Who Own's the copyright???
Mark C
photos taken whether he is paid by the client or not. Now I am also under
the impression the client has some rights as well and in order for the
photographer to use the photo's he must get some kind of release, correct?
And if the client wants sole use of the photo's they must get the
photographer to sell his copyright to them, correct?
Here is the question. In a situation where the client is unhappy with the
result, and as a matter of policy the photographer refuses to accept payment
for the session (because he promises 100% satisfaction) Who owns the
copyright to the photos?
Your thoughts and opinions are most appreciated?
Mark C
Nashville,TN
JR
photographer owns the film (or digital media) then he owns the
copyright. Now using that shot for commercial purposes is another
matter. The images cannot be used without a release form.
JR
In article <c5ma8t$35g47$1...@ID-135552.news.uni-berlin.de>,
Frank ess
I believe ownership defaults to the author if it is not otherwise
specified in the contract.
If the photographer is an employee of the "buyer", ownership resides
with the buyer: it is "work for hire".
I assume from your question that you had no written contract, and that
the photos are yours until the buyer accepts them under conditions of
your agreement. If they are no longer on offer, they remain yours.
See Yahoo! group Editorial Photo
<http://groups.yahoo.com/group/editorialphoto/messages>
<http://groups.yahoo.com/group/editorialphoto/database>
<http://www.editorialphoto.com>
for expert opinion.
Frank ess
Barry Bean
news:c5ma8t$35g47$1...@ID-135552.news.uni-berlin.de:
> Here is the question. In a situation where the client is unhappy with
> the result, and as a matter of policy the photographer refuses to
> accept payment for the session (because he promises 100% satisfaction)
> Who owns the copyright to the photos?
What did the contract say?
Barry Bean
> Here is the question. In a situation where the client is unhappy with
> the result, and as a matter of policy the photographer refuses to
> accept payment for the session (because he promises 100% satisfaction)
> Who owns the copyright to the photos?
What did the contract say?
Marvin Margoshes
"Mark C" <m...@wallerlaw.com> wrote in message
news:c5ma8t$35g47$1...@ID-135552.news.uni-berlin.de...
The photographer owns the copyright, if he is not being paid to make the
photos. In some cases, there is a contract that overrides that rule. Was
there a contract? That may settle the matter, depending on what is in it..
Declining an offered payment may not have changed the rules. Absent clear
contract provisions, thre matter is complex enough to require advice from a
qualified lawyer.
There is clear, detailed info on the U.S. copyright laws at
http://www.copyright.gov/.
Mark C
cost of prints.......I have learned a valuable lesson........get it in
writing upfront!!!!
"Barry Bean" <bbb...@beancotton.com> wrote in message
news:Xns94CC70DD743...@207.14.113.17...
st...@temple.edu
The photographer probably owns the copyright. I am not an attorney and free
legal advise is worth exactly what you paid for it. If you have a dispute
with a client, you need to consult an attorney who specializes in intellectual
property law.
Patrick L.
"Mark C" <m...@wallerlaw.com> wrote in message
news:c5ma8t$35g47$1...@ID-135552.news.uni-berlin.de...
Even without a prior agreement, by law, you have the originals, copyrights
are yours to keep, reassign, reassign with limitations, etc. , whatever you
want to do. Consult an attorney,
Patrick
Paul Riemerman
image unless a release is signed.
Paul Riemerman
<st...@temple.edu> wrote in message news:c5md4q$941$1...@cronkite.temple.edu...
Jeremy
"Mark C" <m...@wallerlaw.com> wrote in message
news:c5mda3$38hf8$1...@ID-135552.news.uni-berlin.de...
Without a contract, the photographer owns the copyrights by default (U.S.
law--other countries' may be different).
You'd need model releases signed by any natural persons in the photos if you
wanted to use them for commercial purposes.
Jeremy
"Paul Riemerman" <parN...@tds.net> wrote in message
news:407ec042$1...@newspeer2.tds.net...
> You as the photographer own the copyright, and the subject owns his or her
> image unless a release is signed.
>
Just to explore this a bit further, the photographer may own the copyrights
to the photos, but he would be on thin ice if he attempted to use the photos
for his own commercial use, whether or not he accepted payment from the
subject, unless he first obtained model releases.
Presumably he did not get model releases, because he was doing this work for
hire--to the specifications of his client--and not for his own use.
If he subsequently does not transfer prints of the images to his client,
that does not mean that he is now free to use them for his own use, if they
contain images of natural persons or images of private property.
I am uncertain of what his rights are if the images do not violate
privacy--such as if he was hired to take travel brochure photos of national
landmarks, and the client subsequently didn't pay for and receive the
prints.
But, if he is hired to shoot Madonna's wedding ceremony, and Madonna doesn't
like the pics and does not take them, he had better not offer to sell them
to the National Enquirer for publication--unless he's prepared for a legal
battle . . .
:-)
Wayne Ball
> The photographer owns the copyrights. It's pretty simple. If the
> photographer owns the film (or digital media) then he owns the
> copyright. Now using that shot for commercial purposes is another
> matter. The images cannot be used without a release form.
>
This is how I always understood things to work, but reading it
just now reminded me of something I've been curious of.
How do the folks who make a living stalking celebrities
for photo ops sell their product?
Wayne
Phil Stripling
> I was under the impression that the photographer owns the copyright to all
> photos taken whether he is paid by the client or not.
Assuming you are in the US, unless the photographs are part of a work for
hire contract, the person making the photos owns the copyright in them.
> Now I am also under
> the impression the client has some rights as well and in order for the
> photographer to use the photo's he must get some kind of release, correct?
That is a different issue from copyright. There are privacy laws which
govern whatever rights a person _may_ have in the copyright owner's use of
the images. You don't say where you are. There are no federal privacy laws
in the United States; state laws govern, and they vary widely. I believe
New York state has given consumers some rights in the photographs and
negatives, but I can't remember whether the law was proposed _and_
passed. See a New York lawyer. :-> As for Tennessee, I have no clue.
> And if the client wants sole use of the photo's they must get the
> photographer to sell his copyright to them, correct?
There is a difference between the "paper and film" and the copyright. That
is to say, the medium of the image is not the copyright. A photographer may
sell or give away prints and even negatives, without also assigning the
copyright.
