I've been too smug about copyrights

Hi, anybody remember someone coming on this or another forum and asking about how they can get a copy of a professionally done family hierloom photograph? I certainly do, and I also remember how in a morally superior tone, I've gone on to explain how the photograph is intellectual property of the original photographer.

Now I've come into possession of a couple of important family pictures myself, and I don't dare display them. They are in pristine condition somehow for photographs twenty six years old. I'd pay for reprints from the original negs. I'd pay practically anything, 20, 50 a hundred dollars or more for a reprint.

Problem is, that my small town went through a tough economic patch about 15 years ago. We were the largest grain handling port in the western world for a time, and when the grain elevators started shutting down all the little businesses shut their doors and it took until about 5 or 6 years ago that our town started to recover, hell, I just returned about 6 years ago myself.

When I say we went through a bad patch, I mean a BAD patch. 9 out of 10 elementary schools closed down. I came back to visit once about twelve years back and I couldn't beleive it, half the storefronts in a town of over 130 thousand were empty, people on welfare would rent out little storefronts and restaurant spaces, just because commercial realty was desperate. They relocated one of the public libraries into a local mall because it was so cheap.

Now back to the present, I have these photographs I need copies of, and I don't know which photographer took them, I need to canvas the city to find him/her and I despair of it. I'll make a form letter soon with all the relevant information I can find about the photo, but I have a sinking feeling I'm going to be S.O.L. That photog. is probably in another province by now.

So, I'm probably going to have to copy the photo, on a copy stand with my 4x 5 camera, and make copies from the sheet film neg. I don't like it, but here I am with a photo that's worthless to any of you, and priceless to me and if that's not bad enough all my smug lectures on the sanctity of copyright sit pretty uncomfortably in the back of my throat. Boy, I feel like a right proper ass now.

Bobby Ironsights said:

So, I'm probably going to have to copy the photo, on a copy stand with my 4x 5 camera, and make copies from the sheet film neg. I don't like it, but here I am with a photo that's worthless to any of you, and priceless to me and if that's not bad enough all my smug lectures on the sanctity of copyright sit pretty uncomfortably in the back of my throat. Boy, I feel like a right proper ass now.

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I wasn't around for the earlier thread, but I doubt if you're the first person to have this general experience looking back on their own words, y'know?

If I understand the scenario right, it sounds to me like it's pretty clearly a fair-use situation, isn't it? Noncommercial duplication for your own use of something already in your possession is about as nonpredujicial to the commercial viability of the original as you could get---especially since it doesn't seem to be so easy to even *find* the original.

-NT

Bobby Ironsights said:

That photog. is probably in another province by now.

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Sounds like you're in Canada? You do realize that copyright laws in Canada are NOT the same as in the US? If you paid for the photos to be taken (commissioned them) then YOU are copyright holder.

Copy away. Your moral superiority rests intact!

Canadian Copyright Act said:

(2) Where, in the case of an engraving, photograph or portrait, the plate or other original was ordered by some other person and was made for valuable consideration, and the consideration was paid, in pursuance of that order, in the absence of any agreement to the contrary, the person by whom the plate or other original was ordered shall be the first owner of the copyright.

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Regards, Art.

Bobby:

See if you can get any info about photographers in your town 26 years ago from PPOC:

http://ppoc.ca/

In the meantime, if you are essentially just creating a duplicate for display, so as to protect your original, and not looking to use it commercially, I'd be very surprised if anyone would complain about that intended use. The "damages" would be minimal - the cost of one reprint from that photographer. Special damages or fines under the legislation would be extremely unlikely.

Keep looking, but unless you find the photographer, don't worry a lot about it.

If you do find him or her, and they are actually able to sell you something, I'd expect they would be surprised and grateful.

Matt

P.S. I just read Art's post above. He is most likely correct, although portrait photographers from days gone buy often did include terms respecting copyright in their agreements in order to protect the reprint business.

Is their a copyright claim on the back of the print? That isn't determinative, but it often provides a clue.

I hesitate to say anything here, since I'm not a lawyer, but it seems to me that there is a lot of misunderstanding about how copyright works in the U.S. See http://w2.eff.org/IP/eff_fair_use_faq.php for example. I wouldn't agree that making a copy to protect the original is protected by the fair use doctrine as I think is suggested above.

I also wouldn't hesitate to make a copy of a print made 26 years ago after I had made a reasonable attempt to locate the holder of the copyright in the U.S. provided that I wasn't going to make any profit from it.

Thanks,

Will

I'd agree with Will that copying a photograph as you described does not fall under fair use. That said, as a portrait photographer, if one of my clients wants to copy one of the photographs they paid for in 26 years.. well, there probably won't be much I can do to stop them. I'd rather they find me, and let me make a new print, but that may not be possible.

I have to say, for my client work, I don't get my undies in a bunch over the copyright. I don't want them buying one little print, and scanning it obviously, but all my clients (except for one) have ordered a fair bit, and I have begun to offer high res scans so they can use the pictures as they wish.. albeit smaller (usually 300 dpi at 4"x6" or so). The high res scans comes with a right to reproduce, though not an outright copyright.

You just can't police this stuff, so it's best to make it as easy as possible for them to "share" your work, get your name out. As long as they place a decent print order in the first place.

I would try to make an effort to find the photographer... you may be able to get a far better print from the original negative.

Is there any way to identify who took the photo... any stamp/print/watermark/name/phone/contact info.
If not, the photographer hasn't done much of a job making his work available for future users. No way to get in touch with him.... he's sitting around wondering where all the money/work went but didn't up-hold his end of the deal either.
-rob

Copying for personal, non-commercial use is not a violation of copyright laws.

Considering it is legal to copy a cd or dvd onto one's computer, and it's legal to make backups of them, and so on; wouldn't the same be true of photos?

OverlordXenu said:

Considering it is legal to copy a cd or dvd onto one's computer, and it's legal to make backups of them, and so on; wouldn't the same be true of photos?

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Would that it were that simple. In the case of audio recordings, there's an explicit exemption in copyright law (it was passed as part of the Audio Home Recording Act) allowing you to make "backup" or "listen in another medium" copies (like taping your records so you can listen to them in the car). This was part of the basis for the "Rio decision" that basically determined that MP3 players are legal even though they involve copying the recording.

But that language is specific to audio, and in general, fair-use exemptions are determined in court---it's fair use if you can convince the court it is, with some guidelines written into the law. I still feel like it's unlikely that a court would find this kind of copying to be infringing, and others disagree, but it's probably academic anyway in this particular case---it's hard to imagine how this situation would ever get to court.

Disclaimer: I'm not a lawyer or anything like that, but my day job has some intellectual-property content (patents, though, not copyrights). Anything I say on legal issues is probably worth what you paid for it, &c., &c.

-NT