Discussion:
What is the name of your state? PA
I learned here that a portrait studio owns the copyright of photos taken in their studio. I want to use a few studio pictures in a book but cannot track down the the names of the studios who took the pictures in order to gain permissions. The photos are of people who are not celebrities or well-known, but who are mentioned several times in the text of the book. Would use of these studio photos in the book most likely be considered "fair use"?
I sure wish I had never started this project! Thanks for your help.
Answer:
I forgot to mention that these photos are old, between 20-50 years old, and the subjects in the photos provided them to be used in the book. I believe all were taken at different studios. The number is a small percentage of the total number of photos to be used, which do have copyright clearances.
Thank You.
Answer:
I learned here that a portrait studio owns the copyright of photos taken in their studio. That is generally true, absent a contract that states otherwise.
I want to use a few studio pictures in a book but cannot track down the the names of the studios who took the pictures in order to gain permissions. Always a problem with copyrights in the U.S.
Would use of these studio photos in the book most likely be considered "fair use"? Probably not. "Fair use" is a balancing test -- the court will weigh the four "fair use" factors (and maybe other factors) to determine whether or not a particular use is "fair." The four primary factors are codified in 17 USC 107. Also, the fair use factors are not given equal weight -- see, e.g., Campbell v. Acuff-Rose Music.
In you particular case, 2 of the 4 factors -- the fact that you are using the entire work (the entire photo) as opposed to a portion of the photo, and the fact that this is a for-profit enterprise -- mitigate strongly against a finding of fair use.
I forgot to mention that these photos are old, between 20-50 years old, and the subjects in the photos provided them to be used in the book. I believe all were taken at different studios. If the pictures were first published in the U.S. prior to 1978 without any sort of copyright notice (the "c" in a circle, for example), then they are almost certainly in the public domain, and you can freely use them without getting permission from anyone. If they were published before 1978 with a copyright notice, or after 1978 with or without a copyright notice, then you'll need permission to legally use the pictures.
Now, from a practical standpoint, if there is nothing really "unique" about the pictures that would make them easy to identify, it may be that you chances of ever getting sued for infringement are slim if you go ahead without permission. The risk is present, however, so you'll need to decide for yourself if it's worth the risk to go ahead and use the pictures without permission.