The ethics of scanning old photographs

Left Handed Brisket wrote in post #18924920
Whether one is caught doesn't have anything to do with the ethics of the situation.

Likewise, the law sometimes doesn't fully respect reasonable ethical standards.

https://thelawtog.com …ices-copyright-violation/

My biggest take away from that article is the intentional vagueness designed into copyright law. One's intent is in these situations can be considered by the judge, even if technically you are violating copyright law there are other factors at play to determine harm/loss of income to the copyright holder.

Hmm. very interesting article. Sort of sums up what I thought the law was but still, it's rather ambiguous.

TeamSpeed wrote in post #18924960
Ethics here has to do with intent. The intent is to create a backup copy of some pictures for posterity, that is covered under fair use.

It has been to court and upheld many many times in the past because of fair use. My comment was made in the situation where somehow a photo made it out, how very unlikely it would be that the photographer would see it, recognize it, and could win a lawsuit.

There simply is no risk here and there is no breach of ethics either. People constantly make mp3 files of the CDs they purchased so they can listen to them personally and more portably, and that has been upheld. This is exactly that situation.

Would you as a photographer, feel like you were being stolen from, if in 30+ years photos you printed for someone of their family started to yellow and fade, and they wanted to preserve those? Would you go through the actions of locating the raw and contacting a lawyer and suing the family, knowing that fair use will likely protect them?

The one difference is that I am not doing it for myself, but for someone else. It would be more like a ripped an MP3 for someone, then handed it back but also kept a copy. In MP3 land I believe that's called piracy.

TeamSpeed wrote in post #18924960
Ethics here has to do with intent. The intent is to create a backup copy of some pictures for posterity, that is covered under fair use.

It has been to court and upheld many many times in the past because of fair use. My comment was made in the situation where somehow a photo made it out, how very unlikely it would be that the photographer would see it, recognize it, and could win a lawsuit.

There simply is no risk here and there is no breach of ethics either. People constantly make mp3 files of the CDs they purchased so they can listen to them personally and more portably, and that has been upheld. This is exactly that situation.

Would you as a photographer, feel like you were being stolen from, if in 30+ years photos you printed for someone of their family started to yellow and fade, and they wanted to preserve those? Would you go through the actions of locating the raw and contacting a lawyer and suing the family, knowing that fair use will likely protect them?

OP says the photos are distributed to several family members. That is not the same making a copy for personal use.

gjl711 wrote in post #18924964
The one difference is that I am not doing it for myself, but for someone else. It would be more like a ripped an MP3 for someone, then handed it back but also kept a copy. In MP3 land I believe that's called piracy.

Exactly.

Same for the "ambiguous" comment on the law.

I am also being ambiguous. Copyright law is ever changing, more so than any other area, I would think.

gjl711 wrote in post #18924964
The one difference is that I am not doing it for myself, but for someone else. It would be more like a ripped an MP3 for someone, then handed it back but also kept a copy. In MP3 land I believe that's called piracy.

No it is not. Piracy would be if the CD was yours and you made a copy and gave it to someone else. Are these pictures yours or are they sourced by the other person? If you paid the photographer for the photos and they are your photos, and you make copies for others, then you might be in ethical gray area.

We keep skipping over the entire pre 1978 thing. So I assume now your only concern would be for the post 1978 photos?

I know as a family photographer, families are making copies for other family members. I personally don't care if the "family unit" that the photos were made for are all receiving photos after my work is done and I was paid for the effort. Now if one of the family members becomes famous, and then they start to distribute that photo to the public or made money on it, then now we have an ethics and legal breach.

Also, I think photographers now are WAY more sensitive to this topic because of the digital age we live in and how easy it is for a photo of ours to be misused. I know my dad and uncle don't even have these concerns over photos they took of families in the past.

The ethics involved here are two-fold. Your intent (or your family's intent) and the law surrounding copyright. The law is gray, meaning it is intentionally left this way to provide you some protections. As to your intent, you are not intending on making money, but rather to make copies for family members of lost family members, old family members, and memories.

