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?

Loading Facebook Comments ...

39 Comments

  1. Russ Ramaker says:

    I think if you would have proposed a “for hire” job with you paying him $2,000 for a few hours of studio work with you owning all the images, he would have accepted the job. However, after the fact, his perspective is that he took the risk on you not buying any pictures and now he wants his reward.

  2. Pete says:

    We recently had a professional photographer take pictures of my family and kids and one of the options was to buy a CD of all the digital images for personal use. I think this is a fabulous idea that more professional photographers should consider. You had to puchase $100 in prints and then you could buy the CD for $150 – very reasonable.

  3. When I got married, we hired a photographer, and I made sure I was the owner of the photographs. It was important that we and our families were not ripped off for a lifetime of getting copies of photos we had paid for to be taken.

    I say just scan the photo…while you didn’t pay for the photographs to be taken, you have given the photographer a large chunk of money, and it’s not like you are denying her the opportunity to make more from her work…but to be safe, just tell us you have decided to stick with her wishes.

  4. Kevin Cannon says:

    I guess Photographers traditionally make their money from prints and so they never used to give out the negatives. The digital files are treated in the same way by them.

    However, if she was tech-savvy you could probably ask for low-res digital files that wouldn’t actually print reproduce very well if printed.

  5. Anonymous says:

    People can set their own terms, you seem to believe that you should have rights for free to everything.

    You want the rights for free, which is silly. They will let you pay for the rights which you are unwilling to do.

  6. Mark says:

    I don’t know the answer to Thomas’ question, but unlike the previous commenter, I don’t think the issue is cut-and-dried.

    Buying digital versions of the images wasn’t an option, as Thomas explained. He did buy prints of the images he wanted, and now he’s asking if he has the legal right to “transform” those prints into another medium, analagously to how “fair use” of copyrighted music permits someone who has bought a CD to rip the music onto their PC for their personal use.

    Thomas would rather see his prints on his computer screen than on paper. Does he have the right to carry out this transformation himself, having bought the prints?

    I’m not sure, but it’s an interesting question.

  7. Dave Zatz says:

    TH, did you sign a contract with her or the studio? If so, did it explicity state you cannot digitally reproduce the pics for personal use?

  8. Anonymous says:

    she sounds like a horrible insecure business woman.

  9. Anonymous says:

    If the prints have a copyright on them then they are not your property to scan and put online.

    Why is this so hard to understand, and no it is not insane to protect your revenue.

  10. Anonymous says:

    IANAL, but I don’t think this would be covered by fair use.

    In determining if it would be covered a judge would need to consider four factors:

    1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
    2. the nature of the copyrighted work;
    3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
    4. the effect of the use upon the potential market for or value of the copyrighted work.

    Number four is they key, as scanning the work would definitely have a negative effect on the “value of the copyrighted work” to the photographer.

    Basically, if your copying of something doesn’t deprive the author of any revenue (real or potential) you have a much better chance of arguing fair use.

    In this case I think it would be easily shown that your copying directly deprives the photographer of his/her ‘right’ to make money of the work.

    Note that I’m not saying I agree or disagree with this (it’s definitely a tough one) just pointing out what I think might be the end result.

    More ‘fair use’ info here (the Stanford site is probably the best source on the web for this topic IMHO):
    http://en.wikipedia.org/wiki/Fair_use
    http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/

    Regards,
    Mark Thomson
    yotophoto.com

  11. Jeremiah says:

    IANAL.

    It’s my understanding the defining phrase here is “work for hire.”

    If the photographer was retained by you for the purposes of taking photos directed by you, then YOU own the copyright.

    In your situation, TH, with the photographs being a prize or donation, the photographer probably retains copyright, and thereby, enforcement provisions.

    Other commenters have brought up interesting points, but I’m feeling this hinges on the “for hire” thing.

    http://www.copyright.gov/circs/circ09.pdf

    As an aside, I’m amazed the photog wasn’t more versed in copyright in a digital world, and more open to various useages that are non-infringing and non-commercial.

  12. Jeremiah says:

    IANAL.

    It’s my understanding the defining phrase here is “work for hire.”

    If the photographer was retained by you for the purposes of taking photos directed by you, then YOU own the copyright.

    In your situation, TH, with the photographs being a prize or donation, the photographer probably retains copyright, and thereby, enforcement provisions.

