What are the copyright ramifications of retouching portraits from studios? If someone wants their girl's prom portrait retouched for red eye or backdrop is doing so violating photographer copyright? If anyone knows for sure, where can I go to find the specific code to find out for sure?

I'd like an answer too.

I had a customer a while ago who ran into this copyright thing and was very frustrated by it. Her father had just died and the only nice portrait she had of him also included her mother (who is still living). She took the portrait to several labs and they all told her they couldn't do it because it was a studio portrait and copyright laws prevented them from altering it.

I didn't know what to tell her, but she was so distraught by this time that I did the work for her and she was very happy.

Did I break the law?

Margaret

This isn't a complete answer to the question, but perhaps some help.
I spoke with the owner of a camera shop about this, to see how he handled the situation.
He said that he, himself, will call the studio where the photo orginated, to ask for permission - which is usually granted, if the photo is over 2 or 3 years old. (the name of the studio is almost always printed somewhere on the photo).
He said most studios don't hold on to the photos much longer than that, and usually quite cooperative.

Perhaps a call to the studio is all that is necessary. (Ask them to fax or mail a release)

Thanks Vikki, I'll keep that in mind.

I had another friend who was trying to get someone to restore an old photo and none of the shops around here would work on it - and the original studio had been out of business for years!

Margaret

I did a search on Google and found this information about Canadian copyright law as it pertains to photographs:

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"Copyright comes into existence automatically, at the time the work was created, and, in the case of most works, it continues until the end of the calendar year in which the author of the work dies (regardless of whether the author has sold or assigned the copyright in the work or not), and continues for an additional period of 50 years. There are some notable exceptions to this rule however. One such exception relates to photographs, which are protected by copyright from the time the photograph was taken, up until the end of the calendar year in which the photograph was taken , and for an additional period of 50 years (that is, the termination date of copyright protection for photographs is linked to the date the photograph was taken, and not the date of the photographer's death).

Each work in which copyright subsists should be marked with a notice in the following form: "© Smith and Company, 1996". That is, the notice should display the copyright symbol ©, followed by the name of the owner of copyright, followed by the year in which the work was published. This notice is to be displayed in such manner and location as to give reasonable notice of a claim of copyright in the work."

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In other words, copyright continues for 50 years after a photograph is taken. Hmmm, I guess I did break the law.

Margaret

There are several issues here related to artistic and creative properties. One is the almost universally applicable rule of archival for protective and personal purposes.
With software, written and I believe artistic property the owner is entitled an archival copy. This is one of the things Im currious about. Second is the process of restoration. One is entitled to the repair of physical property even though the intelectual ownership is someone elses. For example, when you fix your computer you are repairing numerous items each protected by patents. When a museum restores a piece of artwork or archives it with high definition digital copies they are duplicating the intelectual property of another. Now, how does this apply to what we do? Good question. That's why I asked it.

Many studios give the negatives to the clients. Does this imply permission for reproduction or even actually transfer ownership of copyright. Is the copyright dependent on who owns the negatives? I wouldn't think so.

It seems that this would be of paramount importance to anyone who intends to make money in this business which I do. Maybe someone knows where the rules can be found. Interesting quandry.

Tex

We've had copyright threads on this site before. Katrin Eismann has links to copyright information on her site. The only problem, as I see it, is that it would take a short lifetime to just read the copyright laws. Then it would take a longer lifetime to properly decode the laws for your use. To be safe, it would probably be wise to spend a few bucks to get an attorney's interpretation on how the laws apply to you (preferably in writing that's easy for dummies like us to understand).

Ed

Can you point me to some of those threads please.

Tex

Here's a link to US copyright laws:

http://www.copyright.gov/title17/

It looks like copyright exists 70 years after the death of the copyright originator in the US. It is 50 years in Canada.

In Canada the copyright of a photograph is 50 years after it is originally made, there doesn't seem to be a distinction in the US law between photographs and other copyrightable property.