>
> Here is the question. In a situation where the client is unhappy with the
> result, and as a matter of policy the photographer refuses to accept payment
> for the session (because he promises 100% satisfaction) Who owns the
> copyright to the photos?
Without an agreement on the matter (preferably written), copyright resides
in the author of the work. An issue not addressed is who owns the physical
materials -- any prints and the negatives or digital medium containing the
'fixed images.' You need to ask a local lawyer, because state laws
(assuming you are in Tennessee) vary on who owns what.
>
> Your thoughts and opinions are most appreciated?
I know you don't want to hear this, but you ought to talk this over with a
local lawyer who does intellectual property work, not just general contract
law. Have that lawyer draft a contract that covers these issues.
On a non-legal, practical basis, if you promise a hundred percent
satisfaction and the customer isn't satisfied, they owe you nothing. I
don't know what else is promised in your guarantee, but if the client is so
unhappy they don't want any evidence left of the work, I'd offer to destroy
the prints in their presence and to erase the memory or destroy the negs,
as the case may be. As a photographer, I would not be willing to _give_
prints to unhappy customers, as it opens me up to working for free for
unscrupulous customers. But as others have noted, this should be covered in
your guarantee. (On the other hand, if the customer wants the tiny little
scraps of paper left after I ripped them into a thousand pieces, I'd be
happy to turn those over. Just not useable prints.)
Customers can go really crazy on you. If they insist that no trace be left,
and you use digital imagery, you may not be able to prove to their
satisfaction that there are no copies of their photos left. You may want to
ask that lawyer to address this issue in your guarantee -- given that even
erased images can be unerased, what is to be done if the customer insists
on destruction. It may be better to say the customer has no say in
destruction of the digital file, just the paper prints. A local lawyer will
be able to better advise you on this and other issues, taking into account
the consumer protection laws of your state.
--
Philip Stripling | email to the replyto address is presumed
Legal Assistance on the Web | spam and read later. email to philip@
http://www.PhilipStripling.com/ | my domain is read daily.
Jeremy
"Wayne Ball" <wb...@mtholyoke.edu> wrote in message
news:407ecdfc$1...@nap.mtholyoke.edu...
Celebrities are considered to be "Public Persons," and do not have the same
presumption of privacy as do mere mortals like us.
Also, don't forget that most celebrities benefit from the increased interest
generated by such photos, regardless of how much they may whine about it.
If no one were interested in taking their photos, a lot of 'em would be none
too happy.
Do you remember a few years ago, when the then-Speaker of the House of
Representatives (Livingston?) was about to have details of his sexual
affairs published by Larry Flynt ("Hustler"), and he immediately stepped
down? This was during the Clinton/Lewinsky affair, and Flynt was going to
expose other politicians that were also guilty of extramarital dalliances,
in an attempt to deflect criticism from Bill Clinton. He apparently was
getting details on some of those pols through transcripts of their previous
divorce proceedings.
Once Livingston he stepped down from his official position, he was no longer
considered to be a "public person," and the news media refused to touch the
story.
Now, if you shoot photos of even a celebrity through their bedroom windows,
for example, you'll probably be on thin ice. But if you restrain yourself
to photographing them within the context of public places, you'll probably
be within your rights.
Alfred Molon
>This is how I always understood things to work, but reading it
>just now reminded me of something I've been curious of.
>How do the folks who make a living stalking celebrities
>for photo ops sell their product?
Don't know about the USA, but here in Germany you don't need releases
for photos of celebrities. Celebrities are so-called "persons of the
current history", and the public interest over what is going on with
them is higher valued than their privacy rights.
--
Alfred Molon
------------------------------
http://groups.yahoo.com/group/Olympus_405080/
Olympus 5050 resource - http://www.molon.de/5050.html
Olympus 5060 resource - http://www.molon.de/5060.html
Olympus 8080 resource - http://www.molon.de/8080.html
Mark C
"Phil Stripling" writes:> Customers can go really crazy on you. If they
insist that no trace be left,
> and you use digital imagery, you may not be able to prove to their
> satisfaction that there are no copies of their photos left. You may want
to
> ask that lawyer to address this issue in your guarantee -- given that even
> erased images can be unerased, what is to be done if the customer insists
> on destruction. It may be better to say the customer has no say in
> destruction of the digital file, just the paper prints. A local lawyer
will
> be able to better advise you on this and other issues, taking into account
> the consumer protection laws of your state.
With regard to destroying the images....what you say is correct,with regard
to digital images. However, I have been advised by my lawyer that it can
only do what is reasonable and it is not reasonable to destroy my entire
hard drive. It is, however, sufficient to stimpulate in writing that the
images have been erased from my hard drive, all slides turned over to the
client and the only images (copies) that exist are the ones that the cleint
has and those that reside in my attorneys vault until the matter is
resolved. Yes, I still own the copyright but I have agreed, in writing, not
to use these images for any purpose whatsoever. He seems to think that this
should be enough to put the matter behind us.
Mark C
Nashville TN
PTRAVEL
"Patrick L." <nice...@ifyoucangetit.com> wrote in message
news:107tfj8...@news.supernews.com...
If you're speaking of US law, you're completely wrong.
By law, the author, i.e. the photographer, owns the copyright, unless he is
your employee (as distinguished from an independent contractor -- in the
OP's scenario, the photographer would be an independent contractor and not
an employee). Whether you have the originals is irrelevant.
I am an attorney.
>
>
PTRAVEL
Everyone is confusing copyright with right-of-publicity issues. Copyright
is owned by the author, i.e. the photographer (not the person who owns the
film or digital media), unless he is an employee or a prior written
agreement specifies that it is a work for hire.
Most states have laws the preclude commercial appropriation of likeness.
News gathering is an exception to this.
>
Wayne Ball
>
> Celebrities are considered to be "Public Persons," and do not have the same
> presumption of privacy as do mere mortals like us.
>
Thanks jeremy, that explanation makes sense.
I figured they must have considered the
papparazzi in some context desireable,
otherwise their collective wealth would have
found a way to stop them somehow.
It does make for an interesting gray area, when
does one transition from private person to public
person?
Does an athlete known only to a locality fall
under the 'public person' legal status for local
publications?
