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
Copyright Resources on the Internet (links)
Copyright Law for Webmasters
Copyright Tips for Webmasters
More 10 Myths Explained
Tools for Copyright Owners
Still Images Copyright Basics
Library of Congress
Web Copyrights (@ About.com)
EP (Editorial Photo)
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?
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.
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.
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 .)
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,
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.
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...
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?
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