A guy I work with was talking about something his wife did at Wal-Mart, where she works in the photo developing department. A woman brought in a photograph of her recently deceased husband, she was trying to get a different sized copy so his picture could be published in the paper.
Wal-Mart has a rule that they cannot make reproductions of copyrighted photo. The picture had been taken by a professional photographer, so Wal-Mart wouldn’t make copies. This is understandable - but this guy says his wife then tore the picture up and threw it in the trash, because she could see that it was a reproduction itself. The woman was understandably upset.
The guy telling us about this thought it was pretty funny, he says that the woman was rude to his wife and had to be escorted out before because Wal-Mart refused to make a copy of another copyrighted photo, this time she tried to make the copy herself on the do-it-yourself machine but apparently had difficulties and asked for help. He says her justification was that the ‘photo cops’ would fine the store $10,000 if they let the woman walk out with a reproduction of a copyrighted work - but I don’t think they would do that if the reproduction wasn’t done by their equipment, I thought the fine was for making the copy, not just allowing the copy to exist.
Okay, I’m assuming here that this is similar to the copyright laws I deal with on my cartoons and comics, in which case the Wal-Mart lady was totally in the wrong.
Lady 1, having contracted a professional photographer, has made a “work for hire” deal, entitling her to acceptable use of the product. Acceptable use includes reproduction for publication.
I don’t think Wal-Mart should be stating something as a matter of law. They should have presented it as a matter of store policy.
At the library where I work, we have a photo archive. We don’t make copies of wire service photos since we don’t have title to them.
The question is whether or not the photo was owned by the photographer or the person who hired the photographer. Wal-Mart probably operates under the assumption that the photographer retained the rights to the photo.
What bothered me was this - I can understand them refusing to make a copy of something they suspected might be copyrighted - it may be legal or it may not, but I can understand them not wanting to take chances with their own equipment - but I do not believe they have the right to confiscate and destroy this woman’s copy of the photograph because it ‘was obviously a copy of an original’. This copy was not made at that Wal-Mart, it was something she had already bought and paid for. For all they know it could have been authorized by the photographer.
My wife and I had a professional photographer take our daughters 6 month pictures. After looking at the proofs, we had the choice of getting reproductions through the photographer, or buying the negatives (along with at least $25 of reproductions). We opted for the latter. With the negatives, the photographer enclosed a letter stating that we now had the rights to the negatives, in case there were any questions later on.
I just hope that the lady in question seeks legal advice regarding Walmart’s representatives willful destruction of her property. Then - assuming she has a leg to stand on -paperworks them to death with a lawsuit. Myself? I’d probably try make a stink in the local media about it.
Wal-Mart was in the right to refuse to make copies. They had to assume that the photographer owned the copyright, unless there was some paperwork indicating otherwise.
The photo is not a “work made for hire” unless you own the photography shop and the photographer is on your payroll, or if he agreed in writing that it was a work made for hire. The photographer was working on a freelance basis and I shudder to think what would happen if any freelance work was automatically work for hire – no creator could ever hold copyright if he was paid for his work.
However, Wal-Mart was dead wrong in destroying the original. They have no way of knowing whether it was a legal copy or not – you may have gotten it from the photographer, or you may have the right to make copies, if not the paperwork to prove it. Also, it’s not illegal to possess a pirated copy, only to make one.
It was also piss-poor public relations.