Wayne
Alan Browne
Except as may be contractually agreed between you and your client or
employer, the copyright is the photographers, until he releases it or
until some long time after his death.
Copyright does NOT give you the right to publish the image of someone
without their permission. Exceptions include 'public persons' (actors,
politicians, etc), and the defintion of that may change from nation to
nation, juristiction to juristiction.
In answer to your question, the photographer owns the image unless a
contract clearly specifies that the client/employer automatically owns
them regardless of how they look. Absent such a contract, if the
photographer refuses payment to hold the images, then that should suffice.
IAC, for your hypothetical question the solution offered is a re-shoot,
where/whenever possible.
Some Trademarked things may not be published w/o the permission of the
owner, a famouse case being that damned tree in California.
Cheers,
Alan
Charlie Self
>But, if he is hired to shoot Madonna's wedding ceremony, and Madonna doesn't
>like the pics and does not take them, he had better not offer to sell them
>to the National Enquirer for publication--unless he's prepared for a legal
>battle . . .
>
Not so. Madonna is a celebrety, for some reason or other, so is in a
photographic free fire zone.
Charlie Self
"If the misery of the poor be caused not by the laws of nature, but by our
institutions, great is our sin." Charles Darwin
Tom Monego
says...
Mark,
1. You own the copyrite
2. If there is a recognizsable person in the image you can't publish it unless
you have a model release, unless it was taken at a public event.
3. Unless the client has a court order I would not destroy the images. Their
lawyer can get one, but generally no court will order it unless the pics can
be used in some way that is detremental to the client. (nudes for instance)
4. Really if the client refused the pics they have no rights to the pics, you
may not either (see 2).
5. If the client wants full rights to the pics they will have to pay you for
full rights, ASMP suggest up to $1500 per image.
Moral: Get a model release.
Good Luck
Tom
Phil Stripling
> I have agreed, in writing, not to use these images for any purpose
> whatsoever. He seems to think that this should be enough to put the
> matter behind us.
I hope so. Some customers turn out to be complete loonies, and there is no
way to deal with them. "Reasonable steps" just don't satisfy some people.
Good luck.
Mark C
Mark
"Phil Stripling" <phil_st...@cieux.zzn.com> wrote in message
news:3qllkxu...@shell4.tdl.com...
Jeremy
"Charlie Self" <charl...@aol.comnotforme> wrote in message
news:20040415164002...@mb-m10.aol.com...
> Jeremy states:
>
> >But, if he is hired to shoot Madonna's wedding ceremony, and Madonna
doesn't
> >like the pics and does not take them, he had better not offer to sell
them
> >to the National Enquirer for publication--unless he's prepared for a
legal
> >battle . . .
> >
>
> Not so. Madonna is a celebrety, for some reason or other, so is in a
> photographic free fire zone.
>
I should have been more specific:
I meant that if Madonna had a wedding on some secluded private property, and
she hired you as a photographer, and you shot photos as her subcontractor,
you would be putting yourself in jeopardy if you then sold or published
those photos without her consent.
If, on the other hand, you lived on a mountain, and you could look down onto
her estate below, and you shot photos of her garden wedding (not as her
contractor,) I doubt that she could stop you.
The sticky part is when you invade someone's private space. Shooting her on
a public street is ok, but I don't think you could take photos of the
interior of her home, without her OK.
It's a bit of an ambiguous issue, and even if you are correct, and she sues
you and loses, you still have to pay legal fees and get bogged down in legal
proceedings. I prefer to apply a common-sense standard. I don't have the
National Enquirer's legal staff to defend me if someone feels that I've
violated their rights with my camera.
As an aside, we have a local paper here in Philadelphia (not one of the big
ones--this one covers neighborhood issues for about 1/3 of the City) that
has a strict policy of not publishing photos showing anyone's face (i.e. any
photo where the subject can be identified) without securing a release first.
Whether they do this on the advice of counsel, or just because they wish to
respect people's privacy, it seems to be an appropriate policy.
Mxsmanic
> I was under the impression that the photographer owns the copyright to all
> photos taken whether he is paid by the client or not.
In the United States, this is correct, except in two cases:
1. The photographer is an employee of his "client" (FICA deductions,
working hours fixed, equipment provided, etc.), and taking photographs
is part of his job.
2. The photographer has signed an agreement with the client that
explicitly identifies his work as "work for hire," and thus assigns all
copyrights to the client.
> Now I am also under the impression the client has some
> rights as well ...
Only as stated above.
> ... and in order for the photographer to use the photo's he
> must get some kind of release, correct?
That's a separate issue that has nothing to do with copyright.
In most jurisdictions, including the U.S., individuals have the right to
control the use of their likeness in certain contexts, particularly for
advertising or other money-making uses. If you use someone's photo in
this way, you need his permission to do so. For mere informational or
editorial use, you don't need permission, but for something like an
advertisement, you need a release.
> And if the client wants sole use of the photo's they must get the
> photographer to sell his copyright to them, correct?
Yes, or he must get the photographer to license the photos to him for
the use the client has in mind.
> Here is the question. In a situation where the client is unhappy with the
> result, and as a matter of policy the photographer refuses to accept payment
> for the session (because he promises 100% satisfaction) Who owns the
> copyright to the photos?
The photographer.
But you are confusing copyright and model releases. Two entirely
different things.
--
Transpose hotmail and mxsmanic in my e-mail address to reach me directly.
Mxsmanic
> How do the folks who make a living stalking celebrities
> for photo ops sell their product?
They sell their photos in jurisdictions where model releases are not
required for this type of photo. In many jurisdictions, celebrities
and/or people in general are generally held to sacrifice some of their
rights to control the use of their likeness for certain purposes, such
as news and information. Commercial use in advertising nearly always
requires a release, even for celebrities, but selling a celebrity's
photo to a fan magazine does not require a release (usually).
Mxsmanic
> There was no contract, per se'........just a verbal agreement on my fee and
> cost of prints.......I have learned a valuable lesson........get it in
> writing upfront!!!!
If you have nothing in writing, the copyright is yours by default.
