OT: A Personal Case of Copyright Infringement
Eric Miller
non-profit organization that holds the race and gave them a couple of CD's
with all the images and specifically gave the organizers permission to use
the photos however they wanted and they didn't even have to give me credit.
They have so far used the photos on their website, graciously crediting me
for work and giving a link to my website. I also posted all the photographs
on my website.
Skip forward a little over two years . . .
Today, I got a call from one of the organizers of the 10K who informed me
that the local newspaper (owned by a national chain of papers) had published
part of one of my photos in their newspaper advertising an insert that is
going to be in this Sunday's edition. I bought a newspaper, which I seldom
read, and sure enough, it's a crop of one of my photos of the race, plain as
day.
I called the newpaper publisher's office and the secretary who answered the
phone courteously and knowingly intimaged to me, "You know, we do cover
those local races." To which I answered, "Ma'am, its my photograph." I was
told that the editor of the responsible department would give me a call. At
that point, I was only seeking an explanation of how the image got into the
paper (I'm pretty sure they downloaded it from my website). Now, most of the
day has passed and I haven't received a call back.
Now, I know its my photo. It's a small town and I even know where the local
newspaper's photographer was at the time that I snapped the photo (she was
at the finish line, two miles away, across town). I traveled around the
course and the photographer for the newspaper stayed at the start/finish
area. So I know that no-one else was even in the right area to have taken
this photo of an identifiable runner.
The question is, what should I do? On the one hand, I really had no profit
motive in taking the photo so I'm not really out anything. On the other
hand, it was never my intention with making these photos available that
someone else would steal them for use for profit. Further, it just sort of
angers me that someone stole my image and published it without my permission
and even more so that its a newspaper that doesn't even cover these sorts of
local events very well and that they are using it to advertise a future
issue of their paper, i.e., not to benefit the organization to which I gave
permission to use images or for any other deserving group.
I'm thinking about writing a demand letter. In any event, now that I've
rambled on, has anyone here had experience with this sort of situation.
BTW: I still have the negative.
Eric Miller
Eric Miller
"Eric Miller" <millerer...@bellsouth.net> wrote in message
news:Mg2qe.73977$6k7....@bignews4.bellsouth.net...
to the local paper to use the image. The guy was pretty perturbed about the
images use since he can't get decent coverage of the event out of the local
paper.
Eric Miller
James Of Tucson
District Attorney?
Alan Browne
<SNP>
> that point, I was only seeking an explanation of how the image got into the
> paper (I'm pretty sure they downloaded it from my website). Now, most of the
> day has passed and I haven't received a call back.
Keep calling once/twice a day. Sometimes people just have things they
need to do before they can call back. Also, people put off replies to
what may be perceived as an adversarial situation.
<SNP>
> The question is, what should I do? On the one hand, I really had no profit
> motive in taking the photo so I'm not really out anything. On the other
> hand, it was never my intention with making these photos available that
> someone else would steal them for use for profit. Further, it just sort of
> angers me that someone stole my image and published it without my permission
> and even more so that its a newspaper that doesn't even cover these sorts of
> local events very well and that they are using it to advertise a future
> issue of their paper, i.e., not to benefit the organization to which I gave
> permission to use images or for any other deserving group.
>
> I'm thinking about writing a demand letter. In any event, now that I've
> rambled on, has anyone here had experience with this sort of situation.
>
> BTW: I still have the negative.
That's 90% of it right there.
Your web page is additional evidence.
Can we see your webpage and the image in question?
I'll give you the whole banana bunch right here as I would proceed.
ROUND I: You've already done what will probably work. But...
If you don't get through or get a return call in a few days, then:
ROUND II:
Simply write them a "Without Prejudice" letter, informing them of the
facts, stating your claim to the image, posession of the negative, image
on website and request fair compensation for it. Include a photocopy of
the image as it appeared in the paper. State a price that's higher than
you believe they will pay and accept any reasonable amount less than
that. Acquire further copies of that edition, if you can for future use.
Use phrases like " ... used my photography without my permission." But
don't threaten legal action or punitive compensation. (Save for later).
Do request a reply in writing. Send it registered to signal you're
serious.
That will probably result in a negotiation and $25 (or whatever amount).
It probably won't go further. But...
ROUND III
If they then phone you and the result is still negative, tell them to
reply in writing within 10 days. If they don't, then repeat the
registered letter exercise. In the 2nd round you CC: (not registered,
but include the CC: list on the letter) to your lawyer, the publisher
(if not the editor), local CoC, the BBB and whoever else you can think
of. If the photo was used to advertise for a local business or agency,
CC to them to. This time add the threat of court, punitive damages,
legal/court costs.
No result then ...
ROUND IV: If you're intent on resolution: go to your lawyer with the
whole ball of wax.
I have written "Without Prejudice" letters in other situations (non
photo related) where somebody was not responding to some needed action.
Such a letter, being formal, is both informative to the reader, and
carries the unstated threat of escalation. Usually works and gets
prompt action.
And fer cripes sake : Ask for money, not an explanation.
Cheers,
Alan
--
-- r.p.e.35mm user resource: http://www.aliasimages.com/rpe35mmur.htm
-- r.p.d.slr-systems: http://www.aliasimages.com/rpdslrsysur.htm
-- [SI] gallery & rulz: http://www.pbase.com/shootin
-- e-meil: Remove FreeLunch.
Michael Benveniste
<james0...@gmail.com> wrote:
>I only have one question: Why are you telling us about it, and not the
>District Attorney?
1. Because so far, it's a civil case, not a criminal case.
2. If it was a Criminal Case, it would be a U.S. federal case.
So going to your local DA would be a waste of time. Nor are
Federal Prosecutors typically interested in persuing small-time
copyright cases.
Unless the work was already registered at the time of infringement,
any judgment you get in court wouldn't be worth the cost.
I would ask the local editor for a printed acknowledgement of the
error in the paper, plus standard payment for the photo. If you
don't get satisfaction at the local level, either bring it to
corporate or take your story to another newspaper chain...
--
Michael Benveniste -- mhb-...@clearether.com
Spam and UCE professionally evaluated for $419. Use this email
address only to submit mail for evaluation.
Paul Furman
Send them an invoice politely asking for payment, probably at a much
higher rate if you don't want to sell more to them.
Eric Miller
"Paul Furman" <paul-@-edgehill.net> wrote in message
news:QbmdnXL1POQ...@speakeasy.net...
> my 2 cents
>
> Send them an invoice politely asking for payment, probably at a much
> higher rate if you don't want to sell more to them.
Well, as the day wore on and no-one called, I got more and more irritated
about this incident. I think that not returning my call is the plan at the
'ol local paper. I'll see if they run the same ad tomorrow. But in the
meantime, this is the plan, I will send them a demand letter on my lawfirm's
letterhead (did I mention that I'm a lawyer?) requesting a total of $1,500
($750 for each day that they ran the image). I did a little research today
and discovered that the minimum statutory damages provided for by the
Copyright act is $750. To prove my certainty about the ownership of the
image, I'll send them a nice inkjet print of the crop that they used along
with the letter. If they print it tomorrow, the price will be $2,250. If
they print it further, I'll just file my lawsuit. The way that damages are
measured in these cases, according to my reading of the act, is disgorgement
of profits. I simply have to prove up the total gross sales of the
publication that contains my image and then they will have to prove the
relative worth of my work as an addition in order to not have to pay the
gross sales number. I know what their attorney charges, in fact, I know
their attorney, and it'll be worth their while to pay me enough money for a
20D.
Eric Miller
William Graham
that it's their call. IOW, if they want to give the newspaper a hard time,
then so be it. But you effectively gave up your rights to the photo when you
let them use it for any purpose they wanted.
James Of Tucson
>1. Because so far, it's a civil case, not a criminal case.
I thought the new copyright laws had turned that idea on its head.
Roxy d'Urban
> Well, since you turned over the photo to the event organizers, I would say
> that it's their call. IOW, if they want to give the newspaper a hard time,
> then so be it. But you effectively gave up your rights to the photo when
> you let them use it for any purpose they wanted.
Wrong, he gave them permission to use the photo, not own it. I've done
this plenty of times.
I would simply send them a nice big fat invoice. If they didn't pay up I
would then sic a debt collector onto them. I recently did this to some
dickhead who refused to pay me for services rendered last year (long
story). I had actually forgotten about it when I got a cheque in the mail
from the collections agency. Plus the dumbass who tried to screw me now
has a black mark on his credit rating.
