It used to be that only legislators and judges were authorized to decide how far copyright protection extends. Now it appears that pimply teenage clerks at Wal-Mart’s photo-finishing department are fully empowered to determine whether or not you own the copyrights of your own amateur photographs. The real joke is how they make such determinations. They decide if it “looks professional.” According to The San Diego Union-Tribune (which Paul Alan Levy of the Public Citizen Litigation Group brought to wider attention), photofinishers are refusing to print digital photographs that “look” too professional lest they inadvertently print a copyrighted photograph.
As you might expect, the bad-ass Wal-Mart has one of the toughest policies. A company spokeswoman, Jackie Young, told the Union-Tribune, “We want to protect professional photographers’ rights. We will not copy a photograph if it appears to be taken by a professional photographer or studio.” This policy means that Wal-Mart in effect discriminates against talented amateurs using high-resolution digital cameras. After all, high-res digital photos “look” professional and so are presumptively suspect, if not illegal.
So here are some of the absurd scenarios that are happening: A man takes photos of his sister’s wedding, and then finds he cannot get the wedding photos from Wal-Mart until he signs a release form. Another man wanted to re-print old photos of his mother for use at her funeral. The photos had been taken by family members, some of whom were deceased; one photo had been taken fifty years ago. Watson uploaded digital scans of the photos to Walmart.com, but when he went to pick them up at the nearby Wal-Mart in Charlotte, Michigan, the manager of the photo department refused to print the photos.
Zee Helmick, an amateur photographer in Nevada, used a digital camera to take head-shot photos of her son for an audition in a TV commercial. Then she used photo-editing software to make her images look more professional; added her own copyright tags; and uploaded the 8×10 images to Walmart.com. But when she went to pick the photos up at the Henderson, Nevada, Wal-Mart, the clerk told her: “I can’t release the pictures to you without a copyright release form signed by the photographer.” According to Helmick, the clerk said the photos looked like a professional had taken them; he wouldn’t believe that Helmick had taken the photos herself.
What convinced the nation’s photofinishers to become vigilante copyright cops? A 1999 lawsuit by the Professional Photographers of America against Kmart Corp. The PPA claimed that Kmart was violating federal copyright law by copying images without the permission of copyright owners. In 2000, Kmart settled the case for $100,000 and agreed to institute policies to prevent unauthorized copying of photographs.
What’s revealing about this whole nasty story is how copyrights are presumed to belong only to “professionals” — while amateurs are guilty until they can affirmatively prove otherwise. This is just another skirmish in the larger cultural battle going on between the old, centralized commercial media and the more democratic, participatory media that are emerging. When copyright is used as a cudgel by bullies with corporate power, is it any wonder that copyright law is held in such low esteem. We should perhaps take a cue from Thomas Jefferson: “A little rebellion, now and then, is a good thing.”