In the Canadian law I quoted in an earlier post, it mentions the requirement for the copyright symbol and the name of the copyright holder to appear somewhere on the copyrighted property. Absense of the copyright symbol would not void a copyright, but if it is present, I would steer far clear of touching it - unless as someone else suggested, I could use the information and locate the originator and get their permission to work on the piece.

Hope this helps,
Margaret

This (http://www.retouchpro.com/forums/showthread.php?s=&threadid=423&perpage=40&pagenumber=1) was the only one I could find on our forums, although I'm sure there have been others. Copyright issues have been discussed before, but they might be buried in other threads. Sorry I didn't find more for you. I did a search of all forums, and came up with several hits, but maybe I missed the posts I was looking for.

Ed

Although I'm not an expert on copyright by any means, I have dealt with more than a few copyright issues as a photographer. Here is a little of the way I understand it to work (which may or may not be a correct interpretation of the things I've read about copyright). :)

It's not necessarily the manipulation of the image that's illegal, it is the scanning of it in the first place. Many studios offer retouching, and to take an image produced by a studio and then retouch it for their client would be a sticky business and, IMHO, unethical as well as illegal. Even if the studio has gone out of business or the photographer has died, chances are that the copyright ownership would have passed to relatives through the estate settlement.

Although it's usually safe to restore images when the negatives are in the posession of the client, the transfer of the negatives does not imply a transfer of the copyright. The copyright is still held by the original photographer unless the transfer of the copyright has been made in writing.

I have one steadfast rule with regards to any restoration I do, and I feel that it keeps me on fairly safe footing.

If the image is less than 70 years old, I require a copyright release from the studio or photographer before I will even scan it.

Even that is not truly technically proper, since copyrights remain in effect for the life of the creator plus 70 years (for works created after 1977).

Here are some links to copyright info that I've found useful and have bookmarked...


10 Myths About Copyright Explained (http://www.templetons.com/brad/copymyths.html)

Copyright Resources on the Internet (links) (http://groton.k12.ct.us/mts/pt2a.htm)

Copyright Law for Webmasters (http://www.netatty.com/copy.html)

Copyright Tips for Webmasters (http://www.nolo.com/lawcenter/ency/article.cfm/objectID/8CD796F2-9770-4ECA-B8F2B4F66DB170F1)

Copyright (links) (http://www.nursehealer.com/Law.htm)

More 10 Myths Explained (http://darwinawards.com/misc/copyright.html)

Tools for Copyright Owners (http://www.webreference.com/content/watermarks/)

Still Images Copyright Basics (http://www.csusa.org/face/stilim/index.htm)

Nolo (http://www.nolo.com/lawcenter/ency/index.cfm/catID/804B85E3-9224-47A9-A7E6B5BD92AACD50)

About.com (http://webdesign.about.com/cs/legalissues/index.htm?once=true&iam=dpile&terms=+Internet++Copyright)

Library of Congress (http://lcweb.loc.gov/copyright/)

Web Copyrights (@ About.com) (http://graphicdesign.about.com/cs/webcopyrights/index.htm?once=true&iam=dpile&terms=+Internet++Copyright)

EP (Editorial Photo) (http://www.editorialphoto.com/copyright/index.html)

I have an observation about this and I first want to say that I am not condoning the wanton violation of copyright laws or entitlements by anyone. That said....

After listening to several opinions and reading the laws, one thing is obvious to me. It is virtually impossible to comply with the "letter of the law" and conduct a restoration business. It is virtually impossible to track down and procure the permission from a photographer for most of the images in the world, especially the older ones. In order to know for sure one would have to avoid working on any picture where there is a likelyhood that the photographer has not been dead for at least 70 years, and that doesnt ensure that the copyright has not been restored to the estate or heirs since then. If one doesnt work on any image less than 60 or 70 years old without permission to avoid copyright infringement one would also have to confirm that the copyright was not reinstated as provided for by the copyright law to be certain of no violation. Im certain, as a matter of practice this is not done.

Can you imagine refusing to restore someones WWII photo because they do not have a release and do not know who the photographer is? In short, restoration businesses could not continue to operate if they followed the letter of the law. In fact it is certain that virtually no one does simply because it is not possible to confirm the existence of a copyright for all images (even much older ones) or to know who to go to for the permission assuming the copyright still exists.

