Copyright - Pros only thanks.......?

Question

so i answered a question about copyright - i been in the business a while so make a point of knowing the laws affecting my trade.


i answered if the photographer is commissioned to make the image the client owns it, if the fotog does it off their on back they own the work.

two people were photoed on a boat then sold a print, who owns the copyright? i answered unless the people signed a model realease then the image can not be sold as theres no rights to sell.

dont really make sence i know but thats the gust isnt it?

a hobbiest rubished me said there is a copyright the fotog owns it? then said he aint a laywer and dont ask things on answers as people dont know what they are talking about?

now im ready to be humbled here - was i wrong?

is it right for some fool to rubish me then admit they dont know what they are talking about?

yeah yeah tell me to calm down, thats cool, but really whats your angle on the walk up shots rights?

many thanks in advance

that first answer is an example of stupidity and talking about something they know nothing off

the next two are great answers, many thanks guys!!

Bizhead, shame your guessing,

and your right the guy is a tosser, thanks heaps

pbi

yes it is my second langauge, so im sorry about that,

as far as not using this forum cause i have only been using this langauge for a few years and my English isnt great why dont you be more positive and say great you share your knowledge here even though its extremely difficult for you some times - what are you KKK? you heard of race relations, peace love and goodwill to all man not depending on there Latin chinesse or English?

if you ever venture overseas be grateful people tolerate you not speaking their langauge.

you say im confusing have you read your answer?

The answer is in DR Sams answer in one sentence.

a

thanks Doug you put it how I wanted to.

my understanding (English not as good as yours - you proberly smarter than me also) is exactly how you put it, the details you give are exactly what i believe and have worked with in many countries.

Thanks alot Doug

Answer 1

First of all you weren't wrong. However, there are exceptions to the rule about the people on the boat which some fine-art photographers get away with citing "fair use" in lawsuits, a good example would be the photography of Diane Arbus, in particular her candid shots of people on the street. However, "fair use" should be used with extreme caution, as it is really subject to interpretation, and local right to privacy laws may trump this particular law.
However, In the case of this being a commercial photo shoot where the image is used for monetary gain, then like you said if a model release was not signed you are in a world of trouble in terms of who owns the photo, and whom can profit from it.
So anyhow in terms of US copyright law as well as Japanese copyright law(the country of which I am currently residing in) Who owns the copyright is based upon the terms of the contract or in some cases whomever it is that you employed under. Lets take for example the FSA photographers of the 1930's and in particular the photographer Dorothea Lange. If you go to the Library of congress you can actually get a "real" print of one of the most famous photos ever taken " migrant mother" all of this is done without consent of the estate of Dorothea Lange. Why? Well part of working for the FSA in terms of the employment contract was that the photographer relinquishes all rights to any photos they take while employed under the federal governments farms securities administration. So basically the Federal government can do whatever it chooses with the image, even going so far as to charge a meer $10 for an original print of a Dorothea Lange photograph(at least that is what I was charged way back when, and it is a real silver gelatin print).
Of course there are other ways a photographer can relinquish ownership of their photographs. One can relinquish their right to a photograph by simply stating in the terms of the job contract that they relinquish all ownership of the image. Some clients will personally ask for this but rarely should this ever be done unless you have taken serious thought as to the potential value of the image weighed against the immediate economic benefeit of relinquishing your rights.

Answer 2

I agree with PBIPhotoArtist. You are confusing ownership, copyright and publication. While this might vary slightly from country to country, the general position is:

a. ownership (the media) - the photographer owns the media on which the image is captured, except when they are an employee or a contract transfers the media to a client.

b. copyright (the image) - this will vary, and may be owned by the photographer, an employer, or a person who has commissioned work from the photographer. If it is not to be the photographer, then this needs to be clearly specified in either an employment contract or conditions of engagement. If there are no explicit arrangements, the photographer can legitimately claim the copyright was not sold.

c. publication - if an image is to be published, it is the responsibility of the publisher to establish that the individuals could reasonably have expected the image would have been used for publication. The safest way of doing this is for the photographer to present a signed model release. Technically, the risk is with the publisher, but clearly they are unlikely to purchase images where there is a risk that they cannot be used. So the usual pattern is for the photographer to obtain the model release.