--
email: drop rods and insert surfaces
James Of Tucson
"I would simply send them a nice big fat invoice. If they didn't pay up
I
would then sic a debt collector onto them. "
It gets complicated when it's someone you'd like to still have a
relationship with after settling the one matter.
Alan Browne
>
> Well, since you turned over the photo to the event organizers, I
> would say that it's their call. IOW, if they want to give the
> newspaper a hard time, then so be it. But you effectively gave up
> your rights to the photo when you let them use it for any purpose
> they wanted.
No. He gave rights to the org to use them; he did not give rights to
the newspaper to rip them from his sight and use them.
Alan Browne
Nah, do it just right and you get their respect and added to their list
of local photogs.
Ryadia@home
race organisers gratis as a gift knowing you had no further say in how the
pictures were used. It is in the race organiser's interest to have this
year's race promoted and isn't that why you gave them the pics in the first
place?
I'm assuming here the half a picture you claim is yours is to advertise this
year's race or the festivities associated with it. What's the big deal? Are
you like every other money hungry lawyer I've ever come across and see
someone with a quid you can sue and start getting your rocks off on how much
you can get? Good luck with your law suit, at least you won't have any costs
until you lose. If you have described the events correctly, you don't have
much of a case and of course, you do know what sort of person has himself
for a lawyer?
Douglas
Alan Browne
> William Graham wrote:
>
>>
>> Well, since you turned over the photo to the event organizers, I
>> would say that it's their call. IOW, if they want to give the
>> newspaper a hard time, then so be it. But you effectively gave up
>> your rights to the photo when you let them use it for any purpose
>> they wanted.
>
>
> No. He gave rights to the org to use them; he did not give rights to
> the newspaper to rip them from his sight and use them.
SITE
(Mornings...).
Ryadia@home
"Alan Browne" <alan....@FreeLunchVideotron.ca> wrote in message
news:Sleqe.67110$tf4.5...@wagner.videotron.net...
> Alan Browne wrote:
>
>> William Graham wrote:
>>
>>>
>>> Well, since you turned over the photo to the event organizers, I
>>> would say that it's their call. IOW, if they want to give the
>>> newspaper a hard time, then so be it. But you effectively gave up
>>> your rights to the photo when you let them use it for any purpose
>>> they wanted.
>>
>>
>> No. He gave rights to the org to use them; he did not give rights to
>> the newspaper to rip them from his sight and use them.
> SITE
There seems to be some confusion over ownership and copyright. This is not
limited to such cases as this but also in the heads of wedding
photographers. If there is the possibility he shot the pictures for the
organisers of the event and they can prove he did it at their request,
regardless of being paid or not, he does not own the copyright to the
pictures, he only owns the negatives. The event organiser owns the copyright
and it is the event organiser who must institute legal action.
I recently went down this path myself and it cost me many dollars. I, like
far too many photographers believed I owned the copyright to ANY images I
shot when in fact, I did not. In the old days, copyright was not the issue
so much as who had the negatives because without them, reasonable quality
prints could not be made. The Photographer's who held on to the negatives,
could hold clients to ransom for absurd amounts of money for prints ... and
so the myth of a servant owning copyright was born.
OK ...so if you shoot a wedding (or any sequence of photographs) for a
client as a job or contract, a servant master relationship is created and
you are the servant. The Master owns the goods and any intellectual property
you create during the life of that relationship.
Copyright was never yours unless you have a contract specifically
bequeathing you ownership of the work and really... What person in their
right mind is going to pay you $2000 for some work and then give you
ownership of what you make? For that matter, how many Photographers (I do
now) have contracts which specifically force the client to give up ownership
of copyright?
Like I said before. Not much of a case for a lawyer to take on in view of
the likely costs when it backfires. The organiser needs the newspaper on
their side more so than a feisty lawyer filling in for a Photographer. The
OP ought to get some legal advise. His doesn't seem very good!
Douglas
Michael Benveniste
> I thought the new copyright laws had turned that idea on its head.
Not at all. The RIAA still ends up suing people instead of filing
criminal complaints.
In order to get a criminal conviction on a copyright violation
after the No Electronic Theft Act (NET), you still have to prove
willfulness beyond a reasonable doubt. The DOJ holds the
position that willfulness goes beyond mere intentional
reproduction.
In addition, to get even a misdemeanor conviction, the Feds would
have to prove, again beyond a reasonable doubt, a retail value of
$1000 or over. Without an established market for the photo, this
too would be difficult.
See: http://www.usdoj.gov/criminal/cybercrime/netsum.htm
Michael Benveniste
> I did a little research today and discovered that the minimum statutory
> damages provided for by the Copyright act is $750. To prove my certainty
> about the ownership of the image, I'll send them a nice inkjet print of
> the crop that they used along with the letter.
While you were doing your research, did you notice 17 USC 412? Unless
the infringement occurred within three months of publication or prior
to registration, you can not recover statutory damages.
Matt Clara
news:42a971d4$1...@dnews.tpgi.com.au...
Hey, I'll answer for him. The big deal is a professional media company took
his media without permission and used it to make a profit without offering
him any compensation in return. That's not only unethical, it's illegal.
No way should he just roll over on this one, and there's not a chance in
hell he'll lose. He gave publication rights to one group, and they weren't
the party in question who published it.
--
Regards,
Matt Clara
www.mattclara.com
Alan Browne
> "Alan Browne" <alan....@FreeLunchVideotron.ca> wrote in message
>>>
>>>No. He gave rights to the org to use them; he did not give rights to
>>>the newspaper to rip them from his sight and use them.
>>
>> SITE
>>-----------------------------
>
>
> There seems to be some confusion over ownership and copyright. This is not
> limited to such cases as this but also in the heads of wedding
> photographers. If there is the possibility he shot the pictures for the
> organisers of the event and they can prove he did it at their request,
> regardless of being paid or not, he does not own the copyright to the
> pictures, he only owns the negatives. The event organiser owns the copyright
> and it is the event organiser who must institute legal action.
In the case as described by the OP, I don't agree.
He offered the images to the organization for the organizations use. In
this case the newspaper used the image w/o the permission of either the
org. or the photog.
1) He granted image use rights to the charitable org to use for the
purposes of the charitable org. From his description, I interpret it as
"non exclusive rights" akin to a licence. It is not clear if he gave
up the rights to the image for other use, so depending on that, it may
be up to the charitable org to take action if they are so inclined.
OTOH, the charitable org alerted the photog, so they perhaps feel the
photog has rights to the image.
2) The newspaper (per the OP) took the image from the OP's website, not
from the charitable org's copy of the image. In that case, the
newspaper has violated the copyright of the website.
3) The newspaper's use of the image (per the OP) was not connected to
the charitable organization.
>
> I recently went down this path myself and it cost me many dollars. I, like
> far too many photographers believed I owned the copyright to ANY images I
> shot when in fact, I did not. In the old days, copyright was not the issue
> so much as who had the negatives because without them, reasonable quality
> prints could not be made. The Photographer's who held on to the negatives,
> could hold clients to ransom for absurd amounts of money for prints ... and
> so the myth of a servant owning copyright was born.
>
> OK ...so if you shoot a wedding (or any sequence of photographs) for a
> client as a job or contract, a servant master relationship is created and
> you are the servant. The Master owns the goods and any intellectual property
> you create during the life of that relationship.
Same in Canada, if you shoot for hire by a client, the client
automatically owns the copyright, unless stated otherwise in writing.
(As I learned from McLeod here some months ago, to my surprise). So
wedding photogs have to make clear in their contract who is the owner.
> Copyright was never yours unless you have a contract specifically
> bequeathing you ownership of the work and really... What person in their
> right mind is going to pay you $2000 for some work and then give you
> ownership of what you make? For that matter, how many Photographers (I do
> now) have contracts which specifically force the client to give up ownership
> of copyright?
>
> Like I said before. Not much of a case for a lawyer to take on in view of
> the likely costs when it backfires. The organiser needs the newspaper on
> their side more so than a feisty lawyer filling in for a Photographer. The
> OP ought to get some legal advise. His doesn't seem very good!
I agree that he should get legal advice if he does not get satisfaction
in the course he has taken. As I stated, round II should begin with the
usually effective "Without Prejudice" letter. A nice, polite way of
saying "redress or else".
Cheers,
Alan
Eric Miller
when you are a lawyer is that you have to know the subject, prepare, study
and otherwise know what you are talking about when you do your job. It isn't
as easy as the TV shows make it look. Nevertheless, I made it extremely easy
for you, including pointing out that the photo was used in an advertisement
for an upcoming edition of the newspaper (which, by the way, is apparently
unrelated to anything local), that the race organizers didn't give
permission for its use (in fact, the people to whom I granted permission for
its use are the ones who alerted me to the unauthorized use by the local
newspaper) and you still can't get the facts straight. You should sit back,
reflect with your complete and apparent lack of knowledge on this subject
and then read you little senseless diatribe again.