Mxsmanic
> As an aside, we have a local paper here in Philadelphia (not one of the big
> ones--this one covers neighborhood issues for about 1/3 of the City) that
> has a strict policy of not publishing photos showing anyone's face (i.e. any
> photo where the subject can be identified) without securing a release first.
> Whether they do this on the advice of counsel, or just because they wish to
> respect people's privacy, it seems to be an appropriate policy.
They aren't ever likely to become a big paper with policies like that.
Mxsmanic
> I know you don't want to hear this, but you ought to talk this over with a
> local lawyer who does intellectual property work, not just general contract
> law. Have that lawyer draft a contract that covers these issues.
The problem is that the cost of a lawyer may far exceed the total value
of the business in question. No sense in spending $1000 on attorney
fees for a $200 job.
Mxsmanic
> Bur reasonable is good enough for a court of law (most times).
Your side of the dispute will be much more "reasonable" if you have a
large amount of money to spend to purchase the justice you require.
Mxsmanic
> Copyright does NOT give you the right to publish the image of someone
> without their permission. Exceptions include 'public persons' (actors,
> politicians, etc), and the defintion of that may change from nation to
> nation, juristiction to juristiction.
You don't need a release for certain types of publication, though (in
the U.S.). Editorial and informational publication don't require a
release.
> Some Trademarked things may not be published w/o the permission of the
> owner, a famouse case being that damned tree in California.
Not so. You can publish photos of that tree, if you wish. Trademark
law doesn't come into play unless your use of the photo causes confusion
in the mind of the trademark holder's customers (e.g., they mistake your
product for the trademark holder's product). A typical photo doesn't do
this.
The owner of the property on which that famous tree is found can
prohibit you from taking pictures of the tree _while you are on his
property_, but he cannot prohibit you from taking pictures from some
other point, nor can he prohibit publication of the pictures for many
purposes (news, information, editorial pieces, etc.).
Mxsmanic
> 2. If there is a recognizsable person in the image you can't publish it unless
> you have a model release, unless it was taken at a public event.
You can publish it in non-commercial contexts, such as news,
information, and editorial uses.
> Moral: Get a model release.
A model release has nothing to do with copyright.
Patrick L.
"PTRAVEL" <ptravel8...@yahoo.com> wrote in message
news:c5mno5$39cfg$1...@ID-101118.news.uni-berlin.de...
As a laywman on matters of law, I take no offense for being completely
wrong on US law, or otherwise, which is why I always write in these
instances, "consult an attorney".
But from now on I shall add to that, "but NOT one on usenet.".
Patrick
Patrick L.
'nuff said.
Patrick
Jerry
Jerry
Phil Stripling
> Phil Stripling writes:
>
> > I know you don't want to hear this, but you ought to talk this over with a
> > local lawyer who does intellectual property work, not just general contract
> > law. Have that lawyer draft a contract that covers these issues.
>
> The problem is that the cost of a lawyer may far exceed the total value
> of the business in question. No sense in spending $1000 on attorney
> fees for a $200 job.
Hon, you're the one who said, and I quote:
That's exactly what happens in real life. It is perfectly possible
nowadays for a new pilot to never fly an actual aircraft until he steps
aboard as pilot of an aircraft with paying passengers. All the rest is
done in a simulator. Today's simulators are very good.
Remember that? And your response to the incredulity that you could say
something that stupid was, and I quote: 'I said "an actual aircraft," not
"any actual aircraft."' Which, of course, cleared everything right up.
I asked you then, and I ask you now, are you more expert in copyright
matters or learning to fly matters?
The issue in the original post here is that if this problem has cropped up,
it may crop up again. Although it may cost more than this one customer's
profit to hire a lawyer, it may save more money in the long run having a
properly drafted contract for the photos and guarantee of satisfaction.
Buh-bye, hon. I don't know what you're on, but have a nice flight.
Phil Stripling
> 'nuff said.
>
I'll drink to that. Margarita's on me, Pat.
Mxsmanic
> Hon, you're the one who said, and I quote:
>
> That's exactly what happens in real life. It is perfectly possible
> nowadays for a new pilot to never fly an actual aircraft until he steps
> aboard as pilot of an aircraft with paying passengers. All the rest is
> done in a simulator. Today's simulators are very good.
>
> Remember that?
Yes. It was true then, and it is true now.
> And your response to the incredulity that you could say
> something that stupid was, and I quote: 'I said "an actual aircraft," not
> "any actual aircraft."' Which, of course, cleared everything right up.
It should have.
> I asked you then, and I ask you now, are you more expert in copyright
> matters or learning to fly matters?
I know more about IP, since my work requires it.
> The issue in the original post here is that if this problem has cropped up,
> it may crop up again. Although it may cost more than this one customer's
> profit to hire a lawyer, it may save more money in the long run having a
> properly drafted contract for the photos and guarantee of satisfaction.
I'd hardly expect you to recommend against your own profession.
Consulting a lawyer would be nice if it were affordable, but usually it
is not. That's one reason why so much copyright infringement occurs;
it's simply too expensive to _hire a lawyer_ to pursue it, and the legal
system is designed such that hardly anyone can do anything himself
without a lawyer. So anything below a very high threshold isn't worth
pursuing. And conversely, those with lots of money to spend can engage
in endless harassment by hiring lawyers to pursue people who cannot
afford any legal defense.
Mxsmanic
> 'nuff said.
But if what you say is true, why should anyone believe what you say?
After all, you're saying it on USENET.
Steve Moody
<mxsm...@hotmail.com> wrote:
> > I know you don't want to hear this, but you ought to talk this over with a
> > local lawyer who does intellectual property work, not just general contract
> > law. Have that lawyer draft a contract that covers these issues.
>
> The problem is that the cost of a lawyer may far exceed the total value
> of the business in question. No sense in spending $1000 on attorney
> fees for a $200 job.
Why do you think a new contract is needed for each and every job?
Steve Moody
<mxsm...@hotmail.com> wrote:
> > Moral: Get a model release.
>
> A model release has nothing to do with copyright.
A properly written model release has everything to do with
copyright. Mine has a statement that the model understands that I have
all rights to the photos - for publishing and copyright. A model
release is a contract, and you don't have to limit a contract to one
specific concern. CYA.
Where you are confused in your fervor to argue is that that right to
publish a person's likeness has nothing to do with a copyright.
