Lying About the Law

Our dear daughter is in volleyball this year, and at today’s practice, the coach distributed team pictures. They’re good pictures, with the usual team and individual shots. But on the envelope, this:

Did you know? Professional photographs are protected by copyright laws. It is illegal to scan or reproduce Lifetouch portraits. If you need additional prints, please use this reorder form. Thank you for respecting our work.

As I understand the law (and, I should warn you, I’m no lawyer), this is wrong, and a little reflection will make this obvious. Scanners and copiers are everywhere. I’ve seen scanners on sale for less than $20, and those all-in-one scanner-copier-printer-fax copyright violation factories are big sellers. They even put copiers in libraries, right next to piles of books that are nearly all “protected by copyright laws” too. And yet, all those librarians manage to stay out of jail for contributory copyright infringement, somehow. Is the FBI hitting the chain electronics stores yet, looking for suspicious OfficeJet buyers?

While the doctrine of “fair use” has been taking a beating in recent years, what with the recording industry suing grandmas who never owned computers for song swapping on the Internet months after their funerals, it’s still the law of the land. Most personal uses of copyrighted material fall under it, which is why it’s legal to tape TV shows on a VCR, copy encyclopedia pages and magazine articles in libraries, and sing “Happy Birthday” at your kid’s birthday party. If Lifetouch was right, all of those things would also be illegal.

The idea behind the scam is to increase the cost of scanning via a little fear, and encourage people to order the pictures “legally” to avoid the risk of the Copyright Police raiding their houses mid-scan.

Of course, they will have to increase the cost of scanning a lot more to cover the inconvenience of ordering from this outfit. Check out their company web site. See any online ordering link? Nope. The only way to order more pictures is to write on the back of the envelope the pictures came in and send it snail-mail to Chattanooga, Tennessee. Too bad my dad (who inspired my daughter to try volleyball after taking her to an Illinois volleyball game last year) can’t order any pictures without a magic envelope. I guess we’ll just have to scan in a few to send to him over E-mail.

I wonder which approach would make them more money: lying to their customers to scare them into ordering, or making it as easy as possible to order?

UPDATE (2005-10-20): It’s been pointed out to me in the comments that I’ve been vague at best about Lifetouch’s rights, and about fair use. First of all, Lifetouch does have a valid copyright in those pictures. Second, while fair use covers many purposes for copying a picture, it doesn’t cover them all. My example about scanning a picture and sending it to Dad may be illegal, depending on the financial harm done and a lot of other factors (see a lawyer for details). My point was not that it was legal, but that it was easy, and that lots of people will ignore the threats in the envelope if ordering prints is too much of a pain.

28 thoughts on “Lying About the Law

  1. Well, they’re half-right, and this isn’t a fair use issue per se; commercial copyright infringement is illegal. And the photographer who makes a photo has a copyright to the work.

    IANAL, but my understanding is that scanning and printing the pictures at home is not illegal… but taking them to the drug store and printing them on the Kodak PictureMaker would be (because the store would be receiving money for the duplication service).

    Similarly… my students can go and make copies of articles in the library all day long (or print out articles from JSTOR), as this is considered fair use… but if I assemble a course pack that they purchase from a duplicating service, they (the copy center) legally has to pay licensing fees to the article’s copyright holders, because it’s commercial copyright infringement otherwise.

  2. All true. But note how their warning doesn’t say anything about commercial copying/scanning/whatever. “It is illegal to scan or reproduce Lifetouch portraits.” Period. Full stop. (Well, after I fix the typo…)

    And commercial copying isn’t much of a big deal in this line of work. How much of a market is there for pics of my daughter’s volleyball team? I imagine it’s measured in the dozens, being generous.

    The one place where commercial prohibition becomes a big deal is where you have to own your own scanner to make legal copies. So the only people for whom this disclaimer might actually be close to right are the poorest.

    Plus, every library I’ve ever made copies at charged you per copy somehow. It’s been a while, though, since I’ve made a copy at a library.

  3. You are completely wrong.

    Purchasing a photo print from a photographer does not give you the right to copy it.

    Period. This isn’t even a gray area of copyright law. You have to have permission from the photographer to legally make your own reprints. Copyright law has nothing to do with making profit.

