Can I copy old family photos that are 65 years old?

Can I copy old photos like family photos that are 65 years old?

Karen on November 23, 2011

You can generally copy old family photos for private use, which can be considered “fair use.” Also, photos taken before 1989 that were published in the U.S. without a copyright notice are in the public domain, so anyone can copy them.

fair use, old photos, public domain

Comments

Comments


Reply by Anonymous

February 1, 2016

I was denied copies of family photos I scanned by Walmart. The photos have no studio name/markings. Because of the people’s ages in the photos, I know they are at least 100 years old. They cited that I did not have permission from the photographer and they/I could be sued for $10,000 for my copies for my ancestor book. Is this legal and logical?


Reply by Andrew Hudson, PhotoSecrets

February 2, 2016

Hi. This is a common issue. See photocopying.

In a 1991 landmark case, Kinko’s was found liable for copyright infringement. Since then, Walmart and other photo companies have instituted copyright policies.

“Neither Walmart Photo Centers nor Walmart Digital Photo Center will copy a photograph that is signed, stamped, or otherwise identified by any photographer or studio, unless we are presented with a signed Copyright Release from the photographer or studio.

“In addition, we will not copy a photograph that appears to have been taken by a professional photographer or studio, even if it is not marked with any sort of copyright, unless we are presented with a signed Copyright Release from the photographer or studio.”

Walmart, 2016

You could argue that the photos do not appear “to have been taken by a professional photographer or studio” and are thus not covered by Walmart‘s policy. You could also argue that the photos are clearly from before 1923 and thus have no copyright protection (they are in the “public domain”), although Walmart‘s policy does not include an exception for that.

You could try another company, such as an online printing service.


Reply by Anonymous

September 26, 2015

I have been collecting old photos, negatives and slides for years from yard sales, estate sales, auctions, etc. Most of the sales were due to the death of the owner and sold by family members or a third person on their behalf. I would like to publish some of the negatives and slides for profit. Can I register these as the new owner since I purchased them from the family?


Reply by Andrew Hudson, PhotoSecrets

January 12, 2016

No. You own the tangible photo prints, but you do no own the copyrights, so you cannot register the copyrights.

Photos taken from 1978 onwards in the U.S. automatically have copyright. So you cannot publish or license those photos without risking copyright infringement.

Photos taken before 1978 probably do not have copyright (unless marked), so copyright infringement is probably not an issue. However, recognizable people may have privacy/publicity rights.

It sounds like your photos are reasonably old, and the people in them may not be alive, so you might be OK to use them.

Note that I am not an attorney and this is not legal advice; consult a local lawyer for specific advice.


Reply by Email (optional)

May 24, 2015

I have a picture of my wife taken in 1950. She was probably less than one year old when the picture was taken and is now deceased. The picture is starting to fall apart. I do not know who took the picture and there are no markings on it’s other side. I would like to get this picture digitally copied so I can save it and make a new copy. Is this possible to do?


Reply by Andrew Hudson, PhotoSecrets

May 29, 2015

DIGITAL COPY OF OLD PHOTO

Yes. Since there are no markings (such as a copyright notice), copyright was probably not registered or renewed. So the photo is in the public domain, free for anyone (including you) to copy.

Additionally, your use is probably personal (private) and not public, which may be considered a fair use.


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