Answer 3

Against my better judgment, I feel the need to jump in and defend myself.

No, I'm not a pro, however this is an issue very near and dear to my heart and which I've studied a fair amount.

First of all, in my original response, I stated "the internet is really a bad place for legal advice, and I'm not a lawyer."

The law is complex, multifaceted, and difficult to understand. This is why lawyers spend several years in school learning it. It remains true-the best place for legal advice is a qualified local attorney, and not some random person on the internet.

Second of all, the asker of the question made the statement "its only copyrighted if they were 1.paid or 2. were models for a commisioned shot."

To this I responded "The previous response incorrect in saying that in order for it to be copyrighted, the photographer had to pay them as models. Any time a photographer creates an image, it is copyright, regardless of the relationship between the photographer and the client. The only exception to this would be a contractual arrangement which stipulates that someone other than the photographer owns the copyright."

Please note the plethora of responses to this question which agreed with what I stated. Unless there is a contract in place which transfers the copyright, the person who created the image owns the copyright.

It greatly disturbs me that Mr. Antoni M. took such offense at my (politely) pointing out that he was incorrect in this instance. As multiple responses, most of which Antoni M. have agreed with, have pointed out, I am not incorrect, nor did I in any way intend to "rubish" him.

Answer 4

I've worked in portrait studios for a few years, and copyright was always a huge issue for us. What it boiled down to, and what I tend to stand by when doing my independent work, is that whoever took the photo owns the rights to the original image. The image can't be recreated for public display without consent of the model (or model's guardian), but it can be used privately, as in, portfolio building, or internal display. In the same right, the purchaser of said photo cannot make his own copies without obtaining a copyright release for the exact amount of pictures he plans to copy, or just buying the negatives or rights to the original images.

But everyone's got a scanner these days, so that kind of just goes out the window.

Answer 5

I am not a professional, so please do not read any further.

In the USA, a copyright is automatically held by whoever created whatever was created from the moment that it was created. If you grant rites to someone else, such as the person who hired you to do a certain job, they can use your work. In fact, they can claim the copyright if you created the work while employed by or under contract with a third party. The US Copyright office says, "In the case of works made for hire, the employer and not the employee is considered to be the author," and can claim the copyright.

It would be worth going to http://www.copyright.gov/circs/circ1.html#wccc and clicking on "Who Can Claim Copyright," as this gets rather tricky and detailed.

Can they sell it without your permission? Let a pro tell you that. It is my opinion that they can USE it in reports or promotions, etc., but that they can not ethically sell it without your permission. The law reads as if they can, though, so this should be stipulated in a written agreement. Most of the time, this would not be an issue. Okay, if it was the next Farah Fawcett poster, I guess the model would want to sell it. You would have to have a model release to sell it or she would have to have your permission to sell it (in my opinion) unnless she paid you specifically to take her photos to be used for resale, so these things have to be worked out. You can still own the copyright and give permission to the other party to use your work, even if you were not paid. It's hardly worth mentioning, but I have several photos on my city's website. I own the photos and they are using them with my permission. I do not fear that they will use them inappropriately, because I am the webmaster's dentist and I can hurt him if he screws me.

If you want to ENFORCE copyright ownership, you would be smart to register the piece in question with the US Copyright Office. All this really amounts to is thrid party verification of the date of creation. If you want to sue someone, it is easier to produce a copy of your copyright registration to prove that the work is yours and it was done on such-and-such a date than it is to prove this by other means. In photography, it used to be pretty easy to prove ownership with possession of the negative. In the digital world, it is much easier for someone to steal your work. I like to use Flickr, for instance, but I realize that I might get ripped off. If I made a living this way, I doubt I'd let people view my work full-sized. As it is, much of what I do there is for illustrative purposes to support an answer over here and if I disallow downloading the original size, people can only view about a 500 pixel wide image and this would not show the differences in sensor resolution or how crappy digital zoom is, etc.

