Over 100 years? Copyright not an issue. It's 50-year-old pics that are part of the problem, ones where the photographer is long gone.
And for WalMart or a professional (I never go to WalMart. For anything.), the law is the same: they need permission from the copyright owner to create copies. Including retouched copies. The copyright owner is the photographer, unless a contract exists which states otherwise.
Most photo-retouching studios are currently fairly oblivious or apathetic towards this; they retouch what you bring them. But if that studio gets an injunction thrown at them for making copies of photos that someone wants to claim... they'll stop offering the service without, at the least, signed waivers claiming that the person bringing in the photos has the legal right to make copies.
Most professionals will be discrete
Saying, "most professionals will break the law as long as we all pretend nothing shady is going in," is not a point against orphan-works legislation. The attitude, "sure, it's illegal, but nobody cares" creates a delightful slippery slope.
Re: How many valid needs are there for orphaned works?
And for WalMart or a professional (I never go to WalMart. For anything.), the law is the same: they need permission from the copyright owner to create copies. Including retouched copies. The copyright owner is the photographer, unless a contract exists which states otherwise.
Most photo-retouching studios are currently fairly oblivious or apathetic towards this; they retouch what you bring them. But if that studio gets an injunction thrown at them for making copies of photos that someone wants to claim... they'll stop offering the service without, at the least, signed waivers claiming that the person bringing in the photos has the legal right to make copies.
Most professionals will be discrete
Saying, "most professionals will break the law as long as we all pretend nothing shady is going in," is not a point against orphan-works legislation. The attitude, "sure, it's illegal, but nobody cares" creates a delightful slippery slope.