Who Owns The Rights To Wal-Mart's Photographs?

by Mark Friedman  on Monday, May. 26, 2014 12:00 am  

Photos of Sam Walton are at the center of a copyright lawsuit in federal court.

After Jan. 1, 1978, copyright law changed, giving the copyright to the photographer hired to take the photos, Shipley said.

For example, if a family goes into a portrait studio to get a photo taken, the family will own the print. “But the copyright is actually owned by the photographer,” Shipley said.

But before 1978, the person who commissioned the photo is the owner of the copyright, he said.

So for the photos Huff took before 1978, “the law is going to favor Wal-Mart,” Shipley predicted.

“But for everything done after ’78, [Huff’s] argument of authorship, and therefore copyright ownership, becomes a lot stronger.”

That depends, he said, on Huff being able to establish that her father-in-law and late husband were independent contractors, he said.

The question of copyright on photos isn’t uncommon, said Robert Steinbuch, a professor of law at the University of Arkansas at Little Rock’s Bowen School of Law.

“It all ultimately comes down to what the agreement is,” he said.

But if neither side can prove what the agreement was, then both sides will argue that the “default rules favor them in terms of allocating that copyright,” Steinbuch said.

The default rules, though, usually favor the photographer, he said.

Wal-Mart will have to prove that the rights to the work were transferred to it, Steinbuch said.

Hargrove, Wal-Mart’s spokesman, said the company “tried hard to resolve this without involving the courts. We never wanted the issue to reach this point.”

A trial date hasn’t been set yet.



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