The ignorant masses (This is what you're up against!)

Pupator

http://consumerist.com/5407746/walmart-wont-let-family-print-photos-of-dead-relative-for-funeral

I'm less interested in the story itself and more interested in the comments. A majority of folks are violently opposed to the idea that the creator of the work retains the copyright even if a print has been paid for. Apparently the view of the public is that buying one print entitles the buyer to a perpetual use license. :huh

Sam

Before posting any comments of my own, I would like to hear what you would have done if you were the clerk.

Sam

Pupator

Sam,

Note carefully my initial comment. "I'm less interested in the story itself..." I'm not real interested in having a discussion about whether or not the clerk should have done differently. I was very surprised to read in the comments how many people think that not only was the clerk out of line, but the clerk would have been out of line no matter what the situation.

Here are some snippets from comments. These are the kinds of thing I'm talking about when I say "this is what you [as a professional photographer] are up against."

Walmart should never be determining who owns copyright on a picture.

Unless you specfically signed away rights to your pictures, if you paid to have 'em taken then they're yours.

Yes, and this is why there's such a kerfluffle with couples planning their wedding. One of the best pieces of advice when choosing a photographer is to make sure that person will give up the rights to the photos, otherwise you have to go to them to get duplicates of your own photos. It's ridiculous, but a lot of photographers want to keep their work exclusively theirs.

I am most definitely not a lawywer, and copyright protection is confusing, but isn't there something to be said for the person in the picture? I mean, I'm sure that for most of the photos in there, her father didn't sign a waiver that says "Your image now belongs to use for use in this picture" or something like that. If it was a picture OF him, doesn't he (or, in this case, his family) have some say in how the picture is used?

Its not the job of WalMart to determine copy right. I would have said that I own the copyright to all of them and then carried on.

Yeah, this is definitely not how the law works. I would've fought this up to the manager, then corporate. It's the copyright owner's responsibility to assert their rights, not Walmart's.

ian408

In Walmart's defense, it is how they treat all of their reprint jobs. At least they are consistent (funeral not withstanding).

As far as folks commenting, that is not surprising at all.

Sam

It was a simple question. Did Walmart do the right thing or the wrong thing?

Unless your an ethics professor or an attorney it ain't a hard question.

That said: this is all about Attorney's gone wild. It ain't about doing the right thing or protecting anyone but Walmart.

Disclaimer: not sure of all the different states laws but in many if I found you lying in the street bleeding to death I would have no obligation to provide any assistance at all. Not even a call to 911. Do you think this is right?

Obviously copyright and life are at a different level, so I will move on.

I think it's a nutty whacked out illogical system that asks a clerk at a retail store to determine if a photograph was taken by a professional photographer or not, and what the copyright status of said photograph is. There isn't anyone here, (or any where) who could do that.

Plus what difference does it make if the photo was taken by a professional? An armature has the same copyright rights as a professional. So is Walmart saying it will print an armatures photo in violation of a copyright, but not an alleged, suspected, maybe professional photograph?
This makes no logical sense.

While I don't think Walmart should aid and abet customers who are obviously violating some ones copyright, the key word here is OBVIOUS.

If it has a copyright stamp with the copyright holders info on the back, or say a studios logo is on the photograph. Maybe even if the exif data indicates the copyright holder is someone other than the customer and there is no written release.

But to try and make Walmart the copyright police is ludicrous.

Note: I am using Walmat as a generic term for retail photo printers.

Sam

Cygnus Studios

Every single day we are told that we can expect to gain from the hard work of others, why should this shock anyone to believe that the average person will not include the efforts of the photographer?

mercphoto

Cygnus Studios wrote:

Every single day we are told that we can expect to gain from the hard work of others

I've never been told that. I was always told to expect to gain from the hard work of myself, not of others.

I'll agree, though, that having the retail be an enforcer of copyright law has its problems. But worse still is the opinion of the public with regards to this matter.

johng

As to retailer policing - it's all about risk management and simplicity of policy. Wal*Mart wants to avoid litigation. Litigation is expensive. So, they put a policy in place that shows they're doing their due dilligence. And yes, every photographer has the same protection of copyright - although unless you register your images you may find yourself out of luck in lawsuits - that from research from other pro sports shooters.