    Most professional prints have the name or log of the photographer right on them. If you were to try to have this professionally copied, most places would refuse to do so because they know it’s illegal. You may find someone who will make the copies, but they’re not supposed to be doing it.

    As for scanning photos and printing off your own copies, this is technically also illegal – but obviously this will be hard to police so long as you’re not selling copies on the street corner.

    Lots of people do it, and you likely won’t get caught, but it is illegal.

  4. Copyright is to protect the person who originated the work… How would you like it if I came to your job and stole the work you did? It may not be illegal for me to do that, its called principal and morals…

    My father had a portrait studio and stopped doing weddings because everyone has a digital camera and would take pictures around him. Well, if you are the bride and groom, I would assume that you would wnat good professional pictures and not anything less that would be provided by “Aunt Betty” But, this world wants everything for free. Why would anyone pay good money for special memories when I can put that good hard working photographer out of business by ripping off his work.

    Walmart can be fined 20,000 dollars for EVERY copyright infringement due to developing copyrighted material. However, you can sit at home all you want and steal other people, who YOU hired’s work with your stupid little Bubble Jet printer to save money to feed your fat little kids while someone who is trying to make an honest living is put out of business…

    Jeff: Edited for rude language and insults.

  5. But, it is also very illegal no matter how much you want to not have to pay for your kids volleyball pictures.

    Jeff: Edited for rudeness, insults, and threats.

  6. Hmm. I seem to have attracted the attention of a few photographers…

    First of all, Heather and Tom, tone it down. Would you tolerate people who walk into your house or office and accused you of things and were rude? No? Then don’t do it on my blog. I’ve edited your posts to try and capture whatever relevant content existed; next time, I may be tempted to just delete it.

    Second, people who are so sure that copyright is such a clear and unambiguous part of law should check this out. Note the words: “unclear” and “not easily defined”. Note how the Copyright Office of the USA (certainly an expert in copyright law if ever there was one) doesn’t feel comfortable telling people “this is illegal” or “this is legal”. Not exactly cut-n-dried, is it?

    What’s more, the fair use rights to backups and recordings of copyrighted works are well-supported. Own a VCR? Ever taped a show you were going to miss? Tell me: how is that any different? Is it somehow OK to rip off TV networks, but not photographers? What about software authors? You can legally back up software I write and sell you, but I can’t legally back up photos you take and sell to me? What’s up with that?

  7. You can record all the TV shows you like for your own personal use. That is legal. If you duplicate them for purposes of profit or public sharing, that is illegal. When you record a show for yourself, you are not hurting the networks by profiting in any way or stealing anything from them. That is why it is illegal to pirate movies, you are taking money away from the company who made the movie.

    As for backing up photos, that wasn’t your argument. You wanted to reproduce pictures that a company took, of your child, to give them to your family members. You argue that it is legal to do that and the company is misrepresenting copyright laws. You are taking money from that company by doing that. It is copyright infringement even if it has nothing to do with money.

    I took pictures of my company men’s softball league. I wasn’t asked, I did it because I thought the guys would like it. I then posted the pictures up on a website that I pay for and use to show clients pictures to be ordered. Well, a few weeks later I open up the company news letter and I see a whole collage of my pictures draped all over it that was stolen from my website. No one asked my permission to use these, I would have granted the permission if asked.

    I wasn’t planning on making any money from this, I assumed it would just be an office email that everyone would look at and enjoy. They published my pictures, without my permission and didn’t even put any credit to who took the pictures. This is illegal to do, I owned the rights to those pictures the second the shutter was pushed. Am I going to sue them? No. Is it illegal? Yes. Do you hear of people going to jail often for this? No.

    What you do in the privacy of your own home is your business. You can scan those pictures and give them to whoever you like and most likely you aren’t going to go to jail for that. Check out this website if you would like more information on copyright laws..

    People do these sort of things all the time. I guess I just got really irratated with you saying that Lifetouch was misrepresenting the copyright laws and I freaked out, I apologize. I don’t work for that company and I have never heard of them until the other day. But, as a future small business owner in the photography business, I would hope that my customers would come back and pay me for the duplicates instead of infringing on my copyright and also my ability to make a living.

