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Can I Scan that Photo – Legally? Understanding Copyright and Fair Use

Can I Scan that Photo? A Legal Question on Copyright

As you can imagine, copyright, fair use, and other intellectual property questions come across my desk every week. Understandably, my clients look to me to answer all of their questions about the scanning process, from the inevitable “Why does ownership matter if I’m only scanning for personal use?” to the even more common “The photographer who took my photo is no longer in business, what do I do?”  You can add your questions to the list. Fortunately, I have some insight into all of this. You see, in Grad school, I was lucky enough to intern for Jay B. Ross & Associates in Chicago, and I got to see up close how copyrights, publishing, and other matters are handled. It opened my eyes to the complexity of the law, and how important it is to understand all of the issues you might come across, especially when you are scanning your personal photos. I wanted to address these questions once and for all, but rather that trying to write a blog post on this topic myself, I invited my friend Jackie Jade to guest post. Jackie is an experienced attorney, and will shed some light on all of this for you, so that you can go into the digitizing process with a clear conscience. Take it away, Jackie!


The Copyright Concern

We are lucky to live in an age where it is so easy to capture moments on camera. Plus we have all of our old family photos on hand too. Obviously digitizing photos is really popular right now, but copyright issues are always a concern, so let’s discuss what is and isn’t ok when it comes to digitizing your personal photos, or photos for others.

Before we get started, I want to let you know that I am a US attorney and am barred in Pennsylvania. Therefore, the info in this post is based on my knowledge of US law, but the information may be applicable to readers in other countries as well. Additionally, this blog post is for informational purposes only and is not legal advice. Consult with a local attorney for legal advice.

What is Copyright?

First, let’s discuss what a copyright is since copyrights are the main issue when dealing with photographs. Copyrights are the legal system that give the creators of work the right to control the copying of their work. This means that others can’t take, use or reprint their work without their permission. The point of this is to protect the original creator of the work. When it comes to photographs, there are several different legal issues you can run into, so I’m going to broadly discuss them today.

In the US, creative works are copyright protected from the moment that they are created. This means that the creator of the work immediately has copyright protection without needing to actually register the work with the US Copyright Office. However, in order to file a lawsuit, the work needs to be formally registered with the Copyright Office.


The Purpose of Copyright

The purpose of copyright laws is to promote creative works by giving authors or creators a limited time exclusive right over their works. Basically, the laws want to balance the public’s interests of repurposing or copying content while also protecting the rights of artists and creators, so that they have an incentive to continue to create unique creative works (because they know there work can’t just be taken and used by anyone for any reason). So this can be good and bad. If you are the creator of something, this is a good thing – it means that people aren’t going to constantly steal and reuse your stuff without your permission. But sometimes it can be a bad thing too – such as the situations with photographs where we often don’t know who the copyright holder is…


Copyrights and Photography

When it comes to photography, the photographer has the exclusive right to reproduce their photographs. This means that it is unlawful for others to do anything with these photographs without the photographer’s permission. This includes making prints, copying, scanning, photocopying, emailing, publicly displaying or creating “derivative works” of the photos. This makes sense because part of a photographer’s livelihood is having the control over copying of the photos that they take, so the law protects them. Additionally, owning a copy of a photo isn’t the same as owning the copyright, which is the ownership of the intangible intellectual property.


So Who Owns the Copyright for Old Family Photos?

This can be dicey when it comes to copying old family photos. You might think that the person in the photo or the person who paid to have the photos taken would be the copyright owner, but the copyright is actually owned by the person who took the photo – the photographer. Remember, this makes sense under the purpose of copyright laws because the law wants to protect the photographer and his or her livelihood.

The creator of a work owns the copyright from the moment the work is created. The length of time that the person owns the copyright depends on several factors but it can be upwards of 120 years after the photo was taken. This is true even if we don’t know who took the photo because we can assume that whoever took the photo still owns the copyright. If the photographer is deceased, the rights over the photos would have passed according to the photographer’s will or through succession laws if he or she did not have a will. There are some instances where the photographer can transfer the copyright to someone else, such as a wedding photographer giving the couple the full rights to copy and reprint the photos. This would need to be done in writing and signed by the copyright owner.


