If you combine a mindless and petty tyrant with Walmart’s draconian photo rights policies, you get a story like the one Boingboing reported today, where a woman in Florida was told she couldn’t scan an 80-year-old portrait of her dead grandmother, because its copyright is surely held by the studio that took it—and copyrights last forever.
If you’re going to scan old photos at Walmart, you may want to brush up on copyright basics, since clearly Walmart isn’t bothering to train its employees.
As a general rule of thumb, if the work was made before 1989 and doesn’t have a copyright symbol on it, it’s probably in the public domain. For works created after 1989, the symbol isn’t required to enforce copyright. The “Is it Protected?” tool at librarycopyright.net is a simple way to determine the most likely state of a published work. We’re not sure how much of that applies to photos (any lawyer-types want to weigh in?) but the U.S. Copyright Office seems to indicate that the photo would have to have a permanently-affixed or printed copyright notice on it if it was created before 1989.
Or, you could take the advice of some Boingboing readers, and either find yourself a scanner to use at home, or write your own copyright notice on the back of the photos before bringing them into the store. We wonder: is it breaking copyright law to put a fake copyright on a public domain photo for the sole purpose of asserting your right to make a copy of it? Discuss!
Update: As rubinow notes in the comments below, bring the proper form with you when you go to Walmart. This gives them the legal protection they want, and then they won’t refuse to print your photos.
“Wal-Mart: you can’t scan century-old photos of your ancestors because copyright lasts forever” [Boingboing]
(Photo: Getty)
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Go somewhere else. Vote with your wallet. You could print out a page of copyright law showing that you’re right and it wouldn’t matter. They will only do what they are told.
@BytheSea: The “60 year limit” on copyright is too broad a statement. It really depends on a lot of factors. See [librarycopyright.net] as noted in the article.
And it WOULD generally apply to all copyrightable works (books, movies, AND photos, drawings, etc.) Copyright law makes no distinction between types of works…again, generally.
@camille_javal: “As for 1928, it would have had to have been registered”
Hahaha. As native speakers we say/write phrases like this all the time without thinking of it, but when I read that sentence, I LOL’d thinking about what a relatively green English-speaker would make of that auxiliary verb chain. Sorry for the tangent, but if you read that carefully you might be amused too.
@tom2133: No incorrect mainly as the other poster said- Disney. Disney, the company that raided and continues to raid public domain fairy tales for many of its film subjects, has been instrumental in stretching out the copyright time limits. They want to protect their millions and spend millions doing it. If you get a hair, research how heavy handed they have been with getting passage of US Laws extending copyright time limits…
@rubinow:
Your 60 year limit is to broad at best. Everything written today will have a much longer limit. As for previous works the website you give is interesting and informative. However, you need to know technical knowledge which I go over above to use the website ie what is means to “publish”.
I dont know why there is even such a thing as a copywrighted photo. I mean really all the person did was push a button on a camera. Its not like he drew the picture. As far as Im concerned if it is a photo of ME its MINE and can do whatever I want with it
It goes farther than that at my local Wal-Mart.
There doesn’t even have to be a COPYWRIGHT MARK.
They just have to THINK they are professional.
I am a wanna-be photographer, and any time I take my best photos in for print out (from my smart card or jumpdrive) on the Kodak machines — the employees go through them, give each other knowing glances, and start to tell me I can’t have them.
I try to explain that *I* took them.. but because the pics look professionally taken to them, they don’t usually want to believe me.
I even had to sign a special release that is supposed to be on file — and employees have refused to check for it.
One time I had to detail to an employee how I used photoshop action “x” then “y” then “z” to achieve my result.
Then she seemed to believe me.
I had a Wal-Marter * tell me that I could not copy a photo because the Kodak paper was copyrighted, at that point it just became a tennis match:
Me: So Kodak has a copyright over a picture my dad took?
WM*: The little (c) is on the back it’s copyrighted!
Me: The paper backing is, not the photo!
WM*: No the photo is!
Me: So how can you develop film with Kodak paper and sell it to a customer without breaking copyright law, which by your definition, you can;t do!
WM*: uh….uh….
The previous exchange took place at the Wal-Mart* in Murphy, NC. I haven’t used Wal-Mart* since (neary two decades).
My wife’s music business professor was a noted copyright lawyer who worked for many big names including “Wierd” Al Yanchovic and Metallica (whom he screwed out of $100,000 on a contract just to see if he could, but that’s a hilarious story for another time). Anyhow, he says that copyright protection only lasts until the 75th anniverssary of the copyright-holder’s death. Therefore, if the copyright holder of the photograph has been deceased for at least 75 years, the portrait is now public domain.
Sorry, guys. YAY WALMART.
They are actually being responsible in trying to uphold the artistic credibility of photographs.
I wish the US Government had such a sense of decency, even though I am fully aware Wally World is just trying to avoid litigation and heavy fines.
Copyright is a scary thing for an aspiring artist to think of, especially the concept of “Orphaned Works”.
Some dude’s diatribe with links to proposed legislation.
Source watch’s article.
This is a really scary debate for those in graphic arts and design, both about the legality of their work if they use public domain/orphaned works and the status of their own work in the future.