    Most photographers have their work copyrighted on the picture or watermarked so they can’t be reproduced. I guess if they don’t, they aren’t protecting themselves from theft. Those pictures that you recieve may have an unseen watermark that will only show up when you scan it into the computer. If it doesn’t, thats their fault and stupidity for not protecting their work. Go ahead and copy it all day long. But, it is still illegal.. 🙂

  8. Apology accepted, Heather. Everyone screws up sometimes; I’ve done it, too.

    And I’ll even meet you halfway. I should probably have made clear that commercial copying is illegal, and that Lifetouch’s claim on copyright is valid (even if it isn’t as strong as they make it out to be). I’ll add an update to the main post.

    I think I was unclear on one other point, too, which prompted you to say this:

    As for backing up photos, that wasn’t your argument. You wanted to reproduce pictures that a company took, of your child, to give them to your family members. You argue that it is legal to do that and the company is misrepresenting copyright laws.

    Well, no; at least, that wasn’t my intent. But I can see how you can read that argument in what I wrote, because I wasn’t too clear. Bad me.

    I was trying to argue for two things: misrepresenting people’s rights is bad, and beating people over the head with copyright law doesn’t make you any money, even if you’re within your rights to do so.

    If I could E-mail my dad a link to my daughter’s pictures on Lifetouch’s site, and if he could then order a few prints right there, I’d do it, and he’d probably buy. But I can’t. Right now, illegal or not, the path of least resistance for giving Dad a picture is to scan it and mail it to him. Isn’t it more in Lifetouch’s best interests to get my dad to buy than it is to scare me with (basically) empty threats?

    Furthermore, don’t empty threats make the moral hold of copyright weaker? If I scan the picture, and nothing happens, and if all my friends scan their picture, and nothing happens, eventually the force of the law is reduced.

    Your comments on VCR taping are quite interesting. When the VCR first came out, here was the reaction of the TV producers:

    Sony threatend to erode the value of amici’s property rights in those programs by marketing a videotape machine (“VTR”) called Betamax, which makes millions of unauthorized copies of amici’s intellectual property… Wholesale copying of Amici’s programs by millions of VTRs will pre-empt critical ancillary markets and seriously jeapordize amici’s legitimate property rights.

    And they were right about that, as your position on VCRs in your comment proves. You currently have what TV producers of the time would call a very poor attitude to their property rights. But times have changed, and the TV industry has changed with it. I’d argue that times are changing for photographers, too, and they need to recognize that if they want to stay in business.

    Copyright is not absolute; it exists at the whim of Congress, which ultimately translates into the whim of the people. Thus, people who want copyright protection have the responsibility of ensuring their copyright-enforcement activities serve the interests of the general public, as well as their own interests. If they don’t do that, they will see their rights taken away–as the TV industry did in the Betamax case years ago, and as the recording industry is seeing today.

  9. There aren’t many parts of ANY type of law that are without argument and are clear and unambiguous. That’s how our legal system works. The grey areas are in what constitutes fair use.

    Let’s correct your analogy here:

    1. Using a VCR or Tivo to record a show for personal use = Scanning a picture to your computer to use as a wallpaper or slideshow on the computer.

    Most people would argue that this is within the limits of fair use.

    2. Making a digital copy of a TV show for improper sale or distribution = Using the scanned ‘backup’ picture to make a dozen extra prints for the family.

    This is where the line is crossed, and I don’t think you’d get too much argument from anyone who knows their stuff.

    You have any doubt? Take a professional portrait print with the photographer’s name or logo on it and try to have it scanned and copied at a photo printer. They won’t do it because they know it’s a violation of the copyright. It’s illegal to do it yourself at home for the same reason. There’s no distinction between doing it yourself, or having it done professionally. The law applies the same.

    I know, I know. Everybody does it, and it’s impossible to police, so what’s the big deal?

    You’re not going to get in trouble, most likely. We’re arguing about a law that is rarely enforced in these types of cases. But it is a problem that is changing the way a whole industry operates. Photographers are now having to charge a lot more up front, because they know that they won’t be able to make as much money off the prints as they used to.

    That’s how it affects people.

