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

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

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 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.

Reader Comments (rss)

(Flattened / Threaded)

  1. icon
    Ryan (profile), Apr 23rd, 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.

    reply to this | link to this | view in thread ]

  2. icon
    aguywhoneedstenbucks (profile), Apr 23rd, 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.

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, Apr 23rd, 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.

    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, Apr 23rd, 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.

    reply to this | link to this | view in thread ]

  5. identicon
    vyvyan, Apr 23rd, 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 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.

    reply to this | link to this | view in thread ]

  6. icon
    Big_Mike (profile), Apr 23rd, 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.

    reply to this | link to this | view in thread ]

  7. identicon
    NAMELESS.ONE, Apr 23rd, 2010 @ 12:00pm


    problem is marriage you get that 50/50 thng going on
    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 )

    reply to this | link to this | view in thread ]

  8. identicon
    Danny, Apr 23rd, 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.

    reply to this | link to this | view in thread ]

  9. identicon
    Nancy Nally, Apr 23rd, 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?

    reply to this | link to this | view in thread ]

  10. identicon
    Comboman, Apr 23rd, 2010 @ 12:18pm


    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).

    reply to this | link to this | view in thread ]

  11. identicon
    Andrea McLaughlin, Apr 23rd, 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.

    reply to this | link to this | view in thread ]

  12. icon
    BearGriz72 (profile), Apr 23rd, 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?

    reply to this | link to this | view in thread ]

  13. icon
    Hephaestus (profile), Apr 23rd, 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.

    reply to this | link to this | view in thread ]

  14. identicon
    Glaze, Apr 23rd, 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...

    reply to this | link to this | view in thread ]

  15. identicon
    Ciscogirl217, Apr 23rd, 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.

    reply to this | link to this | view in thread ]

  16. identicon
    Anonymous Coward, Apr 23rd, 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.

    reply to this | link to this | view in thread ]

  17. identicon
    ToasterPoster, Apr 23rd, 2010 @ 7:10pm


    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.

    reply to this | link to this | view in thread ]

  18. identicon
    Anonymous Coward, Apr 24th, 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.

    reply to this | link to this | view in thread ]

  19. identicon
    Anonymous Coward, Apr 25th, 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.

    reply to this | link to this | view in thread ]

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