The Board of Directors of the American Society of Media Photographers, the Professional Photographers of America, Photo Marketing Association International, the Association of Professional Color Imagers, the Professional School Photographers Association International and the Coalition for Consumers' Picture Rights, adopt the following guidelines concerning copyright practice for members of the photo industry.

It is reprinted with permission given by the Photo Marketing Association International.

Customer Copyright Information

Copyright can be confusing. What is copyright, who owns what, why all the fuss, how can I get copies made, and are there any exceptions or questions that frequently rise. This is designed to provide information to help customers understand why some photos cannot be copied by the lab.

What is Copyright?

The U.S. Constitution and the Federal Copyright Act give "copyright" protection to "authors" for their "original works," such as photographs. Among the protections that copyright owners have are the exclusive rights to:

1. Make copies of the work
2. Prepare other works based on the original
3. Distribute copies of the work to the public by sales, rental, lease, or lending
4. To publicly perform and display the work.

These rights are protected by laws which provide for damages and criminal penalties for violations. Both the customer and the lab are subject to the law.

Who Owns What?

The law says the "author" is the owner of the copyright. The author of a photo or image is usually the person who snapped the shutter or created the image. If you took the photo, you own the copyright. If a professional photographer took the photo for you, then he or she owns the copyright. If that photographer is an employee of a studio or other person in the business of making photos, then his or her employer is considered the author.

Prior to 1978, court cases said a customer who commissioned a photo was the employer of the photographer, so customers could get reprints made without any problem. In 1979, the U.S. Supreme Court said that was no longer true. To be an employee, the court said a person would have to be considered an employee under the traditional tests such as are used to impose payroll taxes, social security, and similar laws. That is not the usual customer-photographer relationship.

Why All The Fuss?

The primary reason is economic. Photographers feel they invest a lot of time and creative energy in getting experience, and setting the camera, pose, lighting, background, and extra shots to get the right one. They generally price their services by taking into account the fact customers will purchase their prints from the photographer. Thus, the photographer wants the customer to come to him or her to request reprints so an appropriate fee can be charged.

Some photographers charge a realistic fee "up front" to compensate for their services, whether or not prints are ordered. They may authorize the customer to have prints made anywhere.

Some photographers also are concerned about artistic integrity. Since their name is associated with the photos, they want control over how the reprints look. There may be many other reasons. You are encouraged to discuss these issues with your photographer. That way, his or her position can be fully explained, and you can obtain the additional copies you desire.

How Can I Get Copies Made?

If we cannot make the copies for you, go to your photographer and request them. A professional photographer will do their best to see your needs are met. If they cannot make the copies, they may authorize us to make them. A consent form is available for you to take to the photographer.

Are There Any Exceptions?

Generally no. In some unique circumstances, we may be able to consider special requests. We will gather the information, investigate to the extent necessary to see if permission can be obtained, and make a decision based on our best judgment of how the law applies. Please understand if we tell you we cannot make the copies. It is our legal obligation to protect the photographers to the extent possible, and to keep you and ourselves from incurring liability.

All members of the Photo Industry should:

1. Recognize the photographer or studio as the owner of the copyright in his or her photographs in most circumstances, particularly in the case of professional portraits.

2. Encourage greater enjoyment of photography through the use of photographs, made in compliance with applicable taxes.

3. Encourage all members of the photo industry to educate and inform their customers and employees of the requirements of the copyright laws, and the need for adherence to and support of those laws. This should include working to educate the public that the purchaser of a photograph does not automatically obtain the right to make copies.

4. Provide reasonable notice to customers that the permission of the photographer is necessary under federal copyright law in most circumstances for copying or other manipulation of a photograph.

5. Support and work together to obtain amendment of the Copyright Act to eliminate copyright registration as a precondition for statutory damages and attorneys' fees in cases involving photographs, provided however, that the amendments also bar any award of statutory damages or attorneys' fees for innocent infringement. The parties will work together and with Congress to make clear the meaning of "innocent infringement."

6. Recognize that when infringement occurs that is not innocent, statutory damages and attorneys' fees may be awarded. Substantial awards should be made in cases of willful infringement, or repeat infringement after notice. Where infringement is innocent, no statutory damages or attorneys' fees should be awarded.

7. Endorse the development of a voluntary identification system for copyrighted photos so that labs and other users may properly locate, seek permission from, and compensate copyright owners for their copyrighted work.

8. Work together to promote the growth of the industry and ensure that new imaging technologies are used in responsible ways consistent with the rights of all concerned.

In addition, photographers should:

1. Prior to completion of the sales process, provide notice to customers of the photographer's ownership of copyright, in an effort to avoid confusion about the rights of the photographer.