Tom Monego
author asked if he had a situation where the oriiginal client rejected his
photos could he reuse them. He was looking at it as copyrite issue, when it
was a matter of usage, the photos seemed to have a reconizable subject, not a
news photo, if they were new worthy then the photos would be usable in that
context, as you said.
Tom
In article <dt9u70hhgktbafdek...@4ax.com>, mxsm...@hotmail.com
says...
Tom Monego
Don Stauffer
validate a contract. That is why there are so many payments of "one
dollar and other valuable considerations." So even if you contracted,
but the client doesn't pay anything, I'd think you still own the
copyright in those states.
Mark C wrote:
>
> I was under the impression that the photographer owns the copyright to all
> photos taken whether he is paid by the client or not. Now I am also under
> the impression the client has some rights as well and in order for the
> photographer to use the photo's he must get some kind of release, correct?
> And if the client wants sole use of the photo's they must get the
> photographer to sell his copyright to them, correct?
>
> Here is the question. In a situation where the client is unhappy with the
> result, and as a matter of policy the photographer refuses to accept payment
> for the session (because he promises 100% satisfaction) Who owns the
> copyright to the photos?
>
> Your thoughts and opinions are most appreciated?
>
> Mark C
> Nashville,TN
--
Don Stauffer in Minnesota
stau...@usfamily.net
webpage- http://www.usfamily.net/web/stauffer
PTRAVEL
"Steve Moody" <whywaste...@charter.net> wrote in message
news:160420040808494765%whywaste...@charter.net...
> In article <dt9u70hhgktbafdek...@4ax.com>, Mxsmanic
> <mxsm...@hotmail.com> wrote:
>
> > > Moral: Get a model release.
> >
> > A model release has nothing to do with copyright.
>
> A properly written model release has everything to do with
> copyright. Mine has a statement that the model understands that I have
> all rights to the photos - for publishing and copyright.
Yes, but it could also say that you own title to your house. When someone's
photograph is taken, they have no copyright claim. Period. Accordingly,
there is no need for them to release any such claim.
>A model
> release is a contract, and you don't have to limit a contract to one
> specific concern. CYA.
Then why not CYA against everything? Why not have the model waive title
disputes over your house? Liability for the engine in his/her car? There
are no copyright concerns in taking someone's picture.
>
> Where you are confused in your fervor to argue is that that right to
> publish a person's likeness has nothing to do with a copyright.
>
There's no confusion -- the right to publish a person's likeness has nothing
to do with copyright.
Jeremy
"Tom Monego" <t...@nospam.microlightphoto.com> wrote in message
news:j5Rfc.2152$2e6.13@lakeread01...
> 2 subjects here, copyrite and usage. Subesequent posts by the oringinal
> author asked if he had a situation where the oriiginal client rejected his
> photos could he reuse them. He was looking at it as copyrite issue, when
it
> was a matter of usage
I had never paid much attention to this before, but it would appear that,
with regard to photos that contain the likenesses of natural persons, merely
owning copyrights does not mean that one can publish them without model
releases.
In fact, if the photographer transfers the copyright or assigns it or
licenses it to another, that person still is on shaky ground without
accompanying model release(s).
Phil Stripling
> In many states the transfer of SOME amount of money is necessary to
> validate a contract. That is why there are so many payments of "one
> dollar and other valuable considerations." So even if you contracted,
> but the client doesn't pay anything, I'd think you still own the
> copyright in those states.
Hi, Don,
This gets on shaky ground. The issue is whether a contract is valid without
"adequate consideration." An exchange of promises is often considered
adequate consideration. I offer an 8x10 print in exchange for releases when
I photograph people to put on my Web site. I think that's adequate
consideration, given the use. I'm not going to argue against paying cash to
a model for a release. It's definitely conservative. The issue remains
whether "one dollar" is adequate; it depends on the use of the image and
its value at the time of the contract. _Generally_, if the parties are more
or less equal in bargaining power and agree to the consideration at the
time of signing the contract, courts won't look into the issue of whether
the consideration is adequate; the court will assume the parties considered
it adequate at the time and hold them to it.
"One dollar and other good and valuable consideration" is a catch-all
phrase from the old days that attempts to cover all the bases. I don't
consider it good drafting nowadays, because a dollar is often not adequate
consideration on its face, so we're left trying to tell the court what the
'good and valuable' part of the consideration was and trying to convince a
judge that it (whatever it was) really _was_ good and valuable. If that
'good and valuable consideration' isn't specified, the model may claim
(rightly in her view) that it wasn't paid. Then you have a contract with no
consideration and face the real possibility that a court may find the
contract void. My preference is to state the real consideration right there
in the contract. Then the photographer can offer some proof that it was
actually paid. (In my case, for example, I have a receipt for an 8x10 print
[I shoot slides, so I order a print and pay for it] and the cover letter to
the model sending the print.)
Marvin Margoshes
> There was no contract, per se'........just a verbal agreement on my fee
and
> cost of prints.......I have learned a valuable lesson........get it in
> writing upfront!!!!
As Sam Goldwyn, the Hollywood mogul, is supposed to have said, "A verbal
contarct isn't worth the paper it is written on."
Ken Weitzel
Hi...
<snip>
> consideration, given the use. I'm not going to argue against paying cash to
> a model for a release. It's definitely conservative. The issue remains
> whether "one dollar" is adequate; it depends on the use of the image and
> its value at the time of the contract. _Generally_, if the parties are more
> or less equal in bargaining power and agree to the consideration at the
<snip>
I don't know if it's relative, or even of interest,
but several times over the past year or so I've
noticed "One dollar and one cent" deals...
Most recently was a retired former politician
agreeing to work for the salary of one dollar
and one cent per year...
Does that perhaps that some judge somewhere may
have decided that one dollar doesn't cut it?
Take care.
Ken
(Canada, btw)
Tom Monego
>> 2 subjects here, copyrite and usage. Subesequent posts by the oringinal
>> author asked if he had a situation where the oriiginal client rejected his
>> photos could he reuse them. He was looking at it as copyrite issue, when
>it
>> was a matter of usage
>
>I had never paid much attention to this before, but it would appear that,
>with regard to photos that contain the likenesses of natural persons, merely
>owning copyrights does not mean that one can publish them without model
>releases.
