Walmart Says You Can't Scan That 1925 Family Portrait, Because Copyright Lasts Forever
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)
Attention, Walmart shoppers! This ad is for you! Woo hoo!
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Comments:
My mom and I ran into this same thing at Walmart a couple years ago. The only info on the portrait was the studio's name. My mom tried explaining to them that this studio hasn't even been in business for 50 years (don't know if that matters in copyright issues)but they still wouldn't let us scan it.
Maybe I'll look into this and try again, although I don't foresee being able to intelligently argue the point with the Walmart workers in south Georgia.
I had a similar issue. I went to buy Children of Men on DVD, and got it in a two-pack deal that came with another movie. Problem was when I got home, after I had already taken the plastic wrap and security stickers off Children of Men, I realized Wal-Mart (in their infinite wisdom) packed in the Full Screen version of Children with the Widescreen version of the other movie.
I hadn't even left the store 10 minutes ago and went rushing back up, getting there within 20 minutes of purchasing it. The lady behind the counter said she couldn't return it because it had already been open, and due to copyright law they can't let me return it because I might have copied it, either that or they could only let me exchange it for another Full Screen copy and not the one I wanted. I left, mad as ever.
Luckily I'm friends with some guys who own a local video game store, and after hearing my story offered to re-shrink wrap it for me! I took it back, remember it has no stickers on it at all, and ended up dealing with the same lady as the previous night.
"Did you buy another copy?"
"Uh, no, my mom bought me another one because she felt bad for me and your stupid rule, but she too grabbed the wrong version."
She looks it over for a moment. "Alright, go grab the one you wanted."
Score one for me!
It really pains me that many people nowadays don't even bother with the "thinking" thing and simply listen & believe things because someone told them it is true.
As a Walmart Photo Tech, I can assure you that the average worker "doesn't care" but we have to follow by the rules set by Walmart, which are if an image looks copyrighted (regardless of watermark) we need a copyright release form (which we even provide if you'll certify you took the picture)
I've heard that anything created before 1929 is public domain now. Does this sound correct?
hows about buying your own scanner and a decent printer? problem solved
Walmart, Walmart, Walmart...why don't you play nice. Still the legal eagles are watching so best to behave and refer granny to Target.
@tom2133: Mickey Mouse was created in 1928, and I'm pretty ABCESPNDisney lawyers would heartily disagree that he/it is in the public domain.
*sure*
@ModernTenshi04:
That's not the same as the copyright wearing off or expiring from an old photo. Many stores, not just Walmart, would enforce that rule regardless of elapsed time. It is entirely possible that one could have bought and copied a movie in under a half hour.
Actually, I can tell you how to "workaround" that.
At most Walmarts, there is a Kodak kiosk. Use that to make your copies. When done hand the photo tech your slip, and they'll get you an envelope(and price sticker) for your photos.
So the photo tech doesn't notice, hold the photos to where the white backing is always showing to the tech.
When you get the envelope, just put the photos in that, and there ya go.
*Yes this works.
I used to work at a photo lab (not walmart) and we had an entirely different policy (over 75 years = ok, over 25 years ok if the customer signed a release saying the studio was out of business). But we were told any copyright violations could leave us personally liable for a $10,000 fine.
So Walmart's legal department probably sent out a memo saying don't touch copyrighted material at all, and the workers are stuck following it. As much as it pains me to say this, Walmart is not really at fault here - blame the confusing and complex copyright laws. The US really needs to fix them, especially when it comes to photos.
I agree with the first post... another reason not to go to WalMart...
Of course it isn't like the preceding 100 or so reasons aren't good enough... exporting jobs, facilitating the movement of wealth out of the country, marginalizing small business, killing down towns, abusing employees, abusing the law, abusing taxpayers, abusing suppliers, abusing... well everyone...
@smallestmills: Thing is I wasn't wanting any money back at all, just to exchange it straight across for the Widescren version, which cost no more or less than the Full Screen version did. Had I wanted a full refund, yeah I could see their problem. But just wanting to exchange one format I didn't want for the format I did, which would result in no loss to them? Yeah, not seeing the problem here.
Besides, if I were interested in copying movies I buy only to return them, I'd buy my own heat gun and shrink wrap, keep the security stickers, and play it that way.
I can never figure out which topic has more misinformation in the public domain: copyrights or high definition television.
@savvy999:
Actually it isn't that they renew their copyright. Before the copyright was up, Disney went ahead and trademarked all of their IP properties. And trademarks are forever.
