The Case of the Too-Good Photograph

My sarcasm gland was draining cynicine (that’s the serum that causes sarcastic people to descend into that fugue state where everything they say is tinged with contempt and derision; it’s the substance that is referred to when someone says a phrase was “dripping” with sarcasm) into my brain. “No, I have a 500 GB hard drive and a 2 GB memory card: My hard drive is my backup.” Mentally, I added, “You incompetent, judgmental grub.” After a second’s thought I added, “I can show you the picture on my computer.” My laptop was sitting in my bag out in the car. She shook her head.

“I’m sorry, you’ll have to take this up with my manager.”

“Okay fine.”

“He’ll be in tomorrow at eight.”

I sighed. “So he’s not here now.”

She shook her head again, firmly. “Let me give you his number.”

“Listen,” I began, “I’m the photographer here.”

She interrupted, “But it looks professional!”

Now, I could have been flattered. In retrospect, I kinda guess I am, but my annoyance was overpowering that. In the age of relatively cheap digital camera equipment, post-processing software that is affordable and often bundled with PC hardware, a wealth of information online about professional photography technique and no cost barrier to snapping away until you get the one good shot in dozens, how does one not come up with a picture that could perhaps be professional? Who gauges this anyway? Some random service clerk at a drugstore? Would they know professional photography from a set of photocopied buttcheeks? The clerk, who was also getting annoyed at this point, continued, “Look, we could get sued for thousands of dollars if we sold this to you and the copyright belonged to someone else. I could lose my job and frankly, I’m not doing that for you.” It was her turn to pause. “For the record, I believe you, but my hands are tied.”

I drew a deep breath and implored Callie to stop systematically dismantling a display shelf. She was remarkably patient and well-behaved throughout the entire exchange, which is more than I could say for myself.

“Okay,” I said, “Here’s the problem: I took this picture and you won’t sell the prints to me. But normally you wouldn’t be talking to me, you’d be talking to my wife. And she didn’t actually take the picture. So if she comes down here tomorrow morning and asks for our pictures from your manager, is there any way she’s going to be successful?”

The clerk looked me square in the face with cold eyes. “You’d have to discuss that with my manager.”

I moistened my lips and stopped Callie from opening several expensive “value” packs of AA batteries. “Alright, I guess I’ll leave without my own pictures then.” Atta boy! That showed her!

“Wait,” she said without a hint of enthusiasm. “Don’t you want the phone number?”

“Sure,” I said. For all the good I expected of it. She scrawled a number and name on the back of a discarded receipt and handed it to me. “He’ll be in at eight.”

I thanked her without sincerity and collected Callie before she could tip over an out of order self-serve photo printing kiosk. As I began to walk away I paused, remembering something. I made a few gestures on my phone, pulled up a website and called her back before she disappeared into the back room. “Look,” I said feeling this was my last chance, “this is my Flickr account. See? This is the same picture, and this is my account,” I clicked a link to show my profile page, featuring a picture of myself from a few years ago. Close enough, I hoped. She nodded but tempered it with a shrug.

“I’m sorry. Like I said, I believe you, but I just can’t help you.”

“Yeah,” I said pointedly.

Afterward I was pretty heated about the whole thing. I posted a short version of the story on Twitter and several people responded, appalled. A couple of people complimented the photo. Dr. Mac said he could understand how it would look like a studio shot requiring a release. Later, when I recounted the tale to Nik I ranted that it didn’t even make sense: If I had stolen someone’s copyrighted photo (which I didn’t, since I own the copyright) and was intending to make money off of it, isn’t that my liability for publishing copyrighted content and Galwreens is just a middleman? I mean, do we really want drugstore employees—no disrespect intended, my point is they are not trained in the incomprehensible warren of copyright law or they wouldn’t be working there—to be the gatekeepers of ownership rights?

This morning I did a little bit of research and it turns out that… well, I can’t actually tell you how it turns out. The rabbit-hole is deeper than I imagined and I already had a pretty good clue about how messy copyright laws are. The bottom line, from what I can gather, is that Galwreens and other places I haven’t dealt with like Wal-Mart are engaging in a bit of excessive CYA with their “don’t sell it without a release if it looks professional.” Despite a mention I found in a thread about a previous lawsuit leveled at Wal-Mart, I couldn’t actually find mention of such a case (though it could be because there is a lot more reporting on a case in which a family was reported for child endangerment when trying to get the ubiquitous “bathtub” photos printed, and all my search terms seemed to be too common with those stories). Some people made a reasonable case that reproducing copyrighted works is illegal and could open a door for lawsuits against photo labs who do so unknowingly, but again, the fear ought to be low there especially for photographs since Kinko’s entire business model operates on the principle that customers are responsible for what they duplicate, not the service provider who enables it. I doubt you’d have an easy time arguing that it’s less likely someone would violate copyright laws at Kinko’s than at Galwreens or Target’s photo kiosk.

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