Can I scan that photo legally? Understanding copyright and fair use

I’m a Perfect Pinnable!

Fair Use

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:

  • 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 and
  • 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

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.


More Questions?

If you have more questions, especially about the legal side of blogging and running your business, please stop by Jade & Oak and say hello!


Caroline’s notes: Thanks for sharing your knowledge with us, Jackie!

I wanted to make a quick comment here and say that I have contacted many photographers on behalf of clients before, and never have I had a photographer say no to a request for scanning photos for personal use, or for the purpose of backing them up. A few times there have been fees involved, but they were minimal, and well worth the peace of mind that comes with due diligence. I have a 2 forms that I use for this purpose: one is for purchasing / transferring the copyright from the photographer to the owner of the photo (paid or unpaid), and the other is a release form for “copying/altering/creating derivative works from photos (personal use)” that I request if the photo copyright isn’t for sale. I highly recommend that you keep something like this on file throughout your scanning process because you never know when you’re gonna need it!

Forget the prints! Always purchase the copyright to your photos! It’s far more valuable!

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  • Avatar
    September 29, 2016 at 11:56 am

    This is an excellent summary of a very complex topic. I educate my clients on this topic all the time. It’s hard when there is no way to determine who might have the rights to your photo but it’s clearly a professional portrait and so someone does. In my release we also talk about archival use. It’s insurance in case the photo print is damaged or destroyed and also seems to be covered under fair use. Thanks again for tackling this topic. Well done.

  • Avatar
    Jennifer Cochran
    December 26, 2016 at 7:24 pm

    I have questions on a similar topic. I attend comic conventions all year round where I collect autographs of actors from my favorite shows and movies. I also walk the “Artist Alley” at these conventions picking up prints of my favorite comic characters from various genres. Since I am a scrapbooker and I would love to scrapbook as well as preserve my photos and prints digitally, would it be legal to scan such items? Also if I scan the autographs in to make them 5×7 or 4×6 to scrap into a book without permission, can I do the same with the artist prints, or do I have to contact each and every artist to get permission now years later? All are for personal use to take those 11×17 prints, scan them, and then print them into a 12×12 scrapbook page. Thanks for the article, it does help clarify what to do with those old OlinMills photo. Jennifer

    • Avatar
      Caroline Guntur
      December 27, 2016 at 10:35 am

      Thanks for asking such a great question, Jennifer! Your type of memorabilia isn’t really any different from any other type of print, so the same rules will apply. You may be OK under the Fair Use act, but as Jackie explained in the article, there is a huge grey area around ‘fair use,’ where the only surefire way to know if you were in your right to claim it is if you get sued and win. Not ideal. I would recommend that you take a good look at the requirements for fair use to see whether or not it would apply to you, but to be on the safe side, yes, you’ll need to contact the artists for permission. Since you mentioned that you enjoy attending these events and collect these prints year-round, it might not be a bad idea (in the future) to get permission when you’re making the purchase. They won’t release copyright because they’re clearly selling the prints to make money, but perhaps you could ask for permission to scan privately and see what they say? This type of memorabilia (involving celebrities, franchises, or other recognizable imagery) will land you in trouble faster than regular (personal) photos because they apply to more people (which means they stand to lose out on more money) so I would get permission if I were in your shoes. Hope that helps!

      • Avatar
        Jennifer Cochran
        December 27, 2016 at 7:41 pm

        It does. I’ll make a permission slip from the artist/actor to allow my local graphics printers that I can scan for my personal use. Luckily, some artists are convention regulars so I may be able to ask post-signing. Thank you for the clarifications.

  • Avatar
    April 10, 2017 at 3:01 pm

    I’d suggest looking at fair use considerations *first,* and only considering other applications of copyright law if your use does not seem to qualify as fair use. Fair use is not a last resort. It is a right. And this is the advice of major organizations dealing with art and artists, such as the College Art Association.