>
>In fact, if the photographer transfers the copyright or assigns it or
>licenses it to another, that person still is on shaky ground without
>accompanying model release(s).
You can publish without a release but there is always a chance that the image
will be seen by a subject so the default stance is no model release, no
publication. So it all depends where the image will be used, if the image is
used in say Red Book it has a much high chance of being seen than if it was
used in an electronics trade magazine. The subject can sue if they see the
image used an know they didn't sign a release. You can take a chance but most
publishers won't.
Tom
Mxsmanic
> You can publish without a release but there is always a chance that the image
> will be seen by a subject so the default stance is no model release, no
> publication.
In the U.S., you don't need a release for editorial and information and
some other types of use. The main use requiring a release is
advertising and other similarly commercial use, which involves a lot of
money, endorsement, fictional presentation, etc.
> So it all depends where the image will be used, if the image is
> used in say Red Book it has a much high chance of being seen than if it was
> used in an electronics trade magazine. The subject can sue if they see the
> image used an know they didn't sign a release. You can take a chance but most
> publishers won't.
See above. You don't need a release for everything.
Journalist-North
"PTRAVEL" <ptr...@ruyitang.com> wrote in message
news:aVSfc.23295$1b5....@newssvr27.news.prodigy.com...
>
(snip)
>
> There's no confusion -- the right to publish a person's likeness has
nothing
> to do with copyright.
>
And that is exactly why my model releases cover both an understanding of
copyright and also include an unconditional release of ALL uses, including:
publishing in any media/medium in whole or in part, in colour or B&W, in
digital/electronic or tangible forms, with or with out added words (text) or
other embellishments; derivative works; and compilation works.
Copyright is mine automatically and the model acknowledges this by signing
but further releases, in the signing, all uses comprehensively. including
publishing, display, repro, commercial and non-commercial uses.
They further acknowledge my moral right to be identified as the maker of the
work.
Journalist
PTRAVEL
"Journalist-North" <journali...@blueyonder.co.uk> wrote in message
news:ENFgc.2650$sK2.25...@news-text.cableinet.net...
>
> "PTRAVEL" <ptr...@ruyitang.com> wrote in message
> news:aVSfc.23295$1b5....@newssvr27.news.prodigy.com...
> >
> (snip)
> >
> > There's no confusion -- the right to publish a person's likeness has
> nothing
> > to do with copyright.
> >
> --------
>
> And that is exactly why my model releases cover both an understanding of
> copyright and also include an unconditional release of ALL uses,
including:
> publishing in any media/medium in whole or in part, in colour or B&W, in
> digital/electronic or tangible forms, with or with out added words (text)
or
> other embellishments; derivative works; and compilation works.
Releases are fine. Releasing rights that aren't even implicated is, at
best, unnecessary and superfluous and, at worst, a factor which might render
the contract unconscionable.
>
> Copyright is mine automatically
That's correct (as long as you're not someone else's employee). By
operation of law, it's yours and has absolutely nothing to do with your
model.
> and the model acknowledges this
Why should he/she acknowledge it? Should she also acknowledge that you own
the grant deed to your house? The pink slip to your car?
> by signing
> but further releases, in the signing, all uses comprehensively. including
> publishing, display, repro, commercial and non-commercial uses.
And, from the model's perspective, releasing rights for such uses has
absolutely nothing to do with copyright.
>
> They further acknowledge my moral right to be identified as the maker of
the
> work.
Since they have no control whatsoever over the work, there is no point in
making this contractual concession.
>
> Journalist
Lawyer
>
Mxsmanic
> Copyright is mine automatically and the model acknowledges this by signing
> but further releases, in the signing, all uses comprehensively. including
> publishing, display, repro, commercial and non-commercial uses.
>
> They further acknowledge my moral right to be identified as the maker of the
> work.
The model doesn't need to acknowledge any of this.
Journalist-North
> "Journalist-North" <journali...@blueyonder.co.uk> wrote in message
> news:ENFgc.2650$sK2.25...@news-text.cableinet.net...
> >
> > "PTRAVEL" <ptr...@ruyitang.com> wrote in message
> > news:aVSfc.23295$1b5....@newssvr27.news.prodigy.com...
> > >
> > (snip)
> > >
> > > There's no confusion -- the right to publish a person's likeness has
> > nothing
> > > to do with copyright.
> > >
> > --------
> >
> > And that is exactly why my model releases cover both an understanding of
> > copyright and also include an unconditional release of ALL uses,
> including:
> > publishing in any media/medium in whole or in part, in colour or B&W, in
> > digital/electronic or tangible forms, with or with out added words
(text)
> or
> > other embellishments; derivative works; and compilation works.
>
>
> Releases are fine. Releasing rights that aren't even implicated is, at
> best, unnecessary and superfluous and, at worst, a factor which might
render
> the contract unconscionable.
+++ In my case these particular issues are implicit in nearly every photo I
take as I publish and license a lot of my work in various forms. I am not
doing TFP here, or operating as a hobbyist, but rather working with engaged
and fully paid models, or doing commissioned work (in UK law I retain ALL
rights in commissioned works with specific conditions in copyright law).
There is no issue of a unilateral contract just as there is no issue of
adequate compensation for the paid models. For commissioned work everything
is better dealt with in a confidentiality agreement then in a general
release in any case.
Copyright is a property right; the uses issue is an economic right; both
need to be dealt with. Moral rights, as well, need attention...as noted
below...where third party uses, authorised or unauthorised, are anticipated.
It is precisely the failure to be explicit ENOUGH that sees dozens of these
"Who owns the copyright?" or "Can I use the photo?" questions on Internet
photography forums. In my case I KNOW who owns the copyright, I KNOW who
owns the economic rights and I KNOW who conditions the moral rights...and so
do the subjects I photograph.
You really need to see the flip side when working with some agents and
agencies. They try to make a rights grab all their own. Hire and/or
photograph their "talent" and they want you to agree, by contract,
effectively a "release" as well, to restrict uses to: a single photo from a
shoot that may consist of hundreds of images, for one year only from the
date of the shoot (not the date of first use); in one medium; in one
territory (the UK). Anything else? They want more money! Unanticipated uses?
