Copyright laws don’t just apply for published professional works – even old black-and-white photos of your family are subject to copyright. Posting them to social media or other public outlets can land you in trouble if the photographer decides to take legal action.
While legal action on old images may be rare, in some cases they can cause a lot of stress and cost a lot of money. To avoid hefty legal fees, we suggest that you brush up on copyright law with this guide to copyright in the United States.
Put simply, copyright is the right to copy creative works. This original work could be anything – stories, music, computer software, video, to photographs. An important thing to note here is that ownership of a photo does not mean you own the copyright of that photo. In most cases involving photography, it’s the one who clicked the shutter and not the subject who owns the copyright.
As a simple illustration, imagine you’re at the Eiffel Tower with your friend Jeff. You took a selfie of yourself and Jeff in front of the Eiffel Tower with your smartphone and then Jeff borrowed your phone to shoot the exact same picture at a different angle.
Even if both images are practically identical, the photographers – and by extension the copyright holders of both digital photos – are different. You hold the copyright on the photo you took, and Jeff holds the copyright on the photo he took.
Copyright policies exist to protect the original photographer by giving them an exclusive right to create multiple copies, commercialize, and make derivative works from the image for a limited time. This means someone can’t just take their photograph and create works to make money off of it without the creator’s permission.
In photography, this means only you can display, monetize, and create derivative works out of your photograph and you can sue anyone who tries to do the same without permission.
However, there is a doctrine called fair use. Fair use allows you to use copyrighted pictures without legal repercussions in certain situations. If you use a copyrighted photograph for educational purposes, personal use, or news reporting, they’re likely to be protected under fair use.
But you can’t always depend on fair use. This doctrine is a legal grey area because what constitutes fair use is up to the judge or jury’s discretion and can differ from case to case.
Even if nobody intends to commercialize them, copyright laws still apply to personal photos in old photo albums. This means that whoever snapped the picture is the copyright owner.
While in most scenarios that would probably mean whichever family member was holding the camera at a time, it gets slightly complicated if your family hired a photographer. Many old family photos were taken by a professional. Unless your family made a contract where it’s explicitly stated that the family will own the photo’s copyright, the photographer will most likely be the copyright owner.
If we’re discussing recent family photos, tracking down the copyright owner would be as easy as looking up their contact information and contacting them directly. However, in the case of decades-old professional photos, it gets tougher. The original photographer might have passed away or gone out of business.
Copyright shouldn’t be too much of a concern if you’re only displaying old family photos at home. However, it’s an entirely different case if you plan to use old images in commercial work – say, you’re planning to release a family documentary or merchandise featuring the picture of a famous relative.
If the original creator or their heirs find out, they’re within full rights of suing you because you’re commercializing their picture without consent. If they do end up suing, you could be ruled as being in the wrong and receive penalties because you’re infringing on their copyright.
Copyright infringement is defined as an act that violates a copyright owner’s exclusive rights. To rule a certain act as copyright infringement, several criteria must be met:
If you’re found guilty of copyright infringement, the court can impose these penalties on you:
Copyright is finite – meaning all published photographs eventually expire and the protected work will enter the public domain. When a work enters the public domain, it’ll be free to use by anyone and everyone without legal repercussions.
The main legislation that controls copyright in the United States is the Copyright Act introduced in 1976. To better illustrate how long photo copyrights last under the Act, you can check the table below.
Created and published before 1923
None, work is in the public domain
Created between 1923 and 1963
28 years and renewable for 67 years
Published between 1964 and 1977
28 years with an automatic extension of 67 years
Unpublished photographs created before 1976
Author’s life + 70 years or until 12/31/2002 (whichever is longest)
Created before 1976, but published between 1976 and 2003
Author’s life + 70 years or until 12/31/2047 (whichever is longest)
As a note, if there are many photographers involved with a project, the copyright law usually refers to the longest-lived collaborator.
While it’s unlikely that you’ll be served a copyright notice just because you put up old family images on social media, it’s still smart to cover your bases. Here are four measures you can take to avoid copyright problems when using old pictures.
The easiest way to clear up any potential copyright issues is to simply ask the person who owns the rights. Once you get written consent to use a photo, you’ll be free and clear of any future issues.
Ask your older family members to find out who took the photo, whether it’s other family members or a professional photographer. If a deceased family member took it, you can try asking their children or spouse for permission or an ownership transfer.
The same rules apply if a professional photographer took it. Try to track them down and ask for written permission. However, if they’re deceased, you can track down their family or the people who took over their photography business after their death.
The fair use doctrine allows you to use copyrighted materials to a certain extent. While what constitutes “fair use” may differ from case to case, courts typically rule something to be protected under fair use laws if they’re not used for profit. For example, non-commercial uses of copyrighted material in news, education, and research tend to fall under fair use.
However, you should still learn the basics of the fair use doctrine and copyright law. This way, if you do end up receiving an infringement notice, you can at least make sure whether you’re really in the wrong or not.
Public domain material, as the name implies, is available for the general public to use. As stated in the table above, images published before 1923 are all free to use for everyone because any copyright that protects them has lapsed.
At the end of the day, it’s always best to ask an expert on intellectual property law. If you’re planning to display or commercialize an old photo but don’t know its copyright status yet, ask a lawyer. It’s better to pay upfront for legal services than deal with legal trouble if you’re found infringing on someone’s copyright.
You might have cleared the copyright issues on your old picture, but they still look damaged. What to do? Send them to IRC!
Maybe you’ve gone through all the legal hoops and now you’re 100% sure that you’re allowed to display and use your old family photos. However, these old photos look dirty and deteriorated from decades of aging. What should you do to make them look new again?
Our team here at Image Restoration Center is happy to help! With the latest in photographic restoration techniques, we’ll restore your old photos to their former glory in no time at all – and at an affordable price!