That is not to say that every effort must be made to comply especially with newer images in view of the likelyhood that the photographers or studios are still doing business. But that can be impossible sometimes.

So, the question is this. Since every business must out of necessity take a chance on the legitamacy of their restoration with any image they dont have a release for, to what extent does one apply a "common sense" test to the job?

If someone brings you a image of a Korean War soldier among his buddies but the client doesnt know who took it, can anyone imagine not doing the restoration for fear of stepping on the copyright because he doesnt know the photographer and therefore cant obtain a release. Of course not. How about a 1930 vintage portrait that has been in the client's family but the client doent know who took it?

After thinking about this it is clear that utter compliance with the copyright laws would exclude all but the most elder of photos unless one happens upon the info of the creator. Yet, the restoration business still thrives. How is this possible? A good example of this is computers. Did you know, that according to the FCC all computers must meet electronic interference compliance at the time of manufacture? The completed chasis with all operating components must meet the test and have a placard placed on the chassis showing compliance. All of you who built your own computers, look on the back of your chassis. In fact the computer business could not exist in its present form if strict compliance were acheived. The rule is ignored because it is impossible to comply with.

The answer clearly is the "common sense" factor. To what reasonable extent does one need to pursue the identitly and permission of the photographer to fullfil the moral and ethical responsibility to the law. Better stated, what test do most people you know use?

Show me a photo that has been restored where the identity of the photographer is unknown, regardless of age and Ill show you an image that could still be under copyright and thus an image whose copyright may have been violated.

I guess within my ramblings I am trying to ask this. No one can comply with certainty with the copyright laws so what standard do most use to do the best they can and what do most people consider a reasonable and honest effort?

Thanks,
Tex

Very interesting post Tex. You bring up a lot of valid points. Although I don't have a business myself, I probably did not strictly adhere to copyright laws (like everyone else here) when I scanned or copied old family photos. I never scanned or copied a photo that I felt guilty about, and I consider myself to have pretty decent morals, which I rely on to get me through life. Since it's not a money making thing for me, I feel that if I were brought into a court of law for copyright violation, I would be released as soon as my case was heard (remember I said *old* photos, not something that a business would be likely to still make money on). So, in my case, I follow what I consider my moral obligation. It might not be so easy for others, who happen to be in business, but then again, maybe it would.

Ed

Very astute observations Tex.

When you think that the letter of the copyright law applies to every shapshot ever taken - even those taken with those handy one-time use cameras. In fact I have some charming candid photos taken by my 3-year old grandson - according to the law, he owns the copyright on them and I should get his permission before I touch them. When you stop a stranger on the street in Bankok and ask them to take a picture of you and your new bride, does the stranger "own" the copyright?

You're right, if we all strictly adhered to the law, there would be no retouch business.

Unfortunately, the effort I put into getting permission from the copyright holder is tied to the chances of getting caught.

Ed, I doubt that you would be taken to task for working with family photos.

Margaret

No Marg, the way your law seems to work, the *photographer* owns the copyright, not the model.

The way I see it should work, if I go to a studio and pay a photographer for a pic, it's mine to do with whatever I please. If the photographer pays me to model in his pic, it's his to do with whatever he pleases (and I have to pay him if I want to use it).

The way the legal words seem to be working at the mo', pretty much *everything* on this forum is illegal. Even the very popular Lisa challenge is illegal then, as Lisa herself said the photo was taken in a studio shoot.

As far as I'm concerned this whole studio copyright thing is a load of rubbish...

(won't be able to defend this, as I'm off to the bush for the next week - I wonder if I'll have to pay the elephants :).)

Originally posted by BigAl
No Marg, the way your law seems to work, the *photographer* owns the copyright, not the model.



Actually Al I was referring to a case where the 3-year old "IS" the photographer.

The way I read the law, whoever takes the picture "owns" the copyright - whether it's a guy in a studio paying a model, or your aunt Fannie at the family barbecue.