I've had experience in registering a copyright for a book and for music, where thievery would be harder to prove without the copyright. Who's to say I didn't steal from the person who actually stole from me? This is much harder to prove.

See http://www.copyright.gov/ for some thoughts on this. WOW! I see the fee has gone up to $45! I paid $10 not that long ago.

Didn't I tell you to ignore my answer? Go on now.

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ADDITIONAL ANSWER
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Copyright issues are something that I always caution young photogrphers to be careful with when they are considering whether or not to enter a contest. Some let you keep the copyright and give them the right to use your photo in publications or promotions. Some claim the winner's copyright and state that they will be able to use the image in promotions OR FOR PROFIT. This simply is not right, in my opinion. It's usually spelled out in a 3-point font that nobody bothers to read, but by entering the contest they agree to those terms.

Please also see my additional comments under "Source" below.

And thank you for not being offended by my attempt at an answer, even though I am not a profesional photographer, the way some people (person) was last week.

Answer 6

Copyright and right to sell are two completely different things and need to be addressed separately. Your examples mix them up.

The photographer owns the copyright to ANY photo he/she takes in the USA, by default, without doing anything. Registering the copyright with the US Library of Congress gains the photographer the right to recover punitive damages and legal fees in any successful legal action.

Being under contract to take photos does not mean the photographer loses the copyright except in 'photography for hire' situations where the contract specifically gives the copyright to the other party. This is fairly rare these days except for staff photographers. When I even bother to respond to 'photography for hire' offers I quote 10 times my normal fee due to the loss of potential future income from the photos. Most clients back off the 'photography for hire' approach when they realize that no professional photographer will do it for a normal fee. Most clients are satisfied with a one-year exclusive rights arrangement, which is much cheaper for them.

In your boat example the photographer owns the copyright, but can't sell the photo for commercial gain without the permission of the people he/she photographed, except for news or educational purposes. Newspapers, news magazines, etc. do not need model releases and photographers do not need model releases for photos sold to them.

Part of the reason you get bad marks is that your sentence structure and grammar are really bad and people have trouble figuring out what you are trying to say. I understand that English is probably not your native language, but if you are going to participate in an English language discussion group you should make a better attempt to communicate so people can understand you.

Answer 7

My understanding of the law is that if the two persons being photographed could prove it was them and that they had not signed a release, then the photographer cannot legally sell it or claim a copyright. I think many persons do often abuse this law or take it for granted, and I've heard it is really becoming a hot issue with the popularity of digital cameras.

Regarding the way you were treated, the other person sounds like the type that knows it all and is dismissive toward anyone who disagrees with him. I've met several like that since I've been answering questions. Don't let him spoil your enjoyment.

Answer 8

Hummm…….good question…..now I know im not no pro that’s for sure and I know that prob. Makes my opinion less valid in your eyes, but honestly not just telling you this cuz you want to hear it, but I think your right…….I was reading a book, never got a chance to finish it, but form what I remember those are the same exact laws on the copyright laws, so you were right, its okay don’t be mad or discouraged from yahoo answers, there are some pros on here who really know what they are talking about, most likely, a person who is arrogant and rude, really has no clue about what there talking about, it’s the humble/ constructive people who you should pay attention to. so like you stated, “chill” lol but yeah I hope I helped sort of…..

Answer 9

it's illegal whether or not you're gonna using for personal use. wouldn't suggest using it, b/c every time you do, the artist you're downloading loses money. someone has to pay for the music, and when you download over buying a CD or using iTunes or another music buying site, they get docked money. A certain percentage of the money used to buy the music is sent to the artist/record company, while the rest goes to the store/site. I can't remember the specific percentage, but it's around 40-60% of the revenue from the music. Again, I'd highly suggest not using limewire, or other illegal sites.

Answer 10

I don't believe there's any copyright issues unless the person capturing the picture, whether it's an illustration, painting or photograph, purchased copyrights on the image.

The model releases that are filled out are to protect you, the artist, capturing the image, so that if you so choose to profit from their likeness, the models cannot ask you for any further money than what you have paid them for. I don't think having model releases equals copyrighted material.

I answered that question too. That guy was a dork. Don't let a dork get to you.