Could Copyright Have Made A Difference In Custody Battle Over Kids Photos?

from the taker-of-the-photos... dept

Fri, Apr 23rd 2010 11:23am — Mike Masnick

The Grumpy Hacker writes in to let us know of a story about a couple in the midst of a divorce who went to court over who gets to own the family's photographs (found PopPhoto.com). Over the 21-year marriage, apparently, the family amassed 7,000 photos, and part of the dispute was over who got to keep them. The judge made the following decision:

The husband gets 75% of the photos or three out of every four on each page of 75 photo albums, DeStefano wrote. His wife gets what's left.

"The court finds that the husband was intricately involved with taking, compiling and cataloging the thousands of photos at issue," DeStefano wrote in a case in which the spouses were identified only by initials.

"He equated his collecting of photographs of family with the hobby of collecting rare books."

If you're wondering why not just make copies, apparently the couple had already paid over $2,000 to scan all the images and have them put onto a CD, but both sides were "unhappy with the quality and demanded originals." It seems like they could have just gone back to whoever scanned the images and demanded higher quality scans, but that's neither here nor there.

What struck me about this is you sort of wonder why no one brought up copyright. Technically, whoever took the photos most likely owned the copyright on those photos, and could claim that the photos were his or her right to own. This is one of the more annoying parts of copyright law, but whoever takes the photo often has a strong claim on the copyright, even if the camera is someone else's (remember that the next time you ask your friend -- or, I guess, spouse -- to take a photo for you). So, I would imagine that if the guy took most of the photos, he could just claim copyright on them and keep them from his ex-wife. In the meantime, though, perhaps we should be thankful that copyright was not used in this particular case -- even if the result seems a little silly. There are services that can duplicate photos (not just scan them), and it seems like this whole situation could have been solved without involving a court at all.

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Filed Under: copyright, divorce, photography

19 Comments

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Ryan (profile), 23 Apr 2010 @ 10:51am

Community Property
Wouldn't Community Property (ok depends on state I know) basically make it irrelevant who took the picture? They both owned it while married and thus had to divide both the copyright and the physical prints.
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aguywhoneedstenbucks (profile), 23 Apr 2010 @ 11:27am

Re: Community Property
It's in the New York Daily News. They're from Long Island. If I had to guess, I'd would assume that means they are living in New York, although they may be living in Long Island Village waterfront community in Port Isabel, TX (a Community Property state) and it's just a slow news day in New York. Assuming I'm right, New York is an Equitable Distribution state.
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Anonymous Coward, 23 Apr 2010 @ 11:47am

Copyright would be of no help since the "property" was acquired during the marriage and is thus deemed marital property.

Being an "equitable distribution" state, and the property being marital, it is up to the court to decide how best to distribute the property between the soon to be ex's.
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Anonymous Coward, 23 Apr 2010 @ 11:49am

What does copyright have to do with it? He could have asserted copyright ownership over the photos, which would have prevented the wife from making copies of the photographes, but they have nothing to do with ownership of the physical photographs.
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vyvyan, 23 Apr 2010 @ 11:52am

Can't the kid go to court and tell that they took half the photos without his permission. So those photos were, till date, illegally owned. And all the photos where the kid is in objectionable position would constitute, Oh o, child pornography. Now the parents, family friends, CEO to janitor of popphoto.com will all be under federal investigation and will be send to 7000*5 years of prison for heinous crime they have done.

Jeebus, the whole country has gone crazy.
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Big_Mike (profile), 23 Apr 2010 @ 11:53am

It's pictures. Most likely the person who wants them the least is the one pushing to split them up knowing that the other really wants them. Here's the trick, go through them one by one and say I want you can have... The judge made the correct judgment. The one who did all the work will be the one who decides who gets what. Bet the pictures of her are all given to her lol.
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NAMELESS.ONE, 23 Apr 2010 @ 12:00pm

@6
problem is marriage you get that 50/50 thng going on
nd
unless the pics make a set u may have hard time keeping htem entirely intact
and rulings like this are subjective to a judge menaing that just cause one does this you might find 4 doing the opposite
( waves to grammar nazi )
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Danny, 23 Apr 2010 @ 12:07pm