2. Provide customers with the information necessary to obtain additional copies of the photographs.

3. Where reasonably possible, identify and mark their photographs sufficiently to permit others to know whom to contact to obtain permission to copy, electronically or otherwise manipulate, or prepare other derivative uses of the photo.

4. Respond promptly to requests for permission to copy, electronically or otherwise manipulate, or prepare other derivative uses of the photo, although there is no obligation to grant such permission.

5. Give written notice to the photo processor when a photographer believes his or her copyright has been infringed, in an effort to prevent further infringement, or determine the cause of the alleged infringement, and to permit possible resolution of the matter without the need for litigation.

In addition, photo processors should:

1. Notify customers that the photo processor does not copy or manipulate photos bearing a copyright notice without the permission of the copyright owner names in the notice.

2. Provide notice to customers, where applicable, that copyrighted photographs will not be accepted without the permission of the photographer (e.g., "No Copyrighted Photos"), when photo processors use promotional techniques, such as mail order and drop boxes that are within their control. Where the promotional techniques are not within the control of the photo processor, the person in control should be requested to provide such notice.

3. Educate and inform responsible employees about their responsibilities, under copyright law and established policies and practices.

4. Inspect the front and back of photographs submitted for copying to determine if a copyright notice, or other notice that the work is professional (such as a studio name or logo), is present or appears to have been removed. In either event, the photo processor should decline to copy or manipulate the photograph unless the customer reasonably establishes that copying is permissible.

5. Inspect the front and back of an unmarked image submitted for copying to determine if it is reasonably recognizable as a professional photograph. Questionable cases should be separated from routine orders and brought to management's attention. Reasonable efforts should be made to determine whether the image is a professional image.

6. Utilize the following guidelines in evaluating a request to copy photographs which the photo processor has reason to believe may be professional:

   • It is generally reasonable for a photo processor to rely on a written consent to copying or other manipulation from the photographer or studio named in a copyright notice or other marking.

   • Where the image is identified as a professional photograph by a mark, or it reasonably appears that a mark has been altered or removed, it generally is not reasonable to rely solely on statements by customers claiming a right to copy the photograph.

   • Where there is no marking identifying a photograph as a professional photograph, but there is a question about whether the photograph is professional, it is generally reasonable for a photo processor to rely on a written statement by the customer that the customer understands that copies must be authorized by the photographer and that he or she is the photographer, or has received such authorization.

   • Circumstances such as prior written warnings from a photographer or prior dealings with a customer may indicate that further confirmation is necessary.

   • Copying or restoring a photograph for the personal use of a customer may be reasonable in cases where the age of the photograph or the circumstances are such that the photographer or studio is unlikely to object to copying, and all reasonable efforts have been made to obtain permission from the photographer. The industry will work together to develop further guidelines for such copying.

7. Document a claim of "fair use" in writing by an identified customer, with a description of a legitimate fair use, and the copy or manipulation should be appropriate and limited to the fair use purpose which is claimed. The industry will work together to develop further guidelines for such copying. These guidelines are not intended to strengthen or weaken the doctrine of fair use as incorporated in the Copyright Act and as developed by the courts.

General

These guidelines only deal with activities by industry members and are not intended to excuse or mitigate customer infringement liability under current copyright law. While the customers' knowledge and application of copyright law and practices may have a significant impact on the industry, guidelines for the customers' behavior are not provided. An industry member's efforts to follow these guidelines should be viewed on their own merits.

The Photo Industry agrees to work together to develop further guidelines and practices relating to:

1. Practical and effective means of identifying photographs as professional photographs.
2. Standardize copyright warnings.
3. "Fair use" copying.
4. Restoration and copying of photographs where the age of the photograph and the circumstances are such that the photographer or studio is unlikely to object to copying.
5. Processing of undeveloped customer film on automated equipment, where determination of the content of the latent images and the detection of infringement may not be possible.

These guidelines are premised on the belief that litigation is detrimental to the photo industry, and following these guidelines will help avoid it. The guidelines recommend to the courts that in cases where an infringement has been found to have occurred, the extent of the good faith efforts by the parties to follow these guidelines should be considered in determining whether the infringement is innocent, negligent, or willful.

A sample copyright policy, which can be adapted to individual company needs

Purpose

All images are copyrighted by someone, even ordinary family photos. It is the intention of this firm to comply with the copyright laws and to protect the ownership rights or copyright holders. At times, the existence of a copyright claim or the identity of the copyright owner is not apparent. The person who possesses the photo is not always the copyright owner. The purpose of this policy is to provide a method for determining who is the copyright owner, and to provide guidance on handling copy requests.

Policy

1. NOTICE - Point of sales/order-taking materials, self-copy machines, and counters shall include a notice that we do not copy photos without the permission of the copyright owner. The notice reads as follows: "WE RESPECT COPYRIGHTS! There are laws that protect copyrights. It is usually illegal to copy photographs taken by others without their permission. Check with the sales associates to help in getting permission.

