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Sunday, July 02, 2006

Answering my own question about photo copyrights

I sent my sister two photographs of my mom for printing at her local Walgreens. These were part of a slew of other photographs, mostly family snapshots. The newest photo was from 1981. The oldest one was from about 1905. I actually scanned the photos, uploaded them to Walgreens, and had them printed at the store closest to her house, in another town and another state.

The developer at Walgreens refused to develop the two photos in question, citing that because they were professional photographs, they were protected by copyright law.

Setting aside for the moment the fact that photographs don't have to be taken by a professional to be protected by copyright laws, how could the Walgreens clerk make this claim without knowing the dates the photographs were taken. Neither photograph was dated.

Noting Walgreens Terms of Service under Member Conduct, just for the record:

b. Comprises copyrighted material used without the express permission of the owner;

One photograph was taken in 1938 and the other in about 1930, thus making the photos 68 and 76 years old, respectively.

The newer photograph would have been taken of my mom for her confirmation class in the seventh grade. The Lutheran school she went to didn't have year books at that time, so the photos were just given to the families. And, probably hung on a wall at the school.

The older photograph was taken by a door to door photographer, of sorts. It was the Depression, and peddlers were always coming to the house hoping to sell something (dishes, bibles, medicine, among other things). Or, do work in exchange for food. The peddlers were often the same person, week after week, just selling different wares (probably from their wives' china cabinets).

He arrived via horse and cart, set a backdrop up in the living room, shone a light in her face, and snap, took one shot with his little box camera. My grandparents paid him 50 cents as a sitting fee. He came back four weeks later and presented them with the photograph in three different sizes.

Yes, this was during the Depression, and no, my grandparents were not at all wealthy, but, my grandfather managed to have a decent job throughout those years. Plus, they kept a small flock of laying hens for trading eggs.

Okay, so the question is, when will the copyright on these photos expire? Let's assume that neither of the photographers filed copyright registrations on these photos. Reading, "Copyright Basics (Circular 1)," from the U.S. Copyright Office:

Works Originally Created before January 1, 1978, But Not Published or Registered by That Date: These works have been automatically brought under the statute and are now given federal copyright protection. The duration of copyright in these works will generally be computed in the same way as for works created on or after January 1, 1978: the life-plus-70 or 95/120-year terms will apply to them as well. [...]

That 70 number means, "from the moment of its creation and is ordinarily given a term enduring for the author's life plus an additional 70 years after the author's death."

And, the 95/120 means, "For works made for hire, and for anonymous and pseudonymous works (unless the author's identity is revealed in Copyright Office records), the duration of copyright will be 95 years from publication or 120 years from creation, whichever is shorter."

Damn. So, we've got quite a while to go before we can get Walgreens to print out these photos for us.

Side note regarding the Depression era photographer. I've heard this story more than a couple times. But, like so many stories handed down in our family, the stories sometimes become embellished and/or diluted. Therefore, I make no claim as to the accuracy of the story. Actually, I make no claim that the photo in question was the actual photo taken by the door to door photographer. Further, I always thought the older photo was not my of mom, but rather of my mom's cousin. But, whatever.

Posted by Marie at July 2, 2006 9:21 PM

Comments

Great story. We have little of that sort of thing in my family.
K-

Posted by: Kem White at July 3, 2006 9:35 AM

I think Walgreens has jumped the shark here. It would seem to me that commissioned work may revert the copyright to those who paid for the picture. Anyway, I thought this was a post that should be seen by lots of people so I submitted it to Boing Boing. We shall see.

Posted by: jr at July 3, 2006 10:50 AM

Marie,

They're all bad about that. The copyright laws as interpereted today on photography are stupid -- Sears does not hold a copyright on my likeness...

that said, I just use a scanner, printer, and nice quality photo paper. Ends up being a bit more costly, though (printer ink) so I use it sparingly. :)

Posted by: ben at July 3, 2006 3:40 PM

When my mom used to take us to Olan Mills or Sacketts to have our picture taken, I'm pretty certain she always got the negatives along with her prints. I'm pretty certain Walgreens will make a print from any negative without question. Does having the negative prove ownership? I think someone would have a hard time making a case of copyright infringement on a photo where the original photographer cannot be found or even identified.

Posted by: Rob at July 3, 2006 4:06 PM

jr, no BB. But, thanks anyway.

Thank you, Kem. My dad was very tight-lipped. My mom was a little more pliable.

Ben, my printer is a black and white laser. I do have an old color printer around here somewhere, but it doesn't make very sharp prints.

Good point, Rob. I'd be happy to pay either of these photographers a reasonable sum for the negatives, or at least to make copies.

It's not like we're going to publish them in Life Magazine. We just want to keep them in the family.

Posted by: Marie at July 4, 2006 11:32 AM

All I have to say is, Wuck Falgreen's

Posted by: Dave at July 4, 2006 3:27 PM

Sorry -- after reading the first part of your post, I don't have the patience to read what comes later.

What the guy at Walgreen's told you is what happens when an idiot encounters a concept he/she can't understand (in this case, the idiot may in fact be Walgreen's, the company, rather than the employee). The whole question of copyright is moot unless there's some explicit evidence that the pictures you presented were protected. In other words: Did they carry a copyright notice? Did they carry a date with the notice? If not, the Walgreen's person's opinion is as relevant as whatever the run-of-the-mill crack addict would give you.

Interesting side note that Congress has several times extended the copyright periods not to protect individual creators, like the anonymous photographers behind the pictures you want to reproduce, but companies like Disney; these outfits have created franchises based on much older public-domain works (cases in point, "Snow White" and "Sleeping Beauty") but are desperate to stop third-parties from glomming on to treasures like "Donald Duck" or copyrighted works like "Winnie the Pooh" that they bought for a song.

Posted by: Dan at July 5, 2006 11:53 PM

Dan, no dates; no copyright notice. I'm beginning to think none of these places should be in the business of printing photos, or even developing film. How can they possibly selectively say what is and isn't copyright.

About a year or so ago, there was a movement called "Orphan Works" to try and get the Copyright Office to change the rules when the copyright holder could no longer be found. I don't know whatever happened. Probbly nothing. Yet.

Posted by: Marie at July 6, 2006 5:22 PM

A few useful links:

Transfer of Copyright

My local copying store will not make reproductions of old family photographs. What can I do? (Thanks to Dan Brekke for pointing out that one.)

Copyright Office on Orphan Works (Bottom line: It's in Congress's court.

Posted by: Marie at July 6, 2006 10:42 PM