Many photographs do not give us clues that tell us if they were taken by a professional, such as a watermark, or markings on the front or back. If it is common to take pictures at your library of inaugural events, or ones attended by public figures, then you can say with reasonable certainty they were taken by staff member. Under the rules for employee work-product, it is OK to digitize the photos because your library holds copyright.
But what if it were an attendee who donated photos to the library? This does not guarantee the right to make a digital image and publicly distribute it. According to the U.S. Copyright Office,
“Any or all of the copyright owner’s exclusive rights or any subdivision of those rights may be transferred, but the transfer of exclusive rights is not valid unless that transfer is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent” (U.S. Copyright Office, 2012, pg. 6).
For most of us, photos seem to just appear on our desks, and it is hard to find the original owner. Just because there exists an assumption that when photos are donated they would belong to the library and be used for any purpose, does not make it valid. Without a deed of gift, or a letter giving the library ownership, copyright for non-published works such as photographs would be 120 years from date of creation. (The alternative is 70 years after a creator’s death, but we do not know who took the pictures.) That is a long time to wait, and in doing so, repositories of all types end up with deteriorating items that people cannot access remotely.
The most frequent approach to this dilemma is to follow a two-step risk management plan that many cultural institutions take about digitizing photographs taken by unknown photographers (Copyright and Cultural Institutions: Guidelines for Digitization for U.S. Libraries, Archives, and Museums, 2009). If your library has photographs you want to digitize for inclusion in PA Photos & Documents, and you are reasonably certain they are not taken by a professional, create a disclaimer that states your library may not own the copyright, just the physical copy, and that users are responsible to secure permission if their intended use does not fall under fair use. The second part of the risk management plan includes a take-down policy. To that end, if the rightful owner of a photograph wants it off the web, HSLC will remove it immediately.
For further advice on this topic, HSLC provides a pdf on POWER Library’s PA Photos & Documents’ Documentation page under “Support for Copyright and Fair Use.”