The ethics of scanning old photographs

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.

Sorry but there is no grey area. These questions you are asking have been asked and answered by the law a long time ago.

The image copyright belongs to the photographer (unless they were in Canada or certain parts of Australia where the law was different).

The client purchased a print copy. That specific print belongs to the individual who contracted and paid for it (or whom the Photographer reasonably believed did so), not a potentially nebulous group referred to as "the family" which might grow or shrink or split over time and would therefore be a legal nightmare to define.

The owner can create a copy for archive purposes. They can lend, give away or even sell their specific print but if they do so they would need to surrender the archive copy as well. Except for the purpose of archiving they can not copy the print or distribute copies to anyone else unless the images are exempt from protection under some specific element of copyright law.

Whether or not these images are exempt as described by a previous poster will depend on the legal definition of "published". The term generally means wide spread distribution/made available to the public. It could well be that private commissions don't constitute "publication" and therefore don't require a copyright notice (meaning that they would not be public domain). This is a question I can't answer as I don't know the legal definition of publication or what happens with unpublished works.

We don't know anything about these photos, when, who, whether paid or not, who bought them, nothing. Perhaps the family had a pro photographer? Perhaps the photos were done pro Bono? We do know there is no release form, but release forms are more a thing now then they were decades ago. Indeed there seems to be quite a bit of gray area here especially if public domain does apply here, and having seen art and photos marked as public domain, I have to believe it might. But again, there is nothing definitively black or white here. However this all seems a bit diversionary though.

I stated prior that I have to wonder why there is any concern for legality at this point as copyright has nothing to do with whether the photos appear to be taken by a pro or not. This archival process has been going on for some number of years. Each photo has the same rights applied to it whether the photographer was a pro or not. Payment of a photo doesn't create the copyright. Why the sudden concern for legality or ethics now? If any breach of copyright can be found in the stated process, it occurred with the copying and distribution of the first photo years ago.

This implies that the concern now is only whether a pro photographer or his/her family might somehow discover a photo in the hands of someone that it wasn't meant to be, and file a suit, creating a legal headache, correct?

TeamSpeed wrote in post #18925990
...I stated prior that I have to wonder why there is any concern for legality at this point as copyright has nothing to do with whether the photos appear to be taken by a pro or not. This archival process has been going on for some number of years. Each photo has the same rights applied to it whether the photographer was a pro or not. Payment of a photo doesn't create the copyright. Why the sudden concern for legality or ethics now? If any breach of copyright can be found in the stated process, it occurred with the copying and distribution of the first photo years ago.

I started the thread as I was curious as to others opinions. I have been archiving all my film/slides as well as portraits that were taken by some studio. I have also been archiving photos/negatives that I have either inherited (when a family member passes they sort of give me all the pictures) but there is an implied consent as I was asked if I could also scan their photos as well. The question came up as recently I also received a box full of portraits clearly taken by a studio of various family members and their origins totally unknown. As a software engineer, I have always tried to be as legal/ethical as possible.

TeamSpeed wrote in post #18925990
This implies that the concern now is only whether a pro photographer or his/her family might somehow discover a photo in the hands of someone that it wasn't meant to be, and file a suit, creating a legal headache, correct?

There is always that risk but I'm guessing that most of these were taken by a chain studio like Peter Pan or Sears when they would have their package deals, or taken via some local pro that came to school for picture day. They have little value or meaning to anyone other than close family. The odds of some studio photog recognizing a particular individual school photo they took 30 years ago or more is extremely remote. Even more remote is that they will want to come after me because a family member choose to post a pic of their mom when she was 8 on social media. I know the path I choose but am still interested in the ethical question as well assuming that I choose to go ahead and scan them.

So if Sears photo studio took it and they are defunct, what happens? That subsidiary that ran the studios no longer exists, ie. business entity no longer exists. You are in the clear!

