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:
- Make copies of the work
- Prepare other works based on the original
- Distribute copies of the work to the public by sales, rental, lease, or lending
- 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
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
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:
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.
Encourage greater enjoyment of photography through the use of photographs, made in compliance with applicable taxes.
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.
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.
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."
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.
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.
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:
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.
Provide customers with the information necessary to obtain additional copies of the photographs.
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.
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.
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:
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.
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.
Educate and inform responsible employees about their responsibilities, under
copyright law and established policies and practices.
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.
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
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
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.
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.
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:
- Practical and effective means of identifying photographs as professional photographs.
- Standardize copyright warnings.
- "Fair use" copying.
- 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.
- 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
Copyright Policy Of
|(Insert Firm Name)||(Date)
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.
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
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.
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.
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.
- 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
- 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.
- 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.
- 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.
- 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.
for Photo Processors
- Establish policies and practices.
- Educate and inform responsible employees.
- Notify customers that permission is required.
- Examine photos
Review any exceptional circumstances.