Anyway, Wal*Mart puts in place a policy - so they want to keep it simple. My guess is the clerks are trained to question any photo that, to them, looks "professional". Sure "professional" is a judgement call. And of course every now and then on internet forums you'll see people boast that a clerk accused them of trying to copy someone else's professional photos.

Look, as long as idiots are going to award people tens of thousands of dollars for spilling hot coffee on themeselves and all the other frivolous lawsuits out there, large companies are going to try and mitigate their risks. And, the problem isn't the lawyers it's the people on the juries. If they didn't award the damages they do or judge on the side of the plaintiff like they do, lawyers would give up the racket.

So, let's be clear. Wal*Mart's policy has NOTHING to do with protecting photographers. It has everything to do with risk mitigation and keeping them from being named in any lawsuits. I don't blame them for having the policy.

Sweeper

johng wrote:

As to retailer policing - it's all about risk management and simplicity of policy. Wal*Mart wants to avoid litigation. Litigation is expensive. So, they put a policy in place that shows they're doing their due dilligence. And yes, every photographer has the same protection of copyright - although unless you register your images you may find yourself out of luck in lawsuits - that from research from other pro sports shooters.

Anyway, Wal*Mart puts in place a policy - so they want to keep it simple. My guess is the clerks are trained to question any photo that, to them, looks "professional". Sure "professional" is a judgement call. And of course every now and then on internet forums you'll see people boast that a clerk accused them of trying to copy someone else's professional photos.

Look, as long as idiots are going to award people tens of thousands of dollars for spilling hot coffee on themeselves and all the other frivolous lawsuits out there, large companies are going to try and mitigate their risks. And, the problem isn't the lawyers it's the people on the juries. If they didn't award the damages they do or judge on the side of the plaintiff like they do, lawyers would give up the racket.

So, let's be clear. Wal*Mart's policy has NOTHING to do with protecting photographers. It has everything to do with risk mitigation and keeping them from being named in any lawsuits. I don't blame them for having the policy.

Being from Canada, things might be a bit different here. So much so in fact, that it will soon be possible to use music (otherwise copyright protected) in a funeral setting/purpose only. An allowance of 4 days of "fair usage" is being sought and believed to be soon won in the courts. The issue here is all about "intent". The given: John Doe has passed away and his favourite music was by Johnny Cash (for example). The "intent" here is to use the music in a tribute style operation. The "intent" is not to reproduce the music and sell it or use it for any other reason other than the stated. The music industry is seeing this as an "honour" and this same line of ethics is soon to be set on photos. It's just a matter of time before Wal*Mart will ask the customer to sign a "For Memorial Service Only" document and the issue will be closed.

This is way too long in coming as it is a very simple fix to an otherwise very complicated issue.

And yes, the clerk was just doing her job. But really... the time for change is way past due. Seems strange doesn't it? Wal*Mart will not do the right thing on memorial photos, but they sure as hell will now sell you a nice new coffin these days. This venture has not yet come to Canada, but I highly suspect Wal*Mart's general sales will drop dramatically here if they go down the coffin sales road here. They have gone just one step over the line in my opinion. (FWIW).

...Steve

kres

Ug.

The concept of who owns the images is one that I'm struggling with as I plan to launch my own venture.

Am I selling my time, expertise and skills? Or am I selling the final product? More often then not, it seems that professional photographers sell both. When it comes to work that is the sole inspiration / efforts of the photographer, this is a pretty clear call for me. That image is theirs and needs to be defended vigorously.

However on commissioned work for families or groups I'm deeply conflicted. As I'm about to dip a toe into these waters to make this a profession I understand that every asset needs to be leveraged - but as a consumer I've been irritated greatly at being denied access to images of my likeness that were commisioned with the sole intent of possessing them both now and in the future. Some photographers do a great job at explaining exactly how the arrangement will work. Others not so much - some out of ignorance, others have left me wondering. There have only been a few occasions where I felt I wasn't being gouged when choosing the "full access" package.

Holding a hard line on either front is doom.

The clerk here was stuck against a Walmart decree. There's no getting out of that. And the issue was not the protection of the photog - but was the protection of the corporation. The Photog just got to hide under Walmarts coattails.

As for the responses - this *IS* the worst case scenario for this concept to come up against reality. Fact is that the folks trying to get these photo's reprinted probably couldn't find the photographers in question to get a "legal" reprint or even a release.

It's one of the reasons why I think that this portion of Copyright needs to be looked at again:

For an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first.

