Photo Montage Question
 

I have a question. My wife and I got into an argument over whether this was ok or not.

When a photo you scan in has a watermark from a professional photographer like Olan Mills, is it ok to crop/clone/patch out the signature/graphic? I know I hate these in picture and think they are somewhat trashy, but I also know that if I was the photog and had put it there, I would not want someone photoshopping it out. My wife disagrees with me and wants me to get rid of them. This is on a montage video I am selling, not for my private use. Does anyone know the legality of this? I would like to tell my wife that for once I am right!

Timothy,
It sounds like the photo's are copyright protected. Unless you have permission from the photographer (in writing), there could be legal ramifications. I'm not a lawyer so recommend you ask a pro if you have any doubts.
Randy

Copyright
 

Hi Timothy and Randy,

First off, us boys must stick together <wink> Seriously though Timothy, it sounds as though the watermark/logo/whatever was placed there with the intention of creating a brand mark to protect the producer. While brands typically carry a copyright, trademark, service mark, private markings, etc., if it's clear the owners intention was to protect the product or service, we can't whack it off and resell it as our own. Even if the company only sent a cease and desist order, the ethics involved with the practice of overtly modifying others work as our own could hurt our reputation. Whether or not you place copyright notices on our videos, certainly we would cry foul if a competitor took our video and placed it on their website as though it was their own work!

You gave a specific example referring to Olan Mills. Since it's a big company that addresses this sort of thing, let's see what their website says about copyrights:

http://www.olanmills.com/ecommerce/copyright.asp

Copyright Release
Request Form
Olan Mills takes pride in providing special portrait services for many of our customers. In the event we cannot fulfill a specific need, Olan Mills may provide a copyright release to our customers. The release will allow you to reproduce a copyrighted Olan Mills portrait.

...You may obtain a copyright release if (Check one):

...You need copies of a portrait that is over two years old.
...A portrait product is needed that Olan Mills cannot provide
...A portrait size is needed for which a reasonable substitute cannot be
...provided by Olan Mills

...Please complete the form below to request your release on-line. There is
...a $15.00 non-refundable processing fee. Payment will need to be made
...upon request by credit card. You will receive written notification by mail
...within 4 to 5 business days. Or, if you wish, provide your fax number for
...a speedier response.

...Reason for release: [ ]

So if Olan Mills expects additional payment from their paying customers, it's inconceivable they'll give their work away to another company!

Now here's a good bet - make a wager with your spouse what Olan Mills will respond with your request to:

1. Remove Olan Mills marking on their photos
2. Freely copy Olan Mills works to cloak ownership
3. Sell numerous copies of Olan Mills original works in the public marketplace

There you have it, simply go to their URL, cut-and-paste 1-3 above, and send in the request along with your EMAIL address. Can we get in on this bet? (every once in a while, us boys deserve a bone)

Warm Regards, Michael

olan mills canned response:
 

Wow....I cannot say im totally surprised by their canned response, but would I have to pay 15 bucks per picture??? I almost wonder if i could just get a blanket license from them for whatever is over 2 years old.....

What Olan Mills is really saying
 

Thank you for taking the time to contact us concerning your need for additional portraits. Your portraits were produced over two years ago, therefore, the negatives from the sitting are no longer available.

And although we would never admit to it, we have no way of proving or even knowing that we actually produced any portraits for you at any time in the past. We're kind of like those photo places that take pictures of you and your family as you enter an amusement park. We hold on to the stuff for a while then throw it all away.

Since we cannot provide you with additional portraits, we can provide you with a copyright release so that you may have your photograph(s) copied.

Of course we would require you to maintain our watermark on any copies you make even though if you did remove the watermark digitally and then made copies, we'd have no way of knowing because as we said previously, we don't have any negatives or documentation to prove we were the original producers of the portraits.

But that's not going to prevent us from trying to collect some cash from you if you're willing to send it to us.

To process your request for a release of copyright we will need to collect a non-refundable fee of $15.00 for administrative costs.

