We don't use a standard form but need to. Most of the clearances I get are verbal by phone, in person or via email. It's one of those things we'll get to... someday... probably when we get burned.
JIM CONWAY -- "If you make a sincere effort to find the owner and don't succeed, keep that record with the order. No lawyer will take a case to sue you if you can prove you were willing to pay user fees but his client did not cover his or her bases with the technicalities necessary to "protect" their end of the numerous regulations that constitute a major part of the rules in this complex issue."
THANK YOU JIM! The advice about keeping records of due diligence is good to know. I've been trying to track down a photographer, who I know is still around, but will not respond to my contact attempts. We are down to the wire and using his photo is crucial to the exhibit we're producing. We know he's released it before for a similar use and the project is a not-for-profit historical exhibit. We're gonna take our chances and use it.
This will be a first for me, I've always had good luck tracking down artists or their estates to clear copyrights and have yet to have even one of them ask for a royalty... Nope, wait, we had Duke University charge Duke Medical Center, through us, over $1100.00 in royalties for some photos taken by a staff medical photographer... at the Med center... for an exhibit in the hospital. Go figure that one. We marked it up!
We have been granted no charge clearances for photos owned by the Elvis Presley estate, Ernest C. Withers, the 82nd Airborne and several musicians including Eric Clapton. We've even gotten free clearance on one of the two existing photos of Robert Johnson. It should be noted that the free clearances were granted for promotional materials used in educational programs and political campaigns. For-profit purposes would have been treated differently.
I need help with a related issue.
I have faced a problem many times that I don't know how to handle. At least once or twice a week I have someone come in with an old photo they want restored and/or copied. When they are clearly family snapshots I give the quick litany on copyright and ask them for verbal clearance to reproduce. When it's not so clear, or obviously a professional portrait, I don't know what to do other than decline the much needed business. People almost never rember who did a portrait, like a sorority or debutante photo for instance. They are rarely marked with a studio name... unless it's Olan Mills and then you just say "Sorry, they won't clear it at any price". Any ideas on how we can legally take these jobs? I'm watching at least $50.00 walk away every time we turn one down.
By the way, if you haven't already, check out Ernest Withers, he is one of the true greats of journalistic photography. He's in the same class as Robert Capa. If you live in the US you've definitely seen his photos of the Memphis Music Scene and the Civil Rights struggle. He took the shot of Martin Luther King's companions pointing in the direction of the gunfire that killed King.
Relax with copyright issues
Your comment on Olin Mills surprises me as I've never had a problem there - perhaps because our requests have been to print fiber base, make an oil portrait or perform some other service that they generally do not have available and all requests submitted to the local studios.
Legal expertise is not anything I'll claim but I have had a lot of hands on experience in court with copyright cases so I'll stick my neck out with a few thoughts that may help dispel some of the paranoia on this subject that seems to exist among this group.
In isolated cases involving restoration, it is important to know that an infringement (should there actually be one) involves civil - not criminal action. If you were consistently stealing work from one source, copying it or profiting from it while trying to avoid the copyright, it might be criminal but someone in a DA's office somewhere would have to make that decision and pursue it. Copying a piece of art work and mass distributing it would be another case where you could expect to get into trouble because it would be worth the effort for the owner to come after you and he or she would certainly be justified in doing so ...and, copying Olin Mills or anyone else's work if they already told you NO could also get you in trouble!
Other than that, with the type of work you are talking about and that most people in RetouchPro are involved with daily - (what I would call just an everyday beat up old photo that someone wants fixed up for their personal collection), and you have looked but can't find the "copyright owner" and the print or mount itself bears no markings or other evidence of a copyright. I'd say do the work - don't run scared!
In the event that an owner who has never attempted to protect his or her work by registering it or marking it in any way should come out of the woodwork - they would have to file a civil suit costing them 7K+ to bring to court. Their reward for this would probably run in the range of $200 if they can prove that you made that much profit on their work and that you intended to violate their copyright! Not a very likely - or for that matter even logical scenario!
So here is what I feel does apply. I've found the real courts are very fair and the Judges and Lawyers are not morons just making up a lot of garbage in spite of all the publicity that some of them get for a few weird decisions. If you do innocently violate someone's copyright and they get all upset over it, the first thing that will happen is that you will get a letter from their attorney and an opportunity to settle it. If it goes any further than that, a judge will use a little common sense in making a decision on your intent - how often you violate the law, how much you actually know about copyright - if you made any attempt to solve the issue and a whole lot more. - all of it just plain realistic logic.
My business interest is in helping people preserve their history - that requires doing the work you are talking about and going about my day without "legal concerns" and I do that. Anyone involved in "lifting" images for photo fakery - ill gotten gains by publishing things that they have no right to publish or selling an artists work as their own should be burned at the stake - there is difference and, it's one that - as Robert Fulghum might put this, "most of us learned in Kindergarden"!
Jim, I for one thank you for your wisdom and the objective, common sense perspective you bring to this subject.
I'm a commercial photographer, I've studied copyright until it made me weep and tried to share what I learned with my customers and business partners. I have never actually had to deal with an infringement from either side and I'm thankful. Having no practical experience has left me on the paranoid side... I've turned down good work and disappointed some people I really didn't want to disappoint. Your words have given me motivation to rethink those restoration copy/jobs. I know what you say about lawyers and judges to be true having survived a lawsuit some years ago.
The fact is, I'm sitting here with this really useful, really expensive Imacon scanner and those jobs can help me pay for it.
Again, thank you. ...I hope that rash has gotten better.
Thanks very much for your no nonsense spin on copyright stuff and photo restoration! You have affirmed my initial thoughts on the matter and made me feel much better about doing this type of work. I am in the process of starting a little part-time retouching/restoration opertation and have been concerned about the copyright issue.
Not so worried about anymore
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