Thank you for the well wishes on the lawsuit, but I doubt one will be
necessary.
Costs? Well what do you know about court costs? Obviously nothing. There is
a filing fee, so if I had to sue, I would have to pay that, pay to obtain
service and other associated costs. But, I suppose, you wouldn't really
learn from any explanation related to costs given your failure to read the
entirety of the original post, so I won't bother explaining further. And in
any event, I have only to prove that it is my work and that I didn't give
permission for its use. That will be child's play with my negative.
Do you work for a newspaper? Is it routine practice to download images from
other's websites and reprint them as if they are your stock photos?
The other burden of course is that some people bear hatred for lawyers. We
catch the blame for everything that ails modern society. Are you one of
those? It sure would explain your silly rant.
Eric Miller
Eric Miller
"Michael Benveniste" <mhb-...@clearether.com> wrote in message
news:3gtfv9F...@individual.net...
Thanks for pointing that out. It really doesn't matter anyway. It will be a
lot less expensive for them to just pay my demand than it will to answer my
discovery. The disgorgement measure of damages remains as does the costs and
attorney fee provisions.
Eric Miller
Michael Benveniste
> The disgorgement measure of damages remains as does the costs and
> attorney fee provisions.
Only partially right. You are entitled to the greater of your actual
damages or the newspaper's profits attributable to the infringement
under 504, but the same provision, 12 USC 412, explicitly excludes
recovery of attorney's fees. The court may use its discretion with
regard to costs.
As always, advice or statements of law from internet randoms typically
isn't worth reading. You can safely assume I am an internet random.
Robert Feinman
millerer...@bellsouth.net says...
However, if you did not file your images with the copyright office along
with the proper forms and fees, you can't really inforce your copyright
in court.
Since the cost of pursuing this legally will probably exceed anything
you can collect, your best bet is to write them a polite letter and
state what you would like as recompense.
The bad publicity that you might generate might be enough for them to
settle fairly.
--
Robert D Feinman
Landscapes, Cityscapes and Panoramic Photographs
http://robertdfeinman.com
mail: robert....@gmail.com
Paul Furman
>>
>> OK ...so if you shoot a wedding (or any sequence of photographs) for a
>> client as a job or contract, a servant master relationship is created
>> and you are the servant. The Master owns the goods and any
>> intellectual property you create during the life of that relationship.
>
>
> Same in Canada, if you shoot for hire by a client, the client
> automatically owns the copyright, unless stated otherwise in writing.
> (As I learned from McLeod here some months ago, to my surprise). So
> wedding photogs have to make clear in their contract who is the owner.
"Work for hire" is the term in the US iirc. I believe it applies to
employee relationship, not consulting and less likely pro-bono assignments.
--
Paul Furman
http://www.edgehill.net/1
san francisco native plants
Andrew Koenig
> There seems to be some confusion over ownership and copyright. This is not
> limited to such cases as this but also in the heads of wedding
> photographers. If there is the possibility he shot the pictures for the
> organisers of the event and they can prove he did it at their request,
> regardless of being paid or not, he does not own the copyright to the
> pictures, he only owns the negatives. The event organiser owns the
> copyright and it is the event organiser who must institute legal action.
Noting that this comment comes from Australia, and the original posting
comes through an ISP in the USA, I would like to point out that I believe
that this statement is not true in the USA.
I think that in the USA, the photographer owns the copyright unless the
photographer is an employee of the organizers (merely having a contract with
them it not sufficient--the photographer actually has to be on their
payroll, get income taxes withheld, and get a W-2 form rather than a 1099
form at the end of the year), or there is a written agreement assigning
copyright to the organizers. If there is a written agreement that says
nothing about ownership, then the photographer owns the copyright, and all
the organizer gets is the right to use the material in ways consistent with
the contract.
I am not a lawyer, and I am not 100% certain of the above. However, I have
had occasion to talk to a number of lawyers about such issues, and I believe
that the foregoing is an accurate distillation of what they told me and what
I have learned from other sources.
Andrew Koenig
> "Work for hire" is the term in the US iirc. I believe it applies to
> employee relationship, not consulting and less likely pro-bono
> assignments.
I agree. In particular, I believe it applies only to W-2 employment, and
then only to work done within the scope of the employment.
Andrew Koenig
news:4%5qe.113058$J25....@bignews6.bellsouth.net...
> Well, as the day wore on and no-one called, I got more and more irritated
> about this incident. I think that not returning my call is the plan at the
> 'ol local paper. I'll see if they run the same ad tomorrow. But in the
> meantime, this is the plan, I will send them a demand letter on my
> lawfirm's
> letterhead (did I mention that I'm a lawyer?) requesting a total of $1,500
> ($750 for each day that they ran the image).
Ah, good. Then perhaps you can tell me if my beliefs about the current
state of copyright law (as expressed in my earlier posting) are correct.
Andrew Koenig
> Unless the work was already registered at the time of infringement,
> any judgment you get in court wouldn't be worth the cost.
I think that is no longer true -- that you can register it up until the time
you file suit.
Michael Benveniste
>I think that is no longer true -- that you can register it up until the time
>you file suit.
You can register up until the time you file suit. In fact, if you
are a U.S. citizen, you _must_ register before you can file suit
(17 USC 411). However, unless you register within three months of
publication, you can recover neither statutory damages nor attorney's
fees for infringement which occurred before registration.
Once you register, any _subsequent_ infringement is no longer subject
to the same restrictions.
Here's a link to the actual language of the statute:
http://www4.law.cornell.edu/uscode/17/412.html
Gordon Moat
> Back in 2003, I photographed a local 10K race. I did it for free for the
> non-profit organization that holds the race and gave them a couple of CD's
> with all the images and specifically gave the organizers permission to use
> the photos however they wanted and they didn't even have to give me credit.
You can almost stop right there. If you read through Copyright Law, you will
find a mention of "pro bono" work. Unfortunately, you have very little to no
protection in such a situation.
In the future, even if you are being very generous, make it clear that you want
at least a little compensation. You could charge for the CD-Rs, if you want to
keep it low cost. Charging anything, even expenses, removes it from being
considered "pro bono".
>
> . . .
>
> Today, I got a call from one of the organizers of the 10K who informed me
> that the local newspaper (owned by a national chain of papers) had published
> part of one of my photos in their newspaper advertising an insert that is
> going to be in this Sunday's edition. I bought a newspaper, which I seldom
> read, and sure enough, it's a crop of one of my photos of the race, plain as
> day.
Editorial usage is covered under Fair Use Provisions of Copyright Law. However,
the usage of an image to advertise for the newspaper is a grey area, and might
not fall under Fair Use. Unfortunately, the real possibility that this is "pro
bono" work means that the image might have been fair game for the newspaper to
use.
Another thing is that your original permissions letter (contract) with the race
organizers would become your primary evidence in a civil case. If you did not
exclude certain uses in writing, then you have little to make your case.
>
> . . . . . . . . . . .
>
> The question is, what should I do? On the one hand, I really had no profit
> motive in taking the photo so I'm not really out anything.
This is the other issue. If you had that image filed with the Copyright Office,
you might be able to argue punitive damages. Without that copyright, you can
only go after actual damages. Then the issue would be how do you prove those,
or find an amount.
> On the other
> hand, it was never my intention with making these photos available that
> someone else would steal them for use for profit. Further, it just sort of
> angers me that someone stole my image and published it without my permission
> and even more so that its a newspaper that doesn't even cover these sorts of
> local events very well and that they are using it to advertise a future
> issue of their paper, i.e., not to benefit the organization to which I gave
> permission to use images or for any other deserving group.
>
> I'm thinking about writing a demand letter. In any event, now that I've
> rambled on, has anyone here had experience with this sort of situation.
Okay, if it makes you mad, then see a lawyer who specializes in Copyright Law.
You could also try arbitration, which can sometimes be easier.
>
>
> BTW: I still have the negative.
>
> Eric Miller
My suggestion is to ask the paper if they can give you photo credit for the
image. That would at least help you a little; you could list it as a publishing
history, which can sometimes help to get more work. I doubt you could ever get
much of any money out of this, at least not something that might match the
effort needed to litigate. Unfortunate, though I hope you can find a solution
you will be happy achieving.
Best of luck.
Ciao!