    Other commenters have brought up interesting points, but I’m feeling this hinges on the “for hire” thing.

    http://www.copyright.gov/circs/circ09.pdf

    As an aside, I’m amazed the photog wasn’t more versed in copyright in a digital world, and more open to various useages that are non-infringing and non-commercial.

  13. Mark says:

    Are people even reading Thomas’ original post?

    One anonymous poster says

    If the prints have a copyright on them then they are not your property to scan and put online.

    Thomas isn’t proposing to scan the images and then use them on the web willy-nilly. He wants to know whether he can scan prints that he purchased so he can look at them on his computer instead of on paper. Privately. In his home. For noncommercial use. Just because he prefers to look at them on the screen than on paper. Sort of like how some people like to rip CDs that they bought so they can listen to them on a computer instead of a CD player.

    Another anonymous poster says that this fails as “fair use” because the proposed “copying directly deprives the photographer of his/her ‘right’ to make money of the work”.

    Really? How so? Thomas is not proposing to redistribute the scanned images; he’s just going to look at them himself, in private, at home, on his Media Center PC. He even offered to pay the photographer specifically for a digital version of the images, and she refused. He bought paper prints instead.

    How does Thomas’ scanning impair her ability to make additional money off these images?

  14. Griffon says:

    Heh, I remember looking at my wedding photographer across the contract she wanted us to sign with the usually I own your ass provisions for her and saying, “ok, but you don’t mind if I scan some of these for the website and what not, right?” with the I’ll walk away clear in my voice. So she said blinked and said “right”, making it a verbal supplemental contract.

    My take is you paid for the photo’s that entitles you to any reasonable non commercial use. Scrap book them, blow them up, scan them. You can use them in anyway you want as long as nobody can show that you are depriving the photographer from actual (not theoretical) income.

    Honestly though it seems like a silly conversation, nobody has any business telling you what you can or can’t do on your side of the property line (baring health and safety issues).

    I’m sure there is case law for something like this though, it would be interesting to get further into, and I’m pretty sure that the copyright does not convey this sort of power, nor should it. This is about reasonable use of somthing that was paid for (and that is pretty dam exspensive shoot IMO).

  15. SirNuke says:

    Making personal backups is generally been ruled legal, as well as format-changing anything you own (such as copying a CD).

    Take a look at the EFF’s page on Fair Use.

    Whether she likes it or not, I believe you are in the clear (of course standard I Am Not A Lawyer, I Just Play One On TV restrictions apply).

  16. shaun says:

    This photographer and others that share her attitudes are only hurting their own business. If Thomas respects her copyright and does not scan the photos then they will be put away since he wanted to display them on his plasma rather than hang them in a frame. Now, no one will see them. No one will appreciate the artist’s work ask who took the portraits (i.e. ask for a referral). And, Thomas will certainly not buy more prints, will not return for another session, and most importantly will never recommend the photographer to anyone.

    Had she been open to selling the digital files (even with a copyright ) then Thomas would likely be telling us her name and blogging about her progressive business practices in the portrait industry. Also, when friends and family would have seen the stunning portraits on the plasma and asked who took them, Thomas would have been happy to send her more business… maybe even come back for more himself.

    Just another good example of why you should negotiate terms and get it in writing. Everything is negotiable. If either party will not accept the terms then they can part company.

    Final thought: The world is changing rapidly. Computer tech is changing the way we consume art and entertainment. Digital cameras make anyone a photographer. I believe the days of photographers charging obscene prices for prints are numbered. Photographers should be compensated for their time and talent and they should view the prints as advertisement for their abilities.

  17. dj paine says:

    you just love to stir the pot don’t you thomas?
    just for a second put yourself in a professional photographers shoes…
    imagine for a second you were her dealing with someone like you….

  18. Anonymous says:

    “Mark”, referring to my earlier post said:

    “How does Thomas’ scanning impair her ability to make additional money off these images?”

    Pretty simple. Thomas Hawk is the only market for this work. How is that difficult to understand?

    On the Stanford website (I posted the link earlier) about 50% of example cases were decided by (or heavily influenced by), how the usage affected the monetary value to the copyright holder.

    I think you misunderstood (or I was unclear). I’m not saying this is my position, I’ve only said that this is one of the things a judge will look at when making a determination (and IMHO one of the most important).

    One thing is certain – this whole business model is very broken.

    Mark Thomson

  19. Thomas Hawk says:

    Ok, first off, I never said anything about putting these photographs up online — although one would wonder if not they could be privately shared online with immediate family members in the same way that I might under fair use make a mix CD for my immediate family.

