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.
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.
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A film negative absolutely is a tangible medium of expression, certainly suitable for communication.
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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.
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.
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.
It is not "simply wrong." Do not get "fixated" on materially fixed. The point is to be fixed in a tangible form of expression, that can be communicated / disseminated / published and most importantly copied.
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).
Again, if it were not fixed until developed then labs would often acquire copyright by default. what you're missing about this case is the location of the artistic authorship at the neus of intentionality, ie where the photographer chose and possibly arranged) the subjet, framed and lit, made decisions about exposure etc. By contrast, the best developer int he world can't express any opinion about the content of an undeveloped film until it has sat in a developer bath for some minimum length of time.
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.
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Again, if it were not fixed until developed then labs would often acquire copyright by default.
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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.
Ok, then this is a matter of me using incorrect terminology: my assertion is that the undeveloped film, which has been exposed to light via the creative act of taking a photograph, is itself is "good enough" to be copyrightable.
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