There is no need to "register" a copyright and there is no requirement that an individual must be in "business" in order for the copyright to be binding. Many photos printed in newspapers were done by amateur photographers who were in the right place at the right time - they own the copyright and can dispose of it however they want.

To prevail in any legal dispute of copyrights, the person claiming ownership would have to prove that they were in fact the photographer.

It gets a little muddy when the person aiming the camera was acting as an "agent" for someone else. Take the example of the Oklahoma City photo of the fireman carrying the little girl. If I remember it correctly, the person who took that photo was using someone else's equipment and there is a dispute about who owns it - does the guy holding the camera "own" the copyright or does the person who owns the camera. Don't know if that case has been settled yet!

As private individuals snapping candid shots of our family, friends and the scenery around us, we don't think much about copyright and Aunt Fannie wouldn't care what you did with her photos - until one day as you're all sitting around the backyard pool and snapping pictures of the eagles flying by and an exploding airplane happens into your viewfinder - the spectacle of an air disaster would be nothing compared to the fireworks generated when those gathered realize that that one picture could be worth hundreds of thousands of dollars - who owns the picture?

Something to think about,

Margaret

Well, we should all try to conform to the requirements but it is impossible to do so. At some point reason must kick in and guide what we do.

For example, I feel more responsibility to the photographer and studio who created the image for commercial gain than to an photographer who took the picture as an amateur. Not that the amateur doesnt deserve his due but that there is less likelyhood that he would have any objection to the retouch.

Keep in mind also that the intent of the restoration is to bring the original image, one that you paid to own, by the way, back to a condition for which you have already paid. The restorer is simply being paid for his reconditioning services. Were that person to then duplicate the fixed image without furthur services rendered that would clearly be profiting from the creative work of the photographer for which he is entitled for compensation.

Look at it from the point of view of the client. Here is a image he has paid $100 for and now it is cracked, wrinkled and fading. The copyright owner sells the photo with the implied warrantee of merchantibility (meaning that his product, the picture, has lasting value) which warrantees against premature devaluing by normal causes. Should your kid destroy the image now you as the client have a need to replace the paid for image. In my mind, as long as you do not end up with more than you paid for you have not violated any copyright. For example, in software, you buy seats now rather than individual licences. That means that when you buy Photoshop you actually are purchasing one seat meaning that it can be used on only one machine at a time. That doesnt mean that you cannot remove the program and reinstall it on another machine. In literary copyright, the area Im familiar with, there is the "borrowed book" principle that states basicly that you can make as many copies of a written document as you wish but the rule is that only one person at any one time may actually be in possession of a copy. As if you have a book and only one person can read it at a time. One license, one seat.

How does this relate to photography? Maybe alot maybe none. I would hate to think we are just rationallizing our way out of the problem. We have a predisposition to find an answer that may not be there. Otherwise we would have to either accept that we cant do this business or must do so illegally. I dont believe that is the necessary conclusion.

A responsible, common sense approach to applying the law must to made that would pass the scrutiny of a reasonable, and prudent test of conformity as judged by reasonable peers. There is of course a fine line between earnest effort and cavalier superficiality; a line Im sure many would cross for expediency and self service.

In short, in most cases, struggling over the pursuit of copyright permissions is alot like spending a extrodinary amount of time and effort trying to find the owner of a $5 dollar bill you might find on the sidewalk. At some point you have fullfiled your moral obligation to the owner and the law. In view of the previous point about rendering services to recondition an previously purchased product I believe we can easily strain at a gnat.

Tex

Well said Tex.

Margaret

Extremely good points, Tex. Good food for thought.

I've done a lot of thinking about copyright at various times and for various reasons. I've had to ask persons who were violating my copyright to stop, sometimes fairly forcefully.

I personally do believe that there should be copyright protection for artists, authors, and photographers who make their living using the tools of intellectual trades. Were anyone able to purchase a proof print from me for $5.00 and then turn around and just make copies of it at the local department store or photo lab, my ability to make any profit from my efforts would be seriously compromised. Those others who make their entire living at such things would probably soon be out of business.

