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

Both Wal-Mart Stores Inc. of Bentonville and Helen Huff of Fayetteville can agree that her husband, David Huff, and his father, Robert Huff, both now deceased, took dozens of photos of the retailer’s founder, Sam Walton, and his family.

But from there, the facts get murky. Neither side can agree on who owns the photos.

Wal-Mart has sued Huff and Bob’s Studio of Photography, her father-in-law and husband’s business. The company claims it owns the rights to the Walton photos and wants them back. Huff fired back with a counterclaim in which she asserts ownership of the copyrights to the work.

Both sides want U.S. District Judge Timothy Brooks to decide who has the rights to the pictures.

Wal-Mart said in the lawsuit that

Bob’s Studio and Huff have six or more boxes of negatives, proofs and more than 200 photos, including photos of Wal-Mart’s first board members, Walton’s children and his parents. Some of the photos would be displayed in the Wal-Mart museum, the lawsuit said.

“As you can imagine, many of the photos go back many years and commemorate the history, heritage and culture of our company,” said Wal-Mart spokesman Randy Hargrove. “We believe that some of the photos that Bob’s Studio has belong to Wal-Mart. All we want is for the court to make it clear who rightfully owns these photographs.”

In her court filings, Huff said that from about 1950 to about 1994, Robert and David Huff were independent contractors hired by the Walton family to snap photos. Robert “Bob” Huff died in 1990. Helen Huff said she received the copyrights to the photos after her husband, David, died in 2009.

“The Huffs provided a copyright notice to the Walton family notifying them that the Huffs, as the authors of the photographs, owned the ‘exclusive right to reproduce [the] photographs,’” she said in her response.

Huff is represented by the Fayetteville law firm of Everett Wales & Comstock. Wal-Mart’s lawyers are from the Rogers’ office of the Mitchell Williams Selig Gates & Woodyard PLLC firm.

Factors

To decide the case, the judge is going to look at how the Huffs were retained by the Waltons, said David Shipley, a law professor who teaches copyright law at the University of Georgia School of Law in Athens. Exactly when the photos were taken will also be relevant in the case.

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.