In either case, if it ever went to court, you would undoubtedly be in the clear, provided your lawyer wasn't an idiot. In either case, you are not being unethical. However the only answer you will get here then to really give you peace of mind is to contact a lawyer, and not an idiotic one.

On a separate but different topic, ethics have nothing to do with law. There are ethical and unethical laws. To obey an unethical law doesn't make one's actions ethical, just like disobeying a la. Laws exist only as a measure to govern (ie. try to control) desired behavior of the people and aren't always based on ethics or morality. Laws, ethics and morality are intertwined at some levels, but mutually exclusive at others. Perhaps the previous use of "unethical" really should read as "illegal", because they are separate. This goes all the way back to Socrates.

TeamSpeed wrote in post #18924983
No it is not. Piracy would be if the CD was yours and you made a copy and gave it to someone else. Are these pictures yours or are they sourced by the other person? If you paid the photographer for the photos and they are your photos, and you make copies for others, then you might be in ethical gray area.

Some are mine but most come from others. However, I do not believe anyone other than the photog owns the copyright.

TeamSpeed wrote in post #18924983
We keep skipping over the entire pre 1978 thing. So I assume now your only concern would be for the post 1978 photos?

Many are pre-78 so this was good to know.

TeamSpeed wrote in post #18924983
... The ethics involved here are two-fold. Your intent (or your family's intent) and the law surrounding copyright. The law is gray, meaning it is intentionally left this way to provide you some protections. As to your intent, you are not intending on making money, but rather to make copies for family members of lost family members, old family members, and memories.

In either case, if it ever went to court, you would undoubtedly be in the clear, provided your lawyer wasn't an idiot. In either case, you are not being unethical. However the only answer you will get here then to really give you peace of mind is to contact a lawyer, and not an idiotic one.....

I believe that the likelihood of going to court is very small but was just wondering what others opinions were. The law seems clearly on the side of the photogs at least post 1978, but photos degrade much more rapidly than other media and if one was to wait it out until all copyright has expired, you might not have much left to work with.

TeamSpeed wrote in post #18924760
This is covering literary works, but photos/illustrations would fall under the same umbrella.

There are separate considerations for different types of works, literary, music, photography, etc.

If memory serves, the Copyright Act of 1976 is specific (mostly) to unpublished works. I'm not saying you're wrong overall, but I don't think your "citations" support your argument.

I am certain that distributing digital copies to people who do not possess the original work is in fact infringement. As an example, I can download a copy of U2 War, because the original copy I have sitting on my stereo is unplayable. I cannot have my mom copy her John Lennon CDs for me and call it an archive because I don't own any of his original works.

Left Handed Brisket wrote in post #18925106
I am certain that distributing digital copies to people who do not possess the original work is in fact infringement. As an example, I can download a copy of U2 War, because the original copy I have sitting on my stereo is unplayable.

Well again, this fact above about the photos was undisclosed, or I failed to interpret it as such. I expected that family members are supplying old photos, and JJ is doing all the hard work of scanning and supplying the file back to them. If I am the family archivist, then that would mean that the family is supplying photos and I am scanning them and probably supplying a USB drive or DVD with those files back to them.

Now to put the gray area filter onto this new info, if a photographer takes a picture of a family, does the photo belong to the family? Was the photo intended for the family? Or did the photographer, taking a family photo, expect that one member of the family should have that printed copy? This again falls into that fair use gray area.

We can endlessly debate the ethics, or legality of this, but unless someone here is on the bar, in this particular technological space, all answers are educated opinions based on existing internet case law and previous situations.

photos/scans being distributed to several family members was stated in the OP.

TeamSpeed wrote in post #18925109
Now to put the gray area filter onto this new info, if a photographer takes a picture of a family, does the photo belong to the family? Was the photo intended for the family? Or did the photographer, taking a family photo, expect that one member of the family should have that printed copy? This again falls into that fair use gray area.

It is not grey at all. If the family wants photos for every individual member they need to buy prints for every individual member or obtain a print release from the copyright holder. To suggest that one needs to be a mamber of the bar to state this as a fact is silly, or just plain argumentative.