We figure a sheet of paper (the release), an envelope, stamp, and the three minutes it will take to have our part-time office assistant to process (rubberstamp) your request is a great way for us to generate additional revenue from people who want to have a "clear conscience."

Due to the volume of copyright releases that (we) generate each year, we are forced to charge a fee so that we can continue to provide this service for our customers.

Unfortunately, while we do retain negatives for up to two years, we only keep these release files on hand for 6 months. Then, we throw those away too.

You may send your payment to:


Please make your check or money order payable to (US). Please enclose a note with your payment advising us of the age of your portrait and what you would like to have made.

If you prefer to pay by credit card, you may do so at our on-line store or by contacting us at our toll-free telephone number 1-800-XXX-XXXX. The telephone line is available from 9:00 a.m. to 6:00 p.m., Eastern Time, Monday through Friday.

Sincerely,

Blah Blah

---------------

Jeff

Pan & Crop?
 

Why not pan / crop / zoom to eliminate the offending text? It is still there, you didn't digitally remove it, you just didn't use that part of the photo.

Also, you are doing this for the customer that had the photos taken in the first place right? Seems like they own that print. This isn't software where you only have a license to use the software..... this is a physical object that the family paid to have taken.

But then again, I am not a lawyer so take this with a grain of salt.

jason

I am with Jason here....."IF" this is a montage that you are building for a family.....AND the pics they are giving you to create the montage has Ollan Mills plastered all over them....most likely at the bottom......I would crop it out....zoom around the watermark, etc.
Here's what I would ask of the client.....since I will not accept "original" photos of anykind from my clients anyway (I will not take a chance on losing, damaging, etc. a clients ORIGINAL photo that can not be replaced), I would have them scan the pics....AND CROP out OLLAN Mills........this way, you are off the hook, you simply are making a montage of photos a client gave you that as far as you can see have no watermark, etc showing.

The point I am making is......if this for a family and NOT for a national tv ad or the like, I would not give to red cents about ollan mills.

Iwould better worry on reaction of people on the picture than people who shoot the picture.
just imagine that your product is widely shown and somebody recognize his face ?
Either it is an person like you and me and just does not like this (will ask to remove his/her picture) , either it is a professional model and will ask for money.

HUH???? I am missing something here? The original poster really needs to explain what this montage will consist of??? What is the montage for, who will see it, who will buy, etc.? I hate to sound like an idiot from my last post but I only responded assuming it was for a family type montage since most posts here are family and wedding/event related.....and NOT commercial type projects.

So, what is the montage for and who are the photos of? This will make a difference in the advice you get imo.

I'm with Joe Allen on this. Most of my experiences with faded photographs the logos have more in common with Egyptian heiroglyphics than any language I can read. If I can figure out the logo I'll toss in a lower third credit at 40% transparency. If that doesn't work visually, then something that makes sense! Otherwise I crop and make the best use I can.

If I know the photographer and have an arrangement to use their images in my video I make every effort to recognize their work in the most tasteful way possible.

Since your question deals with legality and not my opinion of if you should or shouldn't hide the copyright logo (which is what their brand essential is), if you use copyright images and accept money it's a copyright violation. I'm not a lawyer and I know that. My dad is a professional photographer and he doesn't appreciate clients using/copying the images he created to make money without his approval, nor would I with the video's I produce.

I had a video slideshow where I was handed three copyright images and I didn't include them and explained why. The client was alright with that. Would I have got in trouble if I had included them? Probably not. Will I get in trouble since I have no copyright images in my slideshow? Absolutely not.

Using creative ways to make yourself feel good about hidding the fact that you are violating copyright is still violating copyright. I'm also not critizing people for doing so, just pointing out that if the copyright logo is hidden to the viewer of the slideshow, it's still a copyright protected image.

