My understanding is that photos published prior to 1923 are no longer protected by copyright. However, that doesn't mean anyone with a scanner or digital camera can make copies of any old photo to sell or post anywhere they want to. (If that were the case, I would not have had to pay a couple hundred dollars for permission to print photos of Anne Sullivan and Helen Keller in my novel, Miss Spitfire.) Technically, you must own a vintage negative or print of the photo that was itself printed prior to 1923. Again, the key is not when the photo was taken, but when it was first published. I believe copyright lasts for 70 years after the first printing.
For example:
--The photos in Count Grabbes' book, which were taken in the 1910's but not published until 1984, are protected by copyright until 2054.
-Formal photos of the imperial family printed on postcards for the tercentenary in 1913 are no longer protected by copyright. If you own an antique copy of one of these photos, you may reproduce, sell, or post it online without asking anyone's permission. However, if you own a book with these photos in it, that does NOT authorize you to scan and post them. (It *might* be ok if the entire book was published prior to 1923, but I'm not 100% sure.)
If Mary Evans owns antique prints of these photos, then she has the rights to distribute or print them, but that's not the same as copyright. If you own "rights" to an image, that means you didn't create it, but you (and only you) as the owner of the physical item are entitled to decide when and if it's reproduced.
Only the original artist/photographer/author (or their heirs) can hold copyright to an image or piece of writing. It's similar to owning an original painting -- the physical painting is your property, but not the image itself. Ownership of the painting doesn't allow you to flop it onto your scanner and run off thousands of notecards of the image to sell, because the artist still owns the copyright to the image. Only after the artist has been dead for 70 years can you begin to reproduce and sell the image. Even then you don't own copyright -- the copyright has expired, and you own only the rights to the painting/image as your personal property. "Rights" to an image allows you to charge people for permission to print it, if you so choose.
That's why I had to pay to publish archival photos in my first book -- although I own many illustrated books on Anne Sullivan and Helen Keller, I only own one original pre-1923 photograph of them. And that's why authors get upset when people scan photos from their books and post them online. The images belong to archives or private collectors and are not free for the taking. With The Lost Crown, I was fortunate that a number of private collectors granted me permission to print photos from their collections free of charge.
