As I understand it, copyright law says a photographer always owns the pictures they take.
I’ve sold an article to an online publication and they want to publish old photos of me with my article. I had some professional photos taken in the 1980’s; I’m not sure where, but it may have been Sears Portrait Studio (it was a coupon deal at some place like that). Can I legally license those photos to the publisher now?
Thanks!
Copyright law doesn’t say that the photographer always owns the rights to the photos he takes. The default is that he owns the rights, but he is free to enter into a contract by which he transfers or assigns the rights, or a contract before the photos are taken which stipulates that the rights to the photos will belong to the customer (or to any other than the photographer).
You can only licence the photographs if you own the rights. Which you may do if, when you had them taken, the contract you signed stipulated that you would own the rights of the photos to be taken. Which, if it was a standard form contract prepared by the photo studio, it probably didn’t do.
Thank you, UDS1, for your very informative response!
As a rule of thumb: if you have the negatives, they sold you the copyright. If you don’t, they didn’t. (It’s not a rule, it’s a thumb).
Color slides didn’t have negatives. As a rule of thumb, even if you have the slide, you don’t own the copyright.
In my experience, those types of professional photo studios as described by the OP tend to make their money by selling you copies of the photo(s). If the subject were granted had the copyright to the photo, then there would be no reason they couldn’t make their own copies. Hence they generally do not grant copyright ownership.
Granted, that may not seem obvious due to how little is generally done if you, say, post a copy of an old photo on Facebook for your friends to see. But such is just generally not a big enough deal to go after. Being part of some online publication is a different thing, and most publications wouldn’t want to risk it.
In theory it wouldn’t hurt to try and contact the copyright holder and see if you can get or buy the copyright, but I suspect such is not really practical. I doubt the photographer themselves owns the copyright: likely their employment contract meant that the Sears photo studio would own it. They’d still be able to make copies even if the photographer quit.
Personally, I’d try to find some photo that looks good but was taken by someone who wouldn’t mind granting rights–like by a family member or friend.
The photo studio will probably allow you to use the photos for things like this and it might even say something like ‘fair use’ use in the contract. However if you were to use the photo for the front cover of your new acoustic album that was selling millions of copies they might have a problem with that.
I have a photo of myself from an industry award, taken by a colleague with my phone camera. Can he insist I stop using it and try to make a copyright claim?
Thanks, everyone!
In principle, he could, unless there were some sort of contract granting you the rights. Note that a contract does not legally need to be written up in triplicate and signed and notarized and so on (though that makes everything a lot easier if it ever goes to court). All a contract needs is that it be for something legally allowed, both parties agree to it, and there is consideration of some sort for both parties. If you asked him, “Hey, could you take a picture for me of me getting the award, and I’ll do the same for you if you get an award”, and he said “sure”, then legally, that’d be a valid contract, making his picture of you a work for hire (and any picture you took of him likewise his), and you would own the picture of you. The most likely sticking point here would be the consideration (that is, both sides must get something out of the agreement): If you just said “Hey, could you do me a favor and take this picture”, then there would not be consideration, and so it wouldn’t be a contract.
Of course, all that said, he’d have a difficult time making the case that there wasn’t some sort of agreement, and a jury would probably not be sympathetic to him.
For too much information, google “monkey selfie”. Some wildlife photographer had his camera taken by a monkey, who snapped a very clever picture of himself before they got the camera back. Lawsuits ensued (IIRC even PETA tried to claim they were suing on behalf of the monkey???) but the upshot was no person took the photo, monkeys are not people, it’s public domain.
A few months after our wedding, the photographer went bankrupt. (His own divorce had something to do with that). He sold us the full rights and negatives for an extra $250; I have never opened the box since then, but it’s nice to know we have those rights.
If you try to get prints made, a number of photo printers will refuse if it looks like the photos seem to be professional. As I recall, there was a class action suit against some of these photo places with deep pockets like Walmart. I would think a publisher or someone like that would be very sensitive to this issue too - since a simple rule of thumb is “it’s a bad idea to set yourself or your company up to be sued for a million dollars if you have a million dollars”.
The counterpoint is of course, odds are a plain Sears studio from 1980 would not have any means of recognizing, let alone proving it was their work and so their copyright? Maybe if there’s a distinctive background, but odds are it’s a plain flat backdrop. Odds are the negatives, the studio, even the store are long gone. I have photos of myself and my brother sitting on Santa’s knee from the late 1950’s taken by the Eatons store photographer. The Eatons chain Canada went bankrupt almost 2 decades ago. Who owns the copyright, assuming it has not already expired? (Note “Eaton’s” with an apostrophe is English so forbidden signage under Quebec’s French-only language law at one time, while “Eatons” is just a name so ok.) What about my uncle’s wedding pictures from the 1940’s or my cousin’s baby pictures taken by a professional photographer in England?