    But for the sake of this argument I only talked about scanning them to watch them on my own personal Media Center PC in my private home for personal use only.

    I never signed anything with this woman although I should check with my wife to see if she did.

    Whether I scan the photos or not, this woman will never get another dime of my money. I will never buy any of the wall sized portraits and I will never buy a photo from her again.

    Whether I scan them or not the outcome for future cash will remain the same for here. Zero.

    I think if I were to put myself in this photographer’s shoes that I would have been pleased that I made over $2,000 on something that was supposed to be a freebie for charity and I’d probably tell the person I was shooting hey, no problem, feel free to scan them. In fact let me save you the hassle and give you the digital images.

    In some ways I feel that the fact that I probably paid her more than 95% of photographers get paid for family portraits that it’s insulting for her to try to then deprive me of my pleasure of watching these photos on my computer in my own private home behind closed doors.

    Of course I will be able to do whatever I want as I mentioned before there is no way she would ever know what I do one way or the other, but I’m still fuzzy on the actual legal and ethical questions.

    Had I been more involved instead of my wife, I never would have bought the “free” 8×10 at the charity auction, but if I did I would have told her that I would buy copies of the photos only if they included digital rights for personal use and if not then I’d just take my 8×10 and she’d be out her $2,000.

    But by the time she objected to my scanning them it was too late.

    Still not quite sure what I’m going to do but it’s an interesting debate at least.

  20. Steve Chen says:

    You should come to Taiwan. Photographers do NOT own the right to the originals. :) People who pay do. I remember how shock I was when I took a portrait photo (for ID) in US and found that I couldn’t have the film and that I would have to go to the same photographer everytime I want that portrait developed. Of course, I decided to never take any photos by professionals for the 7 years that I was in the States. (My info is dated though since that was a decade ago.)

    Photographers here still can make a living. Of course, not as well as the ones in the States. And the skill is therefore not as polished. However, this brought us greate convenience as consumers since we can take that original and develop it any time, any where instead of waiting for the photographer to be available.

    For me, I can understand that the photographers want to have the right to the originals when creativity was used to take a portrait of me. But $1000 for a large portrait? I think that’s outrageous. The photographer is paid already for the work. How much more work does the photographer need to do for the large portrait? Very little. How much is the print going to cost him/her? A very tiny fraction! It’s probably the standard price, but it sounds too much a rip-off for me. Also strange is that the resolution for a 42-inch plasma TV is not that high. It’s not like one can do a lot with the file. Why not offer the file to the customer for a fair price?

    And for ID photos? I personally think that’s not right. Why am I suppose to be locked to the same photographers whenever I need a photo for ID purpose. Isn’t that a form of monopoly?

    Photographers here need more dough. Consumers in the US needs more convenience and fair price. So, somewhere in the middle of these two extremes is probably the best.

  21. Mark says:

    Upthread, I said:

    How does Thomas’ scanning impair her ability to make additional money off these images?

    Mark Thomson replies:

    Pretty simple. Thomas Hawk is the only market for this work. How is that difficult to understand?

    As Thomas explained in his original post, and as I mentioned in my own comment, Thomas offered to pay the photographer for digital files, and she refused. So instead, he bought prints.

    In light of this, I still don’t see how the photographer can lose any money, even hypothetically, by Thomas’ actions. If you think otherwise, please describe exactly what the photographer is precluded from selling.

  22. Anonymous says:

    Mark says…

    “As Thomas explained in his original post, and as I mentioned in my own comment, Thomas offered to pay the photographer for digital files, and she refused. So instead, he bought prints.”

    Great, except it’s not even remotely relevant as far as the court is concerned, and would have no effect on a determination of fair use. I just don’t get your logic here. If I offer to buy something from you and you refuse, how does that change yours or my legal rights in any capacity??

    Mark says…

    “In light of this, I still don’t see how the photographer can lose any money, even hypothetically, by Thomas’ actions. If you think otherwise, please describe exactly what the photographer is precluded from selling.”

    Not sure I understand what you’re asking. The photographer is not ‘precluded’ from selling anything, there’s just no point in Thomas buying anything else from her if he has a good quality digital copy. Photographers make a lot of money when people go ‘back to the well’ for more prints in 1, 5 or 10 years. Yes it’s BS, but that’s how it’s worked since forever. Wedding photographers are notorious for this.

    You should really read this section from the US Copyright office.