More money! Additional territories? More money! Use beyond one year? More
money! Test or experimental images? Never (without time limit or an
alternate payment schedule) to be used commercially! Overall, these
contracts do NOT provide for usage rights buy-outs on the one hand or agency
offsets or buy-outs of the copyright on the other.
They grandly note in their client contract that "...the photographer owns
the copyright..." (which is big of them, I think, as it could be no other
way short of a buy-out) - but they want the client/photographer, however, to
agree never to exploit it. These (UK) contracts typically run with NO stated
time limit...a situation that is, de facto, against public policy (if
unstated and implicit for a term beyond 5 years) because they exactly and
closely limit the photographer's economic rights for the run of the
copyright term (life +). Paying for the use of their "talent" and, at the
same time, signing off on those client contracts (in UK law) is like buying
a car but agreeing never to actually drive it. They tend to instruct their
talent NEVER to sign releases and to instruct the client NEVER to discuss
the terms of the client agreement with the "talent" - and - then they try to
collect the specified added fees long after the "talent" may have left the
agency, left the business or has died. And, this on top of the 33.3% agency
fees (or more) they charge going in.
As photographic models are explicitly not employees of agents or agencies
and are, likewise, promoted and dispatched explicitly as independent
contractors over whom the agency has purportedly little control (e.g. the
agency disclaims responsibility even if the model doesn't show up for a
booking - or - for any other reason they misbehave or you can't use them
because of the state they are in e.g. doing drugs or hung over or so tired
from the all-nighter they were on that they fall asleep at noon) - models
must also be seen as free agents. I would much rather deal on my terms then
the agent's or agency's.
>
> >
> > Copyright is mine automatically
>
> That's correct (as long as you're not someone else's employee). By
> operation of law, it's yours and has absolutely nothing to do with your
> model.
>
> > and the model acknowledges this
>
> Why should he/she acknowledge it? Should she also acknowledge that you
own
> the grant deed to your house? The pink slip to your car?
+++ It does matter, again in my particular case, just as it is often the #1
bane of wedding photographers, as I am shooting a lot of commercial talent
for promotional (publishable and commercial) purposes. Some of the persons I
have photographed have been known to supply their photos to an agent or
agency and for the agent or agency to reproduce it or use it in other ways
that bump up against my copyright; economic or moral rights. It is not
unknown for a model or agency to just pick out an image from a package and
print up a zillion copies on their model's comp cards, agency head sheets,
in the agency book, or on promotional literature (everything, in fact, from
flyers, to event tickets, to advertising materials, to editorial
illustration, to...you name it) or attempt to use one or more on a CD album
cover, ect. all without license. Many simply think that because they own the
physical work they also own that right to repro the work that way. The
language in the release makes clear to the model that they do not. I often
deal with the model alone, on the day as well as in furnishing the finished
work, and often not with any of the potential downstream repro issues or
possible infringers - so it is the model that signs. If the model furnishes
the work for downstream repro KNOWING the terms and conditions that they
agreed to will be violated, then they become a party to any infringement
("facilitating" as in US law). It is their contractual obligation to take
reasonable care that the work is not used in any way without proper
licensing.
>
> > by signing
> > but further releases, in the signing, all uses comprehensively.
including
> > publishing, display, repro, commercial and non-commercial uses.
>
> And, from the model's perspective, releasing rights for such uses has
> absolutely nothing to do with copyright.
+++ EXACTLY. It has to do with USES - and NO uses are licensed to them
explicitly or implicitly in the release. Licensing uses is accomplished as a
separate contract, between myself and the model, or with a third party.
>
> >
> > They further acknowledge my moral right to be identified as the maker of
> the
> > work.
>
> Since they have no control whatsoever over the work, there is no point in
> making this contractual concession.
+++ It does when they squawk about my copyright notice and / or my studio
logo on the face of the image - or require that they put a credit on their
comp cards or CD cover or advertising literature, ect, ect, incorporating an
image to which I own the copyright, especially when there is no explicit
mark on the master image that is actually furnished for the purpose and
used. All the persons I photograph have some prints from every shoot that
are sufficient for scanning and application to other end uses...occasionally
I furnish the original media, or an exact copy, for pre-press drum scanning.
To that extent they DO have physical control of the work. The requirement on
moral rights is also a condition of my licensing practice as well.
There are the ultimate issues, to consider, of the possible advance of a
defence of "innocent infringement" as well as where there might be
deliberate infringement. And, of course, the substantially increased
penalties for the later, and especially where a proper copyright notice has
been removed.
I'll stick with the boiler plate, thank you, even with a severability
clause.
Needless to say I haven't even mentioned, until now, where there is an art
director; make-up artist; or stylist, ect. the issues of collaborative works
and possible joint-ownership and agreements on those issues reduced to
writing. e.g. [contributions giving rise to protectability] cum: (in US law)
Gaiman et. al. vs. McFarlane et. al., - or -[scenes a faire / underlying
concepts] cum: (in US law) Ets-Hokin vs. Skyy Spirits, Inc., et. al.... As
work for hire is a no longer recognised concept in the UK, and employee
status is moot because these are not my employees, this is easily handled by
contractual means as if a buy-out of their rights conditioned on payment of
their fees.
>
> >
> > Journalist
>
> Lawyer
> >
>
>
Mxsmanic
> Copyright is a property right; the uses issue is an economic right; both
> need to be dealt with.
As the photographer, you already have the copyright. You don't need to
make your model recognize this. If he or she fails to recognize it,
that's his or her problem, not yours.
> Moral rights, as well, need attention...as noted
> below...where third party uses, authorised or unauthorised,
> are anticipated.
This is something you put in a license, not a model release.
> It is precisely the failure to be explicit ENOUGH that sees dozens of these
> "Who owns the copyright?" or "Can I use the photo?" questions on Internet
> photography forums.
Being too explicit without knowing what you are doing can get you in
trouble if litigation ensues.
> You really need to see the flip side when working with some agents and
> agencies. They try to make a rights grab all their own. Hire and/or
> photograph their "talent" and they want you to agree, by contract,
> effectively a "release" as well, to restrict uses to: a single photo from a
> shoot that may consist of hundreds of images, for one year only from the
> date of the shoot (not the date of first use); in one medium; in one
> territory (the UK).
