The advent of digital photography and editing has created a Cinderella story for the family snapshot. Ugly, off-center photos can be cleaned up, cropped, or retaken, with only the most professional-looking being sent off to the printer.
But therein lies the hitch. Some photofinishers, worried about violating copyright law, are refusing to print any pictures that look too polished. The evidence is anecdotal - much of it from Internet discussion boards recording the complaints of a small but steady flow of people who have been turned away at the photocounter or by online printshops.
Every photo is automatically protected by copyright law, and without negatives, it's harder to determine who the owner is. Clerks, who have guidelines but often limited training, have to try to judge what looks professional, lest the store get sued by a photographer whose livelihood is on the line.
"There is no way that a clerk at a photofinisher can determine whether something is copyrighted or not based on its professionalism," says Frank Romano, professor emeritus at the School of Print Media, Rochester Institute of Technology. "It's like Justice Potter [Stewart] who said [he couldn't] define pornography, 'but I know it when I see it.' "
A new mother who uploaded pictures of her baby to the Ofoto site got a message back that her print order had been canceled "because it appears that your order contains one of the following: Professional images...," according to one discussion-board posting. Another woman was turned down at Target when she tried to copy her stepson's second- grade class photo. The clerk said she didn't own the copyright, her husband wrote in another posting.
Professional photographers, on the other hand, are thrilled when they have trouble getting work printed, says Stephen Morris, manager of copyright and government affairs at Professional Photographers of America (PPA) in Atlanta, Ga. "They say, hey, they're actually trying to enforce the law."
The law, however, is scrambling to keep pace with the rapid evolution of digital technology and the intellectual property it spawns.
In the fight to protect their work, professional photographers are not as well organized, or deep-pocketed, as the movie and music industries.
"With photographers, you are usually dealing with one- or two-person operations.... These are not people who can go and sue just to prove a point," Mr. Morris says.
The PPA did sue Kmart Corp. back in 1999 for violating copyright laws. The company settled in 2000 for $100,000 and agreed to institute stricter rules. That lawsuit has made photofinishers more cautious - and more likely to turn down a print job that they're unsure about rather than risk infringing copyright.
Amateur photographers who vent their frustration on discussion boards often reveal their own confusion about copyright law, however. Every photo, whether taken by a professional or an amateur, is copyrighted. So the clerk at the Target store who refused to make a copy of the second-grader's class photo was technically correct. The stepmother didn't own the copyright.
One way to avoid trouble is to bring in written permission from the owner of the photo. But where copyright law currently falls down is with "orphan works" - photos whose owner is unknown or can't be located. If you can't track down the photographer, there is no exemption under the law to make a copy. The US Copyright Office is seeking comments about how to solve this problem.
Educating the public about copyright is a new mission of the photofinishers' trade group, Photo Marketing Association (PMA) in Jackson, Mich. The group is developing handouts and counter display cards that explain how copyright works, says Steve Noble, who oversees regulatory activity at PMA. In collaboration with the PPA, it is also revising decade-old guidelines for photofinishers.
Professor Romano says responsibility should lie with the professional photographers, who need to include a digital watermark or some other identifier on their work that shows it is copyrighted.
But that might not be enough to protect photographers' work from illegal copying. The PPA does secret-shopper expeditions, Morris says. When stores are presented with a clearly marked work, they're refusing to make a copy only about three-quarters of the time, he says. "We know that we're not going to cut out all of the copying. We don't think that's a realistic expectation. Our goal is to minimize it."
Photographers are responding by changing the way they charge for work, Morris adds. Instead of charging the traditional low upfront fee and making money on the prints, many have shifted to loading the costs up at the front end, offering package pricing, or simply working for hire and releasing the copyright altogether.