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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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« A Reply to Dennis Kennedy, Michael Madison and Marty Schwimmer on iPods, Distribution and Copyright | Main | More No Personal Use Exemption Copyright Inanity »

June 07, 2005

Do Copyrighted Wedding Photos Even Make Sense?

Posted by Ernest Miller

Below, I wondered why it makes sense to hold 3rd party copy centers liable for the copyright violations of their customers (Does It Make Sense to Hold WalMart Responsible for Reproducing Photos its Customers Want Copied?). The particular issue is whether photofinishing labs should be held liable when someone brings in that Olan Mills family protrait to be copied. Mnemonic Technology writes about this and accuses people who try to make copies of ripping off the photographers (Wal-Mart Refusing to Print Suspect “Professional Photos”).

I’m familiar with the business that larger print shops( Wal Mart, Walgreens ) and smaller print shops experience. There are a lot of unscrupulous types that will try using the do-it-yourself kiosks to make copies of their Olan Mills photos with the gold watermark half scratched off. People do attempt to cheat professional photographers when they ask labs to copy photos done on Kodak professional paper when they can’t produce the negatives. ...Unfortunately there are still countless amounts of negatives of beloved memories…which professionals own the rights to, and there are individuals who try to take advantage of the professionals and the labs by making, what is essentially a facsimile of a facsimile.
This got me thinking ... why the heck is it illegal for you to make copies of the photos of your own wedding in the first place? I'm a big fan of personal use copying being perfectly legal. If you can rip a CD to an MP3 so that it is more convenient to listen to, why can't you make a copy of your own baby pictures for personal use?

Does copyright even really make sense in these cases? The purpose of copyright is to spur creation and distribution of new works. Is anyone seriously going to argue that without copyright there would be no wedding photos industry? Or strip mall portrait shops? Heck, the point of most of these photos isn't that they'll be distributed at all, but that they'll be stored by the family for personal use. That doesn't really seem to be the point of copyright.

Making personal use copies of family photos shouldn't be illegal. Period.

I understand that photographers built their business model on the fact that it was difficult to make copies of photographs without access to the negative, but technology frequently forces business models to change. It's time for a change.

Comments (8) + TrackBacks (0) | Category: Copyright


1. mnology on June 7, 2005 12:51 PM writes...

I'm not accusing people who make copies of their personal photos. What's not fair is that there it just isn't time to train people the difference between an amateurs excellent photo and a photo that someone paid a professional for taking.

But you do bring up something that a lot of people don't seem to understand. When you pay for the services of a professional, most certainly for a wedding, there is most likely a contract. Where it is understood that you are paying someone for their services, they own the rights to what they make, and you get a print.

I'm not debating fair use and the issue isn't what is fair use. The issue I'm presenting is that those who attempt to make copies of their contractually provided photographs at Wal-Mart or where have you, are not honoring their contract with the professional for whom they agreed would handle the business, creative and replication aspects of the recording of your event.

I've also said that the model and mindset is changing amongst photographers. But they aren't thinking backwards. It would be a good excercise to see if you could coordinate something with the person who has your negatives and explain to them your feelings on how the mindset should change. Professionals hold on to their negatives and only let them go for a hefty chunk of change. Couple of thousands for a shoot. Though, considering the time these professionals put in to learning their craft, plus equipment expenses, a couple of grand for your one shoot seems reasonable to me.

For the matter of those ancient photos where the negatives are probably destoyed and the business that had them is long gone. If you can scan it in at a good enough quality to have a quickie lab run off a copy. Why not do it yourself? The technology today is certainly accessible enough to where this is possible. Plus you could copy to your hearts content and not worry about the people trying to ensure their business isn't litigated against.

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2. Ernest Miller on June 7, 2005 01:06 PM writes...

If people violate contracts, that is one thing. If you can't reasonably enforce the contract, does it really make sense to sign one in the first place? In any case, the issue is that photographers are using copyright law, not contract to enforce these "rights."

Lawyers spend even more money and time than many photographers learning their craft. Would we allow lawyers to prevent clients from making copies of the work they've done for the clients?

Why should these small shops have to worry at all?

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3. Branko Collin on June 7, 2005 02:16 PM writes...

There is no concept of fair use in Dutch copyright law, so any exemptions must be in the law itself. Article 19 states:

"1. The reproduction of a portrait by or on behalf of the person portrayed or, after his death, by or on behalf of his relatives, shall not be deemed an infringement of copyright."