But, I also agree that there should be a reasonability factor. I just did a restoration not too long ago of a photograph that was made by Olan Mills about 20 years ago. Upon contacting them for a release, I was told that a negative for that image no longer existed. I was charged a reasonable $10 fee and the paperwork arrived quickly.

If the negative had still been in existance, I would have also thought it fair if they had declined my request and required the client to purchase another print to replace the damaged one (the print had been damaged by mishandling, which was not due to any fault of Olan Mills).

I've had people come to me with photographs that were not marked in any way, and tell me that they had no idea who might have taken the image. I very much like your idea of a reasonable common sense approach to the copyright dilemma. Perhaps in cases like those, just a written statement from the owner of the photograph saying that they have no idea who took it or how to contact them, and that they are willing to take all responsibility for any legalities should an issue with the restoration ever arise, might be sufficient? Or, what about old school photographs? If you contact the school, and/or the local busineness associations and can't find out who took the photo or can't find the studio if it has gone out of business, have you made a conscientious enough effort? What if you made the same effort for old images that were marked in some way with a studio stamp?

I'd like to be able to comply with copyright laws (or at least try to), but I'd also like to be able to feel fairly worry free about restoring an image if no copyright owner can be located.

Ah well, if this were a car accident instead of a retouching website, we'd probably have no shortage of legal advice... :lol:

Facinating thread...

I can definitely see how scanning and then retouching or manipulating a photo taken by someone else for the purpose of generating "income" would be a BIG no-no.

What about if you're a retouching wannabe and doing it as a favor for no compensation in the form of money or indirectly, as in, bartering? Would this type of thing violate the spirit of copyright laws?

What do ya think?

I fully agree with Jak. If someone has taken the time to become competent at wedding photography, or you name it, they should have the right to make the money from the use of their efforts. While copyright laws are probably far too complicated, they were put into effect to serve a purpose.

Here's something to think about concerning restorations. Hypothetical situation -- Jack builds a custom table for a client. Paul makes a portrait of a man. Two years later, he destroys the negative. Ten years down the road, the table needs refinishing, and the portrait needs restoration because of water damage. The table can be refinished with no legal problems, but the portrait cannot be restored without legal considerations. Both the refinisher and the restorer are using the original product of the craft, the table and the photo, but one is legal and the other is not without taking certain precautions. Both the table and the portrait have been brought back to (or close to) the original condition. The refinisher is not copying the plans to make tables to sell, and the restorer is not doing the restoration to sell copies that would be available from the holder of the copyright. Does something seem wrong here, or am I just not making any sense at all?

Ed

Greg - I believe copyright law is written so that it states that the copying of intellectual property is a violation whether or not it is done for profit. Copying for any reason other than Fair Use is a no-no, and fair use is a slippery area. (See #2 HERE (http://www.templetons.com/brad/copymyths.html))

Ed - interesting analogy, but here are a couple of thoughts I might add. When the table is refinished it is not put into a "magic machine" and replicated in order to accomplish the restoration. Once it IS restored, it is also not likely to be "replicated" so that every member of the family can also own one... In restoring the table, there are never more tables in existance than were originally purchased from the maker and legally paid for.

And, what if the restoration client orders more than one print from the restorer? I've very often had people do that...

If we make reasonable efforts to contact the original artist, should we also take reasonable efforts to insure that no additional copies of the photograph can be made? Should we do as the owners of keys sometimes do when making copies from a locksmith and stamp it "Do Not Duplicate"?

Another point that might be made is the apparent intent to profit unfairly from another's work. I believe most studios and photographers would be understanding of a client's desire to recondition or refurbish a previously purchase product is indeed that is what is done. However, the best way to restore a damaged picture is to get a copy from the original negative. No restore job can beat that. If the photographer has the negatives and can be found not only would I seek his permission but I would send the client to him for the copy. What better way to redo the original? Usually, not always, but usually when a studio or photographer gives the negatives to the client it can be safely construed, if not outright implicit, that the client has been given reproductive priviledges if not copyright ownership.

