So….before I give you the really well thought out conclusion that Gary sent me a few days after his first email, I thought I would share my initial answer to him and a few of the comments …..
My initial response ……. Wow interesting question! I think you are probably safe assuming he won’t push for copyright. I think I’d call it a verbal contract giving you ownership when he agreed to take it with your equipment. But a lawyer could argue the other side. I think I’ll throw this up on the copyright blog after new years and see what the feedback is. Do you mind if I quote from your email?
Genealogy Lady commented “That sounds like a really tough issue especially since the photographer is unknown and honestly probably wouldn’t even remember that he took the picture in the first place.” and others sending comments privately echoed the same sentiment, with a few adding in my thought that “lawyers” might argue diffenently.
A now for Gary’s thoughts…………More from Las Vegas. I must admit that my copyright question has me pondering more each day. Here are 2 additional thoughts on my question.
1 – This past holiday season I used the photo in question on my Christmas cards. Like my others, I used an on-line photo processing service. Part of their ordering process is to affirm that “…I acknowledge that I own the copyright to the images in my order… . I clicked “Yes”. In total, 3 of the 5 photos I used on the card were taken by someone else, using my camera. If the mere act of snapping someone’s photo on their camera constitutes owning the copyright, then hundreds of thousands of Americans violated copyright law this year.
2 – I propose that I own the copyright for my photo because of the following facts: my wife decided where the photographer would stand, and where the subjects would stand; she adjusted the camera’s zoom lens to the desired setting, and adjusted other settings within the camera. The “unknown” photographer, simply held the camera at eye level, framed the photo as previously set up, and pressed the shutter button. In fact, the first photo he took was unacceptable to us, and we asked him to take a second photo. In my mind, my wife contributed 90% of the creativity of the photo, while the “button presser” contributed only 10%. If we had had a tripod with us, we could have taken the same photo without his assistance!
Gary has sold me. I vote that he owns his pictures. Did he convince you? Take the poll on the right hand side of this blog.
csgacopyright 
Though I agree with your conclusion, I would take another path to reach it. In my mind, because the photograph-taker in this case had no personal motivation to take the photo, and did it only upon request, it might be considered that the request was a verbal contract to produce a “work for hire.” In general, it is my understanding that “works for hire” are the copyright of the employer, not the button-pusher.
Of course, I am not an copyright lawyer, so I am sure that there are intricacies concerning works for hire that I do not know about. This is just my initial reaction.
I agree with the argument that since the camera owner had set up the camera for the shot, he/she should own the copyright. This very thing happened to me last week at SLIG. I am a member of two genealogical societies who also had members attending SLIG. Twice, group photos were taken of our groups with my camera. I set up the camera and all the person who took the photo had to do was press the shutter release. I should hold the copyright. The blog publisher who published one of the photos wanted to know who took the photo. Sometimes we don’t even know the person–you know that nice stranger who offered to take your photo with your camera.