My local copying store will not make reproductions of old family photographs. What can I do?
By Andrew Hudson Published: August 14, 2012 Updated: October 24, 2013
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: www.copyright.gov/fls/fl102.html. 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 noninfringing. Ultimately, only a federal court can determine whether a particular use is, in fact, a fair use under the law.