The San Diego Union Tribune reports that Wal-Mart refuses to print photos that look “too professional” without a written release from the photographer because of concerns about copyright infringement. Digital photos can look great, but some labs won’t print those that appear too professional:
“Part of what we deal with is people who are erring on the side of caution, because you really don’t know what the copyright situation is with the photographer,” Noble said. “Nobody really wants to get sued or have their name splashed that they’re violating copyright, so processors are taking a more conservative approach.”
Because Wal-Mart is more concerned with avoiding any potential lawsuit than with serving its customers, these customers are prevented from extracting maximum value from their creativity. Ofoto has a similar policy and will not print “Professional images” without a release.
Ernest Miller asks Does It Make Sense to Hold WalMart Responsible for Reproducing Photos its Customers Want Copied?
But this type of risk aversion is common in other consumer-oriented media and also affects the relations between publishers and creators.
The creators of Star Wars Galaxies removed a feature that would allow users to play original music in the Mos Eisley Cantina, because of the fear that users might choose to play copyrighted songs and make LucasArts liable. Wired News reports: Music Muffled in Star Wars Game
Lawyers at Sony Online Entertainment and LucasArts envision a legal nightmare if musicians were to re-create music copyrighted in the physical world.
“If we allowed someone to play anything they want, they could play a song by Madonna and then we’d have licensing issues,” said Julio Torres, a producer for Star Wars Galaxies at LucasArts. “We don’t want to give them the option to try, because the bottom line is, if we open that gate, they will go through it,” he said.
Even before Bridgeport Music v. Dimension Films, the common practice in the recording industry was to clear any recognizable sample, regardless of whether the use might be allowed as de minimis taking or as fair use under copyright law.This ad hoc licensing regime is inefficient, time consuming and expensive. The sample clearance budget for a major label hip-hop album typically accounts for $60,000 of a $300,000 recording budget. [See Josh Norek, Comment: “You Can’t Sing without the Bling”: The Toll of Excessive Sample License Fees on Creativity in Hip-Hop Music and the Need for a Compulsory Sound Recording Sample License System 11 UCLA ENT. L. REV. 83, 89 (2004).]
In Freedom of Expression, Kembrew McLeod offers examples from the publishing world about risk averse publishers, such as those who require authors to seek permission before quoting more than two lines worth of song lyrics.
So, common practice falls far within the boundaries set by the courts. Publishers tend to be exceedingly risk averse– generally far more than may be necessary given the current state of copyright law. While court decisions about fair use may reflect the vague boundaries of the law, actual practice generally falls far within the chewy center, which results in expensive transaction costs and other inefficiencies, frustrated creators, and final products that may not fully reflect the original creator’s intent.