Gordon Moat
A G Studio
<http://www.allgstudio.com>
Gordon Moat
> "Alan Browne" <alan....@FreeLunchVideotron.ca> wrote in message
> news:Sleqe.67110$tf4.5...@wagner.videotron.net...
> > Alan Browne wrote:
> >
> >> William Graham wrote:
> >>
> >>>
> >>> Well, since you turned over the photo to the event organizers, I
> >>> would say that it's their call. IOW, if they want to give the
> >>> newspaper a hard time, then so be it. But you effectively gave up
> >>> your rights to the photo when you let them use it for any purpose
> >>> they wanted.
> >>
> >>
> >> No. He gave rights to the org to use them; he did not give rights to
> >> the newspaper to rip them from his sight and use them.
> > SITE
> >-----------------------------
>
> There seems to be some confusion over ownership and copyright. This is not
> limited to such cases as this but also in the heads of wedding
> photographers. If there is the possibility he shot the pictures for the
> organisers of the event and they can prove he did it at their request,
> regardless of being paid or not, he does not own the copyright to the
> pictures, he only owns the negatives. The event organiser owns the copyright
> and it is the event organiser who must institute legal action.
I though Australia was part of the Berne Convention?
Copyright needs to be transferred in writing. The originating "artist"
(creator) originated the copyright, and must transfer that right to another in
order to allow for usage. If there is any doubt, read the Berne Convention.
>
>
> I recently went down this path myself and it cost me many dollars. I, like
> far too many photographers believed I owned the copyright to ANY images I
> shot when in fact, I did not.
Under Berne Convention rules, this only can happen if you sign an "All Rights"
agreement, work as an employee, or sign a "Work for Hire" agreement. These are
unfortunately very common aspects, but the paper contract is what defines this
happening. I am surprised that this can happen in Australia.
> In the old days, copyright was not the issue
> so much as who had the negatives because without them, reasonable quality
> prints could not be made. The Photographer's who held on to the negatives,
> could hold clients to ransom for absurd amounts of money for prints ... and
> so the myth of a servant owning copyright was born.
>
It is not a myth, it is the law in countries that signed the Berne Convention
agreement on international copyrights. This law is slightly different than the
laws of other countries, some of which have their own copyright code. However,
part of a country accepting the Berne Convention, and now the Madrid Protocol,
is that the national copyright laws comply with the primary aspects. Countries
are allowed to be more restrictive, but not more open.
>
> OK ...so if you shoot a wedding (or any sequence of photographs) for a
> client as a job or contract, a servant master relationship is created and
> you are the servant. The Master owns the goods and any intellectual property
> you create during the life of that relationship.
This is the employee situation. If you are an employee in this type of a
situation, then you are eligible for any other benefits that any other type of
employee in your country would provide. Such a situation would mean that you
would not need any liability insurance, since as an employee that aspect would
be the responsibility of your employer (master).
>
>
> Copyright was never yours unless you have a contract specifically
> bequeathing you ownership of the work and really... What person in their
> right mind is going to pay you $2000 for some work and then give you
> ownership of what you make? For that matter, how many Photographers (I do
> now) have contracts which specifically force the client to give up ownership
> of copyright?
Do you have a link to Australian Copyright Law? It really amazes me that
Australia could be that backwards. If I read it myself, then maybe it would
make more sense. It would surprise me if Australia is not in line with
international copyright laws.
Ryadia@home
"Gordon Moat" <mo...@attglobal.net> wrote in message
news:42A9F233...@attglobal.net...
>>
>> Copyright was never yours unless you have a contract specifically
>> bequeathing you ownership of the work and really... What person in their
>> right mind is going to pay you $2000 for some work and then give you
>> ownership of what you make? For that matter, how many Photographers (I do
>> now) have contracts which specifically force the client to give up
>> ownership
>> of copyright?
>
> Do you have a link to Australian Copyright Law? It really amazes me that
> Australia could be that backwards. If I read it myself, then maybe it
> would
> make more sense. It would surprise me if Australia is not in line with
> international copyright laws.
>
> Ciao!
>
> Gordon Moat
> A G Studio
> <http://www.allgstudio.com>
>
Tell me what you think Gordon...
You go to a local business which specialises in fabrication of steel things.
You ask the guy to make you a revolving stand for backdrops. You describe
how it should work and roughly what size it should be. Basically you provide
the working parameters like a father would when asking you to shoot his
daughter's wedding. No written contract, just verbal yes, I can make it.
A few days later the fabricator rings you and say it's finished. You pay him
$2000 for it and take it back to your studio. Next day Alan Browne (or me -
God forbid - both of us together!) come for a visit and we are so impressed
with this stand, we just gotta have one each.
Only problem is... the fabricator who you gave instructions to now says the
Berne Convention gives him copyright over the thing and he wants $5000 each
for reproductions and threatens to sue you, if you so much as attempt to get
it copied. Would that stand up in a US court?
Only some Photographers can honestly call themselves artists. (you are one
of them by my opinion). Any original works you create, just as a painter or
sculptor creates, are your's alone to own the copyright over. That is
undisputable.
What I am saying is when a person asks you to work for them I.E. shoot their
wedding, you then become the servant in a servant/master relationship and
whatever you make whilst in that relationship belongs to the master unless a
clear and precise agreement exists that the master will pay you to do the
work and also hand over ownership of that work after the relationship ends.
Wherever you got the notion you could charge someone to do their work and
then take it home after getting paid ...with you having ownership of that
work, is what is backward, not Australia's (or Canada's) laws.
A business taking photographs they sell randomly, the way your fine art is
created and sold has copyright over those images. A business working to
instructions from a client, does not, unless a clear and specific contract
assigning copyright to the photographer exists before the job commences. If
US laws allow the scenario in the first 2 paragraphs, then you are right and
I am extremely glad I don't live in the USA.
The Westminster system is used by many countries who peacefully separated
from British rule... Unlike the USA which separated violently and set about
creating it's own unique set of rules, laws, measurements and standards.
Some without any logical basis, almost as if to spite the Westminster system
that spawned the nation in the first place.
Either way, your assertion that you can take money to work to someone's
instructions and reserve the right to literally hold them to ransom when
they choose to use whatever you took money to make for them in the first
place, is a rather evil concept... Now that I think about it, that fits into
Microsoft's business model. Maybe it is possible in the land of the free,
home of the brave after all, eh?
Douglas
Ryadia@home
>
> "Ryadia@home" <rya...@hotmail.com> wrote in message
> news:42a971d4$1...@dnews.tpgi.com.au...
>>
>>
>>
> bear
> when you are a lawyer is that you have to know the subject, prepare, study
> and otherwise know what you are talking about when you do your job. It
> isn't
> as easy as the TV shows make it look. Nevertheless, I made it extremely
> easy
> for you, including pointing out that the photo was used in an
> advertisement
> for an upcoming edition of the newspaper (which, by the way, is apparently
> unrelated to anything local), that the race organizers didn't give
> permission for its use (in fact, the people to whom I granted permission
> for
> its use are the ones who alerted me to the unauthorized use by the local
> newspaper) and you still can't get the facts straight. You should sit
> back,
> reflect with your complete and apparent lack of knowledge on this subject
> and then read you little senseless diatribe again.
>
Interesting attitude you have here Eric...
Does it get you many successful results in law?
You have been less than clear about a few critical points in this scenario
so one is left with presumption and assumption. When I assume (based on the
remainder of your drivel) you get into the personal insult routine so
prevalent in these groups.
For example, you didn't say how you got to do this shoot. Did the organiser
ask you to do it - is a critical point which would influence any comment on
the remainder of your post. The fact you didn't charge them for the images
means they had no value yet now you seek to assign value to them. Newspapers
can quite legally pull images from the Internet under some circumstances and
use them in the pages of the newspaper without infringing copyright. You
didn't say if thehalf an image was used in an advertisment or a feature... I
very critical point.
For a lawyer... You certainly are quite naive. Go ahead and shoot the
messenger, Nero, he only had bad news for you anyway.
Douglas
William Graham
film, and thereby wash my hands of the whole affair. They process the film,
and use the pictures they get out of it any way they want, and I never even
get to see them.....IOW, all I am reduced to is the status of camera
operator, and I lay no claim to the photographs at all........For some
reason, in this case, the OP kept the negatives, so perhaps he feels that he
has some claim to the photos......But he might want to ask himself why, now
that a newspaper published one of the pictures, does he suddenly have this
burning desire to want money for them, when he didn't have any expectation
of getting any money for the pictures to begin with?
