Can I Scan that Photo – Legally? Understanding Copyright and Fair Use

As you can imagine, copyright, fair use, and other intellectual property questions come across my desk every week. Understandably, my clients look to me to answer all of their questions about the scanning process, from the inevitable “Why does ownership matter if I’m only scanning for personal use?” to the even more common “The photographer who took my photo is no longer in business, what do I do?”  You can add your questions to the list. Fortunately, I have some insight into all of this. You see, in Grad school, I was lucky enough to intern for Jay B. Ross & Associates in Chicago, and I got to see up close how copyrights, publishing, and other matters are handled. It opened my eyes to the complexity of the law, and how important it is to understand all of the issues you might come across, especially when you are scanning your personal photos. I wanted to address these questions once and for all, but rather that trying to write a blog post on this topic myself, I invited my friend Jackie Jade to guest post. Jackie is an experienced attorney, and will shed some light on all of this for you, so that you can go into the digitizing process with a clear conscience. Take it away, Jackie!

The Copyright Concern

We are lucky to live in an age where it is so easy to capture moments on camera. Plus we have all of our old family photos on hand too. Obviously digitizing photos is really popular right now, but copyright issues are always a concern, so let’s discuss what is and isn’t ok when it comes to digitizing your personal photos, or photos for others.

Before we get started, I want to let you know that I am a US attorney and am barred in Pennsylvania. Therefore, the info in this post is based on my knowledge of US law, but the information may be applicable to readers in other countries as well. Additionally, this blog post is for informational purposes only and is not legal advice. Consult with a local attorney for legal advice.

What is Copyright?

First, let’s discuss what a copyright is since copyrights are the main issue when dealing with photographs. Copyrights are the legal system that give the creators of work the right to control the copying of their work. This means that others can’t take, use or reprint their work without their permission. The point of this is to protect the original creator of the work. When it comes to photographs, there are several different legal issues you can run into, so I’m going to broadly discuss them today.

In the US, creative works are copyright protected from the moment that they are created. This means that the creator of the work immediately has copyright protection without needing to actually register the work with the US Copyright Office. However, in order to file a lawsuit, the work needs to be formally registered with the Copyright Office.

The Purpose of Copyright

The purpose of copyright laws is to promote creative works by giving authors or creators a limited time exclusive right over their works. Basically, the laws want to balance the public’s interests of repurposing or copying content while also protecting the rights of artists and creators, so that they have an incentive to continue to create unique creative works (because they know there work can’t just be taken and used by anyone for any reason). So this can be good and bad. If you are the creator of something, this is a good thing – it means that people aren’t going to constantly steal and reuse your stuff without your permission. But sometimes it can be a bad thing too – such as the situations with photographs where we often don’t know who the copyright holder is…

Copyrights and Photography

When it comes to photography, the photographer has the exclusive right to reproduce their photographs. This means that it is unlawful for others to do anything with these photographs without the photographer’s permission. This includes making prints, copying, scanning, photocopying, emailing, publicly displaying or creating “derivative works” of the photos. This makes sense because part of a photographer’s livelihood is having the control over copying of the photos that they take, so the law protects them. Additionally, owning a copy of a photo isn’t the same as owning the copyright, which is the ownership of the intangible intellectual property.

So Who Owns the Copyright for Old Family Photos?

This can be dicey when it comes to copying old family photos. You might think that the person in the photo or the person who paid to have the photos taken would be the copyright owner, but the copyright is actually owned by the person who took the photo – the photographer. Remember, this makes sense under the purpose of copyright laws because the law wants to protect the photographer and his or her livelihood.

The creator of a work owns the copyright from the moment the work is created. The length of time that the person owns the copyright depends on several factors but it can be upwards of 120 years after the photo was taken. This is true even if we don’t know who took the photo because we can assume that whoever took the photo still owns the copyright. If the photographer is deceased, the rights over the photos would have passed according to the photographer’s will or through succession laws if he or she did not have a will. There are some instances where the photographer can transfer the copyright to someone else, such as a wedding photographer giving the couple the full rights to copy and reprint the photos. This would need to be done in writing and signed by the copyright owner.