  10. See, this is where even you are confused about copyright law, Scott.

    Take a professional portrait print with the photographer’s name or logo on it and try to have it scanned and copied at a photo printer. They won’t do it because they know it’s a violation of the copyright. It’s illegal to do it yourself at home for the same reason. There’s no distinction between doing it yourself, or having it done professionally. The law applies the same.

    But you said before, in the very same comment:

    Scanning a picture to your computer to use as a wallpaper or slideshow on the computer. Most people would argue that this is within the limits of fair use.

    Which is it? Is it illegal to scan the picture, or not?

    BTW, it’s illegal for Kinko’s to scan it because they scan it for a fee, which makes it commercial copying. The purpose of the person receiving the scan is irrelevant.

  11. Okay, Im getting dizzy. I just want to ask you a few questions. Do you think that what the person did from my company was right? Do you agree with me that those pictures are my property and I should have been asked permission for them to publish them? Or, do you think that because I posted them on the internet that they are then the property of whoever can right click and save them to their desktop?

    Are you saying that the second I snap a picture, or any photographer, that it immediately becomes community property and anyone can reproduce it or make money from it?

    Are we arguing on the leagality of this or the fairness of it?

    Can you break into my home and steal my portfolio, replicate it and sell it or give it to your friends and family? Was it ever mine in the first place?

    As for kinko’s not coping because of the “fee” that is incorrect. They can not copy copyrighted stuff because of the HUGE fine they can get and the possibility of a huge lawsuit and that is for fact. Call them and ask them.

    Why do they make dvd burners and cd copiers for computers when it is illegal to pirate that stuff? Probably the same reason they came out with betamax. Im not well versed when it comes to copyright law with television, computers and film. But I do know that the pictures I take are my property until I release all rights to you for the negatives. I know that if I catch any photo finisher scanning or reprinting any of my stuff, they are subject to a huge fine because it is illegal.

    I know there is some kind of clause around it, and its only if the company that took the pictures is really old and out of business, you can get proof of that and then they can copy them.

    Where is the line drawn for commercial use? If I take your childs senior pictures, you buy them, scan them and print out copies for your friends..Do you think that is commercial or private?

    If you get ahold of, I don’t know, Playboy magazines top photographer’s centerfold’s photo shoot pics, take them to Kinko’s and try to have them duplicated..Is that commercial to you? Which is worse? They are both the same!

    You can’t by any means duplicate a photographers work for personal or private use. Whether its for a screen saver or to give to cousin Vinny. Will you get caught? No, but if you take it to Walmart and they do it, they get in huge trouble, not you.

    As for Lifetouch not offering any type of ordering online, I absolutely agree with you. Most reputable companies do have a link to sporting events for the purpose of people buying from the web. If they don’t do that, its a stupid business move and I can see why you would be tempted to scan the pics and send them out.

    There is a company called Digimark and if you pay like 500.00, you can digitally watermark all of your digital photos AND track where they are on the internet to see if people are taking them. They are there to protect your property and business. Companies like these would not be in business if there wasn’t a copyright issue with technology and theft.

    Okay, its bedtime, Im done now. Goodnight… 🙂

  12. The question isn’t whether the act of copying is good or bad (it can be either or neither depending on circumstances) but whether it is accurate for content providers to tell content consumers that there is no free use rights. But you bring up many other issues, and I’ll go with that.

    IANAL, and don’t pretend to be. but I represent a fair cross section of well-meaning consumers on the internet, if that means anything to you. You can disagree, but at least you’ll know how people like me view these issues. If you don’t care how I feel, then we’ll just not do business, and that will be okay too.

