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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@Orv:
You can copyright a drawing of a character.
I like the suggestion put up on BB: buy a scanner at Walmart, go home and scan the photos, return the scanner for a refund.
I still think photographs should by copywritten by the PEOPLE in them. That’d fix the paparazzi.
Ok, on topic…
AFAIK and IANAL, something done in 1929 isn’t copywritten unless there’s some exception (e.g. it’s part of a larger volume that is copywritten). See the U.S. Patent and Trademark Office.
@stinerman:
Beg your pardon, that’s 1923, not 1929.
Take it to a more professional photo shop. You may pay more but at the same time they don’t refuse as much or are as draconian.
I hit the same thing and I patronized a local shop, true a tad more expensive but I got copies of my pics off a CDROM that I took faster than wal-mart was willing to do it for.
@Michael Belisle:
Forever less one day.
working in a industry that sees countless copyright infringements. I can safely say that though wrong about the copyright lasting forever. Generally the 75 year rule is the safest bet.
The problem isn’t with old photo’s though its’ with people bringing in those stupid glamor shots photo’s and then wanting dups made or scanned to a cd.
NOOOOO stupid that’s why when they asked if you wanted a cd for however much money they charge, you should have said yes.
but whatever people are generally stupid about copyrights anyway so i would say that this is a non issue with walmart. (though i still hate them).
Why is a personal photograph taken by a professional for no one’s purposes but those of the customer NOT a work-for-hire and therefore the sole property of the customer?
Or you could just scan the picture and upload it to the many dozen online photo shops. They do great work and are cheap. I’ve never had a problem with any of them and I’ve printed out some 8×10 and some pretty high resolution photos.
Rent a scanner from walmart.
Scan the images.
Take scanner back.
Use images as you wish.
Walmart eats the repacking charge and labor to reshelve the unit as used.
You get your precious pics on CD/DVD to print out at a quality operation that gives a damn.
@TechnoDestructo: It’s not automatically a work for hire. For freelancers i) the work must be specially ordered or commissioned; ii) the work must come within one of nine specific categories of works (photographs of family isn’t one of them); and iii) there must be a written agreement in advance between the parties specifying that the work is a work made for hire.
I have a stack of those WalMArt release forms at home. I fill them out with the names of whichever studio/photographer I want them to make a copy of. What are they going to do? I only use them at home or give them to family so there’s no fraud.
I’d be shocked if the average wal-mart worker could spell “copyright”.
@TechnoDestructo: Because most people don’t bother to read the contract they sign with the photographer before handing over their cash. Photographers want to make sure that you have to go to them to get reprints.
@testsicles: “so there’s no fraud.”
Well, signing someone else’s name to a release IS fraud. If you only use the photos at home or give them to family there is small likelihood of getting caught, but that’s not the same as there not being any fraud.
There is to much misinformation above to correct everything. I will tell you that specifically talking about this photo it would have initially fell under the copyright act of 1909. Under the 1909 Act copyrights were afforded to works which were published and had a copyright notice affixed. It is likely that this work was never published and certainly not published at the time of taking. The 1978 act provided that works would not go into the public domain until at least January 1, 2003 (this is EARLIEST though assuming the author had been deceased by January 1, 1933). HOWEVER, the 1978 Act provided an incentive to publish works whereby a work could be published and the copyright extended until December 31, 2047. There are other nuances such as if a work was created in 1920s and published say in the 1960s. It is unlikely this photo was ever published so it is true that it is probably in the public domain. There is a possibility it is not though. Since the law is so confusing it is understandable why Wal Mart would be reluctant to copy this photo.
For an article which discusses how the law works on these unpublished works see [www.cardozoaelj.net]
Here you go, from the U.S. Copyright Office (link follows below):
“My local copying store will not make reproductions of old family photographs. What can I do?
Photocopying shops, photography stores and other photo developing stores are often reluctant to make reproductions of old photographs for fear of violating the copyright law and being sued. These fears are not unreasonable, because copy shops have been sued for reproducing copyrighted works and have been required to pay substantial damages for infringing copyrighted works. The policy established by a shop is a business decision and risk assessment that the business is entitled to make, because the business may face liability if they reproduce a work even if they did not know the work was copyrighted.
In the case of photographs, it is sometimes difficult to determine who owns the copyright and there may be little or no information about the owner on individual copies. Ownership of a “copy” of a photograph – the tangible embodiment of the “work” – is distinct from the “work” itself – the intangible intellectual property. The owner of the “work” is generally the photographer or, in certain situations, the employer of the photographer. Even if a person hires a photographer to take pictures of a wedding, for example, the photographer will own the copyright in the photographs unless the copyright in the photographs is transferred, in writing and signed by the copyright owner, to another person. The subject of the photograph generally has nothing to do with the ownership of the copyright in the photograph. If the photographer is no longer living, the rights in the photograph are determined by the photographer’s will or passed as personal property by the applicable laws of intestate succession.