But what about child custody?
Maybe the husband got most of photos because the wife has primary custody or something? If that is the case then I think it makes perfect sense that since he does not have primary custody (and visitation is joke considering the system puts nowhere near as much effort into enforcing it as they child support) he should most of the photos to have something to remember them with.
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Nancy Nally, 23 Apr 2010 @ 12:16pm

Where's the negatives?
Since they had to scan the pictures I assume they were taken on film. So where's the negatives? Please don't tell me they threw them out?
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Comboman, 23 Apr 2010 @ 12:18pm

Re:
That's true. The divorce settlement was over physical property, not copyright. If the judge said they had to split up their DVD collection, the fact that neither of them hold the copyright to those DVDs is immaterial. The photographer (apparently the husband) is still the copyright holder on the photos even if the wife gets to own the physical photographs (just like the professional photographer who takes your wedding photos holds the copyright on them, even if all the physical photos are owned by you).
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Andrea McLaughlin, 23 Apr 2010 @ 12:29pm

Where's the negatives?
No kidding, I too ask Nancy Nally's question: where's the negs? As a photo lab owner I find it difficult to believe that there are NO negatives and NO digital files. I've had lots of experience with families spliting up valuable family archive images and it is rare that all negs/files are gone. More likely, somebody has them and isn't telling.
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BearGriz72 (profile), 23 Apr 2010 @ 12:37pm

@ The Masnick
"not just can them"? ... LOL
Did you mean scan them? Or is using Mason Jars for photo preservation just new technology?
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Hephaestus (profile), 23 Apr 2010 @ 2:04pm

Sometimes ....
Mike sometimes you are such a dork ...

"What struck me about this is you sort of wonder why no one brought up copyright. Technically, whoever took the photos most likely owned the copyright on those photos, and could claim that the photos were his or her right to own."

Now, since you have mentioned this, what will happen is a simple unintended consequence. This will end up in the divorce lawyers arsenal of legal tricks. Making it that much easier for one spouse to hurt the other during divorce proceedings. Not that I mind, its yet another reason for people to rebel against current and future (ACTA, DEB, etc) copyright.
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Glaze, 23 Apr 2010 @ 2:55pm

Re: Re:
Oh this should be interesting... so if the husband owns the copyright on the images, and the wife decides to post one on facebook or what have you, and the husband says NO then we see them back in court with a copyright suit. Should be even more interesting if the husband realizes that she used them without his aknowledgement...
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Ciscogirl217, 23 Apr 2010 @ 6:00pm

While everyone is fighting about who took the pictures and copyrights...they were "family" photos, so one would think that they had children. Typically be passed down, so why not order that neither husband or wife get them, just give them to the kids.
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Anonymous Coward, 23 Apr 2010 @ 6:40pm

sort of a who cares sort of a story. people have messy ugly divorces about all sorts of things from who gets the kids to who keeps the big screen tv. if these people are unable to find acceptable means to share then the court has done its duty. nothing more to see here, another 'sun sets every day' sort of a story. the masnick is losing his touch.
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ToasterPoster, 23 Apr 2010 @ 7:10pm

Re:
I knew you would say something along those lines ... I could almost predict your exact words. You have become tired and lazy, sad to see the repetition has got you down.
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Anonymous Coward, 24 Apr 2010 @ 11:34am

(C)rights are federal they trump state rights, but the photos are still martial property of the economic union (ie marriage) even if one of the members is entitled to the (C).Stronger is that the photos were taken during the time of the marriage, therefore maritial property. Had same issue come up in my divorce, along with patents I had pending. I had all photos, so I made my own scans (def not $2K) & order to gave half to ex. They sit in a box. Instant Judge should have ordered 50/50 split of photos, cost of new duplication if desired absorbed by party desiring copy.
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Anonymous Coward, 25 Apr 2010 @ 9:42am

Re: Sometimes ....
the masnick forgets that even with copyright things would be part of the joint common property of the marriage. then again it isnt like the masnick will be married soon enough to even understand that.
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