In other words I see the would be client falling into two main groups. The first group has a genuine need for restoration of a purchased image due to damage or wear, etc. This group can further be divided into two groups, those who have information leading to the aquisition of a release or those who dont. In the first case it should be easy to pursue the responsibilities of the law. In the second, no info is available and I would think one would be safe if not forgiven for genuinely correcting an image that one has already paid for once.

The second group are those who want to gain another copy of the original or modify the original. For example, make a blowup of one person from a group photo, make a simple copy, desaturation, colorization, where the intent is not to restore the purchased image to its original state but to get more that your money's worth, so to speak, by digital means. This group requires more caution and effort of compliance to the laws.

In any case I feel if a challenge were ever made that most photographer's understanding of the situation would be in direct proportion to the restorers sincerity of purpose and faithfulness to the mission of true restoration as opposed to activities that could be perceived or construed as avoidance of royalty payments for profit.

Tex

May I add a few points from the viewpoint of a portrait/wedding studio owner/operator. And I will try to add a little history to this too.

Traditionaly portraits were taken using the marketing model of a rather low sitting fee and making the profit using a rather high fee for each print, ie paying 3 or 4 $ for a print and selling it for $60.00. The sitting was an easy sell because the customer felt he was not risking too much and he could see the proofs before spending the big money. Copyrights were not much of an issue. That was in the days before copy machines!

When copy machines started coming out, print sales started declining and studios bottom lines started falling. Copyright laws that had always been on the books were brought out, dusted off and applied to the problem. The music industry was also getting hit with all their problems at this time.

As has been pointed out above, the laws are so complex and so hard to enforce that for a most studios they are worthless. These are federal laws, so they have to go to federal courts, which are just not set up when you want to collect a few hundred $ from someone who has made a couple of sets of wallets from the 8x10 you sold them. If they copy something you have produced and made a nationaly sold calender for a couple of million $ then its worth the expense etc. etc.

So what to do? A good many of the portrait studios are now changing their business model to one that makes a whole lot more sense. We charge for our sitting time for what its worth, and sell the prints at a 2 or 3 times markup. So our bottom line remains the same, altho it is a somewhat harder sell. What this really means is that to a certain extant I really do not care if the customer copies the photo, I have already made my $! Weddings are done on the same model, to the customer the major cost is my labor, the minor cost is the film/prints/albums.

There are of course some problems with this, if the customer made copies are say off color, and they show them to someone else, then I am known for off color work (that has happened to me). Some times the low cost I charge for the prints will entice them to come back to me rather than try the copy machine. But in a practical sense there is not really anything I can do about it or any other things the customer does.

So as to the discussion of copyrights, a good deal of common sense has to be used here. I have requested customers to get release forms from a good many of the large portrait operations, (Olan Mills, Sears, Pennys, etc) and have never had one refuse to give one. Smaller studios often have the negatives and usually prefer to supply the images rather than have someone else copy a print. And I tell my customers that, as we all know that a print from the orginal neg will be better than a copy.

As far as some of the talk about doing retouching work (red eye, etc) on a customers prints, then I think that the retoucher is overlooking a golden opportunity for work. It would appear that the studio that turns out portaits with those conditions needs someone to correct them before the customer even sees the print. It is not uncommon for studios to hire outside retouchers to take care of those things, and for a single retoucher to handle work for a number of studios!

So I think that the bottom line is to be practical, thoughtful and aware. There are a few studios that have been handed down for several generations (I know of one that has all the negs for 3 generations of owners!) so a print from them should most likely be refered back to them. But the great-grandson of the person who took your great-grand dads portrait most likely will not come knocking on your door if you copy and restore that print.

I have seen the idea of having the customer sign a form that he assumes the responsibility for the copyright violation if there is one but I have never seen any authoritive opinion as to the legality of that. Also I do not believe that not charging for the act of copying is a good defense.

Sorry about the length, but this is an area of some concern to all of us and I believe we will all benefit from the discussion.

Mike

Mike:

An insightful and well-written post. Nice to get further perspective on this issue from one "in the business." When content is this good, "length" is a bonus.

You've further reinforced the legend that "Folks from the State of Washington frequently make quaility contributions" at this site! :)

~DannyR~