OT - photos and copyrights

[lgb]

We went to Walmart the other day to copy some photos of me whan I was a kid and of my kids when they were young. The pictures were taken in late 30s - early 40s and late 50s - early 60s.

Walmart tokd me they couldn't copy some because they were taken by professional photographers and doing so would violate copyright laws. I was irritated enough to go home and read up on copyright law.

I think they make this stuff deliberately obscure to give the lawyers gainful employment.

First, none of the photos had a stamp or any other identifying mark on them, so they were not copyrighted acoording to the law at the time they were taken. And of course that made it impossible to locate the photographers (some of whom are probably dead by now) to get copy permission even if they had been copyrighted.

Secondly there seemed to be a gray area called "works for hire" which might, or might not, imply that I owned the copyright on my kids pics, and by inheritasnce from my parents on my pics.

Finally, the basic import of the law seemed to be to protect the "commercial value" of any copyrighted work. Much as I'd like to think otherwise in my case, old pictures of ordinary children have no commercial value, only sentimental value to the immediate family.

If Walmart's lawyers are correctly interpreting the latest finagling with the copyright laws, the laws need to be changed. I'll write my senator and representative and send a copy to Walmart's headquarters, but I doubt it'll do any good.

Note that I would not think of using a photo from a published and copyrighted work in something I did. At least not without getting permission. Protecting commercial work is a good thing.

I'd be interested in hearing if others ran into this problem and how they solved it.

I got my copies by signing a form saying I claimed the rights and holding Walmart blameless if anyone sued us. I think I'm safe :-).

I also posted this in rec.gardens - my apologies to those who read both groups.

[Upscale]

After all that rigmarole, you gave Walmart your business anyway?

[Jim Polaski]

Technically, they are right. The original photographer *may* have all his photos owned by his estate that has passed to relatives, or his/her decendent who now runs that business. However, you're probably right that the original is deceased. They are just "CTA" if something happened.

Work made for hire does not apply here. It only is a"work made for hire" if a document is signed BEFORE the taking of the photos.

What really applies is "Fair Use" if anything does. You have a right to make a copy for your own use, but not for others.

In the end you got what you wanted...but you could have scanned them if you had a scanner and made copies or if a buddy had a scanner...

[Charlie Self]

It is said to be a common problem at WalMart. Evidently, clerks have been instructed not to make prints if a photo LOOKS as if it were made by a pro. For me, that would be a problem: I am a pro, and most of my photos, certainly those I make available for printing, look like it. But, then, no professional would use WalMart, so they're truly flattering themselves.

A 40 buck scanner and a 50 buck printer, and you can do as well, quite possibly better. If you really want to do business with WalMart, buy the scanner and printer from them, though I think Staples usually has better prices--at least Staples' sales are truly sales.

[Robert Bonomi]

Copyright law *is* a swamp. Most of the swamp revolves around what is, and is not, "fair use" exemption, however. You're lucky -- that is

-not- an issue in your situation.

True, as far as that goes. *However* subsequent legislation has muddied the waters _considerably_.

Unfortunately, irrelevant. "Unable to identify" and/or "unable to contact" the copyright owner is not a defense to copyright infringement.

Portrait studio, etc. photos are *NOT* works "done for hire", unless it _specifically_ states in the contract with the photographer that they are such.

The professional photographer who took them may have a different viewpoint.

Ownership rights in 'studio' photography works are _long_ established.

"studio" (and other types of professional) photography _is_ "commercial work".

[Charlie Self]

Yabbut there needs to be a limit, and it should be specified. As an example, I've got an old photo of me that my mother used to have. It was taken when I was 2 or 3 years old by an itinerant pro photographer who wandered through neighborhoods and showed up at block parties, always with a pony in train. He'd pop the kid on the pony, shoot a flash fill photo, get an address and a couple, three bucks, and pop the next kid on, etc. Pretty good money for the day, really, but that day was 1940 or 1941.

He's almost certainly dead, but is certainly unlocatable. I live hundreds of miles away now, etc.

If I wanted, say, WalMart to copy the photo, it's well enough done for them to be a PITA about it, but the concept that it has commercial value is slightly ludicrous.

Ah well. Olan Mills just did the photos for a directory at my wife's church. At their prices, we get just enough for family, period. Something else that's ludicrous is pay $150 for two or three 5x7s and a dozen wallet sized photos. If I want more, I'll set up a background in the shop and do it myself, duplicating the lighting and positioning. Except my lights are better, as is my camera.

[Prometheus]

A few years ago, I was in charge of producing a monthly newsletter for my church, and had the same sort of run-in with Kinko's. They were very concerned that I had submissions from others in the group included, and would not make the copies until I got ahold of the manager, and signed a liability waiver. I think that is just where it's at these days- you're probably better off just buying your own scanner/printer combo.