Left Handed Brisket wrote in post #18925115
photos/scans being distributed to several family members was stated in the OP.

It is not grey at all. If the family wants photos for every individual member they need to buy prints for every individual member or obtain a print release from the copyright holder. To suggest that one needs to be a mamber of the bar to state this as a fact is silly, or just plain argumentative.

That didn't mean they weren't all the recipients of the images. Images can be issued to a family. I do it now. The relationship of a photo and individual doesn't have to be one to one. As to the law, since it is gray and has been different over the decades, and there are guidelines that are followed to allow for fair use determination, what you say isn't black or white as you make it out to be. Thus why a lawyer must answer this.

TeamSpeed wrote in post #18925109
Well again, this fact above about the photos was undisclosed, or I failed to interpret it as such. I expected that family members are supplying old photos, and JJ is doing all the hard work of scanning and supplying the file back to them. If I am the family archivist, then that would mean that the family is supplying photos and I am scanning them and probably supplying a USB drive or DVD with those files back to them.

BTW, I have never said that this is what I am doing, (never know who is reading. ) but if I were to do this, I would distribute using DropBox.

TeamSpeed wrote in post #18925109
Now to put the gray area filter onto this new info, if a photographer takes a picture of a family, does the photo belong to the family? Was the photo intended for the family? Or did the photographer, taking a family photo, expect that one member of the family should have that printed copy? This again falls into that fair use gray area.

We can endlessly debate the ethics, or legality of this, but unless someone here is on the bar, in this particular technological space, all answers are educated opinions based on existing internet case law and previous situations.

I agree, it's gray which is why I put the question to this group.

Sure... but if it pleases the court...

Doesn't tell me that you have been distributing copies to family members just that you are given photos and are archiving them. Assumption was that you were just maintaining a backup for those photos should they disappear, get destroyed, lost, etc. Also, if you have been doing this for years, every single image was taken by somebody and they own that copyright, correct? It has nothing to do with whether a professional photographer took the image, if there was an ethical issue here, you already breached it potentially, correct?

This has to be looked at from a public domain perspective, which requires a lawyer. I know that public domain applies to graphics and artwork. There are countless images online through clip art and image gallery sites that are now considered public domain. The question here though is whether old images with no copyright info also fall into this, the age, etc. There are a number of issues around this, so I have to soften my stance on this a bit, and again why I suggest just doing a free consultation with a lawyer.

https://www.legalgenea​logist.com …and-the-old-family-photo/

This paints a dismal image of what you are trying to do, but I think the gray area of the law comes to your rescue, this article is full of what-ifs and a very strict interpretation of law.

This lends credence to my assumption in the first part, that you were indeed not distributing archival copies to everyone, because you say that you "would distribute", meaning you haven't been, but will in the future. I was probably erroneous in this assumption.

TeamSpeed wrote in post #18925122
That didn't mean they weren't all the recipients of the images. Images can be issued to a family. I do it now. The relationship of a photo and individual doesn't have to be one to one.

...

TeamSpeed wrote in post #18925109
Now to put the gray area filter onto this new info, if a photographer takes a picture of a family, does the photo belong to the family? Was the photo intended for the family? Or did the photographer, taking a family photo, expect that one member of the family should have that printed copy?This again falls into that fair use gray area.

Further, this entire discussion apparently revolves around single copies of images.

Left Handed Brisket wrote in post #18925194
...Further, this entire discussion apparently revolves around single copies of images.

Yeah, how about this nice juicy worst-case scenario? You use a shot of your family, taken at a commercial studio, for your Christmas card, which goes to 500 of your closest friends. Now who owns the rights to what?

OhLook wrote in post #18925241
Yeah, how about this nice juicy worst-case scenario? You use a shot of your family, taken at a commercial studio, for your Christmas card, which goes to 500 of your closest friends. Now who owns the rights to what?

I would think that the photographer always retains the right to the photo and if you scanned a photo taken by a pro and used it as your holiday card, you would have some exposure to a legal challenge. With old photos it gets fuzzier though because rarely is the photographer identifiable and in some cases, may no longer be among the living so it would be their estate that owns the rights to the photo..