William Graham
In my opinion, this would be true if the fabricator kept your drawings and
instructions. But if he returned the drawings and instructions to you with
the finished machine, then he no longer has any claim to it, and you can
sell it to someone else if you want. After all it was your initial design.
All the builder did was follow your instructions, which have now been
returned to you.
William Graham
who was at fault. And second, how much money was it worth. In this case, it
is obvious that the newspaper incorrectly used your photo without your
permission, so they are at fault. But how much is it worth? As far as I can
see it didn't cost you or anyone else, anything. You had no intention of
earning any money with this photo. So, why wouldn't the court say, yes, you
are right, but you get nothing?
Mr.Bolshoy Huy
so 2 years later some paper published a race that no one remembers?
It's like the Daily News publishing a photo of a Yankees vs. White Sox
game from 2003.
WHY?
if you signed away your rights, then move on.
Remember, when Madonna was 19, she had nude photos done, which were
published 16 years later without her permission.
McLeod
wrote:
>Do you have a link to Australian Copyright Law? It really amazes me that
>Australia could be that backwards. If I read it myself, then maybe it would
>make more sense. It would surprise me if Australia is not in line with
>international copyright laws.
Canada does not have the same laws as the US either. There is a push
on to try and change them but as it stands right now if you were
commissioned to create an image and don't have a contract that
specifically awards you the rights to the images, you as the
photographer don't own the rights to them.
Mike
"McLeod" <cer...@xplornet.com> wrote in message
news:6mika15rqdsuj3kfa...@4ax.com...
Generally this would hold true in the US also, whether an image or something
else.
Skip M
news:pt2dnWtjoIS...@comcast.com...
>>
> Well, since you turned over the photo to the event organizers, I would say
> that it's their call. IOW, if they want to give the newspaper a hard time,
> then so be it. But you effectively gave up your rights to the photo when
> you let them use it for any purpose they wanted.
>
Unless the organizers had a signed copyright release, he didn't give up any
rights. Since they had his permission to use the image, they can, but he
still has the right to prevent anyone else besides the organizers from using
it. It certainly hasn't passed into the public domain, which it would have
to for the newspaper to use it.
--
Skip Middleton
http://www.shadowcatcherimagery.com
Skip M
"Ryadia@home" <rya...@hotmail.com> wrote in message
news:42a988c0$1...@dnews.tpgi.com.au...
>
>
> I recently went down this path myself and it cost me many dollars. I, like
> far too many photographers believed I owned the copyright to ANY images I
> shot when in fact, I did not. In the old days, copyright was not the issue
> so much as who had the negatives because without them, reasonable quality
> prints could not be made. The Photographer's who held on to the negatives,
> could hold clients to ransom for absurd amounts of money for prints ...
> and so the myth of a servant owning copyright was born.
>
> OK ...so if you shoot a wedding (or any sequence of photographs) for a
> client as a job or contract, a servant master relationship is created and
> you are the servant. The Master owns the goods and any intellectual
> property you create during the life of that relationship.
>
> Copyright was never yours unless you have a contract specifically
> bequeathing you ownership of the work and really... What person in their
> right mind is going to pay you $2000 for some work and then give you
> ownership of what you make? For that matter, how many Photographers (I do
> now) have contracts which specifically force the client to give up
> ownership of copyright?
Not sure how it is over there, but in the US, one must be an employee, not a
contractor, for the recipeint of the images to own the copyright.
Jerry L
your photo that the newspaper ran in the advertisement?
= = =
Skip M wrote:
> "Ryadia@home" <rya...@hotmail.com> wrote in message
> news:42a988c0$1...@dnews.tpgi.com.au...
> >
>
> >
> > I recently went down this path myself and it cost me many dollars. I, like
Philip Homburg
Ryadia@home <rya...@hotmail.com> wrote:
>What I am saying is when a person asks you to work for them I.E. shoot their
>wedding, you then become the servant in a servant/master relationship and
>whatever you make whilst in that relationship belongs to the master unless a
>clear and precise agreement exists that the master will pay you to do the
>work and also hand over ownership of that work after the relationship ends.
That depends on the kind of instructions. If I commission a portrait, it is
not the case that I suddenly become the artist because I selected the person
to appear in the portrait.
The concept that is sometimes used is that a copyrighted work has to show
some unique aspects or style of the artist. If you setup a scene, determine
the lighting, the framing, the point of view, etc. and then have somebody you
hired just press the shutter release button, then you can claim the copyright.
However, in most cases it is the wedding photographer who determines
lighting, point of view, framing, and decides when to release the shutter.
That is enough creative input that the photographer gets at least part of
the rights to the images. And part of the rights is sufficient to prevent the
client from selling the image without permission.
If the photographer is not an employee, then basically you have to claim
(and demonstrate) that the photographer provided negligible creative input,
which will be tricky unless the photographer was hired just for his
equipment and didn't do anything other then to press the shutter release
when asked to do so.
(disclaimer: IANAL)
--
That was it. Done. The faulty Monk was turned out into the desert where it
could believe what it liked, including the idea that it had been hard done
by. It was allowed to keep its horse, since horses were so cheap to make.
-- Douglas Adams in Dirk Gently's Holistic Detective Agency
Mxsmanic
> Well, since you turned over the photo to the event organizers, I would say
> that it's their call. IOW, if they want to give the newspaper a hard time,
> then so be it. But you effectively gave up your rights to the photo when you
> let them use it for any purpose they wanted.
But only if they gave the newspaper permission to use the photo, which
they apparently did not.
--
Transpose hotmail and mxsmanic in my e-mail address to reach me directly.
Mxsmanic
> There seems to be some confusion over ownership and copyright. This is not
> limited to such cases as this but also in the heads of wedding
> photographers. If there is the possibility he shot the pictures for the
> organisers of the event and they can prove he did it at their request,
> regardless of being paid or not, he does not own the copyright to the
> pictures, he only owns the negatives.
False. There has to be a written agreement in order for work-for-hire
to apply (in the U.S.). No written agreement, no assignment of
copyright to the organizers.
But the organizers don't seem to be the guilty party here, anyway.
> I recently went down this path myself and it cost me many dollars. I, like
> far too many photographers believed I owned the copyright to ANY images I
> shot when in fact, I did not.
In the U.S., you always own the copyright on any image you shoot unless
you're an employee of a company and you shoot pictures for them as a
part of your normal job duties ("employee" means that they pay you a
salary, withhold FICA, provide health insurance, dictate working hours
and conditions, etc.). In any other case, without a written agreement
to the contrary, you own the copyright.
> OK ...so if you shoot a wedding (or any sequence of photographs) for a
> client as a job or contract, a servant master relationship is created and
> you are the servant.
You still own the copyright, unless you've agreed otherwise in writing.
> The Master owns the goods and any intellectual property
> you create during the life of that relationship.
False. You own the copyright on all the photos.
> Copyright was never yours unless you have a contract specifically
> bequeathing you ownership of the work and really...
False, in the U.S. It's the other way around.
> What person in their
> right mind is going to pay you $2000 for some work and then give you
> ownership of what you make?
It happens all the time.
> For that matter, how many Photographers (I do
> now) have contracts which specifically force the client to give up ownership
> of copyright?
No such contract is required, unless the photographer is a bona fide
employee taking pictures as part of his job duties.
All of this applies in the U.S. The situation in other countries may be
different.
Mxsmanic
> I agree. In particular, I believe it applies only to W-2 employment, and
> then only to work done within the scope of the employment.
Yes. In all other cases, the photographer owns the copyright, unless he
specifically relinquishes it in a written work-for-hire agreement
concluded in advance.
Mxsmanic
> You go to a local business which specialises in fabrication of steel things.
> You ask the guy to make you a revolving stand for backdrops. You describe
> how it should work and roughly what size it should be. Basically you provide
> the working parameters like a father would when asking you to shoot his
> daughter's wedding. No written contract, just verbal yes, I can make it.
>
> A few days later the fabricator rings you and say it's finished. You pay him
> $2000 for it and take it back to your studio. Next day Alan Browne (or me -
> God forbid - both of us together!) come for a visit and we are so impressed
> with this stand, we just gotta have one each.
>
> Only problem is... the fabricator who you gave instructions to now says the
> Berne Convention gives him copyright over the thing and he wants $5000 each
> for reproductions and threatens to sue you, if you so much as attempt to get
> it copied. Would that stand up in a US court?
Yes, if the design of the stand incorporates creative decisions made by
the fabricator. If it does not, no copryight arises. This is routinely
the case for ordered items that incorporate creative works, such as
buildings (distinctive architectural styles), clothing, etc.