I’m a Perfect Pinnable!

Fair Use

Let’s briefly talk about fair use, which is a huge topic. Fair use is a gray area of the law and can be pretty confusing. It’s essentially a defense to copyright infringement, where you would show that there was no illegal infringement because it was a “fair use” of the work. The reason this area of the law is so murky is because it is up to a judge or jury to decide whether something is “fair use” each time there is a new lawsuit. There is no hard and fast rule on what you can legally copy because the only way we can truly “know” if it’s okay is for you to make copies of the photos, get sued and win. Not the ideal situation, right? The best we can do is put ourselves in the jury’s shoes and consider the same factors they would be considering if you were sued and used fair use as a defense.

These considerations include:

• Whether you have the photographer’s permission
• If your use is for “purposes such as criticism, comment, news reporting, teaching, scholarship or research”
• If the purpose of the use is commercial or non-commercial in nature
• Whether the nature of the work is highly creative or less creative and
• Whether your use will cause the creator or photographer to lose money

When it comes to copying, scanning or digitizing your own family photos, you are likely doing this for personal use only and not for commercial purposes (like if you were selling prints). The US Copyright Office has indicated that there are some circumstances where copying a photo may fall under “fair use.” However, this doesn’t mean that a copy shop or store is in the wrong if they refuse to make copies of your family photos. These stores are worried about violating copyright laws and many have policies of not copying old photos or those that “appear” to be covered by copyright protection without evidence that the person indeed has the copyright.

How to Legally Copy Family Photos

Ok, so I know you want to know – is it legal to make copies of your family photos? Well… it depends. So how can you get make or obtain legal copies of professional photos?

First off, you should contact the photographer or the copyright owner. The photographer will likely be more than happy to go over options for reproducing photos or they can give you a license for copying or making your own prints. With older photos, it can sometimes be tough to figure out who the copyright owner is. One option is to go to the Photographer Registry website in order to find out who the copyright owner is. If the photographer or copyright owner is deceased, the rights would have passed through the person’s will or through the estate rules. If the photographer is alive but no longer in business, you can see if they have transferred or sold the copyright to someone else.

Consider the issue of fair use if you cannot figure out who the copyright owner is, or if the photographer is out of business, or deceased. If your copying or scanning can be deemed “fair use,” this would be a defense to a claim of copyright infringement. A court would look at factors such as if you are transforming the work, if you are copying for a commercial reason, whether your copying would be detrimental to the photographer and other similar factors.

Basically, the law surrounding the copying or reuse of old photos is murky.

As a rule of thumb: try to first get permission from the copyright owner (likely the photographer). If you can’t find the photographer, try to find out who might own the copyright. If you still aren’t sure who the owner is, determine if your copying could fall under “fair use” as a lawful way to reproduce the photos. There are no hard and fast rules and every situation will be different. But this is a great general guide to get your started.

More Questions?

If you have more questions, especially about the legal side of blogging and running your business, please stop by Jade & Oak and say hello!

Caroline’s notes: Thanks for sharing your knowledge with us, Jackie!

I wanted to make a quick comment here and say that I have contacted many photographers on behalf of clients before, and never have I had a photographer say no to a request for scanning photos for personal use, or for the purpose of backing them up. A few times there have been fees involved, but they were minimal, and well worth the peace of mind that comes with due diligence. I have a 2 forms that I use for this purpose: one is for purchasing / transferring the copyright from the photographer to the owner of the photo (paid or unpaid), and the other is a release form for “copying/altering/creating derivative works from photos (personal use)” that I request if the photo copyright isn’t for sale. I highly recommend that you keep something like this on file throughout your scanning process because you never know when you’re gonna need it!

Forget the prints! Always purchase the copyright to your photos! It’s far more valuable!