There may be situations in which the reproduction of a photograph may be a “fair use” under the copyright law. Information about fair use may be found at: http://www.copyright.gov/fls/fl102.html. However, even if a person determines a use to be a “fair use” under the factors of section 107 of the Copyright Act, a copy shop or other third party need not accept the person’s assertion that the use is noninfringing. Ultimately, only a federal court can determine whether a particular use is, in fact, a fair use under the law.”
[www.copyright.gov]
I’ve run into similar issues trying to get my portfolio printed at Kinko’s. I’ve done work for Disney and they refuse to reprint any of my Disney related work because of copyrights.
@Reeve:
You can copyright a visual depiction of a character without any problems at all. Its much more difficult to copyright a textual description of a character. For example.. the description of a well-intentioned husband/father who is selfish, stupid, and prone to screwing things up, but in the end tries to do the right thing.
It’s a stock character. It’s Homer, Peter on Family Guy, Ralph Cramden(husband, not dad), Archie Bunker, the dad on Roseanne….
The copyright comes in the visual representation, which is much easier in the cartoon medium.
Trademark is used to identify the maker of a good. It’s a source identifier. Mickey is the goods (as far selling things with Mickey on it). The trademark is the Disney logo. Not to say that this line isn’t getting more and more blurred. It is.
@Farquar:
Sorry the above was for Orv.
@stinerman: I just corrected the math: infinity less one is still infinity.
@Farquar:
I agree. Very difficult to copyright the description of a character.
People still shop at Walmart? That’s so last century.
Hmm, actually, my earlier post (which I think the system ate, anyway) was wrong…graphical characters can be copyrighted:
[www.publaw.com]
Our wedding photographer vanished before sending back the second round of prints for family members that were already paid for. Since they are on professional paper we can’t make copies at a store. Sometimes copyright sucks.
@mjschmidt:
I wish people would stop posting the same exact comment. Anyway, that post mainly has to do with fair use. This is one issue. Of course one need not resort to fair use if a copyright does not exist which was covered in one of my previous posts.
my mom had this experience at wal-mart…she went to print some photos i took of my daughter. i used my new canon DSLR and 50mm prime lens that i’d just bought and the shots looked really good, but nothing spectacular. anyway, mom went to get the prints made, and after the wal-mart douche looked at them for a few minutes, he came back and asked if she had a copyright release form from the studio. what studio, she asked? my son took these. so the guy went to his manager, who looked at them and told my mom, sorry, we can’t print these unless you get a release form from the photographer or studio, b/c they look “professional”. now, one thing you do not do in this world is tell a grandmother that she cannot have pictures of her only grandchild. so after catching an ear-and-a-half full of shit from my mom, the manager relented and allowed the photos to be printed. personally, i was flattered that they thought my shots were professional. but come on.
Technically, you don’t need a fancy form to transfer a limited license to a copyright. My father is a fairly skilled photographer; He’s a hobbyist, but he has had the odd photo published. From a legal standpoint, all I’d really need to legally copy one of his pictures is a handwritten, signed note from him authorizing me to do so. It wouldn’t even take writing it out, verbal permission is all that the law would require. I can’t imagine ever needing to do so (he can make better copies than any Wal*Mart ever could, and does so mostly on request).
Proving you have such permission to Wal*Mart might be more problematic though. You might be able to sue them for slander/libel for accusing you in public of being a thief, but that’s pretty shaky to go to court on…
I don’t get my photos printed at Wal-mart any more. I was recentyl married and our photographer included all the hi-res digital images on DVD and signed over the rights as part of our package.
I uploaded to Wal-Mart to have some printed and when I went in to the store to pick them up they wanted me to produce evidence that I owned the reproductive rights. Now to get the pictures I had to go home get the piece of paper from my photographer and go back. Quite an annoyance. Walgreens, Longs, and CVS have never asked for proof.
@Difdi:
It is not shaky to sue Wal Mart libel/slander in this case – it is just plain absurd.
I skimmed through many of the replies, but I would like to point out a few things.
Just because someone claims a photograph is old, it doesn’t mean squat. There are several studios that take old-tyme photos in period dress for children and families.
Second, just because the image you are presenting at the counter doesn’t have a copyright logo/studio name on it doesn’t mean it didn’t three minutes ago. If I have a picture from 1958 that *is* marked with a copyright logo in the bottom corner and I cut off the bottom 1/4″ of the photo, is this photo suddenly no longer protected by copyright?
As this very article says, Wal*Mart associates aren’t trained worth crap – so don’t expect them to be experts in identifying a copyrighted photograph. No employee is trained in carbon dating a photograph to determine the age. The employee is going to play it safe because that employee’s job is on the line. Wal*Mart is going to play it safe because they can (and have been) sued for such violations.