In all seriousness, your intent isn't to defraud anyone at all. It is to provide a lasting set of memories for the family, which is what photos are intended for.

I have and will continue to make archival copies of old photos taken by a number of people and a number of studios that are no longer around, and keep those on my family NAS. I simply don't care because my intent is to keep these memories around and shared with family members and not lose them in a fire, or due to the elements. It isn't to defraud someone out of revenue. Should someone make a stink out of it, we will go to court, just so they can try to show how they were defrauded, show how the photos are theirs without any copyrights on them, and they will have to be able to locate the negatives to prove ownership.

That risk of lawsuit, IMO, for what I have archived personally, is about the same as a thousand monkeys in a room just typing away randomly, and all of a sudden they produced a work that is the court document describing said lawsuit.

It may not be applicable to photos, but the Digital Millennium Copyright Act (DMCA) "criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to copyrighted works (commonly known as digital rights management or DRM) and also criminalizes the act of circumventing an access control, whether or not there is actual infringement of copyright itself." This makes circumventing any digital copy protection illegal, including making a copy for personal use. Many still find ways to rip copies of DVDs and Blu Rays to a media server, but technically it is still illegal. One of the more popular companies selling DVD ripping software has had to move to alternate countries to avoid past successful prosecution. There isn't much chance you'll get caught for making personal backup copies, but selling or using software to circumvent any copy protection remains a crime under the current DMCA.

Copyright should belong to the one who paid to have the photos taken. A magazine hires you.They hold the copyright of your work. Why not the same for the public?

filmuser wrote in post #18927985
Copyright should belong to the one who paid to have the photos taken. A magazine hires you.They hold the copyright of your work. Why not the same for the public?

Depends on the contract.

Archibald wrote in post #18927987
Depends on the contract.

filmuser wrote in post #18927985
Copyright should belong to the one who paid to have the photos taken. A magazine hires you.They hold the copyright of your work. Why not the same for the public?

By default the photo belongs to the one who pressed the shutter button even if it was not your equipment unless you have a contract stating otherwise.

The magazine holds the copyright if the parties agreed that the project was a work for hire. Other arrangements also exist.

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?

This...

gjl711 wrote in post #18925899
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.

Not some exposure, this is one area that is clearly infringement. Hopefully most photogs are reasonable whether permission is asked on the front end or after the fact.

OhLook wrote in post #18927996
The magazine holds the copyright if the parties agreed that the project was a work for hire. Other arrangements also exist.

The parties don't have to "agree" on a work for hire condition, the condition can exist without the topic ever being discussed or written in a contract. If you work for someone in an employee/employer relationship, it is likely work for hire.

If work for hire cannot be proven, photog owns copyright unless some written agreement is in place. Copyright can be assigned to another party or a licensing agreement can give the other party some set of limited rights. Limited rights could include anything from printing 500 Christmas cards or unlimited reproduction for a specified period of time.

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I thought that the OP was concerned with the ethical considerations of scanning the photos ..... yet so many of the responses to this thread have to do with legal considerations. . This confuses me. . Why write about the law when the OP was asking about ethics?

Right vs. wrong is a completely and utterly different thing than legal vs. illegal.

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Tom Reichner wrote in post #18928443
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I thought that the OP was concerned with the ethical considerations of scanning the photos ..... yet so many of the responses to this thread have to do with legal considerations. . This confuses me. . Why write about the law when the OP was asking about ethics?

Right vs. wrong is a completely and utterly different thing than legal vs. illegal.

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Granted that ethical and legal don't always coincide, but I think it's appropriate for this discussion, no?

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gjl711 wrote in post #18928449
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Granted that ethical and legal don't always coincide, but I think it's appropriate for this discussion, no?
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I suppose that legal considerations are pertinent for your situation .... but I saw the thread title and thought that I would really enjoy reading what others had to say about the ethics of this scenario. . I read through a page and a half of relies, wanting to see what others had to say in an ethics discussion, and never found the ethics discussion that I had been looking forward to. . Instead of finding commentary about right and wrong, I found post after post about fair use, copyright law, contracts, etc.