    A wedding is open to all who are invited, and everyone has the right to take all the pictures they want. If it were an event held for and by photographers to build a saleable portfolio, that would be different. It is not a professional event, it’s a personal event. Every angle, every shot is open for every yahoo to take. The photographers is paid to make the official photorecord of the event and are selected for their artistry and affordability, but the event is not theirs. They have no special rights there. They are granted privilege to go where they want (even during the ceremony) and to have special time with the groom and bride &c because they are taking the photorecord. But weddings aren’t photography events, they are events which are photographed. If someone stands beside the photographer and snaps a shot, more power to them. Even if they hand them out for free or use creative commons licensing to distribute them all over the net. The photog is there because their work will be better (comp, framing, depth of field, exposure, etc). They are paid for producing the official and artisticly superior record. But once paid, I think that the family ought to own the pics and do as they please. Now, there is additional value in having the pros do the duplication, since they can do superior work. If the family wants to spit the picture out on a line printer in ascii graphics and sell copies, that shouldn’t be a problem. Copying, format-shifting, and sales. The only limit to that should be the agreement between the photog and the customer (a kind of EULA), not any other realm of civil or criminal law. The event should belong to the family, and the record thereof as (prepare to cringe) a work-for-hire.

    So no, I don’t have sympathy for the ball team pictures. Nobody was hired to take the pictures, and it was a public event and the pictures were of the team, and admittedly for the team. I think that it would have been courteous for them to have asked you and thanked you, and you could rightly expect better courtesy from people you know. But there was any “implicit contract” understanding needs to be bidirectional. What if they understood your work in this case to be gratis, complimentary — just as if one of them had snapped the pics? They just understood it differently. As a non-pro, I’d have been flattered to have my pics plastered in the newsletter, but the lack of attribution was discourteous of them.

    Art differs from music in that the musician doesn’t sell music, they sell the performance of music, and related logo-laden merchandise. Musicians have found that giving away music for free helps to promote the band (including their recordings, oddly enough). I wonder if ever the value of photography will be recognized as being in the art (performance), not in the duplication. It’s not the content that makes you special (or else I could buy out your work and declare myself an artist) but your ability to create it.

    Ultimately, though, the market reality (despite various contrary declarations) is that people will route around obstructions. I’m not surprised to hear that it happens on the internet, because the internet is viewed as a public place, and any site not secured by subscription probably should be viewed that way. IANAL, so I can’t say what is legally true here, only what is desired. I am a web surfing consumer only.

    It is possible, and even easy to duplicate many works of art, which is a great thing for Art but not the way that artists are used to making a living. We can legislate otherwise, or claim that we’ve legislated otherwise, but it won’t matter. We can legally declare Florida to be hurricane free, too, with similar effect.

    Photogs: you really are artists. I know that you expect your works to be treated differently. I sympathize as far as that goes. But we’re in a different technical reality than 20 years ago, or even 10. We have to live in the world we find ourselves in. Trying to have more control probably won’t help (and may make you “the bad guy” in public opinion). I don’t know how things will play out copyright-wise or patent-wise. Frankly, I think both are far too restrictive. Please try to learn new ways to connect with consumers, and don’t be surprised when people find many ways to share your art. Maybe you can make sharing work for you instead of against you. I hope so.

  13. Are we arguing on the leagality of this or the fairness of it?

    Both, actually, especially since the legality is part of the problem. The law, as written, isn’t fair, largely because it’s out of date.

    For example, I bet you can’t tell me a good reason why it’s supposedly illegal for me to watch my DVDs on my desktop computer, but it’s not illegal on my laptop if I run Windows on it. Yet, that’s the way it is (if you believe the movie studios). Does that sound fair?

    The key is balance. Certainly I don’t think every one of your shots should just become community property, automatically. But when I scan your shots (that I acquired legitimately) to store on CD-ROM so I can find them easily, or when I crop my kid’s face from your shot to make a collage for my kid’s class project, am I being unreasonable?

    Ditto with the wedding shots. It’s the couple’s wedding, not the photographer’s. The parents are (hopefully) never going to be at their childrens’ wedding ever again; can you blame them for taking as many pictures as possible? I can tell you that no photographer would have told my mother-in-law that she couldn’t take pictures of my wife on her wedding day; such a photographer would have been thrown out of the church bodily. Of course, as you point out, if photographers can’t make any money at weddings, then you won’t be able to get professional wedding pictures done.

    I know several photographers with a new kind of studio. They hire themselves out by the hour, take lots of pictures, and give the customer the negatives or a CD-ROM with the raw originals when they’re done. After that, they don’t care. If the customer wants enhancements/corrections/whatever, the photographer charges them per hour for that too. They seem to be doing OK. Perhaps that’s the future of professional photography.

