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.

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.

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.

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?

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.