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?
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)
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.
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.
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!
|Currently Active Users Viewing This Thread: 1 (0 members and 1 guests)|
|Thread||Thread Starter||Forum||Replies||Last Post|
|copyright laws||cinderella||Legal Issues||74||12-29-2006 02:50 PM|
|Copyright again||bcarll||Legal Issues||3||12-10-2006 10:03 PM|
|Another interesting Copyright question||TheTexan||Legal Issues||4||09-03-2002 07:14 PM|
|Copyright free images||d_kendal||Legal Issues||8||05-22-2002 05:38 PM|
|Non-work related copyright||Ed_L||Legal Issues||2||04-29-2002 05:02 PM|