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[sofasurfer]

I was told, "If you aren't the photographer, you can't own the copyright to a photo (unless the photographer legally transfers it to you). If the images are so old they've fallen into public domain, you can use them, but can't copyright them".

On many library websites that display photos in excess of 100 years old they display this message such as this, "Not to be reproduced without permission. To purchase copies of images and/or obtain permission information, please see http://www.library.unr.edu/specoll/photos.html"

I have been told that "legally" you can never sell a photo that you did not personally take. How can they offer these photos for sale?

I currently possess negatives that were found in the trash, which I have made prints of and sold. I have been told that this is not legal.

How confusing.

[artchain]

If a work is 100 years old, then the copyright has probably expired.  There is a special case for unpublished works:  the copyright term is the life of the author + 70 years.  Here's a very good summary of the terms for copyrights:

http://copyright.cornell.edu/resources/publicdomain.cfm

Assuming the copyright HAS expired, anyone is free to make reproductions, and to sell them (or give them away).

In the case of negatives you found in the trash, it is quite possible that the original photographer retains the copyright (again, see the link above).  Possessing prints or negatives does NOT convey rights to reproduce.  So what you did mat have been illegal. 

Congress has been considering "orphaned works" legislation for years.  This would give people limited reproduction rights for works where the author cannot be identified and copyright ownership cannot be established.  Libraries and commercial publishers tend to be "for" it, and creative professionals tend to be "against" it, and as a result it has gone nowhere.

[Zonath]

I have been told that "legally" you can never sell a photo that you did not personally take. How can they offer these photos for sale?

I currently possess negatives that were found in the trash, which I have made prints of and sold. I have been told that this is not legal.

How confusing.

First off, anyone can sell a work that's fallen into the public domain.  If you want to print the Mona Lisa on coffee mugs and sell them, you generally can.  At the same time, you also can't generally stop other people from doing the same thing.

Secondly, the disposition of a physical instance of a copyrightable work does not affect the ownership or the status of the copyright in the work. (17 USC § 202)  So the fact that the negatives you print were found in the trash would have little to no bearing on the copyright owner's ability to sue and recover on a copyright infringement claim.

Third, you also mentioned the fact that some libraries or museums put copyright notices on works that would presumably be in the public domain.  On the one hand, the mere transcription of a copyrighted work from one medium to another (such as from photo print to .jpeg file) does not create any additional rights in the transcribed work.  So, the copyright notice may simply be the library asserting rights that it does not actually have.  On the other hand, the library may have added certain creative elements to the photos that would merit copyright protection, and so one should generally seek permission unless one is certain about the status of the particular instance of a work to be copied.

[Kaitlin]

Well put, Zonath!  Good to have you here.