Should Fair Use Apply to Your Family Portraits?
So recently my wife “won” at a charity auction a free 8×10 professional family portrait. She paid $300 for it to the charity and although I was a little skeptical about the whole thing as a photographer myself, I decided to go along for the ride. My own photography style is more casual and and as it would be difficult to both take and be in a professional portrait I figured what the hey.
I’m not going to disclose the name of the professional photographer because I’m sure she’s not looking for this kind of attention, but overall I didn’t find the experience so enjoyable.
We showed up at the studio on the morning of the shoot and instead of just a family portrait lots and lots and lots of different poses were taken. My wife initially had indicated that she might want another photo just of our son for a painting that she wanted to have done of him but it was certainly not our intention to spend thousands of dollars, nor was it disclosed as a marketing type of shoot thing when my wife “won” the 8×10 at the charity auction.
So the next thing you know we find ourselves in the studio a few weeks after the shoot looking at slides of what admittedly were some pretty good photographs of our children and my wife wanting to buy each shot even more than the next. In the end we ended up spending over $2,000 for about 11 5x7s of our family, oh yeah, and our “free” 8×10.
Still, so far so good, but I’m feeling a heck of a lot poorer — it is better though than upsetting my wife and telling her we won’t take these shots of the kids.
Then the sales pitch starts coming in for buying the super giant wall sized portraits which themselves are in the thousands of dollars in terms of price tag. Here I have to draw the line. First off I don’t want a large sized family photograph hanging in my home. Second I don’t want to pay the big bucks for one.
I don’t want a wall sized family portrait because this is not how I consume photography these days. These days the majority of my photography is consumed on a 43″ plasma in my living room through my Media Center PC. Would I be interested in seeing my family shots on my plasma as they rotate through my digital photography collection, like all my other photography? Sure. Do I want a big wall sized print of my family on the living room wall? Not so much.
So I explain to the photographer about how I consume photography these days, on how it is of much more value to me to see my work as part of my Media Center PC than on a wall on a $1,000 print and ask if there is a way instead of buying prints, that I can just purchase the images digitally. I’d even happily pay the $2,000 for digital versions of my 5x7s rather than get prints which I don’t really want to hang in my home anyways.
And here she tells me no. Which is her prerogative I suppose, but when I mention that I could always just scan the 5x7s and watch them anyways she goes off into a little speech about how her images are copyrighted and I can’t do that, etc.
So we spend the money (again, more than I’d planned on spending and at over $2,000 what I feel is pretty fair compensation, the shoot lasted a few hours). We get the prints and once again this photographer feels inclined to phone me up after the fact to try to more passionately object to the thought that I might scan these images. Which kind of offended me, but whatever.
So here’s the question. Should or does a fair use right apply to photography? If I were to say buy a CD and then copy it over onto my laptop and listen to it in a form not originally intended, this would be fair use, correct? Heck, I could even make a mix CD of songs coming from my mp3s and give it to my brother, right? This sort of personal fair use would seem permissible.
But would it actually be illegal for me to scan these family photographs for display in my home only for my own personal and non commercial use and enjoyment? And even if it was illegal, would it be unethical? I mean, I did pay the woman over $2,000. It’s not like I’m taking food from a starving artist. I did even offer to buy the digital images, which she declined. And yet this is how I personally would rather consume my photography.
While she would certainly have no way of knowing if I scanned them, and legal damages even if so, would be difficult to prove as I would never deal with this woman again and most certainly never have her in my home, would it actually be legal and ethical for me to do so? Is there or should there be a concept of fair use with regards to photographs?