    - M. Thomson

  23. Anonymous says:

    Oops. here is the Copyright office link I was referring to above:

    http://www.copyright.gov/help/faq/faq-fairuse.html#copying

  24. Mark says:

    To M. Thomson:

    I’m no longer sure this discussion is productive, as you’re combative and you seem to be making very little effort to understand anyone else’s point. I’ll take one more run at this and then call it a day.

    As you’ve pointed out, a major determinant in whether a copyrighted item can be reproduced under “fair use” is the “effect of the use upon the potential market for or value of the copyrighted work”.

    Presumably, the way that copying can reduce the market value of a work is to deprive the copyright holder of sales that they could have made, at least potentially, absent the copying.

    My question to you was: if Thomas scans his prints for display on his plasma screen, exactly what sales is the photographer being deprived of?

    In my mind, there are only two candidates:

    - Sales of digital files
    - Sales of paper prints

    If the photographer had offered digital copies of images for a separate fee, and Thomas evaded that fee by scanning paper prints, then there would be a lost sale of digital files. But that’s not the case here. Here, the photographer doesn’t offer digital files ever, at all, to anybody. There is no lost sale because the product Thomas wants is not offered. Thomas instead bought paper prints, which he would not have bought otherwise, because they were the closest substitute. I don’t see a lost sale.

    In your most recent comment, you seem to suggest that the (potentially) lost sales are future sales of paper prints. But you must not be reading Thomas’ original post: he’s not proposing to scan his prints so he can make additional paper copies, he just wants to display the prints on his plasma screen. He also mentions that he’s simply not interested in owning large paper prints of these images, regardless of whether he scans them or not.

    Presumably, though, if Thomas wants additional paper prints at any point in the future, he will go back to the photographer and buy them. Because Thomas does not propose to print his scanned copies, the digital files will never substitute for paper prints that are on sale by the photographer. So, I don’t see any lost sales here, either.

    This is why I ask you to point to the exact sale you imagine the photographer is losing. If there is no sale that is even hypothetically lost, I don’t see how the photographer can argue that the commercial value of her work is impaired by Thomas’ actions.

    As an aside, at every step, you have been overbearing and condescending. Please show some common courtesy.

  25. Anonymous says:

    As I understand things, you own the copyright to your own image. I don’t think there’s anything she can do about that unless either you or your wife signed something.

    The pictures are YOURS, not hers. Do with them what you will. If she tries to take you to court for scanning them I think she’ll get laughed out the door.

  26. Anonymous says:

    Mark,

    Apologies if you were offended by my tone, it definitely was a little too snippy. To be honest I sensed the same tone from your end.

    I was just trying to be helpful in my original post, and you repeatedly attacked me for ‘not reading the post’, and demanding that I qualify my comments.

    I also don’t understand as to how your opinion went from:

    “I don’t know the answer to Thomas’ question, but unlike the previous commenter, I don’t think the issue is cut-and-dried…. Does he have the right to carry out this transformation himself, having bought the prints? … I’m not sure, but it’s an interesting question.”

    To being 100% confidant his usage was not a copyright violation. Or, If I misunderstand and you still believe it to be a gray area, can I ask you on what legal basis (if not for potential loss of income) you believe it to be a gray area?

    You also presume (your word) that Thomas will go back to the photographer if/when he wants prints in the future.

    “the digital files will never substitute for paper prints that are on sale by the photographer.”

    Firstly I don’t think he’s stated this, but secondly I don’t know that he would bother with a good digital copy. Most people wouldn’t. Certainly the incentive to go back to the photographer is nearly zero with a good digital copy. Wouldn’t you agree?

    Now, what if the photographer suddenly has a change of heart in 6 months and decides to offer all her clients the original digital files for say $500 or, she decides to offer a DVD collage or PC screensaver of the photos? It’s her right to make that determination in the future, but if all the photos had been scanned there would be no market for this. I think there is an important point here – she may not have lost any money today, but scanning the photo may have an effect on her income in the future.

    Maybe we can meet somewhere in the middle and agree that a low resolution scan (ie unprintable) would likely be okay but a medium to high-res/high-quality scan would be more doubtful?

    I’m also very interested to hear on what legal basis you’d think this is a gray area if not for the (potential) loss of income part. Part of my own living relies on ‘fair use’ law so if you know something I don’t, It’d be very helpful to know what that is.

    Anyways, I apologize for the tone, please understand that morally I think it’s his right to do whatever he wants with the photos. I keep getting this sense that you see me as a copyright advocate when nothing could be further from the truth. I’m on your side, I’m just trying to point out how messed up the laws are currently.

