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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?
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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)Comment
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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!
MargaretComment
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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.
MargaretComment
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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.
TexComment
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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).
EdComment
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Can you point me to some of those threads please.
TexComment
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Here's a link to US copyright laws:
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,
MargaretComment
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This 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.
EdComment
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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
Copyright Resources on the Internet (links)
Copyright Law for Webmasters
Copyright Tips for Webmasters
Copyright (links)
More 10 Myths Explained
Tools for Copyright Owners
Still Images Copyright Basics
Nolo
About.com
Library of Congress
Web Copyrights (@ About.com)
EP (Editorial Photo)Comment
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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,
TexComment
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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.
EdComment
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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.
MargaretComment
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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.)
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