Say that a cousin came across a family portrait from generations ago and you wanted a copy — maybe of your mutual grandmother as a child. You ask the cousin if you can take it and get it scanned into the computer so that it can be shared with all the other cousins, too. No problem, your cousin says, and you make your way off to a store to have the image processed. And then, the store says they can’t help.
Copyright prevents them.
Well, not really — but they may object anyway. In the United States, by default, the creator of the work owns the copyright over the work. In the case of a family portrait, the photographer owns the copyright, not the person hiring the photographer to shoot the picture. (This is, in part, why portrait studios can sell sets of photos — e.g. three wallets, two portraits, and an 8.5×11 — at variable prices. You can’t make your own copies.) Even if we don’t know who took the picture — and in the case of old family photos, we typically don’t — we still assume that someone out there holds the copyright. For works created before 1978, an unknown author or photographer retains rights over the work until ninety years after the item was “published” (a legal term of art) or 120 years after it was created, per U.S. law. So if that picture of your grandmother was taken “only” 80 years ago, you may be out of luck. And as seen in the chart below, it gets complicated, and quickly.
Of course, the law has exceptions, such as fair use (which is its own topic; Wikipedia’s treatment is extensive). But even then, the U.S. Copyright Office’s list of frequently asked questions about fair use addresses this situation specifically:
My local copying store will not make reproductions of old family photographs. What can I do?
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.
And before you ask if any photo labs have prevented families from scanning family heirlooms, they have.
From the Archives: Happy Birthday (c): Something else you wouldn’t expect to be protected by copyright.
Related: “Awkward Family Photos,” the book based on the blog of the same name. 4 stars on over 100 reviews.