Copyright Question - OLD photo

[bp1]

I just finished restoring an old picture for my wife's father. The photo was taken sometime around the late 1930s by his estimation. There is nothing on the front or back of the photo identifying the photographer or studio, and all eleven of the family members in the photo are deceased.

Wal-mart refuses to sell me a print without a signed release from the photographer. I have no clue on where to even begin tracking down the source of the photo, but my understanding is that a picture that old is in the public domain. Click HERE to see the best resource I've found to come to this determination.

Do any of you have any type of stock release you give to development sites for your restoration work? I'm thinking something having to do with "fair use" of restoring a print for personal use, or "due diligence" in attempting to locate the photographer are in order, but wondered whether any of you have a process in handling a situation where the photo developing clerk has his marching orders and won't stray from it in favor of logic and reason.

[metgue]

I would get it printed somewhere else. I use Costco and never have a problem.

[bp1]

I guess I'll have to do that, but it just burns my butt that I have to. Generally I hate my local Wal-mart lab because their colors are really off. My local Target does a better job with their photos than anything I've tried online.

I liked the Wal-mart option in this case because they print their 1 hour photos on matte paper; Target only prints 1 hour photos on glossy. I like the 1 hour option so I can tweak the photos after printing to correct anything that doesn't look right.

I'll give Costco a shot, and send off a sample to the other online sites again to see who does a good job printing black and white on matte.

[plugsnpixels]

Sounds like you're a perfect candidate for owning an inkjet printer! With current technology, there's little reason to outsource anymore.

As for Wal-Mart, back in the '90s I used to have enlargements done there for a good price, but they weren't always in focus. I did my own B&W darkroom printing and knew when an image was printed sharp. It was a waste of time trying to explain the concept to them...

[Sweetlight]

What state do you live in if you don't mind me asking. Wal-Mart has lost there mind. Did they come up with that bologna on there on or did you maybe plant the seed in there head first. I can't imagine some little Wal-Mart photo kid having a clue about copyright infringement and/or public domain. If the photo is from the 1930's and was paid for by one of your family members at the time it is very unlikely that the photographer knew about copyright and relevant issues, that's point number 1, #2, no offense to anyone who was born near, before or after that date but I would pretty much bet that the photographer has burned his last glass plate and if he is alive, most likely he does not have the will nor the desire to go after someone for restoring and printing one of his photos. If anything he would probably be ecstatic that the care was taken to restore it and keep his legacy alive. I'll find my case law studies but I am almost 100% sure that portraits of every day people become common property if the original artist passes. Even if he left the negs, prints, proofs or contracts in his will, trust me, this issue is a moot point. I'll dig up that case law and whatever info I can find on the subject but I think you can feel safe having them printed and I would love to speak with the person at Wal-Mart who had the brass to even try this stunt. Give me a break. As far as the printer, yes it would curtail this situation and these days it is just as reasonable, and the prints you make are so beautiful and you have the control. May I suggest if you have no ink jet that you start with something like the Epson 820. It has individual ink cartridges including a couple different choices of black. It even has a little silver sheen just like a nice old, fiber based print and I have extensively studied the cost effectiveness of the single ink cartridges and you truly do come out ahead of the game. I promised myself when changing from traditional film to digital that I would not do so until I could lay a "real" print beside a inkjet print and find that inkjet had finally emulated or surpassed the quality of the regular print. My first printer was the Epson 798 (I think) but it blew me away. I now have just about every printer Epson makes and I am loyal to them .

Truly once again, if you at least tell me the city and store number of that Wal-Mart I will have my lawyer inquire around and submit a brief to Wal-Mart corporate about this. I don't mean to blow my lid but we walk a thin line as it is trying to be fair to our peers and hope that they do the same but this erroneous info will eventually result in someone who thinks they have rights to an image suing one of us because they were given bad info. It's good to have a lawyer address issues like this because it sets court precedent which will benefit us in the long run. Sorry bout the long wind but sometimes people just annoy me, passing out free legal info and I can't get it out of my head that this was some brace-faced little high school kid trying to feel there "Wal-Mart Muscle" and/or just not wanting to do the work..

Peace.........Be Still......

c

[Mike]

bp1, thank you for the link to that flow chart, had not seen that before.

Sweetlight, I would imagine that the reason the Walmart employee would not do the job is because he wants to remain a Walmart employee. Walmart lost a very large lawsuit involving copyright infringement and as I understand it they will fire anyone who puts them into that position again. I have read that they look at the image and if it "looks like a professionally made image" then they start asking questions or will just not do it. I know of a number of professional photographers that periodically send people to their local stores with prints just to test them on this point.

"I'll find my case law studies but I am almost 100% sure that portraits of every day people become common property if the original artist passes." In a practical sense that may be what happens, but that is not supported by any law that I have seen.

Copyright has become a very complicated mess. On one hand there are those that are trying to make a living creating something and on the other side are those that do not understand that although they paid for it, they in essence, do not own it. Add in the ease of copying something in todays world, along with our societies propensity to sue someone at the drop of a hat, the result is chaos.

[nspwis]

Copyright laws are a mess -- they changed in the 70's due to Disney trying to retain copyright to Mickey Mouse for as long as possible. Just because you own the physical object (the photo) it doesn't mean you own the copyright. A general rule of thumb is copyright belongs to the creator or the heirs of the creator for seventy years after the death of the creator. (Obviously, in the case of a photograph, the creator is the photographer.) Unless the photographer specifically gives or sells or transfers the copyright to a specific person or specific organization or institution, it passes to their heirs when they die -- even if the heirs have no idea of the existance of the photograph (or book or artwork or whatever) -- they are still the legal owners of the copyright for 70 years. There are lots of interpretations of this depending on the specific situation, so if you have a situation where you really need to know what your rights are, do yourself a favor and check with a lawyer first instead of relying on hearsay. BTW, I had this same thing come up at WalMart so they must have some standard training manual the clerks work from.

[zganie]

I usually never have a problem but,I have noticed a few different forums
discussing this topic.I asked around to try and find out why this happens
One suggestion is that if the photograph is altered such as colorized or
something added/removed then its not original,but if restored to original it really should not be a problem.Just a thought

zganie

[Mike]

The primary reason for having a copyright is to keep others from making money on your creation. It does not care what you did, just that you made money for doing it, thats the no no.

[RobM]

I just had the same experience at WalGreens. After spending time restoring and cleaning up a portraite of of my brother taken over 40 years ago, WalGreens refused to print it, citing copyright laws.

I guess the question is, who is the legal owner of the copyright? Can't the original photographer, who is now long gone, be considered a "work for hire", and therefore since he was working for me, I'm the rightful owner of the photograph? If someone hires me as a contractor to work for them, then don't they own the results of my work?

All I am doing is restoring a photo that we hired someone to take. I am not tring to take credit for the photo nor am I trying to make any money from it.

Does everyone have to live with old, faded, scratched, dirty photos if they were taken by a professional long ago? Wouldn't restoring said photo be considered "fair use?"

Looks like I'll just go somewhere else to print my restored photo, but it would be nice to hear the thoughts of someone who know the law in this area.