Please Read: The legality of photo restoration

In recent discussions with other photographers, some held that any digital alteration of an image is, by definition, a retouch and therefore covered by copyright law.

I argued that a restoration / repair of an image was not a retouch (alteration of the original) and was covered under the "Fair Use" Doctrine.

I am posting this to foster discussion and find out what other people think about this issue. The information posted does not constitute legal advice, nor should it be construed to to be official or definitive, nor should you assume that it is accurate. Please consult a copyright attorney in your state for a comprehensive review of applicable statutes.

The issue: Does the repair and or restoration of a digital image constitute an infringement of the copyright held by the creator and or original owner of the image.

NOTE: Restoration or repair, for the purposes of this discussion, should be construed to mean returning the image to the original state. It does not include altering the original image, nor should it be construed as an improvement, alteration, enhancement or other derivative process that alters the original visual intent of the photograph in question.

I contend that the restoration of a digital image falls under the Fair Use clause of US Code Title 17, sections 107-120

The factors, as identified by the US Copyright office, for determining Fair Use are as follows:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

The use of the work AND in point three (3) denotes that any and all of the first 3 points must be taken in to consideration WITH point four(4).


After reading the US Code, the FAQ on the US Copyright website, the articles covering Fair Use at Standford Law, the following is MY OPINION ONLY.

Restoration or repair of a damaged digital image should be considered Fair Use if:

(1) The restoration or repair is not an alteration of the original work and it is for non-commercial use
(3) THe amount and substantiality of the portion of the image manipulated is miniscule and can be argued that you are not, in fact, manipulating the image itself in that you are removing extraneous data is that NOT part of the original image but were effects cause by damage.
(4) There is no net effect upon the potential market for, or value of, the copyrighted work.


In addition, I would argue that the US Supreme court ruling that making an electronic copy (VCRs) of copyrighted material for personal use was 'Fair Use" in that it did not have a negative effect upon the value of the original work ,is applicable. The intent of the ruling was to uphold the right of the VCR (then VTR) owner to "time shift" and not to display the work for profit.

In addition, section 117 specifically allows for the creation of a digital software archive if you are the legal owner of a COPY so long as any archival copy is destroyed or transferred if or when the copy you own is sold or transferred to a new owner. I would argue that the use of a scanner to create a digital archive of a photograph is allowable under the same restrictions.

So, with all the disclaimers (etc etc, ad infinitum, ad nauseum)

What do YOU think?

Fair Use is a defense against a (C) infringement claim.

Are you arguing that any photo can be retouched and the retouched version becomes the property of the retoucher?

The easiest way to solve any problems in photo restoration work is to simply have the owners of the photograph sign that they are the copyright holders and will take full responsibility should they not be the copyright holders. You cover your but without dealing with copyright issues.

hortonsl62 wrote in post #6310483
Fair Use is a defense against a (C) infringement claim.

Are you arguing that any photo can be retouched and the retouched version becomes the property of the retoucher?

Not at all.

I am arguing that the owner of a photograph (who is not also the copyright owner) can have a photo restored to original shape without a release from the copyright owner.

The argument surrounds the legality of someone posting a picture of their great grand-father and ask for help in restoring the image. Some claimed that scanning was a violation, others said that restoring it was a violation.

I say neither of them are, with the conditions posted above.

Good topic David. I think in most cases the copyright would be expired. 50 Years after death would cover most of the work I've done anyway. I think if there was a situation where it actually went to court the judge would consider intent. Then again it would probably depend on the image and it's original copyright holder.

SlowBlink wrote in post #6310736
Good topic David. I think in most cases the copyright would be expired. 50 Years after death would cover most of the work I've done anyway. I think if there was a situation where it actually went to court the judge would consider intent. Then again it would probably depend on the image and it's original copyright holder.

I believe that even in a situation where you got a portrait taken 2 years ago, but it was damaged by Hurricane Ike, you have the right to have that image restored without getting permission from the photographer.

Vetteography wrote in post #6310632
.....I am arguing that the owner of a photograph (who is not also the copyright owner) can have a photo restored to original shape without a release from the copyright owner.

