Copying Photos and Copyright Concerns

Q. I have copies of 1940s professional photos of my mother and aunts. When I tried to make more copies at an in-store photo kiosk, store personnel wouldn’t allow it. The studio no longer exists, and the photographer has long since died. How can I make copies?

A. US copyright law is notoriously complex, and it does cover unpublished material such as your photographs. Basically, copyright covers any unpublished work created before Jan. 1, 1978, for the life of the creator plus 70 years.

If the photographer were still alive, you’d contact him or her for copies or to request permission to copy. But copyright law does include a concept called fair use: In many cases, you can reproduce material for personal, noncommercial purposes, such as a scrapbook, without violating copyright law.

So the studio and its photographer are no longer around to give permission, and you’re not economically profiting from using the photos. You should be able to make copies of your family portraits, right?

Well, it’s more complicated than that. Only a lawyer can say for certain whether fair use applies in your case. Even if it does, stores don’t want their employees to be responsible for interpreting the law, so they tend to adopt strict policies. If you need to use a kiosk, try a different store, explain to the manager how you’re using the photos and bring whatever proof you have that the photographer is unreachable.

A version of this article appeared in the June 2004 issue of Family Tree Magazine.