WalMart is simply being smarter than you all think.
You see, they know how American politics works, and this is just a display of their remarkable foresight. They know that even though the US Constitution states that copyright lasts for a “limited time”, Disney will just coerce the Legislators to write a law that extends it.
After all, 99 billion years is still technically a “limited time”. So, it might as well be forever, right?
You forgot the most important part: Copyright is granted to the creator of the work at the time of creation. No filing or other registration is necessary. The creator of the work may file for Federal Copyright Registration as a means of more easily enforcing their control over the work, but to correct some of the people here, finding a photo on the web, in the public domain does NOT mean it is not copyrighted.
Well, sure you could stand there and argue at WalMart over the whole thing. But to be fair to WalMart they have trained their people to er on the safe side. While true the copyright may have been invalidated, and even if you could find the photographer to still be alive, the negs would have most likely been destroyed and he most likely wouldn’t care that you did something like this. So just borrow a friends scanner and stop worrying about WalMart. Or just go to one of those kiosks late at night where they may still be on, but no one is manning the photo lab.
Here’s the actual copyright setup:
Individual works: Life of author + 70 years.
Corporate works: 120 years from creation date
Anything before 1923 is public domain.
However things get tricky after 1923. If it was published between 1923 and 1977 it depends on several things. If it has a copyright notice, it definitely is copyrighted. If it doesn’t have a copyright notice it might not be.. but that’s no guarantee.
If it was published between 1923 and 1977 without the notice, they had 5 years to register the copyright. If they did so, then the original work is copyrighted, even without the notice!
The fact that most people in this thread are wrong tells me that Walmart made the right move by erring on the side of caution.
@ModernTenshi04: I always read the box to check if it is widescreen or full screen as I hate widescreen movies. If it is a double pack, I look at both movies.
In this case, walmart is covering their asses. And as @rubinow: stated, you can just fill out the forms.
@shorty63136:
If it has a copyright notice on it, that copyright won’t expire until 2036.
@CaliforniaCajun: That’s not the public domain, though; it’s publicly accessible. The point is that something’s being publicly accessible doesn’t put it in the public domain.
Sorry, screwed up the close italics there.
I’m probably going to get sued for my avatar.
Disney is the problem, as are politicians who can be bought by Disney. Copyrights are supposed to be “for a reasonable time”, but each time Mickey starts to get close, they lobby hard for an extension.
It is for this reason why Apple II and Pet software are still subject to copyright. Hope no one minds history disappearing, all for the sake of Mickey.
@thisrancidrye: YES. Thank you, thank you. I was just going to post about how this Orphaned Works Legislation is very threatening to those of us that depend on ownership of our IP for paying our bills.
@tom2133: IIRC, current copyright regs are life of the creator + 95 years
@XStylus: Actually, I believe that’s exactly the argument the Supreme Court upheld when the issue of retroactive copyright extension was brought before them (eldrid v. ashcroft)
I know a guy at the local camera store and he said that some of the places that do copys of pics sometimes make a copy for themselves and retouch them. Then later they’ll put them in an album showing the before and after to display that they can fix old photos. So the whole thing as it was explained to me was that they just didn’t want to be caught in possession of a copy of copyrighted material. They’re a business, of course they want your money but they don’t want to get in trouble and lose more than what you gave them for a copy.
@sean77: exactly. I hate to say nice things about WalMart, but they are hiring clerks – not copyright lawyers. Hell, *I* am a lawyer and I wouldn’t want to go shooting my mouth off about copyright without doing some research first, since that’s not my specialty.
But this is the Internet, where everybody is an expert on intellectual-property law because they read about it on Wikipedia or something.
Goodness, people are ignorant when it comes to copyright. You’d think that in working in a photo lab, they’d at least be brushed up on it! I’ve had issues with WalMart in the past with printing photos. I’m a photographer, so there have been several times when I’ve gone to pick up my prints and been told that they wouldn’t print them because they were copyrighted and I had to pay the actual photographer if I wanted a copy. When I tell them that I AM the photographer, they always look at me like I’m a freak. That’s why I always have one or two of my business cards handy
I bought my scanner/copier for under $200.
You are SURE the photo is public domain? Put a tiny little black mark on the photo in the bottom corner. Claim it is a derivitive work, then copyright it yourself. Then write a letter releasing it to yourself.
My my. It appears many posters have not read the previous page of posts.
Just to respond to some of the worst offenders.
@WraithSama:
We are talking about works that fall under the 1909 act not under the current act. There are different rules.
@sean77:
Kind of right. This was discussed in an earlier comment. I posted a whole law review article on it as it gets complicated depending on when the work was published. You will also want to see Rubinows link.
@CaliforniaCajun:
The works under the 1909 act were not created at time of creation but needed publication. So you are right under the current act but the article is about an item that would be under the 1909 act.
So scan the pictures at a library and upload the photos onto an online site, like my favorite through Kodak (ofoto.com) or even Walgreens.
My mom also had this problem; she was doing a photo album for her parents 50th wedding anniversary and had a lot of pictures that were, well, over 50 years old in it.
