Modding and WW2 Photos both colourised and black and white. Copyright or not?

[Destraex]

Hi Guys,

I am considering doing a modification to a game for myself and the community that plays that game. It will involve using black and white and colourised (colorised) ww2 photos. I want to substitute some of the unit card art for these photos. Close Combat GJS did it a long time ago and I thought it looked great.
I learnt how to mod and am all ready to go find photos that suite my needs. But I was thinking that perhaps copyright applied?
Is it fair use to make a free mod for a game that uses ww2 photos. More specifically if somebody has colourised the ww2 photo does that then become copyright or is it a free mod like I am considering?

Thanks in advance if anybody has any experience or input in this regard.
I am thinking that I am overthinking this a little bit and that nobody will care.

Destraex.

[Staggerwing]

If the mod is free maybe you can claim Fair Use. To be safe, I'd add a disclaimer that the game devs&publishers were in no way involved.

[Jarhead0331]

Whether there is a copyright depends on the image. It could vary widely depending on who originally took the photo and who, if anybody, owns the rights to the image.

Personally, I wouldn't sweat it. I would just use it and make your mod. You have the non-commercial/educational use argument to make with respect to "fair use". Worst case scenario, you get hit by a cease and desist and you pull the mod.

The above does not constitute legal advice. If you want to cover your arse, consult with an attorney...other than myself.

[jomni]

And if you can contact the source, you can also ask permission.

[Destraex]

Jomni their would be a "lot" of sources to which most I would have no idea who to contact. The problem pretty much revolves around whether its worth my time and energy. If its fair use and the worst that can happen is cease and desist then that's fine.  Because all these images are available freely on the internet and published on facebook groups etc already. Without cease and desist. So I assume its probably fine. But since I have not done anything like this before and a lot of ex close combat guys hang here... I thought I would ask. A ybody remember gjs that used old ww2 photos?

[Destraex]

Jarhead thanks for the reply. That really helps. Good to know that you don't think it will cost me money if somebody takes offence.
It will mainly be pictures of groups of men and equipment anyways. Nothing really personal in nature.

[em2nought]

Just don't trigger our entire educational system with something like this  ;)

[airboy]

I've testified on fair use issues and branding.

I agree with Jarhead.  If you are not making money on it, then the worst that will probably happen is you will be asked not to do it again (a cease and desist order). 

I would not worry about it.  Do what makes you happy. If an attorney complains, just pull it from general use.  You will probably never hear any complaint.

[Philippe]

Whether there is a copyright depends on the image. It could vary widely depending on who originally took the photo and who, if anybody, owns the rights to the image.

Personally, I wouldn't sweat it. I would just use it and make your mod. You have the non-commercial/educational use argument to make with respect to "fair use". Worst case scenario, you get hit by a cease and desist and you pull the mod.

The above does not constitute legal advice. If you want to cover your arse, consult with an attorney...other than myself.

My experience with WW II images has been that most of the sites that claim copyright because they own the image don't actually own the image.  What they own is the print, and with a little digging it often turns out that the images are part of the Library of Congress/National Archives collection because they're spoils of war. 

Many people who aren't involved in the art world don't understand the difference between owning a photograph and owning the rights to the image. When you own a photograph, what you usually own is a piece of hopefully archival paper with something printed on it that may or may not be in archival ink (what archival really means is probably a fiction since photographs are a recent artform and nobody really lives that long).  Owning an object is not the same thing as owning the image, even if you own the last surviving copy of the object (which is what the WW II collectors often own).

If you own a mug with the Mona Lisa printed on it, what you own is a a coffee mug, and not the image of the Mona Lisa (the Louvre owns the rights to the image, and there's a company in New York that acts as a clearing house for museums for that kind of thing if you ever decide you want to start selling Mona Lisa T-Shirts.  But just because you've defaced the Mona Lisa image by putting your logo into the corner doesn't make it yours.

Things get a bit murkier when you start dealing with colorized images.  My understanding is that the bar for how much modification is enough to claim ownership is pretty high and getting higher, and I would have thought that just changing something from black and white to color or vice-versa isn't enough to stake an ownership claim (unless you're a Nazi fanboy -- they do this kind of thing all the time). There's a domestic and an international convention for these issues, and there's a bunch of fairly recent case law, but I'm not an Intellectual Property lawyer and frankly this stuff gives me a headache.  If you ever find yourself unable to sleep, look up the intellectual property clearing house for museums in New York -- they don't work for free, but they used to have enough detail on their website to leave you comatose in short order.  And I seem to recall that they also get involved in the repatriation of artwork stolen by the Nazis.

Your best bet is to follow Jarhead's advice and not sweat it.  It's pretty much a moot point if you aren't planning on releasing your mod into the channels of commerce (in English = you ain't gonna sell it).

[Destraex]

Thanks guys. Good to hear peoples experiences here.
The only place it may end up is uploaded to steam workshop as a mod for my friends and the public to use if they want.

[Michael Dorosh]

Things get a bit murkier when you start dealing with colorized images.  My understanding is that the bar for how much modification is enough to claim ownership is pretty high and getting higher, and I would have thought that just changing something from black and white to color or vice-versa isn't enough to stake an ownership claim. There's a domestic and an international convention for these issues, and there's a bunch of fairly recent case law, but I'm not an Intellectual Property lawyer and frankly this stuff gives me a headache. 

You're talking about "derivative works" if anyone wants to do further research. A lot of World War II photography that is available on the net was taken by government sources, over 70 years ago, and thus fall into public domain. Someone coming along and colorizing a public domain photo has created a derivative work. I don't know what kind of legal protections they have, either, but I suspect very few people are making money by colorizing old photos and putting them online. I also think if you asked them whether or not you could use their work for a wargame project, they'd likely agree. People who put their artwork online for free do it because they want people to see it.

https://www.legalzoom.com/articles/what-are-derivative-works-under-copyright-law

Some stuff on derivative works at the link.