I'm not a lawyer but I played one in a mock trial back in highschool and I've stayed at a holliday in select...what was i saying again?
Yes, I think it does violate copyright law to place a fake (c) on a PD work... because you are asserting copyright that you don't have.
But this is the sort of violation of copyright law that is perfectly OK because corporations and others do it all the fricking time.
walmart almost wouldnt let me make copies of my own pictures i made with a rebel dslr. they said they were professional. i thanked her and made them anyway.
That must've been on bored Wal Mart employee.
"Copyrights last forever."
Just like Sonny Bono would have wanted. Sure, it may be unconstitutional, but it's not like that's stopped Congress in the past.
I wonder what traction you'd get if you wrote "PUBLIC DOMAIN PHOTO" on the back.
I mean ONE bored Wal Mart employee
I think too that Wal-Mart would go out of business on ANY photo that you take though. Say I took a photo at my friend's wedding - I can claim copyright on that. I take a photo of my dog - there's a copyright on that.
As much as I like reading the walmart bashing, this isn't their fault. As previously suggested, it's their CYA response to the laws on copyright.
If you want to be mad at someone, be mad at the lobbyists, lawyers, and trade associations for the major studios / labels.
Not that Wal-Mart's policy isn't stupid, and I'm not a lawyer, but I think it's a bit too broadly stated to say that anything created before 1989 that doesn't have a copyright symbol on it is in public domain. The photograph falls into the "unpublished work" category -- it's on that site you link to. So you have to know when the photographer died, which is difficult to find out. That's why Congress has been trying to implement an Orphan Works act. [www.copyright.gov]
There are various copyright laws depending on when the image was taken. In the earlier photos, there is also language about the people who are in the photograph, and whether they are still alive. When I worked in museums, we had to be extra careful with this. If a photograph from say, 1913 had a small child in it, then there was a chance the person was till alive, and the old law kicked in. Thanks to rulings that favored media companies, the rules changed from life of the creator, to life plus 70 years, and there are other ways to extend it. I used to do this for a living, and I couldn't quickly find the appropriate law online in a quick Google search. With copyright violations costing $100,00 per violation, I can understand Walmart telling its employees they last forever. You cannot afford to train $10.00 hourly workers in copyright law.
There is a lot of misunderstanding about what is and what is not public domain not in the public domain. Even if the studio that took the picture of Grandpa and Grandma is gone the heirs to the studio may have rights.
Does the law really affect you and me on a day to basis, no, but to businesses it is a real problem area.
The worst company in America!
@backbroken: But it's not public domain, because it's automatically copyrighted. Bwahaha, rimshot, etc.
@mopoke2: YES! Sorry, I get excited when I run into people who know why Disney doesn't really give a crap about the copyright laws at this point. (While they submitted amicus for the Sonny Bono Extension, it was the American Songbook people - Gershwin & Berlin's estates - that really pushed for it.)
I believe everything before *1923* is now out of copyright. As for 1928, it would have had to have been registered and had notice on it. By virtue of *not* having a copyright symbol, it's public domain.
Anything produced before 1964 that did not have its copyright renewed is out of copyright. As of 1989, copyrights started renewing automatically (and covered things produced Jan. 1, 1964 and forward). So, the photograph would have had to have been renewed, too.
Copyright in the US is unlikely ever to extend past what it is now; the *big* reason all the lobbying worked is that Germany's copyrights were this long, so the rest of the EU extended their copyrights; we have reciprocity agreements where we have to give as much protection to works from EU countries for US creators to be covered there.
The federal statutes, while a touch ridiculous (and we need some of the personal copying flexibility you see in EU law), are less the problem to me than the arbitrary, know-nothing attempts at "enforcing" them by corporate owners and third parties. The former are trying to pressure people with the knowledge that most won't take them to court over it, where they might have to prove themselves; the latter are too scared of the same kind of pressure (and, again, probably wouldn't be harmed, but don't want to go to court in the first place).
@Shaftoe: No, no, no! Disney isn't "renewing" their copyright, that cannot be done for IP as old as Disney's characters.
Disney actually pushes legislation through Congress to extend the duration of copyright protection, which is in fundamental opposition to the principles of what copyright protection was intended to do.
Copyright (very loosly, IANAL) is intended to protect great ideas and allow companies to profit from them. This protected period of exclusivity is based on the assumption that at some point, the copyright will expire, and the invention or idea will be disseminated into the public domain for the development of future works, and the general benefit of society.