The claim that copyright lasts forever is absurd by itself. Never, in the history of the United States, has a copyright lasted forever. The way it is going, and the way Jack Valenti wanted it, it would basically be forever (or 1 day less than forever, as I believe Valenti put it), but it is not currently forever and never has been.
Not that the Walmart crowd is supposed to be the smartest bunch around, but surely they should know that much about copyright law.
And yes, it is quite ironic that a company that has generated so much wealth from plundering public domain works would work so hard to keep creations out of the public domain. It certainly gives cause to question their ethics and integrity, at the very least.
My last comments were in regard to Disney, not Walmart.
Bad advice guys. According to the Is it protected? page that you linked to, unpublished works are protected for 70 years after the death of the author. So if the family portrait wasn’t published, and Walmart doesn’t know that the photographer kicked before 1938, then the photograph might still be protected by copyright.
@vladthepaler:
Please see previous comments. You are kind of right but there are many more nuiances which were discussed above.
We were told that there was a 50-year-limit but if you were remotely unsure to tell the customer no because of the five-figure fine.
If there wasn’t a clear date watermark on it, I probably wouldn’t have let her do it either.
@Mariajl: I try to explain that *I* took them.. but because the pics look professionally taken to them, they don’t usually want to believe me.
So you bring in the digital version of negatives and they tell you no?
Shenanigans.
Under current law, the person who pays for the photograph owns the copyright, not the studio. If you go get a new photo taken, you can demand the negatives and get them printed anywhere, because you own the rights to them, not the photographer, unless you’ve waived them by signing a contract of some sort.
It’s similar to a business paying a designer to make a logo. The designer doesn’t own the logo, the business does.
My wife gets pictures of our son done at Pictures Plus or something like that at the mall. She has a couple of times asked them to sign something so she could get a picture they took copied at Meijer and they have never refused. My mother in law runs the photo lab there and it is a liability issue. But she’s had customers complain enough to the store manager and he’s relented many times.
@Reeve: That’s what I said. I was responding to someone else who said that everything has a 60-year limit. I said that it really depends on a lot of things.
@chungkuo: to clarify my previous statement: an employee’s work is owned by his employer, but most photographic studios hired to do a specific shoot are not considered employees. Therefore, that studio must agree to give up or transfer those rights.
@chungkuo: The system didn’t post something I wrote previously about work for hire. These are the rules: [www.copyright.gov]
if its a picture of me or my family, i couldnt give a shat about BS copyright. If I paid for his services its mine, I will copy it at will.
I brought a picture to walmart once to have it copied, blown up and printed better then I could do at home.
I scanned the picture and it printed out and I put it in the envelope with the original. I went to the counter to pay for it. The woman said she needed to see the picture before I could pay and leave. I asked why and she said the BS copyright line.
I said “No you cant see it” she kept insisting and I kept saying no. Finally I asked her for a metal waste basket. She asked why and I told her that the picture had to be burned as my photo that she could not see was on the paper. I took out my lighter.
She stood there for a few seconds and rang it up for me.
/it was a picture that I paid for and owned of me and the family.
//had the BS copyright printed all over the back of the photo
///glad I have a better photo printer now
@chungkuo:
Maybe. You are talking about the works for hire doctrine. See Rubinow’s comment.
any store with a photo lab is gonna check copyrighting, i personally never did check copyrighting unless i had a reason to believe the suits were gonna be around sometime soon and check the history on the systems. and ive had a coworker try to refuse a 80 year old picture because it looked like a professional photo.
With no due respect, no one here knows anything about copyright law.
Go here to learn more… [www.copyright.gov]
[www.copyright.gov]
Then go here for the Chapter 17 of the federal satutes:
[www.copyright.gov]
Also to the people who think they “own photos,” if you pay to have photography work done, UNLESS it is “Work Made For Hire,” or have a “written” agreement stateing that the copyright is being transfered, then you do NOT own copyright to the reproduction of that work. This includes weddings, studio portraits, etc.
Also, “scanning” a photo at home of a copyrighted photography IS illegal even if it is for your personal use. Any and all rights whould be clearly stated by the photographer.
Even if you get a signed document by the photographer saying you are the new copyright holder, the photographer does have the right under “recapture” to become the copyright holder again after 35 years.
Know the law, LEARN the law and don’t assume anything!
Lastly, don’t blame Wal*Mart and others for trying to cover their rear ends. They are just trying to protect themselves. It may be a hassle to provide releases from photographers, but you limit your exposure to federal lawsuits, too.
§ 303. Duration of copyright: Works created but not
published or copyrighted before January 1, 1978
(a) Copyright in a work created before January 1, 1978, but not theretofore in the public domain or
copyrighted, subsists from January 1, 1978, and endures for the term provided by section 302. In no
case, however, shall the term of copyright in such a work expire before December 31, 2002; and, if the
work is published on or before December 31, 2002, the term of copyright shall not expire before
December 31, 2047.
It IS illegal to alter, change or claim copyright to something you do not own:
“(c) Removal of Notice. – Protection under this title is not affected by the removal, destruction, or obliteration of the notice, without the authorization of the copyright owner, from any publicly distributed copies or phonorecords.”