Cygnus Studios

kres wrote:

However on commissioned work for families or groups I'm deeply conflicted.

However, in terms of your above quote, the family or group have come to you because of your ability to capture an image that they want. If they could capture the image, they would not need your services. You can choose whatever terms you like with a client, and it becomes legal if you agree upon it (written contract). If you wish to give them everything, that is your choice. If you wish to keep everything that is your choice. The client can either accept it or go somewhere else.
The problem comes with people who expect to hire someone and then believe that they have the right to whatever they like. This is why it is so important to have written (legal) contracts.
At least it will provide some protection if the need arises to defend your actions and decisions.

kres

Cygnus Studios wrote:

However, in terms of your above quote, the family or group have come to you because of your ability to capture an image that they want. If they could capture the image, they would not need your services. You can choose whatever terms you like with a client, and it becomes legal if you agree upon it (written contract). If you wish to give them everything, that is your choice. If you wish to keep everything that is your choice. The client can either accept it or go somewhere else.
The problem comes with people who expect to hire someone and then believe that they have the right to whatever they like. This is why it is so important to have written (legal) contracts.
At least it will provide some protection if the need arises to defend your actions and decisions.

Steve -

I don't disagree with anything you've said. If anyone wishes to write such restrictions into their contracts it is their right. No argument.

The problem in this case is the length of time between the attempt to reprint, the situation, and the ability of the owners of the original print to find the artists/business's to handle the re-print legally. 95/120 years later it's not an issue.

It gets worse when a retail shop, for fear of being sued by the ultra aggressive, won't render services. Let's say that I work a wedding and allow the full digital rights to transfer immediately to the happy couple + family. After they have died and their survivors discover the battered original prints, whats the chance that they find the agreement with me next to the cater's contract so they can get those prints re-printed or digitized at Walmart?

A much bigger issue is that stuff taken in the 1900-1995 was done so with little fear that it COULD be reprinted. The language that allows reprinting / restoration simply wasn't in the contracts.

Laws and due diligence should protect us - but common sense has a place too, and the more I think about it, there isn't a lot of common sense in that article. Pair that with general ignorance on copyright protections and I'm not surprised at the least with some of those comments left by readers.

Art Scott

johng wrote:

As to retailer policing - it's all about risk management and simplicity of policy. Wal*Mart wants to avoid litigation. Litigation is expensive. So, they put a policy in place that shows they're doing their due dilligence. And yes, every photographer has the same protection of copyright - although unless you register your images you may find yourself out of luck in lawsuits - that from research from other pro sports shooters.

Anyway, Wal*Mart puts in place a policy - so they want to keep it simple. My guess is the clerks are trained to question any photo that, to them, looks "professional". Sure "professional" is a judgement call. And of course every now and then on internet forums you'll see people boast that a clerk accused them of trying to copy someone else's professional photos.

Look, as long as idiots are going to award people tens of thousands of dollars for spilling hot coffee on themeselves and all the other frivolous lawsuits out there, large companies are going to try and mitigate their risks. And, the problem isn't the lawyers it's the people on the juries. If they didn't award the damages they do or judge on the side of the plaintiff like they do, lawyers would give up the racket.

So, let's be clear. Wal*Mart's policy has NOTHING to do with protecting photographers. It has everything to do with risk mitigation and keeping them from being named in any lawsuits. I don't blame them for having the policy.

I have run into this when needing a real quik and cheap proof to check my own cropping in PS.....upload to wally mart - a short 10 minute walk from house ---- wait the prescribed hour for print...get there to find they have not printed it becasue it looked PRO.......now I put my name and address and phone number on the proof and ask them to call for verification........

However I took ina photo that was a tad over 100yrs old and they would not print it as it was done by a "pro"....when in reality it was done by my great great great great uncle that was a pig farmer that puttered around with a 2 x 3 view camera.......finally got it printed after convincing the manager that copyrights run out 75yrs after the death of the copyright owner........

The first couple of time it happened i got real ticked...but then realizing they are just covering their own butts as stated in the quote above...........

I wish more one hour processors would take this avenue then I would not have lost the profit from several portrait and weddings in the last couple of years......but I caught one and think I may have educated them with a call from a lawyer...........

Cygnus Studios

kres wrote:

Laws and due diligence should protect us - but common sense has a place too,

Yeah you would think so, but here in California finding common sense is rarer than finding gold.