The argument surrounds the legality of someone posting a picture of their great grand-father and ask for help in restoring the image. Some claimed that scanning was a violation, others said that restoring it was a violation.

That is interesting in general.

I think your circumstances are going to dictate just what type of problems you're going to run into. More specifically, the type of photo being restored and who owned the copyright.

If someone brings you a photo from 1890 that needs to be restored, and they've made efforts to get in touch with the photographer that were futile (the likely case), and there's no backup save for the original, then you might not have too much of a problem.

On the other hand, if a bride brings you a wedding photo that was creased, and you go ahead and fix it, you better hope the original photographer wasn't counting on print sales from that picture. I think the market value of the retouch falls under point 4 made in the brief of the law you included above.

I tend to have to agree with you that retouching doesn't necessarily violate copyright, but have to quickly note that there are definitely scenarios where it would blatantly be a violation.

Sounds like one of those issues that needs an attorney's take.

ChrisRabior wrote in post #6311545
Sounds like one of those issues that needs an attorney's take.

I agree, and I would definitely like to see some case law around the question, but not having access to a law library, cases seem to be few and far between. Most copyright law I have found surrounding the use of photographs is centered around the use for commercial or derivative products, and nothing on this issue.

I would love to see some basic guidelines, but then again, I grew up wanting to see Wonder Woman naked... we don't always get what we want!

Vetteography wrote in post #6311670
I agree, and I would definitely like to see some case law around the question, but not having access to a law library, cases seem to be few and far between.

I do have access to a law library -- and there is no decided case under the federal copyright act dealing with this issue. What's required is a common-sense application of the rules of fair use. (I do have a law degree but I'm not an expert in any way on intellectual property law, and besides: free legal advice on the internet is worth exactly what you pay for it.)

My own view is that there's a simple bottom-line: if the photo is protected by a current copyright and can be reprinted by the photographer, don't touch it without permission of the copyright owner (NOT the photo owner).

IMO if the photo is damaged and a reprint is not an option then restoration is perfectly fine. However, the copyright remains with the original copyright holder. A new image is not created nor derived from the original.

Sean921172 wrote in post #6318389
IMO if the photo is damaged and a reprint is not an option then restoration is perfectly fine. However, the copyright remains with the original copyright holder.

The highlighted part is what's critical. If it IS an option, then monkeying around with the image DOES affect its commercial value to the copyright owner and fair use isn't going to cut it as an excuse.

jgrussell wrote in post #6318774
The highlighted part is what's critical. If it IS an option, then monkeying around with the image DOES affect its commercial value to the copyright owner and fair use isn't going to cut it as an excuse.

And to further that, if a reprint is NOT an option, the question of WHY it's not an option should come into play. I can't imagine the copyright holder being happy about a restoration or reprint of an image that was part of a limited series.

It's probably going to come down to the particulars of the image at hand. So to second what's already been said a few times... consult with an attorney.. more specifically, one who specializes in copyright and intellectual property law.

If you're restoring a limited print which you bought I don't see the issue. A reprint is a different matter. It's a very broad range of prints that are covered. I did film restoration for a while but it was almost exclusively family archives with a few library jobs.

It would be interesting to see a legal opinion defined.

I tack a somewhat different tack. You are not altering a photograph. You are repairing a copy of one. In other words the print is already a dupe of the original created image. You don't own the image, but you do own the copy or print of that image. So legally you are within your rights to repair or even replace said item at your expense. Alterations, derivitive works, inclusiuon in other works of art or copies for distribution are not covered.

I guess the most common form of this issue would be Olan Mills family portraits. They often need repairs due to the poor paper many were printed on. It can be repaired by a second party without permission from Olan Mills, for the above reason. BUT the best thing to do would be to write them and get permssion to do the dupes needed in the repair.

I just completed one for a former USNAVY sailor. I did both his group shot and his individual portrait. The gov't does not hold rights over images created with public monies... so no copyright issues. Same with NASA shots too.