The stand you describe might well be so utilitarian in aspect that it
doesn't embody a copyright. But you'd have to go to court to find out
for sure. Typically, such things are not considered to be copyrighted
works because they incorporate so little creative content.
> Only some Photographers can honestly call themselves artists.
You don't have to be an "artist," whatever that is (Mark Twain said it's
the only thing that nobody can prove you aren't). You _do_ have to have
some creative input to the design process. It must be original and
creative. If these criteria are met, copyright applies to those
aspects.
> What I am saying is when a person asks you to work for them I.E. shoot their
> wedding, you then become the servant in a servant/master relationship and
> whatever you make whilst in that relationship belongs to the master unless a
> clear and precise agreement exists that the master will pay you to do the
> work and also hand over ownership of that work after the relationship ends.
No, this is not how it works in the U.S. There is no "servant/master"
relationship. You are a commissioned artist. Your client has right to
take possession of the finished work in whatever embodiment you've
previously agreed to provide, but he does not own the copyright--you do.
> Wherever you got the notion you could charge someone to do their work and
> then take it home after getting paid ...with you having ownership of that
> work, is what is backward, not Australia's (or Canada's) laws.
It has worked that way for quite some time in the U.S., including some
jurisprudence (and now statutory law) that has formalized this.
> If US laws allow the scenario in the first 2 paragraphs, then you are
> right and I am extremely glad I don't live in the USA.
That's how it works in the U.S., and some other countries (such as
France).
> The Westminster system is used by many countries who peacefully separated
> from British rule... Unlike the USA which separated violently and set about
> creating it's own unique set of rules, laws, measurements and standards.
> Some without any logical basis, almost as if to spite the Westminster system
> that spawned the nation in the first place.
I suppose the U.S. and other countries have a higher opinion of people
who create intellectual property. Certain the U.S. isn't much into a
"master/slave" relationship these days.
> Either way, your assertion that you can take money to work to someone's
> instructions and reserve the right to literally hold them to ransom when
> they choose to use whatever you took money to make for them in the first
> place, is a rather evil concept...
Perhaps, but it's the most common embodiment of copyright law.
I agree that allowing someone to ask for money over and over for work
done just one time, for his entire life and for a century thereafter,
seems very excessive. But the original copyright concept was much more
reasonable, and essential to allow creators of IP to support themselves.
> Now that I think about it, that fits into Microsoft's business model.
Microsoft is mostly a creator of IP, and so copyright is important to
their business model.
Mxsmanic
> Generally this would hold true in the US also, whether an image
> or something else.
No, it's the opposite in the U.S., under current law (and longstanding
copyright law and jurisprudence). Only employees implicitly relinquish
their copyrights. In some countries (e.g., France), even employees
retain "moral rights" that cannot be assigned to anyone else.
Mxsmanic
> Yes....When I do things like this, I give the event people the unprocessed
> film, and thereby wash my hands of the whole affair. They process the film,
> and use the pictures they get out of it any way they want, and I never even
> get to see them.....IOW, all I am reduced to is the status of camera
> operator, and I lay no claim to the photographs at all........For some
> reason, in this case, the OP kept the negatives, so perhaps he feels that he
> has some claim to the photos......But he might want to ask himself why, now
> that a newspaper published one of the pictures, does he suddenly have this
> burning desire to want money for them, when he didn't have any expectation
> of getting any money for the pictures to begin with?
He still doesn't expect to get money for their original, authorized use.
He did not authorize the use in the newspaper.
Mxsmanic
> ...and you do have a signed release in hand from the he/she running in
> your photo that the newspaper ran in the advertisement?
That's the responsibility of the newspaper, not the photographer,
although it's best for the photographer to explicitly disclaim
responsibility for obtaining releases in his contract.
In the U.S., a release is not required for editorial and certain other
uses, but it is definitely required for advertising use.
Philip Homburg
Mxsmanic <mxsm...@hotmail.com> wrote:
>Ryadia@home writes:
>> Either way, your assertion that you can take money to work to someone's
>> instructions and reserve the right to literally hold them to ransom when
>> they choose to use whatever you took money to make for them in the first
>> place, is a rather evil concept...
>
>Perhaps, but it's the most common embodiment of copyright law.
>
>I agree that allowing someone to ask for money over and over for work
>done just one time, for his entire life and for a century thereafter,
>seems very excessive. But the original copyright concept was much more
>reasonable, and essential to allow creators of IP to support themselves.
If you hire somebody to create a copyrighted work for you, you can
negotiate the rights you get. Certainly when it comes to photography,
there is always an amateur who willing to give an unlimited license for a
small amount of money.
In my opinion it is stupid from society as a whole make copyright last
as long as it does. But that is mostly a separate problem.
(the problem is of course that most people ignore copyright issues, so it
is not on the political agenda. This allows the organizations with a
big interest in keeping copyright to extent the period at regular intervals
to make it last for ever.)
Gordon Moat
> "Gordon Moat" <mo...@attglobal.net> wrote in message
> news:42A9F233...@attglobal.net...
>
> >>
> >> Copyright was never yours unless you have a contract specifically
> >> bequeathing you ownership of the work and really... What person in their
> >> right mind is going to pay you $2000 for some work and then give you
> >> ownership of what you make? For that matter, how many Photographers (I do
> >> now) have contracts which specifically force the client to give up
> >> ownership
> >> of copyright?
> >
> > Do you have a link to Australian Copyright Law? It really amazes me that
> > Australia could be that backwards. If I read it myself, then maybe it
> > would
> > make more sense. It would surprise me if Australia is not in line with
> > international copyright laws.
> >
> > Ciao!
> >
> > Gordon Moat
> > A G Studio
> > <http://www.allgstudio.com>
> >
>
> Tell me what you think Gordon...
>
> You go to a local business . . . . . . . . .
There is a clear legal difference in the definition of intellectual property.
That is defined at length by Copyright Law. Whether something is utilitarian
does not necessarily limit a particular legal definition. Consider the example
of furniture, in that an item can be a work of art, and be a functional object
that will get used (as opposed to just viewed). I don't think it is easy to
simplify this by picking and choosing an example.
I should also mention that I have been through three Copyright challenges in
nine years. I was successful in defending my rights in each case, though the
experience was not pleasant. In fact, after one case went to arbitration, and I
still kept the rights that Copyright Law allowed to me, that client apologized,
and I still do work for them.
>
>
> What I am saying is when a person asks you to work for them I.E. shoot their
> wedding, you then become the servant in a servant/master relationship and
> whatever you make whilst in that relationship belongs to the master unless a
> clear and precise agreement exists that the master will pay you to do the
> work and also hand over ownership of that work after the relationship ends.
In the United States, the IRS (Internal Revenue Service) defines guidelines for
employer and employee relations. The situation you describe is exactly that in
the US, and probably a few other countries. The IRS also has a listing of nine
criteria for meeting the definition of employee. That definition is in fact
used in some Copyright legal proceedings, since it is a test of what you
describe.
One of my Copyright legal challenges was a claimed "work-for-hire" by the
company that hired me. They did not meet even one of the nine criteria that the
IRS defines. In fact, the judge berated the former client for even suggesting
that what they did was legal, especially without a written agreement. My
paperwork helped me a great deal in that case.
>
>
> Wherever you got the notion you could charge someone to do their work and
> then take it home after getting paid ...with you having ownership of that
> work, is what is backward, not Australia's (or Canada's) laws.
Okay, so the laws are different there. I guess that is something I need to
remember if I do work in those countries. So far, I have only dealt with
companies in Western Europe and the Unites States, areas that fall under Berne
Convention protections.
>
>
> A business taking photographs they sell randomly, the way your fine art is
> created and sold has copyright over those images. A business working to
> instructions from a client, does not, unless a clear and specific contract
> assigning copyright to the photographer exists before the job commences.
In other words, at the end of someone "hiring" me to do photography, I could
claim unemployment compensation, if I were considered an employee. This is how
the IRS definitions, most state laws, and even US law would cover that
situation. Furthermore, I would not need liability insurance, since the
"client" would be considered and "employer", meaning that if I got injured, or
hurt anyone else during the course of my photography for that "client", then
the legal responsibility would be to the person who "hired" me.
It might seem strange, but there are many cases like this each year. One reason
to look in PDN, or similar photo industry publications, is that they cover many
of the major issues with Copyrights. The "all right" and "work for hire"
agreements in many US companies are often found not to be valid, and too often
used to take advantage of independent contractors. Those sorts of issues also
fall under US and many states labour laws.