I never understood why the law gives automatic copyright to the photographer and not the person paying the photographer. How does a commercial entity such as a magazine work? Couldn’t their employees run off with the pictures they took? Why does a photographer get rights to my family photo, when I paid him to take the pictures for me?
I don’t understand the issue with not allowing an exchange for the same title in a different format. “Yeah, I bought the fullscreen version by mistake, but I wanted the widescreen version.” Same video, different format… Why copy the fullscreen version then return it for the widescreen version?
That’s almost like refusing to allow a blu-ray exchange for a DVD of the same title… If you ripped the blu-ray version somehow, why return it to downgrade to the DVD release? Just convert the blu-ray version, viola!
I would claim copyright of old family photos. My preservation of the photo brought it to it’s current state and therefore is a work of art that I created, and therefore copyright by me.
@Reeve: I hate to take Walmart’s side (or go off-topic) but a slander case would be pointless. 1) asking for clarification as to who owns the copyright (however inelegantly they do it) is NOT the same as accusing someone of stealing/misappropriating copyright (or as the OP said, “accusing you in public of being a thief.”) Walmart seems to be within their rights to ask for such clarification. 2) Walmart’s defense to a slander claim (if the case even made it past a motion for directed finding) would be reasonable belief that the customer didn’t own the copyright.
@TuxRug: I suppose UncleBob is right about “playing it safe,” but Wal-Mart employees don’t have to be a-holes about it. I developed some pictures at my local Wal-Mart that I had taken in New Zealand and Hawaii and that was the worst retail experience I have ever had. The Kodak machine kept needing new ink and paper and it took over an hour to print my pictures from the Kodak machine. Then I receive no apology from the employees, instead when they finally printed, all the employee mumbled was, “I am not selling you these pictures. They are professional.” He then gave me a look as if I was stealing and grabbed the pictures from the counter. I started laughing and thought he was joking. I told him the cheap Canon SD450 I had used to shoot them and exactly where and when I took them. He refused to give them to me and then a manager came back. He was also rude and finally agreed to let me sign a waiver stating that I knew for sure the pictures were not copyrighted and that I had taken them myself. Now, this whole policy is fine, but dealing with not only rude and unfriendly employees, but also a rude store manager about it, really makes me mad. All in all, I left two hours and fifteen minutes later with no apology from the manager or the employee for the delay nor even a simple, “Have a good day.” Instead, I received the death look, just screaming, “I hope you die today.” Now, I don’t go to Wal-Mart because 40% of their employees are clueless and the other 60% won’t even acknowledge you if you try to talk to them.
@Reeve: Reeve: The section I pasted from the US copyright office deals _specifically_ with this story.
I woman wanted to make a copy (in this case a digital scan) of an old photo, and that which I posted literally answers the question “My local copying store will not make reproductions of old family photographs. What can I do?”
Plenty of people already discussed the copyright laws, so I won’t mention anything I know about them (cept for I hate dealing with it).
I worked at an Eckerd photo lab when I was younger, then worked for a locally owned photo lab for many many years restoring old photos and all kinds of other stuff. I know countless of times people come in complaining about Walmart and how picky their copyright policy is. I understand they have to be strict about it, but it drove me nuts how Walmart would treat these people. Plenty of people would come in saying Walmart wouldn’t print their own pictures that they took because it looked good enough to be copyright. So if you’re even a decent photographer don’t take your pictures to Walmart (terrible quality anyway). Not only would the Walmart employees turn them down, they’d treat them like criminals. But! That would only happen if the person burned their pictures onto a CD. If it was on a memory card (which is just as easy to transfer copyrighted pictures on) then they would print it.
This one professional photographer we deal with a lot stopped by Walmart once to get a few prints he needed quickly (Walmart is cheaper). They refused to print his pictures because there was a name and address written on the CD. It was HIS name and address, and he pulled out his License to prove it. They still wouldn’t accept it, and told him that he needed a release form. He said “So… I need to write a letter stating I will release the copyrighted pictures I made to myself so I can get them printed?” They said yes so he started writing the release on a random piece of paper, and they continued to tell him they couldn’t accept it. He came to us shortly and apologized for using our competitor =)
@krom:
My understanding is that the original work is in the public domain, but you can copyright any modifications or variations you make on it. Thus, the cover art and any review work inside that Tom Sawyer you buy at Wal-Mart may be copyrighted by Penguin, but the actual content of it is in the public domain.
In this case, if she were to somehow alter it then she could copyright that, for example if she restored it or something.
If I am wrong about this, someone correct me, please.
IANAL. YMMV. BYOB.
Cheers!
@mjschmidt: Reeve’s point was that you didn’t read any of the other comments.. specifically: @ mrgenius who posted the exact same thing well before you.