    M. Thomson

  27. Tironius says:

    This is totally covered by fair use policies. Hawk isn’t posting these online onto the internet. In fact, he isn’t publishing these anywhere, because he can’t. He doesn’t own the right to publish them. But he did pay $2000 for those prints, and he has the right to view those prints any way he sees fit.

    He isn’t putting these in a magazine or newspaper. But, even that isn’t an absolute no-no. For instance, if some poor shmuck’s house burned down killing everyone in the house — and the only thing left not burned was the family photo this photographer lady created — guess what, when this story is featured on Dateline, they will f’ing show that photo with no strings attached. Why? Fair use.

    But I digress. Hawk paid to view and enjoy those in his home. He can do anything he wants including using them for toilet paper, and that lady can’t do a thing about it.

    Of course, I’m no lawyer. And that’s the problem, we need a lawyer with us to even sneeze.

  28. My daughter used to participate in horse jumping competitions where official photographers charged high-ish prices for prints of that magic moment as the horse sails over the jump (a shot that only they could get, because only they were allowed on the course, reasonably enough). As the years went on, some began offering digital versions as well.

    It seems to me that the professional photogs are offering a useful service in getting a picture that I couldn’t get myself. They should charge a flat rate for studio time and expertise, which includes some set package of prints. They should then give you the digital rights to do with as you please, so long as it’s non-commercial.

  29. My daughter used to participate in horse jumping competitions where official photographers charged high-ish prices for prints of that magic moment as the horse sails over the jump (a shot that only they could get, because only they were allowed on the course, reasonably enough). As the years went on, some began offering digital versions as well.

    It seems to me that the professional photogs are offering a useful service in getting a picture that I couldn’t get myself. They should charge a flat rate for studio time and expertise, which includes some set package of prints. They should then give you the digital rights to do with as you please, so long as it’s non-commercial.

  30. Mark says:

    M. Thomson:

    Thank you for your considerate reply. Indeed, I was also unnecessarily snippy when I accused people (not just you) of not reading Thomas’ original post.

    To clarify, not being a lawyer, I am not at all “100% confidant [Thomas’] usage was not a copyright violation”. As a layperson, I simply doubt very much that his actions will result in lost sales to the photographer.

    Certainly the incentive to go back to the photographer is nearly zero with a good digital copy. Wouldn’t you agree?

    I’m not sure I do. If Thomas makes his own paper prints from his scan, I agree that he has likely cost the photographer money. But otherwise, I don’t see any lost sales. Are you saying that because Thomas can view his images on his plasma screen, he is less likely to want additional paper prints? That doesn’t strike me as very obvious.

    Now, what if the photographer suddenly has a change of heart in 6 months and decides to offer all her clients the original digital files for say $500

    This is an interesting question. It seems analagous to a situation I encounter whenever I buy a CD: I would like to buy music as losslessly compressed, CD-quality data files. However, music isn’t readily available in such a format, so I tend to buy CDs and rip them, then put the CD into storage. Now, suppose tomorrow, the record labels offer me downloadable digital files at a higher-than-CD price. If I buy the CD and rip it instead, am I committing a copyright violation?

    As I mentioned, I’m not a lawyer, so I don’t know the answer. But the situations seem analagous. As I understand it, I have the right to buy CDs and then transform the contents for my personal use however I like. On the other hand, if that’s true, I don’t understand how copy-protections schemes that prevent CD ripping are legal, since they impair my rights in this regard.

    The world is a confusing place.

  31. chef says:

    Am I the only one who thinks that paying $2,000 for family portraits is insane? And then you don’t even get the images themselves on top of that….oy.

    In any case, I really think that people should simply let their wallets speak for them – if they do not offer you the digital images themselves even as an added cost option, you really should just walk out and let them know you’ll just go to somebody who will. I mean, seriously – I can’t think of many situations where a photographer would let a $2,000 shoot just walk away because they didn’t want to give you the digital images you make OF YOUR FAMILY.

    HELLO!

    $2,000!

    Maybe it’s because I’m not rolling in it, but WTF?

  32. Anonymous says:

    While I found your opinions on the rights of access truly abhorrent in the thread you posted on flickr regarding the Las Vegas neon museum, I tend to agree with you on a limited basis in this quandary regarding fair use.

    First, I don’t believe that there should be any inherent fair use of an image akin to how digital music can be copied for personal use. Your own example breaks the standard of fair use once you suggest it is permissible to give your own copied music to another entity for their use (thereby no longer “personal”), so it would be dangerous to suggest that you should have a blanket fair use standard over photography when you are unwilling or unable to fully adhere to the tenants of “personal” use.