> If
> US laws allow the scenario in the first 2 paragraphs, then you are right and
> I am extremely glad I don't live in the USA.
About the only US law that I do like, due to the protections afforded by it, is
the Copyright Law. While there have been recent changes, there is still a great
deal of protection. Since I am also a foreign national (German), I also fall
under Berne Convention protection within the US. Sure, there are some things
not to like, but one still needs to know how to work within a system.
>
>
> The Westminster system is used by many countries who peacefully separated
> from British rule... Unlike the USA which separated violently and set about
> creating it's own unique set of rules, laws, measurements and standards.
> Some without any logical basis, almost as if to spite the Westminster system
> that spawned the nation in the first place.
I am fairly certain that the UK is a signatory of the Berne Convention, and
Madrid Protocol. Maybe I should double check to be sure. China is an example of
a country that is not a signer, and some current pressure is being put towards
them to improve their intellectual property laws.
>
>
> Either way, your assertion that you can take money to work to someone's
> instructions and reserve the right to literally hold them to ransom when
> they choose to use whatever you took money to make for them in the first
> place, is a rather evil concept...
Okay, just to be clear, I let every client know exactly what they are getting
up front. They also know that I transfer some rights, and retain some others.
If a client wants exclusive rights, or all rights, then I negotiate an
appropriate fee for those. Obviously, a recognizable property, person, or
product in an image requires an appropriate release and could further restrict
usage of an image, either for me, or for my client. If you are curious what a
sample contract looks like, you can see one of mine here:
<http://www.allgstudio.com/support_files/> file called "AGinv2004.pdf". The
other part that would go to a client prior to this document is a proposal, in
which all aspects of a mandate are described. There are no surprises for my
clients, and I am very fair on my prices, and what I give them.
> Now that I think about it, that fits into
> Microsoft's business model. Maybe it is possible in the land of the free,
> home of the brave after all, eh?
>
> Douglas
Sure, people often complain about Copyright Laws when they see large
corporations abusing those rights, often to the detriment of the average
person. The other time we find we don't like these things is when we here about
some musician that signed a bad contract, and then the record company abuses
them.
When this works well is when someone randomly finds an image, and then uses it
without asking. Some people complain that if they like something, and image or
a song, then they should just be able to use it, even if they make money from
using it. This is often termed a "free and open" society idea. In this age of
technology and information sharing, it is even easier to get things without
asking. Even large companies take images and then use them without asking, and
make a profit. These things happen all the time, and often the originator of
the image never knows. Just because something can be done does not make it
right, or legal.
People also complain that Copyright Laws allow some companies to make too much
money. I don't like Micro$oft anymore than the next guy, but I would never
claim that it is okay to take from them because "they make too much money".
There are other laws that can be used against companies to prevent what some
consider to be unfair business practices, as seen recently by the fines the EU
handed down against Microsoft.
Gordon Moat
The "employee" part is often the legal basis for any challenge. One aspect is
often if the equipment was provided in full to the photographer, something that
can be argued if the photographer rented that gear, and then the client paid for
the rental. Of course, there are other tests of an "employee to employer"
relationship. The idea is to avoid having abuses of independent contractor laws.
We had a recent case of a local computer company. The woman that owned the
company told all here employees that they were independent contractors, and were
also temporary. She worked most of them 20 to 40 hours a week, sometimes for up
to one month at a time. She provided the office, and all the equipment. Much of
the work was producing web sites, so she also told the "employees" that they had
no rights to anything they worked on. She never paid unemployment insurance, nor
did any tax withholding from any of them. When one former employee filed to get
unemployment, and happened to list a prior job with that woman, the state of
California found out what she was doing. They fined her heavily, and made her pay
back taxes and unemployment insurance for everyone that had worked there since
she was in business.
While there are legal temporary agencies, and getting workers from those would
have avoided the above situation, many business owners just run on a "seat of the
pants" concept of laws. A photographer working one day could either be an
independent contractor, or an employee. The care in which the person hiring the
photographer takes to determine that status could have legal implications. We
don't have to like these things, they are laws.
Gordon Moat
Thanks, that is good to know. It seems I would need different contracts if I
ever do work in Canada or Australia. Of course, a similar situation applies to
China.
Philip Homburg
Gordon Moat <mo...@attglobal.net> wrote:
>The "employee" part is often the legal basis for any challenge. One aspect is
>often if the equipment was provided in full to the photographer, something that
>can be argued if the photographer rented that gear, and then the client paid for
>the rental. Of course, there are other tests of an "employee to employer"
>relationship. The idea is to avoid having abuses of independent contractor laws.
>
>We had a recent case of a local computer company. The woman that owned the
>company told all here employees that they were independent contractors, and were
>also temporary. She worked most of them 20 to 40 hours a week, sometimes for up
>to one month at a time. She provided the office, and all the equipment.
One of the issues as far as the Dutch law is concerned is whether an
independent contractor has multiple clients. If a person enters an agreement
like this with about three or more different companies each year, then it is
possible for both parties to claim that the work is done by a contractor.
Another requirement is that a contractor should receive just high level
instructions about the tasks to be performed and no detailed supervision.
What you described is not at odds with those requirements.
However, both the the employer and the employee would have to conspire to
fake a position as an independent contractor. I doubt that the employer can
do that convicingly on its own.
>Much of
>the work was producing web sites, so she also told the "employees" that they had
>no rights to anything they worked on.
Funny, employees don't get the right to what they work on. Contractors retain
copyright unless there is a contract that says otherwise.
>She never paid unemployment insurance, nor
>did any tax withholding from any of them. When one former employee filed to get
>unemployment, and happened to list a prior job with that woman, the state of
>California found out what she was doing. They fined her heavily, and made her pay
>back taxes and unemployment insurance for everyone that had worked there since
>she was in business.
In .nl, the issue is usually that both the employer and the employee want to
see the relationship as one where a contractor is hired, but the office that
collects unemployment insurance sees it as an employment relationship.
>A photographer working one day could either be an
>independent contractor, or an employee. The care in which the person hiring the
>photographer takes to determine that status could have legal implications. We
>don't have to like these things, they are laws.
I think that in .nl, a company that wants to employ a photographer (and obtain
copyright through the employment relationship) for a relatively short period
of time (say less then 6 months) should make sure that the photographer
signs an employment contract.
An independent photographer probably wants to get the client to sign
a contract.
Without written contracts, when the client pays an invoice or when the
photographer receives a salary payment, the situation is probably fixed.
Ryadia@home
> "Ryadia@home" wrote:
>
> People also complain that Copyright Laws allow some companies to make too
> much
> money. I don't like Micro$oft anymore than the next guy, but I would never
> claim that it is okay to take from them because "they make too much
> money".
> There are other laws that can be used against companies to prevent what
> some
> consider to be unfair business practices, as seen recently by the fines
> the EU
> handed down against Microsoft.
>
> Ciao!
>
> Gordon Moat
> A G Studio
> <http://www.allgstudio.com>
>
>
are legally binding in Australia Indonesia, theUK and New Zealand. I too got
involved in copyright litigation but unlike you, the court decided I had
worked under client instructions and the client therefore was the owner of
everything I produced.
Lawyer's fees: $4900
Court costs: $1800
Plaintiff's: awarded costs $5800
Proceeds from shoot: $3800
Me out of pocket: $8700
The job? Shoot the wedding of a well known barrister's daughter.
The dispute?
Client: "Send us over the negatives of the wedding, will you? I want to get
some prints made". Me: "Tell me which ones and I'll print them for you".
Client: "Oh No you don't. I'm not paying your outragious fees just for a few
photographs".
Me: "I own the copyright to the images."
Client: "We'll see about that".
My lawyer's advice when the summons arrived: "Give the prick what he wants,
he's got a reputation for this sort of behaviour".
Me: "Well, do I have a chance of winning?"
Lawyer: "maybe".
The greatest understatement ever made! After the settlement I discovered the
barrister was a declared bankrupt (by the Australian Tax Office) and even if
I had won, I couldn't have recovered any of my costs. Who would have thought
a lawyer could remain in business after being decalerd bankrupt? Australian
law permitted this until quite recently.
I spent another $1600 on contracts and legal opinions after that. I now have
a clearer grasp of Australian and British law. No one gets a shutter click
from one of my cameras without signing a 10 page contract now.
Douglas
Ryadia@home
"Mxsmanic" <mxsm...@hotmail.com> wrote in message
news:panla197ful8ggchg...@4ax.com...
> Jerry L writes:
>
>> ...and you do have a signed release in hand from the he/she running in
>> your photo that the newspaper ran in the advertisement?