Also, if someone in the audience reconizes it as such and made a big deal about it, the one who accepted money for making the slideshow is the one who would be responsible. I had taken our family photo my dad had taken (and didn't have his copyright stamp on it) to Wal-Mart to make copies, with my dad's approval, and they wouldn't copy it because it "looked" like a professional portrait, which it was. I went back with a signed copyright release and they printed it, but that's my point, even if you've hidden or doctored the image people can tell the difference between a candid snapshot and something photographed in a studio.

I also use royalty-free music for background sound to avoid the copyright issues there.

Bottom line is, it is a copyright violation unless given permission, but how each video producer deals with it is up to them.

Grant

Thanks for everyones opinion on this one. I guess its pretty broad how people interpret the copyright, and just goes to prove my theory that copyright is a pain in the butt, but is still a necessary evil. I think for safety sake i will ask that my wife not remove the watermark, BUt I think especially on the Olan Mills stuff I will probably purchase a copyright release form for this particular project as it will be presented in front of a huge group of people sometime next week.....now I just have to get crackin to get this beast out the door!

Hi -
I'm not a lawyer, but I'm not too bad with legal stuff -

A couple things occur to me -

"fair use", and "derivative work"

Copyright has limitations - obviously Olan Mills doesn't keep their files archived forever... but I doubt you're outside 17 year copyright timeframe... however if they purge their files after 2 years, you'd have a strong argument they cannot deliver the copyrighted work and have abandoned their rights.

Fair use allows you to use a "quote" as long as it is only a small portion of the total final product... that principle SHOULD apply here. YOUR original work (video) is probably maybe 10-15 minutes, right? If your "quote" which symbolizes one moment in the life of the individual/couple is 5-10 seconds... See what I'm getting at? I believe as an "artist/author" you have the absolute right to "quote" another work, and a small credit is appropriate.

Additionally, let's say those photos are faded or you want to do some custom "retouching" before you use them.... your work is now a "derivative work" (think Warhol Campbell's soup can).

Anyhow, these would be more "affirmative defenses" should you use the pix without crediting OM, and get sued - which probably wouldn't happen anyhow, as these photo mills are there to churn out photo packages, and unless you're making exact copies of what they would deliver, I don't think they could argue you are infringing on their right to make $$$$.

Olan doesn't do videos, I presume, your video makes fair use of a derivative work from their original...

Now if you go and scan the picture, "retouch" it just to eliminate their mark, and use it for 10 minutes of a 15 minute work, I think you'd be in big trouble!

Just a few suggestions, not meant to encourage copyright infringement or theft of intellectual property - I've got IP of my own, and I sure don't want to be ripped off - I tell people if they want copies PLEASE come to me, I'll make them at a reasonable price, and I guarantee the quality will be top notch - "pirated" copies ain't up to snuff, any more than those old cassette tapes I used to make off my albums!

FWIW, I think that Olan has a "reasonable" copyright policy if you're making direct copies of their originals... $15 for a coyright release is far cheaper than most photogs I've heard of.

It's tough in this digital age to protect one's "work product", and it's important for those of us who "create" to respect the work of others as well - - perhaps a good measure as to your next move should be "how would you feel if you were the other guy?" - would you feel ripped off, or honored that your work was good enough to be a small part of something bigger??

Not sure if this will give you a "definitive" answer, got to go to the Supreme Court for that, and their answer probably wouldn't make any sense anyway, so perhaps this "common sense" approach will at least help clarify the issues for you so you can decide!

DB>)

Funny story.

I just recieved 160 photos for a wedding montage.
The grooms family is so white trash, and so cheap, that they did not buy his high school pictures, but kept the 4x6 "proofs" instead, and gave them to me to scan, with instructions to remove that huge watermark from the picture.

They then asked me to scan and even go as far as to print the photochopped image so they could have a "clean" version of those pictures.

I told them no on all counts, just because I felt like being a dick, how cheap are you not to buy at least 1 or 2 images of your children?, but to take the proofs, or just download the proofs from the studios website?

Their montage looks good, except for the annoying watermarked images in some spots.



Normally, I just PS out the watermark, or crop it. I dont do commercial montages, they are for private clients, so it does not matter to me.