    That being said, I do believe that there is a moral fair use clause that goes unwritten in our society that applies to the situation you’ve set forth. If your use of another person’s creation does not directly or indirectly impact the creator financially, then most people believe it’s acceptable to use the product in the way you wish provided it does not diminish the marketability of the creation. Since you’ve compensated the photographer for the 5×7 photographs she created, it is morally acceptable to scan and use them in a digital form. This is morally permissible because the digital use described could not impact the photographer directly or indirectly in character, profession or finances.

    However, once scanned, it would not be acceptable to then publish those images or reprint them in any fashion without permission. Any self made hard copies of her images do represent a financial loss to the original photographer when created without permission.

    So the question is not one of legality since damages would be incredibly difficult to prove, it is a question of ethics. Provided that your use in this case (viewing images digitally in your private home) does not impact the photographers finances, then you’re on relatively solid ethical ground.

  33. Superlative discussion!

    Its great to hear the perspective of someone who 1. truely values good images 2. can express how they want to consume them. I think its clear that your photographer has lost sight of the business of photography. My answer is always YES, to answers of ‘can I use it ______ way” – but the price is often not expected by the purchaser. So so its a matter of barganing – but the hard line is simply useless to the business of photographer. The trouble is however that digital copies are much harder to limit and thus the price must be extrordinarily high.

    I return the images of my clients to them (for limited personal use) after I feel I have exausted my ability to profit from them.

    But to adress the cheapskate comments about ‘owning my own pictures’ (meaning pictures of themeselves) think about the priceless moments I may or may not capture. Without the profit motive, I’ll be much less likely to capture the full nuances of your wedding. Cause let’s be honest, wedding photography is not hard – its only hard to do well, and with attention to detail. I respect your right to your family photos – but you have to respect my right to earn from my ability to create your desire to own them. So without that Yin and Yang, neither of us will get what we want! You won’t get good pictures, and I won’t make a living. If you get the pictures straight out of my camera, you’re only getting 50% of the art that is in them – cause my finishing skills make that them that much more expressive. So people often make the mistake of asking for those files.

  34. Joe Wilcox says:

    Hi, Thomas,

    I posted a lengthy response on my blog: http://joewilcox.com/blog/2006/09/24/who-owns-your-image/. I don’t like the answer. You may not either. :(

  35. Anonymous says:

    I would have thought that, having the photos on a cycle, more people would see range of the professional photos. Therefore it would be like free advertising for the photographer.

  36. Michelle says:

    Maybe she does not want them displayed on your screen. The great thing about photographers owning the copyright, other than the fact they did they work and should get paid for it, is that they get to decide how their art is displayed. They maintain control over the end product. If you were a painter and you were commissioned to make a painting for someone and then they took a snapshot of it and printed it at Walmart, it would look like crap. It would not look like the original painting and the colors would probably not even match. So how is showing a crappy-looking photo free advertising for them? Everyone assumes photographers should be grateful for what they consider “free advertising” when it is actually stealing. I’m sure all of her clients would be willing to trade what they paid her for “free advertising” but free advertising does not pay the bills, and when you are creating an end product that is unacceptable to the photographer you are not helping her business, you are hurting it.

  37. Anonymous says:

    Lets just face it, everyone works on cost + sales cost + double markup and vat on top. A lot of the time we are being ripped off and then there is the offers you can’t refuse that wind you in, oh well I can’t back out of this, I think you could term that as manipulation to a point of a stand off point. Backing you into a corner you can’t get out of. Its not right but keep searching eventually you will find someone who does a great job and empathises with cost of things today i.e running Businesses they themselves would admit to say they wouldn’t be ripped off either. Everyone is so politically correct these days no one calls a spade a spade anymore. Read Matthew 18:18-19 out of the Zondervan Amplified Bible because these kind of thing that happens to people is unlawful.

  38. […] Thomas Hawk asks “Should Fair Use Apply to Your Family Portraits?” 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. […]

  39. Anonymous says:

    Thanks for your advice on this blog. 1 thing I would want to say is always that purchasing electronic devices items on the Internet is nothing new. The truth is, in the past ten years alone, the marketplace for online electronic products has grown a great deal. Today, you’ll find practically almost any electronic gizmo and tools on the Internet, including cameras along with camcorders to computer spare parts and gaming consoles.