Gary752

As I have stated in another thread a few months back, that I work in a 1 hour photo lab, which happens to be Wal-Mart. The first of every month, we have to sign a form that states we will not allow any photos that appear to be professional or obseen, to be printed. Some ask how we determine a photo to be professionally done, and the answer is the use of backdrops, posing fixtures, the poses used, in most cases the use of lighting, and the watermark if one is present. Most of the people that are making copies of professionally done photos are from Sears Studios and Life Touch, which usually gives them a copyright release. What I have run into is Jane Doe has a copyright release to print from a CD, and then makes a copy of the CD and gives it to her mother who tries to make prints from the copied CD. The copyright release states that Jane & John Doe has permission to make copies, and mom gets mad because she can't. She tells me that her daughter gave her a copy of the CD and she wants to make prints. She then goes to management and files a complaint against me for supposedly being rude to her because I told her that her daughter and husband are the only ones with the rights to make copies, and that if she wants copies, to get her daughter to come in with her copyright release and fill out the form, and we'd be glad to let her have them.

Art, in the future, if you ever go back to Wal-Mart for prints, fill out a copyright release form. On the one side of the form there is a portion for the photographer to fill out, and where it asks when the release runs out enter "Never", and where it asks for what photo the release is for enter "ALL" and have them attach your business card to the form. Then the next time you go back for prints and if they question you, just tell them who you are and that you have a copyright release on file. Once they get to know who you are, you won't get questioned again. Also, while you're at the checkout counter at the photo lab, chat with the person that is checking you out. This is one way for them to get to know you, and trust me, if you present yourself in a professional manner, they will remember you and want to wait on you every time you return, and will remember that you are a professional photographer. I know I would, and do, for the few that come to my lab.

GaryB

ian408

Thanks for that Gary.

wadesworld

The danger of the situation presented is where does it end?

Will SmugMug one day have to have us fax in copyright releases for any prints we order? Will iPhoto popup a copyright release form when we order a book?

This may not be a popular opinion, but I wish the law would protect those doing the duplication - i.e. the Wal-Marts, Walgreen's and Kinko's of the world. In the Telecom world, the carriers are just carriers - they cannot be sued because their network was used by someone else for illegal purposes.

The copyright holders should have to go after those breaking the law - i.e. the customer making the copies. Obviously, that's not a popular position because that's not where the deep pockets are. And one can certainly make the argument that the best way to thwart copyright violations is to hold the deep-pocketed duplicators responsible. Still, it seems wrong to me.

Zanotti

Its the determination of "Professional" that is always confusing. Every time I print at the local Ritz camera store, I email the photos in and I get the call that they cant print these - they are professional and must be copyrighted.

Nevermind I took them on my own, with equipment they carry in the store, but if you have any ability, then you are considered professional.

It almost seems like anythign in focus is considered pro! (In my case lights and backdrops were used, so that is professional enough.)

I like to bring in killer HS QB shots and when they ask how I took them, show them my little Canon SD100 P&S. Confusion reigns!

Z

AlbertZeroK

Membership has it's privialages. I routinely print pictures at Wal-Mart, being the only game in town around here. My wife works in the photo lab so I get good treatment - in fact, I have no issues getting anything printed. Also, I've found that being able to talk PhotoG gives me permission to print anything almost anywhere - if that doesn't work, I go get my 50D with my 70-200 attached, and the issues become moot. But when I give pictures to relatives, I use light scribe disks and have printed on them a copyright release. I learned this trick after someone had issue printing pictures a few years ago. Now, no more issues.

I have to agree, most people don't understand photo copyrights - but I can understand someone thinking that they own the rights to the photos if they pay you to take them - after all, my boss owns the copyright to the software I write while he's paying me.

BradfordBenn

AlbertZeroK wrote:

But when I give pictures to relatives, I use light scribe disks and have printed on them a copyright release. I learned this trick after someone had issue printing pictures a few years ago. Now, no more issues.

Cool idea.

wadesworld

but I can understand someone thinking that they own the rights to the photos if they pay you to take them - after all, my boss owns the copyright to the software I write while he's paying me.

Depends on the state, but I know in many instances, that's only true if your employment contract says so.

My employment contract goes to great lengths to specify ownership of the code for just that reason - if they didn't, it would be the property of the creator (i.e. me).