Some of Disney's most important copyrights are based on works that had become public domain at the beginning of the century, just in time for Disney to adapt and develop their own ideas on. So, Disney is essentially acting to eliminate the basic principles of copyright, the very same principles which are responsible for their own initial success.
@girlleastlikelyto: "Publishing" was a very complicated area of case law under the 1909 Act, though - it's quite possible that disseminating a copy of the photo to the family (if it was taken by a professional studio) could have constituted publishing. (It tended to sway a lot based on what would be less horrible in the eyes of the law - if someone would be really unfairly deprived of copyright only because their work *might* have been published, under certain definitions, but it's really grey, then courts had a tendency to rationalize. All part of how we got to the 1976 Act.)
@tom2133: That would be incorrect.
@mopoke2: That would be grossly incorrect to the extent that it appears you are just making things up.
Most of the classic Disney stuff is still under copyright because the copyright term was extended. The term was extended in no small part because of Disney's lobby to have the copyright term extended to avoid having Mickey go into the public domain.
None of this has anything to do with trademark law.
On the flipside of the ridiculous meter, the same employees who blandly tell you can't scan something... will accept a copyright release form that says practically anything, written by anyone.
It's just like when you sign your credit card purchase. I always draw little stick figures and pictures on the screen. No one cares. No one cares what it says on the release form, they have no way to verify it and nor will they ever.
They are just told that's what they're supposed to do.
Same problem. Picture: literally from 1941. Walmart says "No." even after I told them "The photographer DIED in 1968! His shop has been CLOSED since then!"
Fuckery and douchebaggery at its finest.
One of my favorite articles.. because I'm a nerd. A lengthy paper on the status of the "Happy Birthday" copyright, in the end arguing that "Happy Birthday to You" long ago fell into the public domain, yet still brings in over 2 million in licensing fees.
It's a little obnoxious to pull up. Click download locations, then download anonymously.
Couldn't this all be taken care of by a waiver holding Walmart indemnified based on the representations of whoever wants the copy? Doesn't Walmart (or whoever) make people sign that type of agreement anyway? As others have pointed out, it would seem that most any artistic image might be under an active copyright unless it was very old. Why doesn't Walmart just CYA that way?
I had a problem with this when I tried to scan negatives and reprint them. My wedding photographer was a family friend and gave me the negatives before he died of diabetes complications. The company that scanned the negatives brought up the copyright issue, and accepted a signed letter from the photographer's wife transferring the copyright to me.
When I went to reprint them, KodakGallery automatically refused to reprint some of them because they were "professionally done." It seemed that they were refusing some of the larger reprints based on resolution. I called and explained the problem and offered to fax them a copy of the letter the photographer's wife had given me. This was not enough for them - Kodak wanted a copy of the guy's death certificate and proof of identity for his wife. Since they had only put a hold on a few of the 8x10s, I went without instead of putting the burden on the photographer's family.
From www.copyright.gov:
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: 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.
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So basically Wal Mart looks like it is doing the right thing here... I never thought I'd be typing that Wal Mart was doing the right thing. I need a shower.
So Wal-Mart employees are idiots?
Noted.
@tom2133:
That is almost always true, but there are other works made after 1929 that are also public domain.
I believe Disney was actually the driving force behind the Sonny Bono copyright extension act (which someone here may already have mentioned). I'm sure Sonny Bono was all for it, however, which is undoubtedly why he sponsored the bill. As you can see from the various responses here, copyright law has changed numerous times over the years. It's no wonder a Wal-Mart clerk making barely above minimum wage would know absolutely nothing about it and would be very quick to just say "no." Just because the studio is out of business or the photographer is dead does not make it okay to steal their work. But if you know for a fact the work is not under copyright, ask for a manager. Just make sure you know your facts. It may help to take a printout with you for backup.
@Farquar: It was always my understanding that you can't copyright a character, only a finished work. So Mickey Mouse is trademarked, but a Mickey Mouse film is copyrighted. IANAL, though, I might be wrong about this.
@mopoke2:
I agree with Farquar. You seem to have a misunderstanding of what is going on. Disney's rights to early Mickey Mouse drawings does not have to do with Trademark law. True Disney may have some trademarks on early properties but that would not protect a whole 30 second cartoon.
Apparently this is yet another reason not to go to Wal-Mart. Not that I would go there in the first place.