    As for kinko’s not coping because of the “fee” that is incorrect. They can not copy copyrighted stuff because of the HUGE fine they can get and the possibility of a huge lawsuit and that is for fact. Call them and ask them.

    I never said otherwise. But the reason they get the fine and the lawsuit is because they get paid to do the copies. If they did copying for free (and they could convince a judge that the copies really were for free, and not part of some scheme to make money indirectly), they probably wouldn’t have a problem. Libraries don’t, for example.

  14. I took a photo of my great-grandparents which had been taken by a photographer (circa 1895) to Walmart to make a copy of it for my family history. The clerk refused to let me have the copy-stating that I was breaking copyright laws….and I would have to trace the photographers’ decendants to get permission! (I have enough problems researching my own family tree-let alone someone else’s!) Also that the copyright law applies forever.
    WalMart should at least instruct their employees as to what the copyright laws actually are. (no copyright applies to photos taken before 1922-they are public domain) I will NEVER do business with WalMart and it’s rude, arrogant employees again!!

  15. It’s interesting that with such a seemingly strong understanding of the law, copyright law would be unclear. It is illegal to copy a professionally created photograph. It’s clear, and it’s the law. Lifetouch needs to remind people, because in today’s age of technology, like p2p file sharing, some things can be easily copied and shared. What you choose to do, or how you feel about their sharing the law with you, on their envelope, that they sold you, to hold their pictures, that you bought from them, because you found value in their service, is of little consequence to the law. They own the copyright, the right to create copies and control their use. If you copy it without their permission, you break the law.
    Lifetouch is the largest photography company in the world, and I’m sure that their employee owned company will do their best to keep what’s theirs even if you think you are the only one who will use it. If it bothers you so much, take the photos yourself and then own the copyright yourself. Better yet, build a business of taking photos and sell everyone one copy and let them copy them. Good luck with that.

  16. It is illegal to copy a professionally created photograph. It’s clear, and it’s the law.

    Except, of course, when it isn’t clear, and isn’t the law. Knowing the difference (instead of taking someone’s word for it who clearly profits from the position taken) isn’t something people do as they go through life.

    This was my point: instead of playing lawyer and threatening one’s customers, doesn’t one make more money by making it easy to do the right thing?

    Better yet, build a business of taking photos and sell everyone one copy and let them copy them. Good luck with that.

    I know a few photographers who do that, actually, and it seems to be working out for them.

  17. So, is it established that in no way, shape, or form may ANY professional photos be scanned?

    For example, if one is asked to scan images of an event (wedding, senior portrait, whatever) by a friend who doesn’t have a scanner, or doesn’t want to use one at the local library, is it legal to provide them with a free service that gives them a CD of archived images?

    If professional copyrighted photos may be scanned, what are the rules? I’ve read the basic copyright rules but it seems contingent upon monetary gain (or I suppose loss) and it is fluid. What are some concrete examples when scanning is fine and no permission is necessary?

  18. All copyright laws have a generic “fair use” exemption; if the use of the copyrighted work is considered fair use, you’re off the hook.

    The problem is that “fair use” is not defined anywhere, and so you often have to ask a lawyer.

    Some things are probably safe, like quoting, or reproducing portions of some work for parody. Others, like noncommercial scanning, are still unclear. It’s possible that the act of scanning would be OK, but the act of publishing the scan on your website (even if noncommercial) would not be.

    Practically speaking, you’re not likely to get prosecuted unless you make a nuisance of yourself. Doing a favor for a friend is very unlikely to get you in trouble. But I’m telling you about what’s likely, not what’s possible.

  19. Interesting. So the issue is as clear as mud? 🙂

    From a moral standpoint I do not want to be considered a “law-breaker”. Professional photography needs to find a new business model (no pun intended). I understand many would disagree with me, and that is fine. But there are way too many of these threads about the ridiculousness of 50-70 year copyrights, tracking down descendants of studio owners, etc. just to preserve treasured moments, for there NOT to be some kind of change.

    I have a high-end photo-lab printer. I have an excellent scanner. I am an amateur photographer with a VERY MODEST home studio and have several years under my belt with graphic design. I can do most things a pro can do to produce an incredible image, albeit on much more modest equipment.

