Santa's copyright: weird release clause for mall photos

BB reader Therese says,


Here is yet one more idiotic copyright issue that I am absolutely outraged by. I have just returned from taking my sons to have their photo taken with the mall Santa. Every year I take them, and I choose the least expensive photo package, so that I can then buy a CD with their picture on it. They won't let you just buy the disk. The picture packages begin at $13.99, and then the CD is an extra $6.99.

Fine. But this year, there's an additional item you can purchase: A Copyright Release for an extra $15.99! You don't have to buy it, but I suppose the implication is that if you use the photo of your child with Santa without buying it, they can come after you?

They also offer a package for $24.99 wherein you receive a 5×7, a CD and a copyright release. So, that's still more expensive than just going for Package A + a CD.

Frankly, I'm outraged by this. And tempted to see what happens if, you know, I decided to post the pictures of my sons on a personal website not having purchased the copyright release of my own children.

Link to the website for the company that runs the santa mall photo service Therese used.

Reader comment: Shaun says,

…Claus Clause? :P

Joe says,

I was recently visiting my grandmother in Springfield, Illinois. She is 87 years old. She asked me if I could make a copy of a picture of my grandfather and her. She said Kinko's wouldn't make copies of it. She said they wouldn't copy it because it was a picture taken by Olan Mills Studio and it would violate copyright laws. The picture was taken in 1959.

Bart says,

This whole copyright issue is out of control, but to post every single complaint just weakens the stance of abuse. I use to work in a photo development section of a big box retailer. It's common to turn down professional photos unless you have a copyright release this is nothing new. In fact it was the most problematic part of the job, because customers didn't understand it. I'd like to also mention I've got pictures from the 20's with notes on them saying copies are prohibited.

Ryan Forrestal says,

Bart is right, but i don't think he explained the issue well enough. and given the trouble those of us who work/used to work in photo labs have with customers who want prints of professional images it might be nice to get it all out there.

photography copyright works this way; whoever takes the photo (and there by possesses the negs or original digital files) owns the copyright. most cases this is the photog, in the cast of photo studios (like with santa land) its the studio. this isn't a clever copyright trick to make more money, its just how the law works automatically to protect the creators of those images. that said, this makes it technically illegal for you and those guys down at the photo mat to copy (not distribute) those images without permission (copyright release) or proof of ownership (negs). now this is a big problem because the studios and photogs in question seldom explain this to their customers before hand, so when people go to get extra copies they get confused and angry at the lab guys.

photogs and studios are not in the business of taking photos for money, they sell prints (or rights to make prints). its how they make money. so many studios wont actually give out releases because it means the money for those extra copies goes to some one else instead of them. other places will sell you the negatives along with the prints or charge a fee for a release , and the best places will just give you a release and send you on your way. the fee is simply to offset the cost of loss business. this stuff has been going on for decades and is nothing new.

all thats different with this santa photo story is that they studio in question is advertising the release instead of waiting for people to come to them. i suspect there are two reasons for this. 1 disclosure: like i said these studios seldom if ever clearly state whats going on in regards to copyright (there will be a small sign or fine print paragraph somewheres but little else). by listing the release along with its price as part of a package people will ask what it is and then get a clear explanation (hopefully). 2. to prevent angry phone calls. every mall photo studio i've ever set foot in has a line of people waiting to yell at them because they can't make prints. if you explain up front, this is less likely to happen.

in short this situation is actually a step forward, now the customer knows what the legal situation is and can deal with it without insane amounts of frustration.

Roger Mercer says,

In Ryan's comment, he said: "all thats different with this santa photo story is that they studio in question is advertising the release instead of waiting for people to come to them"

but I see another, very important difference. They are double dipping by asking to be paid separately for the CD and for the release. What on earth are you buying when you pay them for the CD if not the right to use the file(s) contained on it? If they intend for you not to make copies from the CD, why are they even selling it without a release? Ryan says that if you show up at Photomat with the negatives, it implies that you have purchased the right to make copies. Well, if I show up with the image file that I legitimately purchased from the photographer/studio, I expect that I have paid for that same right to copy. The problem for the photofinisher, of course, is that they can't easily tell the difference between a legitimately obtained image file and one that came from a scan of a print.

Tinfoil says,

When I recently hired a photog to take some pics of my human spawn, I was somewhat disappointed that, while I would receive a CD with digital copies, they weren't quality digital copies even though the fellow used some description of exotic Cannon cam.