2. GENERAL COPYING POLICY - Where the photos were taken by our customer, they may be copied upon request. Where there is a reasonable indication that someone other than our customer is the copyright owner, the photo will not be copied unless approved by an authorized Manager or Assistant Manager.

3. INSPECTION - Copy requests by customers and incoming reprint orders shall be inspected to determine if: 1) The materials have a copyright claim or other indication that the photos were taken by a professional photographer or someone other than our customer, or 2) such a notice was removed or obscured. If there is no such notice or other indication that the photo was taken by someone else, it may be copied. If such a notice or indication exists, follow the Explanation To Customer section or refer the request to an authorized Manager or Assistant Manager.

4. AUTHORIZATION-EXCEPTION - An authorized Manager or Assistant Manager shall determine whether the questionable orders, or exceptions to the policy, will be processed or returned. If returned, a notice will be given to the customer following the Explanation To Customer section, with the reasons for not processing the order.

   If the order is to be processed, the basis for the decision to proceed shall be documented in accordance with this policy and industry Copyright Guidelines.

   Copies can be authorized under the following circumstances if there are no other factors suggesting the law would be violated:

   • The customer has a written consent to copying or other manipulation from the photographer or studio named in a copyright notice or other marking. A sample Photographer's Copyright Consent Form is available from PMA.
   • A prior agreement with the photographer gave a blanket consent for this customer to obtain copies in the future without further documentation.
   • When there are no markings identifying the photograph as a professional photograph, but you still have a question about whether it was made by a professional, you may copy upon receiving a written statement that the customer understands that copies must be authorized by the photographer and that he or she is the photographer, or has received such authorization. A sample Customer Copyright Declaration Form is available from PMA.
   • Copying or restoring a photograph is permitted for the personal use of a customer in cases where the age of the photograph or the circumstances are such that the photographer or studio is unlikely to object to copying, and all reasonable efforts have been made to obtain permission from the photographer. A sample Customer Copyright Declaration Form is available from PMA.
   • A claim of "fair use" may permit the copying. Document the claim in writing with a description of a legitimate fair use. The copy or manipulation must be appropriate and limited to the fair use purpose which is claimed. A sample Customer Copyright Declaration Form is available from PMA.

5. EXPLANATION TO CUSTOMER

   The customer is likely to be upset over our refusal to make the copies. Your task is to provide them with sufficient information so they understand the reasons for the decision, and give them a method to solve the problem. The following approaches should be considered:

   • Give them a copy of the Customer Copyright Information pamphlet (available from PMA). Explain the information so they understand it.
   • Show them the reason you believe the photo was taken by someone else.
   • Ask whether they have permission to make the copies. Their word alone is not sufficient if the photo is marked or appears to have been altered.
   • Offer to call the photographer to request permission. The name, address, telephone number, or other identification of the photographer may appear on the photo. If you have a name, but no address or phone number, the Professional Photographers of America has a member locator service.
   • Ask questions concerning where the photo came from, who took it, and what it will be used for. The answers to these questions may indicate copying is permitted. Refer the request to a Manager or Assistant Manager. Review the Authorization-Exceptions section for situations where the copy can be made.
   • Offer them the consent form to request the photographer to give permission to copy or to transfer ownership of the copyright. Sample forms to obtain consent, transfer or license are available from PMA.

6. APPEARANCE OF PROFESSIONAL PHOTOS

   It is often difficult to determine whether a photo was taken by a professional. When a copy is requested, the overall appearance must be considered. The following are some factors to consider in concluding whether a photo is a professional photo:

   • The presence of a copyright notice, i.e., the symbol "©," the word "copyright" or "copr." and the name and year.
   • The name of a photographer or studio.
   • Use of paper with a professional watermark or notice.
   • Unusual marks or alterations to a photo to cover or eliminate the above markings.
   • Formal poses characteristic of a sitting.
   • Even distribution or lighting and the absence of natural shadows.
   • Use of backgrounds typical of professional photos.
   • The photo was published, such as in a textbook or magazine.

7. RECORD KEEPING

   The records generated in following this policy shall be retained in a monthly file, in alphabetical order, by our customer's name. After the current month ends, the records shall be put in long-term storage and marked for destruction three years after the month in which they were generated.

8. DECISION-MAKING FLOWCHART

   The accompanying flowchart demonstrates the decision-making process for compliance with this policy. In all cases, common sense and good judgment are required. If there is not a clear lawful basis to make the copy, the safer course is to decline to copy.

1. Establish policies and practices.
2. Educate and inform responsible employees.
3. Notify customers that permission is required.
4. Examine photos

   

5. Review any exceptional circumstances.