    • Avatar
      Caroline Guntur
      April 10, 2017 at 4:56 pm

      You certainly could do that, Kara, but I think it’s a sign of respect towards the creator of the work to ask for permission. If the application is within one of the major freedom-of-expression categories, like “criticism, comment, news reporting, teaching, scholarship, and research,” then yes, you’re probably in the clear, but I don’t know that I would consider it a right per se. According to the U.S. copyright office, the fair use doctrine “promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances.” That circumstance is subjective. It all comes down to the purpose of why you’re scanning, how the scans will be used, how much of it you’re using etc., and the creator has a lot of say-so in that. I think that’s what Jackie was trying to convey in this post. Source: https://www.copyright.gov/

  • Avatar
    Brad Burk
    August 8, 2017 at 12:07 am

    I have a question about paid professional “scanners.” If I pay for someone to scan my old images or video and they keep a copy for their own records, do they now also own that work? Can I demand that they delete them once I have been provided my copies? Thx –

    • Avatar
      Caroline Guntur
      August 9, 2017 at 12:32 pm

      Hi Brad, You’d have to look into the specific agreement you make with your service provider, but I can tell you that in most cases, copyright doesn’t transfer to them. They photos/videos are still yours. It’s your responsibility, however, to be able to prove to the service provider that you own the work so that they can digitize it legally. Some service providers will keep a backup on file for a while just in case something happens and you request copies, but not all do. Generally, the larger volume they do, the less they keep on file. You can certainly request that they delete after they are done, but I doubt you’ll have to. Always check the rights agreement, and if you see anything about copyright transfer, find a new service provider stat!

  • Avatar
    Mark Fynch
    November 15, 2017 at 9:49 am

    Hiya. I just spoke with someone at LegacyBox about some portrait studio photographs and they said that there’s a clause that states that because they are just upgrading the format, they can reproduce (scan) one copy of a copyrighted item as a DIGITAL BACKUP, whether it be a studio portrait or a VHS copy of The Lion King. They said that they have done their legal research on this. I asked them to send me something in writing to support this, and they said they would, but I haven’t received anything yet. Do you know anything about a ONE-COPY DIGITAL BACKUP?

    • Avatar
      Caroline Guntur
      November 15, 2017 at 4:02 pm

      Hiya back, Mark! Since I’m not affiliated or knowledgeable about how LegacyBox runs their business, I’m afraid I cannot comment on their practices specifically. However, I can tell you that certain “archival” copies are legal, for example in the case of computer software, but only if certain conditions are met. The same privileges are generally extended to libraries and public archives – again, under special circumstances. You can view the details of this more in detail here: https://www.copyright.gov/title17/title17.pdf. I cannot say for sure if any of this applies to them. If you can get them to share the specific clause with you, I’d be very curious to see which one it is! It may be that they have found a loophole somewhere, or that they claim fair use, but in my mind, a reproduction is a reproduction, regardless of its format. Here is a quote directly from copyright.gov: “Photocopying shops, photography stores and other photo developing stores are often reluctant to make reproductions of old photographs for fear of violating the copyright law and being sued. These fears are not unreasonable, because copy shops have been sued for reproducing copyrighted works and have been required to pay substantial damages for infringing copyrighted works. The policy established by a shop is a business decision and risk assessment that the business is entitled to make, because the business may face liability if they reproduce a work even if they did not know the work was copyrighted. In the case of photographs, it is sometimes difficult to determine who owns the copyright and there may be little or no information about the owner on individual copies. Ownership of a “copy” of a photograph – the tangible embodiment of the “work” – is distinct from the “work” itself – the intangible intellectual property. The owner of the “work” is generally the photographer or, in certain situations, the employer of the photographer. Even if a person hires a photographer to take pictures of a wedding, for example, the photographer will own the copyright in the photographs unless the copyright in the photographs is transferred, in writing and signed by the copyright owner, to another person. The subject of the photograph generally has nothing to do with the ownership of the copyright in the photograph. If the photographer is no longer living, the rights in the photograph are determined by the photographer’s will or passed as personal property by the applicable laws of intestate succession. There may be situations in which the reproduction of a photograph may be a “fair use” under the copyright law. Information about fair use may be found at Fair Use Index. However, even if a person determines a use to be a “fair use” under the factors of section 107 of the Copyright Act, a copy shop or other third party need not accept the person’s assertion that the use is non-infringing. Ultimately, only a federal court can determine whether a particular use is, in fact, a fair use under the law.”

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