    In our “microwave” culture we don’t want to bother with the hassle of tracking down the photographer/studio, and we certainly don’t want to waste time waiting on touchups or prints we could make on our own. The prints I make at home are as good as the lab I have used, and sometimes better (personal opinion based on what I think looks best with color saturation/etc.)

    Even non-photogs and non-graphically-inclined computer users can easily use products such as PS Elements and even Picasa to do some nice photo enhancements. Toss in a low-end Epson and some decent paper and you have better-than-average reprints without the hassle of waiting.

    Personally, as a photographer, I don’t want the headache of doing reprints. I’m more of a “work for hire” guy. Others aren’t. But in my OPINION there should be SOME kind of “limited use” inherent for owners of PRINTS (notice I did not say owners of COPYRIGHT). That limited use should be clearly spelled out and simple.

    A question still remains about loss of revenue, too. If a photographer charges $100 for a set of 4 wallets, that is his/her discretion. In my experience, though, the “Average Joe” sees reprints from the original photographer as a prohibitive price. Thus, “Joe” would NEVER purchase those wallets from the photographer. If “Joe” scans his pro images for backup purposes and then decides, “Hey, I’d like a wallet-size of old Junior here,” I believe the “limited use” should apply. We can bicker about number of copies allowed, distribution rights, etc., but the root still comes back to, “Would Joe have ordered these from the photographer EVER given what Joe considers to be an outrageous pricing structure?”

    The answer will almost always be a resounding “NO”. So I can see where a case can be made where Joe, even though he made his own prints (a current violation of copyright law), did NOT lessen the photographer’s monetary gain. Obviously there are people who do pay exhorbitant amounts of money for professionally developed prints, but again, we’re talking about the masses here. Most of us are “average Joes” who get pictures from the local Costco or CVS and are happy as can be with the quality of prints. We’re also used to that pricing structure.

    I suppose I’m ranting now and composing at the keyboard but I’d like to one day have peace of mind about making backups of photos (which I would consider fair use) without having to track down people all the time to get permission. Or not to worry about having to pay a load of cash for reprints I could print out better myself, at home, and cheaper if I one day decided I wanted to have a few newer copies in a different size.

    But what do I know? In the end I firmly believe market demand will kill the current paradigm. Unless photographers decide to follow the route of the music industry and rigorously police their work AND sue the pants off people that violate current copyright, that is. 

  20. Do you ever see figures on online piracy losses for the movie/music industry? All the studies authored by the industry assume that a download is a lost sale, just like your Average Joe with a scanner and $25 wallet reprints.

    In general, I tend to do what I consider reasonable, and rely on two basic facts. One, my idea of reasonable is likely to be shared with a lot of people, including possibly the copyright holder. Two, “reasonable” includes not doing anything particularly public, which means I’m not likely to be noticed in those cases where the law and reason might differ.

  21. I tend to agree with what you deem as “reasonable”. I think it even illustrates the point that a simple, “limited use” policy is warranted and the photography industry should use market demand, emerging technologies, and buyer habits, and then decide upon the specifics, adopt them into an understandable policy, and then promote the heck out of it.

    I’ve also read about studies on the music/movie industry downloads which show many (by no means all) downloaders were more likely to buy the album/dvd after downloading it first. “Try before you buy.”

    The studies showing such vast sums of “losses” are highly prejudicial using the assumption that each download must equate to a dvd/album purchase – which I believe is a false premise.

    A case could be made for a sizable portion of sales which otherwise would never have occurred if downloads had not taken place first. Nature of the beast I suppose.

    Relating it to photography, my contention is the average person is more likely to frequent a photographer that makes it easier on the clients to obtain, use, maintain/edit/reprint, and distribute photos they have already paid for, resulting in a higher number of sales through repeat business rather than 1-time $400 16×20 shots (which can be had through MPix and other online “labs” for MUCH less).

    Of course, that’s in a perfect world. And to think – all this ranting is because I’m scared to scan in some photos for a friend who doesn’t believe he knows how and I don’t want to cross the line morally. Then again, I suppose I do that everyday if I go 30 in a 25 mile-an-hour zone. But that gets back to the discretion of the officer who’s clocking me, doesn’t it?? 🙂

    Thanks for this post. It’s allowed me to learn some things and to vent at the same time.