My dad mentioned decades ago, that pro photo studios would try to get you to buy copies by giving you sample prints that had not been fully fixed and washed. They would fade over a matter of weeks. If you put them in fixer then washed them properly, apparently they would not fade.
(Interesting too - who owns the copyright to my father’s books, photos, and other publications. Probably worth nothing, but was the copyright ownership split 3 ways among his heirs?)
Whoever his will said owned them, probably in some catch-all clause like “the remainder of my possessions pass equally to my three heirs”. Or if the will failed to specify (even in a catch-all clause like that), then however your local laws specify for intestate inheritance.
My dad’s will did specifically allocate intellectual property rights, but that’s probably because he placed a far greater value on them than they actually had.
How about things like yearbook photos? They’re often used commercially but I doubt much money is trading hands.
Whereas I have no doubt whatsoever that the professional photogs and the companies they work for are well aware of the resale value of such photos and do not hesitate to put them on the market.
Getty Images buys and then resells photos, including yearbook photos for a substantial profit:
Royalty Free Stock Photos, Illustrations, Vector Art, and Video Clips - Getty Images
That wildlife photographer made a series of photographs, by providing a camera for a monkey to explore, in a specific environment. It was staged by the photographer. His work was stolen by a company with big enough pockets to win a legal case.
Being a Wikimedia editor at the time, that’s not what I saw. The image was uploaded to Commons, where there was a discussion with all of us on whether it was public domain. Pretty much all of the legal people said it was, because an animal could not own copyright. Per policy, then, we kept the image.
The suit that followed was not initiated by us, the non-profit Wikimedia foundation, but by the author. And while he did put forth a theory like the one you described, the court just was not having it. There was precedent and everything. Pretty much every legal expert I read said that current law would mean the image was in the public domain.
That said, people on Wikimedia Commons were starting to worry that, while we were legally in the right, if fighting this was going to harm our goals of getting more artists to release the occasional Creative Commons image when such would be useful. A lot of photographers were quite upset about WM’s position.
I’ve never known for sure, but I’ve suspected this was why they eventually settled. Though it might just be that our pockets, as a non-profit, were not all that deep.
Note that this is separate from the PETA suit, that tried to get the copyright granted to the monkey himself.
Thank you for your responses…especially the monkey story. 
First, always, always, always, contact the photographer, writer, videographer, etc., before you use any type of artistic work. If you’re lucky, they may just ask for a credit under or on the pic. Not only is it legally right, but it’s fair.
Here’s an old 2008 thread https://talk.collegeconfidential.com/t/has-anyone-secured-a-copyright-release-from-sears-photography/579447that said it was $24.99 to obtain the copyright for a photo.
Apparently, Sears Photo has gone out of business, but the copyright surely still belongs to someone, some company.
Any legitimate publisher will look at a professional photo and reject it if you don’t have proof of release or copyright. I worked at the print department of Officemax and even my untrained eye could easily tell the difference between a professional and personal photo. The rule was if there’s any doubt about copyright, we couldn’t copy it. I’ve heard of secret shoppers that would visit Kinkos to test the employees with copyrighted material with possible immediate termination for a violation.
Edit: On the other hand, after we told the customer that we couldn’t make a copy, we couldn’t stop them from using the self-serve machines. Wink, wink, nudge nudge 
Perhaps some of those portraits were acquired by Dreamstime:
2,622 Sears Photos - Free & Royalty-Free Stock Photos from Dreamstime
The majority of those pics are of the Sears related buildings. The football shots are of a public event, as are the photos of celebrities. Completely different from paying someone to take a photo of you in a studio.
According to the U.S. Copyright Office, the owner of the “work” is generally the photographer or, in certain situations, the employer of the photographer. Even if a person hires a photographer to take pictures of a wedding, for example, the photographer will own the copyright in the photographs unless the copyright in the photographs is transferred, in writing and signed by the copyright owner, to another person. The subject of the photograph generally has nothing to do with the ownership of the copyright in the photograph. If the photographer is no longer living, the rights in the photograph are determined by the photographer’s will or passed as personal property by the applicable laws of interstate succession.
When we got married, almost 30 years ago, we told the photographer we wanted to buy the negatives, as we were moving across the country (United States). They set a price, and I have the negatives. If we had been staying in the area, I had the feeling that they would have been more reluctant to sell the negatives.
I have a lot of professional photos from studios which are long out of business. I don’t have any plans for using them commercially, but it’s interesting to know what I would/should have to do, if I wanted to do so.