Re-producing old advertisements that are trademarked.

The photographs may not be in the public domain even though the pictures were taken so long ago. You should consult with an intellectual property attorney. You may need to undertake investigation, including for example, investigation into copyrights that may belong to the photographers', authors', or the companies' successors, assigns or estates. You should also get advice as to the investigation that will need to be taken about potential copyrights to the catalog pages themselves, including text.

Since you are considering commercial use of images of these pages, in addition to potential copyright issues concerning the pictures, there could also be copyright issues concerning the ads themselves. And you are right, there could be trademark and advertising issues with any surviving companies or successors to companies that created the ads.

I recommend that you consult an intellectual property lawyer where you reside or conduct your business. That lawyer will most likely want to see what you are thinking of using.

Some companies today license their photos, images and other historical materials. For example, the Boeing Company licenses its historical archives.

The following is not legal advice and should not be relied upon to take or refrain from taking any action.

ALL copyrightable works published before 1923 are firmly in the public domain and, under copyright law at least, can be freely reproduced, distributed, used to create derivative works, and sold by anyone. I'm unaware of any contrary rule that would justify Mr. Woo's concerns.

Your concern about trademark law is a good one and to answer it requires a tricky analysis and balancing of the rights afforded under the First Amendment with the rights afforded under federal trademark law. In short, the answer depends on what you do with the advertisements.

If the advertisements are marketed and sold solely for the nostalgic, artistic value that they convey then the owner of the currently-used trademark shown in the advertisement has no cause to complain when your copies of the photograph are sold. The rationale is that you are not using the trademark shown in the photograph as a trademark -- it simply appears as one artistic element among others that comprise the photograph.

There is much more that needs to go into that analysis however -- such as whether you're targeting your sales to the trademark owner's customers, the extent to which the trademark / trade name of the firearm manufacturer appears in the photograph, whether you seem to imply that the trademark owner sponsors, endorses, or is affiliated with you as the source of the photograph etc., etc..

Considering these and other factors may lead to a different answer for each particular advertisements that you intend to sell. As Mr. Woo noted, you need to discuss the matter with an intellectual property attorney. He or she may decide that reaching out to the trademark owner to discuss the matter is the best course. It would be a mistake for you to do so on your own however.

One thing I want to add to my colleagues' posts above is that trademarks generally die with their accompanying businesses (both in a legal sense and in a practical sense). In other words, you should be safe to use the 1891 hardware store catalog page (assuming there is no copyright issue).

**This post is for informational purposes only, and does not create an attorney-client relationship. Please do not send me any confidential information via email.**