The world hasn't ended. Cats haven't lived together with dogs. Portrait photographers like both my father and my mother have indeed been able to make a living.

It would seem that if the Netherlands has almost a century of harmless experience with people copying their own portraits, the US could try and follow suit.

Mnology, are you sure you know what you are talking about? "Ernest Miller seems to think that photographers do not need copyright protection." Suuuuure...

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4. Scote on June 7, 2005 03:48 PM writes...

"But you do bring up something that a lot of people don't seem to understand. When you pay for the services of a professional, most certainly for a wedding, there is most likely a contract."

Yes, and that contract is designed to turn copyright law on its head. In that contract the photographer will claim that hiring him is not work for hire.

If photographers have based their pricing on the exclusive right to reprints, then they should change their pricing to reflect the new, more democratic access to technology that allows ordinary people to replicate their personal photos in high quality.

Nobody I commission to create a work should be able to claim copyright over the work I hired and paid them to make. The Dutch exemption for portraits seems to prove that portrait photographers can make a living without claiming copyright over our personal heritage.

As an aside, a friend of mine tried to get reprints of his wedding photos from the kind of wedding photographer who hoards the negatives and copyrights the photos. He needed them for his aniversery. The photographer's son had taken over the business and thrown away all the negatives without asking any of the victims--er, clients--if they wanted them or wanted reprints. And, of course, now places like Walmart and Kinkos will not reprint the original prints!

mnology seems to say if you can't do it yourself, you don't deserve the right to reprint the photos at a lab. I disagree vehemently.

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5. mnology on June 7, 2005 04:03 PM writes...

If you can't do it yourself don't involve someone who has something to lose by making the copies for you. We shouldn't be blaming these businesses for trying to protect themseleves( I'm not defending just Wal-Mart ). When a photo lab keeps you from making a copy, albeit on a judgement call, they're protecting themselves from photographers and protecting the photographers rights.

It doesn't matter to the photo lab whether or not it's your photo and it makes sense you should be able to make copies. It matters that if they let the one get through that ends up biting them in the backside.

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6. Scote on June 7, 2005 06:22 PM writes...

"When a photo lab keeps you from making a copy, albeit on a judgement call, they're protecting themselves from photographers and protecting the photographers rights."

By extension, copy places and photo labs should not exist at all, since all work is copyright when it is fixed, regardless of whether it "looks professional" or not. After all, can you prove that *you* were the person who pressed the shutter for each frame of your undeveloped film? No, you can't. In fact, by copyright law, all of those photo of you and your sweetheart posing together taken by strangers you asked to take a photo of you two are copyright by those individuals and you have no right to develop or print them without signed release forms. (There was no "contract" because nothing of value was exchanged both ways.)

So the lab should refuse to develop any negatives or print any photos unless they witnessed you take them right there on the spot. This will give rise to "do it your self" photo studios where you will have to take your family photos in front of witness for the photo lab so they can legally print your photos. Obviously this scenario is silly--but not any more silly than presuming that good looking photos must be copyright by someone other than the person in the photo and refusing to print them.

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7. Tammy on June 9, 2005 02:53 PM writes...

I guess what I don't understand is this -- why, in a sane world, should Wal-Mart incur any liability at all? Why couldn't they say "by bringing photos to us to copy, you represent that you have the right to copy them?" If, as other posters have said, this is indeed a contract issue, then why would Wal-Mart incur any liability? You brought the photos to the lab, you falsely represented that you had the right to copy them, therefore the photographer can go after you for breech of contract. Seems simple. If you sign a contract agreeing to pay me $100 on Friday, but you take your $100 and give it to your brother-in-law instead of to me, I can't sue your brother-in-law for helping you to breech your contract to me, can I? What ever happened to the law behaving in a common-sense fashion?

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8. Crosbie Fitch on June 9, 2005 03:33 PM writes...

When Walmart joins in the fatwa against the evil citizen they cut off their nose to spite their face.

So, they copy fewer photos, but they sell more colour printers.

On the other hand, perhaps, just perhaps, Walmart are incredibly cunning and are thinking of ways in which they can tier pricing for their copying services.

If you submit professional looking photos, you are obviously not a poor schmuck they can only squeeze a pittance from. So, they promote you to their premium 'no questions asked' professional copying service, available at a premium price. OR you can fork out $200 on a decent printer and do it yourself.

This copyright infringement malarky is simply an excellent stooge they can cite to backup such unfair discrimination.

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