Free for a Fee

By Eric Goldman

Wolk v. Kodak Imaging Network, Inc., 2012 WL 11270 (S.D.N.Y. Jan. 3, 2012). Prior blog post on this case.

Wolk is an artist. Users uploaded images of Wolk’s work to Photobucket (a UGC photo-sharing site). Photobucket, in turn, had a revenue-sharing agreement with Kodak Imaging that allowed users to print the images via Kodak (i.e., Kodak did “photofinishing”).

Photofinishing Liability

The court says that Kodak Imaging wasn’t directly liable for printing the images (Wolk didn’t allege secondary infringement). The court observes that “reproduction, display or transmission of the Plaintiff’s images by or through the KODAK Gallery website is an automated process with no human intervention by any employee of the Kodak Defendants.” Thus, because its entire system was automated, Kodak didn’t act volitionally and thus avoids the strict liability standards of direct copyright infringement.

This ruling is unexpected because it’s been conventional wisdom for many years that photofinishers were in fact directly liable for their print jobs. Perhaps that’s because humans were always involved in the photofinishing process during that time, as opposed to now where the process from photo upload to mailing of items can be completely automated. Whatever the case, this ruling has to be encouraging for other automated photofinishers (whether they print photos or other items), such as CafePress or Zazzle. Then again, perhaps the copyright plaintiffs will pursue them under secondary infringement doctrines, which Wolk didn’t do.

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