@rubinow: Well, my one experience at Wal-Mart was about as close to them accusing me of stealing the copyright as possible. After I sat around for an hour and a half because the Kodak instant print machine kept breaking, the photo employee mumbled, “I am not selling you these. They are professional pictures.” I laughed because I thought he was joking. This was AFTER an hour and a half of sitting there with NO apology for the inconvenience by the employee. I work retail and I apologize to customers EVEN when it is not my fault, its not hard, it just smoothes things over a bit. Anyways, then he snatched them from the counter and gave me a look of disgust, as if I was a thief. So then I argue with him and tell him I took the pictures with my SD450 Canon (not even close to professional) and exactly where and when I took each picture. All the pictures were landscape pics I took in New Zealand and Hawaii and I am definitely no professional photographer, not even a amateur one. The employee doesn’t once ask me to provide evidence that they are my pictures, instead he just keeps repeating he will not sell me the pictures. So finally a manager comes and I explain the situation to him. He says the same thing that he will not sell me the pictures because they are professional and I offer to go get the camera at home, but he repeats the same thing. So now I am actually causing a scene in the photo department because other customers have seen the whole thing go down and are backing me up to the manager. They have seen the whole thing because the Kodak machine is still acting up so they have been there between 40-50 minutes. So finally the manager pulls out a waiver which states that I know the pictures are not copyrighted or that I own the copyright. I sign it, the manager gives me another evil look, then walks off without saying a word. 2 and a half hours from when I came in, I pay for the pictures and the photo employee does not even say, “Have a good day.” Damn, I hate that store and 80% of the employees couldn’t give a crap about it, much less acknowledge you.
There has GOT to be something missing here. What photos WILL Walmart reproduce? Just crappy looking ones? Those have copyright, too. Just photos with releases? That doesn’t make any sense either because a copyright owner shouldn’t have to release rights to himself.
BTW: Here’s Walmart’s policy regarding printing photographs: [photos.walmart.com]
It’s in line with everybody’s anecdotes. But on the other hand, if you just fill out the forms, it holds Walmart harmless for copyright infringement. I don’t see why people don’t just do that.
If Congress keeps passing retroactive copyright extension acts, in what sense is the Walmart staffer wrong?
@crashfrog: In that sense, he’s not..
The hope is that at some point Congress will resist the lobby, and stop the stupidity.
Wow, now that you think about it, I think that this Wal-Mart employee is a sophisticated copyright theorist.
Buying a scanner is fine, if you’re in it for the long haul. But if you have some time? Take a walk around the store. The shift will change, and you have a decent chance of power being transfered to someone who knows better, or doesn’t give a shit. I say this as somebody who used to work at Target Photo lab though, so maybe your chances of working the shift change are better there than at the Walmart lab.
I have access to a large (11×17)flatbed scanner and a large format (48″ wide)color printer, therefore my house is decorated with 24×36 framed reproductions of old and new magazine photos I like, some in their original form, and some I stylized in image-processing software. I don’t sell them, but I guess I am a bad person. I guess I don’t give a sh*t about image copyrights because the value seems to be in the original works, and the photographer got paid by the magazine. I have seen original poster artwork of my own (concert posters, flyers and so on) hanging in peoples houses and have not demanded payment either. I was flattered. I had an art teacher who said no art is completely original, no sequence of notes hasn’t been written before, and if you are in art to make money, you are not an artist.
And this “general rule of thumb” comes from WHERE? No kidding you need actual lawyers to weigh in on this. Merely being on the Internet doesn’t confer legal expertise. Hint: if you find yourself feeling the need to say “IANAL, but…”, you probably have no idea what you’re talking about.
US Copyright Office FAQ here: [www.copyright.gov]
@rubinow:
I could not agree more. In fact I said a slander case would be absurd. I am not sure if your response was meant for me because you basically agree with me.
@Reeve: OHHHH, I think I misread what you meant. I interpreted your post as saying it would not be shaky to sue Walmart b/c what they are doing is absurd.
Sorry ’bout the confusion.
@tom2133: Books and movies have a 60 year limit on their copyright, if no one renews it, including estates-of. I don’t know how that applies to studio-taken photos, esp if the photo studio went out of business in the Great Depression…
I worked for the wonderous Wall-Mart for two years as the department manager of the photo lab in a smaller store. And, yes we were told that copyrights on photos were forever and if we allowed those photos to be duplicated, we could lose our jobs. THE major threat of business to it’s lowly employees (or associates, as they lovingly call us). I would copy people’s pics if I was alone and could get away with it. But we had one hard nose lady who would go to the mat with the customer on that copyright thing(of course she was a pain in the ass, anyway). Retail is a bitch, and Wal-Mart fits in very well with it’s outdated approach to management.