  22. I think many photographer’s concern (myself included) is not just lost revenue, but how my work is then presented to others. Not everyone has a nice scanner and a nice printer, so then I have a client 4x6ing me to death (after I have spend 10+ hours on their session, editing,etc..) then they take those, scan them, blow them up and send them out to everyone for Christmas saying “so and so photographer took these” when the quality could very likely be poor if they are scanning and printing themselves which does not bode well for my business. I don’t want anyone scanning, period. I offer digital files for sale with a copyright release so they can print until their little hearts content. I also include instructions for printing and recommendations of where to get quality prints. I get that times are changing, so I offer that service to accommodate clients, but scanning the prints I sell is not ok in my book. Regardless what the laws are I own them and do not allow scanning and clarify that in a contract (that clients must agree to and sign) so that pretty much takes care of the grey area.

  23. For the record, melphoto, I think your approach is more positive and realistic. I don’t see the point of scanning if you give the option of digital prints with liberal licensing. Certainly I would have been happy with that for my daughter’s pictures!

    I hope it works out well for you.

  24. My dad works for Lifetouch and is a Territory manager for 20 JCP photo studios, and I myself worked at the corporate headquarters in Eden Prairie, MN for a year for the VP of production.

    Lifetouch now makes it possible for you to purchase your photo session on disk. Once you purchase the disk, you own the copyright. These disks cost about $100, and that’s without having any prints made.

    They are also not unreasonable when it comes to photos that they no longer have the negatives for and cannot reproduce.

    In the past I’ve wanted to had photos reproduced that Lifetouch no longer could print for me. Even though the photo does not say “Lifetouch” anywhere on it, my understanding is that because the paper on the back of the photo says “Kodak Professional: Professional Images are Copyright Protected,” the pictures were under copyright. He told me I would need to get a form from Lifetouch that released the copyright to me.

    I did just that. I went back to the studio, they gave me a form that released the copyright to me to have prints made from my prints. I then took that form back to my local photo place, presented the form, and I was able to have those prints redone without a problem.

    Just FYI.

  25. I work in a photo lab and everyday i get ppl in wanting to make copies of CR pictures….now…a copyright last for 75 years, which you can RENEW at anytime for another 75 years…a photo doesn’t need to say anything about being copyrighted…it only has to LOOK copyrighted! What i say to most ppl is How about you work all week long and then someone else comes along and takes your paycheck? most ppl are like uh..yea i understand when you put it that way. Now im sorry if you didn’t order more than 4 pictures when you have 20 ppl that you want to give them too. Photography is ART and while i sometimes don’t always see the point in old pictures not being able to be copied i always understand new ones.

  26. Great, Sally. I still have some problems, though:

    One, you don’t understand why such old pictures have to be copyrighted. Me neither. So why are they?

    Two, “look copyrighted”? Meaning: don’t get too good at taking pictures if you want to use a photo lab to print them. Photo labs are only for crappy pictures.

    I actually understand why labs do this. After all, it’s not like there’s an easy way to figure out whether you’re doing something illegal when you copy a photo. But that’s just another example of why the copyright laws are so screwed up. Technically, photo labs shouldn’t exist, because of the legal liability, but they’re too popular, so we pretend that we’re doing something legal when we look at the “Professional Photo Paper” thing on the back of the photo, or refuse to copy “good-looking” photos. Maybe labs should have legal protections like web sites have, where they’re assumed to be innocent infringers.

    Three, as my original post tries to argue, is it better to tell people “you just can’t have it, you filthy criminal” or “here, it’s easy, just click here, and it’s only $4 per 8×10 (or whatever) for legal copies”?

    I’m glad if Lifetouch is getting a clue (as Sheryl says). I wonder why they don’t bother just taking the pictures and handing the disks out anyway, as opposed to making customers jump through hoops. But progress is a good thing, even if it’s not the perfect thing.

  27. I just want to say Lifetouch is not, I repeat, is not an employee owned company. The employees can own stock in the company not shares. One would need to own shares to be considered part owner of the company in this case.

Comments are closed.