When I asked why he had brought forth many of the same arguments that were brought up here. Fair, I suppose. He has the right to is opinion and I have the right to believe he's wrong.

When I mentioned that $600+ was pretty much all that they were going to milk me for and that if I needed more copies I could very well scan them and reprint them, he was shocked. Shocked I say.

My rational is this: When I hire a contractor to do up some custom coding for me, that code is mine and I can do with it whatever I please. I paid for it, so I can open-source it or print it on toilet paper. Whatever. When I hire a contractor to do some stuff to my house, there are no stipulations on what I can and can't do on the kitchen counter. It's mine.

In my view, the photog is a contractor that I have hired to produce something for me. The fruits of the labour I paid the photog for are mine and mine alone. Well, perhaps they belong to the child, but until she pays off her staggering debts, they belong to me. Diapers are expensive, yo.

This view is not popular amongst the photog friends of mine, even though they do understand the logic.

Tor sez

Tinfoil's comment is correct, to a certain extent. However, under copyright law, there is a difference between someone who creates a copyrighted work for you as an employee and one who does so as an independent contractor. It comes under the Work for Hire section of copyright law. As an employee, anything you create automatically has the copyright assigned to the employer. As an independent contractor, it is assigned to the independent contractor, unless there is a written agreement that the copyright is assigned to the employer (along with several other conditions, but that's the relevant one here).

So what Tinfoil should have done when hiring his photographer is have him sign an agreement which stated that copyright is assigned to Tinfoil, and he is entitled to hi-res copies of the images. But Tinfoil neglected to do so. So while his logic is fine, it doesn't mesh with the current state of copyright law. And unlike some areas, he had the ability to mitigate that problem, by finding a photographer who was willing to sign over those rights.

Craig Chambers says,

I just wanted to point out the other side to this debate (though I am sure it is in the minority here).

Most people are looking at this in the view that they paid the photographer to take pictures and therefore they should own the rights to the images for the money they paid. I think however that it should be looked at differently. By charging you per print the photographer is potentially saving you money. A photographer, like everybody else in the world is trying to make a living at a job. They have set up their business plan so that they make a certain salary. Now the photographer has two choices, they can either a) Charge you a flat rate to take photos and give you the copyright or b) charge you less money to take the photos and then charge extra for your for prints. The advantage to paying for prints is that you only have to pay for what you use. If you only need a couple of prints then it doesn't cost you a lot. If you do what a lot of prints then it costs you more. If the photographer was to charge a flat rate for the images then even if you didn't want a lot of images you would still be paying a high dollar amount. It's kind of like watching a DVD. I can either buy the movie if I think I want to watch it a lot, or I can just rent it which saves me money if I only want to see it one or two times. Renting is cheaper but has more limitations. (not a perfect analogy I know)

Keep in mind that often both of these options are already available with photography as was the case with the original article. The complaints seem to stem from the fact that the purchaser, in effect, can't own the DVD for the rental price.

We live in a free market and believe me, there are no shortages of photographers these days that would be happy to take your picture. If you don't like the deal one person is giving you then go find someone who's deal you like better. Just remember to balance quality and price. With photography entering the age of digitization and access to the tools becoming more available, prices will fall and the market will get more competitive, just like the markets that entered the digital age before them. But remember that with increased access. Access is good in that it allows otherwise talented people who were unable to enter a field before the ability to do great work but with it also comes a lot of untalented people and in general you still get what you pay for. Writers, designers, editors, and now photographers have undergone this transition for both better and worse, but mostly for the better. But that is another conversation for another time.

Ross Evertson says,

Most advertising photographers make their money based on usage, not their time. In addition to that, most will not (and should not) ever give up the rights to their images. The photographers fee will basically be a calculation based on the medium, region, size and other factors. One photograph could be worth $2,000 or $20,000 depending on how it will be used. And as I said, once that time is up the photographer gets to do whatever he/she would like to with the image, including sometimes relicensing it to the same client. Most savvy clients know that they are not paying for the time, but just for the rights to use the image. This is, in addition to stock, one of the only ways to make passive income as a photographer.

I can't blame "service photographers" (portrait studios, etc) for thinking the same way, the only difference is their clients are not as educated about both the law and what should be considered a good practice for the photographer.

As a formerly LA-based photographer now in Denver I found that most clients want to pay a day rate and retain all rights to the images, not necessarily because they want to screw me, but that is the market that has been set up for photographers here, by my predecessors.

So instead of taking blow after blow to my ego, as well as accepting checks that barely cover my expenses, I work as a designer.