Short answer: You need permission from the copyright holder before we can do anything with your photo. But there are circumstances…
- If a family member took the photo and says we can restore it or enlarge it, you’re set.
- If the photographer who took the photo has been dead for more than 70 years, you’re set.
- If the photo was taken before 1923, you’re set.
- If you know who took the photo and can get permission to restore or enlarge the photo, you’re set.
BUT things get ticklish if the photo is from a studio. If we can tell who took the photo, we need to reach the photographer (or his estate) and get a release. Some studios put their mark on the photo, like the example shown here. Olan Mills, for example, will provide such a release if the photo is more than a couple of years old. This is quite generous: please give them your business!
But sometimes the studio and photographer is unknown. If there is no way to discover who holds the copyright, the photo is considered an ‘orphan work’. And what is usually clearcut become quite gray:
The US Government Copyright Office writes:
The Copyright Office is reviewing the problem of orphan works under U.S. copyright law in continuation of its previous work on the subject and to advise Congress on possible next steps for the United States. The Office has long shared the concern with many in the copyright community that the uncertainty surrounding the ownership status of orphan works does not serve the objectives of the copyright system. For good faith users, orphan works are a frustration, a liability risk, and a major cause of gridlock in the digital marketplace. The issue is not contained to the United States. Indeed, a number of foreign governments have recently adopted or proposed solutions.
The initial notice of inquiry seeks comments regarding the current state of play for orphan works. The Copyright Office is interested in what has changed in the legal and business environments during the past few years that might be relevant to a resolution of the problem and what additional legislative, regulatory, or voluntary solutions deserve deliberation at this time.
So… if you’re in one of these categories, we’re able to help:
- You took the photo;
- A friend or family member took the photo and you have their permission;
- The photographer has passed away, but you have permission of his or her heirs;
- The photo was taken before 1923;
- The photo has an studio’s stamp and we get their permission; or
- The photo is an orphan work (there’s no way to tell who holds the copyright).
But labeled photos are off-limits without a copyright release.