I think the phrase "You can't fight City Hall" applies here.

They should just hand you that form when you tell them you want copies- instead of making you stand there and explain why you're not a criminal. It'd make a whole lot more sense to me, but then again, I'm not a lawyer...

[Bill Gill]

A few years ago my boss came in with an ad he cut out of the paper. The ad had a family portrait taken at his grandparents anniversary. Apparently the photographers estate had sold the originals at some time and the picture had been picked up and used for a "commercial purpose". So there may be some commercial value in the photographers work.

Bill Gill

[lgb]

I'd already made the copies. The brouhaha started when I went up to pay for them.

[lgb]

They get 37 cents for each 4x6 and the quality is superior to anything I could do with my scanner and printer. And I suspect the cost to me of photo paper and ink could well be more than 37 cents.

[Charlie Self]

Actually, without a model release, the estate has no business selling photographs of recognizable people. It is actionable.

[Dhakala]

This is becoming a problem in many photo processing outlets, not just Wal Mart. Here's an article on the subject:

"Copyright law requires photo labs to be on the lookout for portraits and other professional work that should not be duplicated without a photographer's permission. In the old days, questions about an image's provenance could be settled with a negative. If you had it, you probably had the right to reproduce it.

"Now, when images are submitted on CDs or memory cards or over the Web, photofinishers often have to guess whether a picture was truly taken by the customer -- or whether it was scanned into a computer or pilfered off the Internet."

Guess your Wal Mart doesn't trust prints, either.

[fredfighter]

Maybe it's just me but I find copyright law to be pretty clear and easy to understand. Not so for many other areas.

"Works for hire" isn't a gray area at all. The law is quite plain, it is the term of art "works for hire" that is confusing because that particular doctrine typically does NOT apply when you hire someone to creat a work of art for you. "Works for hire" actually are works done by your employee, not by an independendant contractor you hire. The doctrine should be called "works by employees" to avoid the confusion.

The purpose of the law is to protect the rights of the creator of a creative work.

I quite agree with you that it will not do any good. Surely you read about the Berne Conventions. US Copyright largely law adheres to an international standard.

If you Google through the archives of the rec.photo and misc.legal heirarchies you will find this is often cussed and discussed.

I expect you are too. I cannot fault WalMart for wanting to obey the law, signing form is a trivial thing to ask of you.

BTW, I bet you never asked a baker to make you a cake with an image of picture of MIckey Mouse in the icing. It seems there is some damn Mickey Mouse protection in Copyright law (thanks to the late Sonny Bono).

[fredfighter]

Ah but ignorance on the part of the copyright holder of the infringement is even better than a legal defense. He can't sue if he doesn't know there was a violation.

In many respects it IS like furniture or jigs and fixtures. If you make an exact copy of someone's furniture or a patented jig or fixture for your own personal use you hav violated someone's intellectual property rights. But unless you tell them you've done that (like by bragging about it on rec.woodworking) you're pretty much safe from retribution.

But you might see a class-action suit against WalMart if WalMart were to routinely copy such photos. Heck, their present policy might be part of the settlement from a previous class-action suit.

[mac davis]

some lugnut at Walmart was pulling your chain.. take them to Costco or Sam's Club and get them done right and without a hassle..

Please remove splinters before emailing

[Juergen Hannappel]

[...]

In other parts of the world people get under the impression that "the international standard" is set by the US law and the US government trying to enforce it everywhere...

[Charlie Self]

It's a trademark, not a copyright, in the case of the mouse and friends, I think. And Disney is probably one of the most aggressive policers of their trademarks and copyrights in the world. That's all they've really got, plus a warehouse full of old cartoons and a reputation (not always deserved) fo rmaking good family movies.

[John B]

No.............. not under the impression under the facts. When Australia negotiated the recent free trade agreement with the USA one of the conditions was that we bought our copyright legislation into line with the USA. One example, we now have death + 75 years instead of

50 years for copyright expiry. Oh well such is life when your the 51st State ;) regards John

[Robert Bonomi]

*NO*. "The Mouse" was a big issue driving the last couple of extensions of the duration of _copyright_. Early Disney works -- e.g. "Steamboat Willy" were about to run out of eligibility for copyright protection. Meaning that _anybody_ could duplicate and sell those works. Would *not* be a trademark infringement issue, as long as they represented what they were selling _as_ Disney's works.

[Mike Marlow]

Actually, they're not really pulling his chain mac. I don't think the clerk was right in this particular case, since the photo had no copyright (or related) information on it, but in a more general sense, Walmart is right in the way they handle the copyright issue. As the OP indicated, all he had to do was to sign a document that stated blah, blah, blah...