I wasn't wanting to discuss ethics myself - I just wanted to read what others had to say about ethics. . And I was disappointed because I didn't find what I was looking for - what the thread title led me to believe I would find.


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I just stumbled onto this thread and have been reading through all of the posts.
This thread reminded me of a situation I found myself in back in 1997.
In 1997 I lost both of my parents in a head on collision. For the memorial services we had decided to use a picture that I had taken of my parents a few years prior.
I am not and never claimed to be any more than a hobbyist photographer and and a still finding my way one at that but, the photo of my parents was one that came out extremely well and actually looked professionally done so, when we took the photo down to have it blown up and make small copies of it for the obituary notifications, every photo place we went to refused to reproduce the photo unless I had a signed release form from the studio that took the photo.
I explained over and over again that I was the photographer and that I didn’t see a need to sign a release to myself but that if that was the only way it would happen I was more than happy to sign a release but then they refused that because they were convinced that I didn’t take the photo and I couldn’t find the negative to prove that it was my photo. I even pointed out to them that there was no studio markings or water marks but then they refused because they pointed out that most photos that are developed in stores or shops have KODAK printed on the back.
We were finally able to get the photo reproduced at a local store after explaining what it was for even though she was convinced that she would lose her job over it if her boss ever found out.

The whole situation has always left a very bad impression on me because of the simple fact that there are so many out there that think that only a professional photographer is capable of taking really nice studio grade photos.

Now it doesn’t bother me because I have a really nice Canon Pixma-Pro printer that gives me the ability to print studio grade photos of my own in multiple sizes and now with digital photography being the primary medium, I would have absolutely no problems just emailing the photo for the obituary and printing my own large memorial print.

I’m just curious how the situation I found myself in would fit into this discussion when I was refused the service just because I accidentally took a photo that others mistook for being professionally done yet they could not prove it was and due to lack of the negative, I couldn’t prove it wasn’t.

As to the original post on this, if there are no watermarks or any studio markings on the front or back, I would have no second thoughts at all about it at all especially if it was fifty years old.


If by resurrecting this thread some old wounds are opened, I sincerely apologize, that was not intended.
The whole intention was to show that things are not always black and white and the mere perception of appearance plays a major role in this as well.

SpiderMonkey wrote in post #19379528
I just stumbled onto this thread and have been reading through all of the posts.
This thread reminded me of a situation I found myself in back in 1997.
In 1997 I lost both of my parents in a head on collision. For the memorial services we had decided to use a picture that I had taken of my parents a few years prior.
I am not and never claimed to be any more than a hobbyist photographer and and a still finding my way one at that but, the photo of my parents was one that came out extremely well and actually looked professionally done so, when we took the photo down to have it blown up and make small copies of it for the obituary notifications, every photo place we went to refused to reproduce the photo unless I had a signed release form from the studio that took the photo.
I explained over and over again that I was the photographer and that I didn’t see a need to sign a release to myself but that if that was the only way it would happen I was more than happy to sign a release but then they refused that because they were convinced that I didn’t take the photo and I couldn’t find the negative to prove that it was my photo. I even pointed out to them that there was no studio markings or water marks but then they refused because they pointed out that most photos that are developed in stores or shops have KODAK printed on the back.
We were finally able to get the photo reproduced at a local store after explaining what it was for even though she was convinced that she would lose her job over it if her boss ever found out.

The whole situation has always left a very bad impression on me because of the simple fact that there are so many out there that think that only a professional photographer is capable of taking really nice studio grade photos.
....

I see your position but I can also see the printers as well especially in this day and age where lawsuits are as common. When you approached them with a print unable to show that you were the creator, they probably figures it wasn't worth the risk or they didn't have the equipment to scan the print and re-work/re-print it.