The copyright exists so that you don't financially benefit from someone else's work, they retain those rights to financially and socially reproduce as they see fit. Just like I am able to make copies of my DVDs so that when kids scratch them up, I can still watch the movies, you are allowed to make archive copies of someone else's photos. Neither of us are selling these reproductions, so we are covered under law.
Also, you may not be aware of this, but if these are old photos and there are no copyright watermarks etched onto the photos, they are basically considered public domain anyways.
Before the current Copyright Act became effective in 1978, publication of a work in the United States with a proper copyright notice conferred statutory copyright and commenced the copyright term. Publication of the work in the United States without a proper copyright notice placed the work in the public domain, with narrow exceptions. The same general rule continued, with somewhat broader exceptions, until March 1, 1989. Hence, for works published in the United States before 1978 (or, with more exceptions, before March 1, 1989), if there is no copyright notice, the work may well be in the public domain.
Also in relation to Fair Use, which is what covers my actions in the first paragraph.
Fair Use
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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:
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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
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
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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.
For this, again I see no reason this cannot be done, especially when it is to salvage old photos that might be destroyed and there is no way to obtain original copies from the original source, or even to know who the original source was.