>
> That's the responsibility of the newspaper, not the photographer,
> although it's best for the photographer to explicitly disclaim
> responsibility for obtaining releases in his contract.
>
> In the U.S., a release is not required for editorial and certain other
> uses, but it is definitely required for advertising use.
>
> --
In Australia no person has a right *NOT* to have their photo taken. Of
course what you do with the photo could land you in a wrangle by just the
act of taking a person's photo does not require a release. The concept that
you have to get a release from anyone in a picture intended for publication
carries with it the suggestion, you should never photograph a crowd!
Douglas
Gordon Moat
> "Gordon Moat" <mo...@attglobal.net> wrote in message
> news:42AB3A9A...@attglobal.net...
> > "Ryadia@home" wrote:
> >
> > People also complain that Copyright Laws allow some companies to make too
> > much
> > money. I don't like Micro$oft anymore than the next guy, but I would never
> > claim that it is okay to take from them because "they make too much
> > money".
> > There are other laws that can be used against companies to prevent what
> > some
> > consider to be unfair business practices, as seen recently by the fines
> > the EU
> > handed down against Microsoft.
> >
> > Ciao!
> >
> > Gordon Moat
> > A G Studio
> > <http://www.allgstudio.com>
> >
> >
> Clearly, If the US laws are as you say, they would outlaw my contracts which
> are legally binding in Australia Indonesia, theUK and New Zealand. I too got
> involved in copyright litigation but unlike you, the court decided I had
> worked under client instructions and the client therefore was the owner of
> everything I produced.
It seems that both of us could improve on things a bit by changing our
contracts for specific areas. Someone else mentioned Canada. Since I have done
previous design work in Canada, it seems that I will start with that area to
see how my current paperwork fits in.
If you really do want to do some creative work in the US, then knowing what you
can about US laws would help. The legal system in the US (mostly the court
system) really sucks sometimes, and can run into a spending war instead of true
justice.
There was a recent case reported in PDN about Mattel suing a photographic
artist over his unusual images using Barbie dolls. Since he barely made any
money from his art, a legal defence group took up his case pro bono. The
lawyers prevailed over Mattel, though it took over four years for a conclusion.
Then Mattel appealed, though they lost the appeal. The appeals judge was so
incensed by the actions Mattel took in this case that it turned out that Mattel
was fined for a "frivolous lawsuit".
While Mattel did ultimately loose in that case, there are some important issues
around it. One was that the artist they tried to sue was using the Barbie dolls
in unusual scenes as a form of satire. Under US Copyright Laws, satire is one
of the "fair use" provisions allowed. The other aspect is that this artist had
no money to defend himself against a large company. If that group did not offer
to fight for him (I should point out that they made lots of money from Mattel
in legal fees awarded to them by the court), then he would never have
challenged Mattel.
One really bad reality in the US, is that if another group has more money to
spend on lawyers than you do, they might just prevent you from challenging them
in court. Even if there would be a reasonable chance you might win, you might
not be able to spend enough to prove it. Sad situation, though that is one
barrier we deal might face.
>
>
> . . . . . . . . .
> The greatest understatement ever made! After the settlement I discovered the
> barrister was a declared bankrupt (by the Australian Tax Office) and even if
> I had won, I couldn't have recovered any of my costs. Who would have thought
> a lawyer could remain in business after being decalerd bankrupt? Australian
> law permitted this until quite recently.
There is an unfortunate reality is that unexpected crap can happen. I helped my
mom fight for six years in a civil suit prior to her getting payments to meet
the debt owed her. The payments have dragged out for six years already, with
another few to go. If she had demanded all of it, or not settled the case in
this manner, then that lawyer might have declared bankruptcy, and she would see
little to nothing.
Reminds me of that joke about why sharks don't eat lawyers . . . . . . .
professional courtesy. Of course there is that other joke about the difference
between a lawyer and a bucket of . . . . . . . . well, you probably heard that
one already.
>
>
> I spent another $1600 on contracts and legal opinions after that. I now have
> a clearer grasp of Australian and British law. No one gets a shutter click
> from one of my cameras without signing a 10 page contract now.
>
> Douglas
It is unfortunate when it gets to that point, but better safe than sorry. I
almost quit entirely after my first copyright challenge. Despite that we
settled after arbitration (basically I won), the effort left me feeling angry
and bitter. The only thing that keeps me in a creative profession is that I
really do enjoy what I do for a living. I guess both of us have learned
something.
Mxsmanic
> Clearly, If the US laws are as you say, they would outlaw my contracts which
> are legally binding in Australia Indonesia, theUK and New Zealand. I too got
> involved in copyright litigation but unlike you, the court decided I had
> worked under client instructions and the client therefore was the owner of
> everything I produced.
In the realm of intellectual property, every case is a roll of the dice,
and sometimes completely contrary decisions are handed down.
> The job? Shoot the wedding of a well known barrister's daughter.
The mistake? Shooting the wedding of a well-known _barrister's_
daughter.
> The dispute?
> Client: "Send us over the negatives of the wedding, will you? I want to get
> some prints made". Me: "Tell me which ones and I'll print them for you".
> Client: "Oh No you don't. I'm not paying your outragious fees just for a few
> photographs".
> Me: "I own the copyright to the images."
> Client: "We'll see about that".
I don't have this problem since I usually give the images (including the
negatives) to the client, along with a very generous license to
reproduce them. I retain the copyright, in writing, but since they are
free to do with they wish, no conflict arises.
One thing clients like about me is precisely that I do not insist on
making prints for them and charging outrageous prices for them.
> My lawyer's advice when the summons arrived: "Give the prick what he wants,
> he's got a reputation for this sort of behaviour".
> Me: "Well, do I have a chance of winning?"
> Lawyer: "maybe".
Like I said, every case is a roll of the dice.
> The greatest understatement ever made! After the settlement I discovered the
> barrister was a declared bankrupt (by the Australian Tax Office) and even if
> I had won, I couldn't have recovered any of my costs. Who would have thought
> a lawyer could remain in business after being decalerd bankrupt? Australian
> law permitted this until quite recently.
If one is bankrupt, how can one stay afloat without being allowed to
practice one's profession? He made more than $10,000 in his case
against you.
> I spent another $1600 on contracts and legal opinions after that. I now have
> a clearer grasp of Australian and British law. No one gets a shutter click
> from one of my cameras without signing a 10 page contract now.
Ten pages seems excessive.
Mxsmanic
> In Australia no person has a right *NOT* to have their photo taken. Of
> course what you do with the photo could land you in a wrangle by just the
> act of taking a person's photo does not require a release. The concept that
> you have to get a release from anyone in a picture intended for publication
> carries with it the suggestion, you should never photograph a crowd!
There are indeed serious problems with certain aspects of image law. In
many countries, including France, you are required to obtain a release
for every recognizable person and object in every photo, which means
that you effectively commit a felony each time you press the shutter
button. It's a no-win situation. Even though enforcement usually does
not press the letter of the law, the fact that it is there is a constant
menace.
William Graham
a pit on your front lawn (the White House lawn), invite the press to the
Bar-B-Que, and throw the negatives (tapes) into the pit..........Then enjoy
your ribs and chicken.
William Graham
What amazes me is that the client would treat the photographer that way when
the photographer is still in possession of the negatives. It would be so
easy to accidentally drop them in the river while on your way to the post
office to deliver them....:^)
McLeod
wrote:
>It seems that both of us could improve on things a bit by changing our
>contracts for specific areas. Someone else mentioned Canada. Since I have done
>previous design work in Canada, it seems that I will start with that area to
>see how my current paperwork fits in.
Check out the CAPIC website for more info.
McLeod
wrote:
>In Australia no person has a right *NOT* to have their photo taken. Of
>course what you do with the photo could land you in a wrangle by just the
>act of taking a person's photo does not require a release. The concept that
>you have to get a release from anyone in a picture intended for publication
>carries with it the suggestion, you should never photograph a crowd!
In Quebec the courts have decided that the right to privacy is more
importrant than freedom of press. A couple of years ago a woman (who
was just eating lunch in a park I believe) took a newspaper to court
for publishing her photograph. She was in a public place, the
photographer worked for the newspaper, but she still won.
Gordon Moat
Thanks, I think I have the correct site at <http://www.capic.org>. There were a
few similar sites only in French. Should be a good resource.
Iain Laskey
bolsh...@hotmail.com (Mr.Bolshoy Huy) wrote:
> Remember, when Madonna was 19, she had nude photos done, which were
> published 16 years later without her permission.
She signed a model release form - it's in the book.
Iain