Rant/Bitch about copyright and my senior portrait

[Mark Adams]

My senior portrait was taken about 28 years ago by a photographer who is no longer in business. In fact, I believe Mr. Fowler is deceased.

That portrait has been hanging in my father's living room for those 28 years. I recently took down the headed-for-sepia 8 X 10 and tweaked the color back to some semblance of its original colors.

A local quicky photo outlet who shall remain nameless (but rhymes with "mall-wart") refused to sell me a restored print citing copyright. According to the supervisor there, I need only wait another 47 years and I can pay them for the print.

This galls me: Firstly, I can't get another original print because the business ("owner of the intellectual property"), and as far as I know, the original negative no longer exist.

Second, this is my image. I am the model. I should be able to reproduce this image for my personal use, yes?

Finally, I do not recall signing any sort of release or viewing any informational documentation when I sat for the portrait, paid for the portrait, or received the portrait. And if I did sign any document assigning away my rights to said image, I was not yet 18 years of age, and therefore I would argue, I was not competent to enter into any binding contract.

I'm certain that credentialed lawyers and working portrait photographers alike will be quick to explain that the portrait is not my "work" and actually has nothing to do with me. Like the photo printing functionary I talked to, I am sure I will be patiently counseled that this is simply business, and it is necessary so that the hard-working photographer who scraped out a living creating this portrait is protected and not exploited in the marketplace.

Okay, the guy at the counter didn't explain anything to me. Though he was nice, he just passed along what he was told by his supervisor.

I'm not interested in exploiting anyone -- I just want a decent looking portrait of me on my father's wall. This seems a case of copyright law gone stupidly awry.
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<lurk>

[BillFrey]

I think we're on the short end of a stick here, but I agree with you.

I had hoped to do restorations as income, but have let that idea go since if I follow the copyright laws I won't be able to work on any picture until 70 yrs. after the death of the copyright owner.

Geez, kind of makes it hard to do restorations legally.

[smak]

Have you tried any other places?

[Janet Petty]

Sort of off subject yet sorta on too.

I took some pictures of my daughter and her fiance for the announcements a couple of weeks ago. When I went to (un-named business as above) to print a couple of hundred wallet-sized photos, I was told that they were professional and could not be printed because I didn't have permission from the photographer. WHAT A LAUGH!!!

I've also been told by said un-named business that 8X12 prints is a waste of time because they won't fit in a standard 8x10 frame. Well...DUH! If I wanted 8x10, I'd ask for 8x10, right? I'm pretty sure she just didn't want to change the paper tray.

My rant for the day.

Janet

[DWThomp]

Originally Posted by Janet Petty

Sort of off subject yet sorta on too.

I took some pictures of my daughter and her fiance for the announcements a couple of weeks ago. When I went to (un-named business as above) to print a couple of hundred wallet-sized photos, I was told that they were professional and could not be printed because I didn't have permission from the photographer. WHAT A LAUGH!!!
Janet

Yeah, I got the same treatment from the same named business a while back after doing my daughter's pregnancy shoot. Most of the others working in the lab of said place know me. It was the first time this one had waited on me. He thought they looked like the work of another studio in town. I thanked him for the compliment and calmly explained they were indeed my shots. After a little more explaining he gave me my prints. I also thanked him for asking, because if someone else had been trying that with my prints I would surely appreciate them not printing them without a release. It can be a double edged sword and the person may just be trying to do their job. You might try one of the online places to get it printed. Never had one of them question anything.

[madclark]

I think the issue comes down to the difference between commercial applications versus personal use, and in this case archival application.

If the photograph were to be retouched and reproduced for commercial purposes or for large scale reproduction, then you truly should make the effort to try to secure copyright permissions. That would only be fair because the amount of money the photographer or their estate would lose out on might be noteworthy. Turned around, if your senior picture was used for advertising purposes like turning up in a web banner for classmates.com without your express consent, you would be absolutely justified in bringing legal action.

But in this case, where the reproduction was for personal use but more importantly archival application, the law views this a bit differently. You should have an expectation that the work remains in a state similar to when it was originally purchased from the copyright holder. As people have mentioned in other threads, the best way to get a reproduction is from the original negative, so it IS in your best interest to try to track down the source to see if that exists. It's likely that the photographer's work passed down to someone and you are obligated to at least TRY to track them down. But once you've done that, you should feel free to retouch the picture for archival purposes to return it to the original state, but nothing beyond the original state.

As far as dealing with corporate reproduction services like "MallMart" there's no getting around that. They're only doing their job and without being able to offer a specific release they're only protecting themselves. But surely there are many other places that aren't as regulated with competitive prices.

[Mike]

Originally Posted by madclark

But in this case, where the reproduction was for personal use but more importantly archival application

Do you really expect archival quality from a discount store????

