get permission from the defunct agency's original client.  

__________________________
Daniel Abraham, Esq.

718-499-4006

DISCLAIMER: Material posted on the Legal Easel™ chatboard discusses general principles of law in response to issues of concern to the illustration community. Nothing in this website or the Legal Easel™ chatboard should be construed to be a substitute for advice of counsel regarding the specific facts and circumstances of an individual case. Laws and their interpretation differ from jurisdiction to jurisdiction. Legal advice addressing a specific situation should be sought from an attorney duly licensed in the appropriate jurisdiction.

Thanks! I know what steps to take now.