Without knowing more facts about how these cameras were placed, and how the filming was conducted, but assuming that there was some miniscule modicum of selection and arrangement on the part of the photographer, I think its a tough case to make the works cannot sustain copyright… And while there is a plausible case for joint ownership of the works, I would think absent some sort of agreement between the parties, where is the intent to merge their work into a unitary whole? Is there enough circumstantial evidence in the behavior of the parties to make this showing of intent?

The photographer(s) were working for the production company, and the creation of these works was presumably within the scope of their employment. Wouldn’t this likely make the production company the copyright holder (even absent a written agreement between the photographer(s) and the company?)

1. What about trade secret law? Wal-Mart can quite easily argue that these meetings were secret, have value to the company that can be exploited to its detriment if generally known, etc. The film company was an agent, and even on a handshake the 30 year relationship without any divulgence shows that the reasonable expectations were that these films would not be made public.

2. The audiovisual analysis/cases describe above don’t really talk about the photographer. Effects Associates, for example, was about special effects footage where the creative work was done by the plaintiff. Same with Reid. Here, the photographer is providing a tiny amount of the audiovisual work – the filming. How do we know there was enough creativity in the fixation to make the photographer an “author?” What if the camera was put on a tripod and started? These are important questions. See, e.g.
Easter Seal Soc. for Crippled Children & Adults, Inc. v. Playboy Enterprises, 815 F.2d 323, 337 (5th Cir. 1987).

3. Indeed, under the analysis above, the individual camera operator – not the company – might very well be the “co-author.” It would depend on the agreements between camera operator and the company.

4. Wasn’t ownership different pre-1978? That might be an issue for the early tapes – Nimmer (5.03) cites a bunch of cases that says the default pre-1978 is that the commissioning party owns the audiovisual work.

5. Even if the photographer owns the copyright agreement, I have to believe that the handshake agreement was “you film us and give us the media” in which case the photographer would not be entitled to own the media even if the copyright is owned. That might limit what Wal-Mart can do with it, but that doesn’t mean that the photographer can do what he wants with the media.

I can still envision all kinds of claims that could be raised depending on how the material is used (from tortious interference with contractual relationships to possibly defamation based on omission, or even possibly business disparagement, etc) But as far as the copyright is concerned, it seems likely that Walmart is just out of luck.