[Mark Adams]

Originally Posted by BillFrey

Geez, kind of makes it hard to do restorations legally.

Indeed. And what happens when someone like me who can't scan and edit their own images hires you for restoration, then you find out some photog's lawyer is out for your ass because you "violated his copyright?'

How do you get a client to hold you harmless?

[Mark Adams]

Originally Posted by smak

Have you tried any other places?

I have. So far so good, but I still don't have the print in hand.

We'll see. But my original rant is premised on the idea that the nickel-and-dime outfit that turned me down is just not trying because some lawyer made the case that it was just easier not to. It should be their loss, but they are literally the only game in town.

[Mark Adams]

Originally Posted by Janet Petty

Sort of off subject yet sorta on too.

I took some pictures of my daughter and her fiance for the announcements a couple of weeks ago. When I went to (un-named business as above) to print a couple of hundred wallet-sized photos, I was told that they were professional and could not be printed because I didn't have permission from the photographer. WHAT A LAUGH!!!

I've also been told by said un-named business that 8X12 prints is a waste of time because they won't fit in a standard 8x10 frame. Well...DUH! If I wanted 8x10, I'd ask for 8x10, right? I'm pretty sure she just didn't want to change the paper tray.

My rant for the day.

Janet

Now that you mention it, I got the same crap at the same place over this image http://www.retouchpro.com/forums/att...2&d=1101270961 several years ago. I wound up doing just what I'm doing with the sr. portrait.

This is the second time they've pulled this. You'd think I'd eventually learn, huh?

[Mark Adams]

Originally Posted by madclark

I think the issue comes down to the difference between commercial applications versus personal use, and in this case archival application.

Well put. I think this may be the primary reason I'm so irked about the policy at my only quicky photo printer.

It's a shame they can't find a way to accommodate reasonable business, but that would require effort, training, expense, etc. In the meantime, I'm looking at the alternatives I should have already trained myself to use.

Thanks.

[Mark Adams]

Originally Posted by Mike

Do you really expect archival quality from a discount store????

Not really, but for $5 I can replace it with a brand new, fresh print every 90 days and still come out ahead.

[Mark Adams]

Okay, thanks for the input.

I'm glad I got that out of my system.

[BillFrey]

Originally Posted by Mark Adams

Indeed. And what happens when someone like me who can't scan and edit their own images hires you for restoration, then you find out some photog's lawyer is out for your ass because you "violated his copyright?'

How do you get a client to hold you harmless?

That's the entire point... I decided not to go into the restoration business because it's not worth the time needed to be legally protected.

IMHO, one should be able to hire a restorer for non profit, personal use. It makes no sense to me that the burden is on the restorer to find out if the client has the legal right to provide a photograph for restoration.

I think it's a joke that the photographer that took my high school picture (who is still in business at the same location) holds the copyright to my picture. It's a photo for a HS yearbook that he was highly paid for, not a work of art. As the law stands now, I can't scan it in and make a painting of it, or fix any damage and print it out. I can't even scan it and put it on cd legally.

The copyright that universally covers photographs/photographers is flawed.

[Mark Adams]

Originally Posted by BillFrey

The copyright that universally covers photographs/photographers is flawed.

Hear! Hear!

[Kraellin]

gentlemen, rather than enter my own personal view here, here is the source information for copyrights in the U.S.: http://www.copyright.gov/

and i believe this is the part of the law you are looking for:

My local copying store will not make reproductions of old family photographs. What can I do?
Photocopying shops, photography stores and other photo developing stores are often reluctant to make reproductions of old photographs for fear of violating the copyright law and being sued. These fears are not unreasonable, because copy shops have been sued for reproducing copyrighted works and have been required to pay substantial damages for infringing copyrighted works. The policy established by a shop is a business decision and risk assessment that the business is entitled to make, because the business may face liability if they reproduce a work even if they did not know the work was copyrighted.

In the case of photographs, it is sometimes difficult to determine who owns the copyright and there may be little or no information about the owner on individual copies. 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. Even if a person hires a photographer to take pictures of a wedding, for example, the photographer will own the copyright in the photographs unless the copyright in the photographs is transferred, in writing and signed by the copyright owner, to another person. The subject of the photograph generally has nothing to do with the ownership of the copyright in the photograph. If the photographer is no longer living, the rights in the photograph are determined by the photographer’s will or passed as personal property by the applicable laws of intestate succession.

There may be situations in which the reproduction of a photograph may be a “fair use” under the copyright law. Information about fair use may be found at: www.copyright.gov/fls/fl102.html. However, even if a person determines a use to be a “fair use” under the factors of section 107 of the Copyright Act, a copy shop or other third party need not accept the person’s assertion that the use is noninfringing. Ultimately, only a federal court can determine whether a particular use is, in fact, a fair use under the law.

which came from this page of the copyright site:
http://www.copyright.gov/help/faq/fa...e.html#copying