Your client brought you an old, water-damaged photo of her Great-Grandma Mabel that she found in her mom’s attic. She wants you to restore the photo. But, is it legal? Is it a copyright violation? These are questions you should ask before you agree to restore any pictures.
Copyright law is a confusing area of the law, even for lawyers. Many areas of copyright law have been intentionally left undefined so that judges can make decisions based on each case. This makes it even more confusing. But, there are a few things for you to consider to make an informed decision as to whether or not you want to agree to restoration of another photographer’s work.
Is the original photo copyrighted and who owns the copyright?
To determine if the photo has a copyright, you have to determine when the photo was taken. If it was taken before January 1, 1923, it is in the public domain. Being in the public domain means there is no copyright on it and it can be freely used. If you or client can determine with certainty that the photo was taken prior to 1923, there is no restriction on restoration.
If the photo was taken on or after January 1, 1923, the copyright belongs to the photographer, unless they passed that right to someone else. The copyright, generally, would expire 70 years after the death of the photographer. The copyright flows to the photographer’s heirs after death. So, if Great-Grandpa Ralph took the picture, and he passed away 20 years ago, his heirs own the copyright for the next 50 years. That may be your client, or it may be another family member.
If the family paid a photographer to take the picture, doesn’t the family own the copyright?
No. The photographer retains the copyright, unless it is passed to the client. Ownership of the photo is not ownership of the copyright. Even if the photographer is dead, his or her heirs still own the copyright until 70 years after the photographer’s death.
What about fair use?
Fair use is another confusing legal phrase. It is a doctrine that was created by judges and has been used mainly in situations of parody, commentary, and criticism. It has been found to apply in other situations as well. When it was created, it wasn’t fully defined because it was meant to be open to interpretation and expansion by other judges. That makes it really hard for you to know what fair use is and what it isn’t.
Section 107 of the Copyright Act covers fair use and lists these four factors that judges consider and weigh to determine if the copying of a work was fair use:
- Purpose and character of use (is it commercial use or non-profit and educational)
- Nature of the copyrighted work
- Amount and sustainability of the portion used in relation to the copyrighted work as a whole
- Effect of use on the potential market or value of the copyrighted work
These aren’t terribly helpful to attorneys, much less to anyone else. Making it even harder is the fact that courts have not been consistent creating further guidelines. These factors (especially the first and last) are fairly likely to support fair use in photo restoration.
The first factor here can be analyzed by asking if the new work is “transformative.” This basically looks at if the copyrighted work was copied, or if it was transformed into a new work. There is an argument that photo restoration is creating a new work, making it transformative, but (again) there is no clear answer. One Supreme Court case (A.V. v. iParadigms), stated that work “can be transformative in function or purpose without altering or actually adding to the original work.” This would seem to support the argument that restoration is transformative and, therefore, would qualify as fair use, but until a case is actually tried there is no clear answer on which way the courts would rule.
The last factor could also be in favor of photo restoration being fair use, at least in situations where the photo is being restored for sentimental reasons. The original photographer wouldn’t stand to lose much money by having their old photos restored.
But, because fair use isn’t clearly defined, it is in your best interest to require your client to get permission from the copyright owner for anything made on or after January 1, 1923. If they cannot locate the owner, then it is at your discretion as a business owner whether or not you think it is fair use and want to take the risk to restore the photo.
What are the penalties for copyright infringement?
The penalties can vary depending on the situation, but you could be subject to monetary damages (the loss in profits of the copyright owner and/or the amount you profited), injunction, or even jail.
Unfortunately, there is no clear answer when it comes to fair use of a copyrighted photo. As a business owner, it is important that you protect your business by making informed decisions when it comes to restoration of another photographer’s work.