Tell them you won't sign. It's a negotiation, after all.
> Anything else? They want more money! Unanticipated uses?
> More money! Additional territories? More money! Use beyond one year? More
> money! Test or experimental images? Never (without time limit or an
> alternate payment schedule) to be used commercially! Overall, these
> contracts do NOT provide for usage rights buy-outs on the one hand or agency
> offsets or buy-outs of the copyright on the other.
Maybe you need to find another agency.
> Paying for the use of their "talent" and, at the
> same time, signing off on those client contracts (in UK law) is like buying
> a car but agreeing never to actually drive it. They tend to instruct their
> talent NEVER to sign releases and to instruct the client NEVER to discuss
> the terms of the client agreement with the "talent" - and - then they try to
> collect the specified added fees long after the "talent" may have left the
> agency, left the business or has died. And, this on top of the 33.3% agency
> fees (or more) they charge going in.
Find a different agency. Models are a dime a dozen.
> As photographic models are explicitly not employees of agents or agencies
> and are, likewise, promoted and dispatched explicitly as independent
> contractors over whom the agency has purportedly little control (e.g. the
> agency disclaims responsibility even if the model doesn't show up for a
> booking - or - for any other reason they misbehave or you can't use them
> because of the state they are in e.g. doing drugs or hung over or so tired
> from the all-nighter they were on that they fall asleep at noon) - models
> must also be seen as free agents. I would much rather deal on my terms then
> the agent's or agency's.
Then do so. Have your own attorney prepare contracts and have your
independent model and/or agency sign those.
> The language in the release makes clear to the model that they do not.
That language only informs the model, it doesn't grant you any
additional protection. You already had the copyright. If you had to
_notify_ all potential users of your copyright ...
(But then again, book publishers and some others once had to do exactly
that--but not today.)
> If the model furnishes the work for downstream repro KNOWING the
> terms and conditions that they agreed to will be violated, then
> they become a party to any infringement ...
That's true whether you assert your copyright in the release or not.
> It is their contractual obligation to take reasonable care that
> the work is not used in any way without proper licensing.
You're mixing releases with licenses. A model release is not a license,
although you can also give a model a license, and certainly you can
prepare a contract that combines these things.
However, you don't have to assert rights that are implicit.
> +++ EXACTLY. It has to do with USES - and NO uses are licensed to them
> explicitly or implicitly in the release. Licensing uses is accomplished as a
> separate contract, between myself and the model, or with a third party.
So you don't need to mention copyright in the release to protect your
rights.
> The requirement on moral rights is also a condition of my
> licensing practice as well.
Those moral rights are already implicit and inalienable in many
jurisdictions, whether you mention them in writing or not.
> There are the ultimate issues, to consider, of the possible advance of a
> defence of "innocent infringement" as well as where there might be
> deliberate infringement.
How can agencies or models pushing what are almost contracts of adhesion
plead ignorance in a case of copyright infringement?? Your work is not
in the public domain by default, and it is not licensed by default, and
they know that.
> As work for hire is a no longer recognised concept in the UK ...
What do you mean? You can't sign work-for-hire contracts in the UK?
(Not that you'd want to, I'm just curious.)
Journalist-North
"Mxsmanic" <mxsm...@hotmail.com> wrote in message
news:k0d880p7pvjdb2jb5...@4ax.com...
> Journalist-North writes:
(snip)
>
> > Moral rights, as well, need attention...as noted
> > below...where third party uses, authorised or unauthorised,
> > are anticipated.
>
> This is something you put in a license, not a model release.
+++ On moral rights - right to be identified as the author of a work:
Moral rights have existed in the Berne Convention since it's revision in
1928, however, they were only granted to UK authors effective on the
following revison of the (UK) domestic copyright law, with effect from
August 1989...
Copyright, Designs and Patents Act 1988
http://www.hmso.gov.uk/acts/acts1988/Ukpga_19880048_en_5.htm#mdiv78
Right to be identified as author or director.
77.-(1) The author of a copyright literary, dramatic, musical or artistic
work, and the director of a copyright film, has the right to be identified
as the author or director of the work in the circumstances mentioned in this
section; but the right is not infringed unless it has been asserted in
accordance with section 78.
(text break and subsections removed)
Requirement that right be asserted.
78.-(1) A person does not infringe the right conferred by section 77 (right
to be identified as author or director) by doing any of the acts mentioned
in that section unless the right has been asserted in accordance with the
following provisions so as to bind him in relation to that act.
(2) The right may be asserted generally, or in relation to any specified act
or description of acts-
(text break)
78 ---(2) (b) by instrument in writing signed by the author or director.
(text break) (or)
(3) The right may also be asserted in relation to the public exhibition of
an artistic work---
(text break)
78 ---(3)(b) by including in a licence by which the author or other first
owner of copyright authorises the making of copies of the work a statement
signed by or on behalf of the person granting the licence that the author
asserts his right to be identified in the event of the public exhibition of
a copy made in pursuance of the licence.
NOTES: I first deal with this in the model release as well as asserting this
right in any secondary licensing agreement, as I noted. In the UK the moral
rights exist automatically, yes, but must be exercised by explicit
assertion. The exercise starts with the work as delivered to the model and
with relation to that contractural arrangement - completely separately from
licensing.
+++ On model agencies:
>
> > You really need to see the flip side when working with some agents and
> > agencies. They try to make a rights grab all their own. (snip)
>
> Tell them you won't sign. It's a negotiation, after all.
>
(snip)
>
> Maybe you need to find another agency.
>
(snip)
>
> Find a different agency. Models are a dime a dozen.
+++ First and foremost it is not a negotiation. The agencies use what they
purport to be a "standard client contract" take-it-or-leave-it. That
contract form is fairly uniform across the industry and especially in the
top tier agencies. It originates from the (UK's) Association of Model
Agrencies (a trade association) - but is also parroted by many smaller
non-member agencies. You are right...models are thick on the ground and so I
do use a lot of non-agency models - but if I want to use experienced agency
models I am confronted by that client contract. My thinking, though I have
never filed a formal complaint on the subject with the regualtors, is that
it is representative of, and tantamount to, a restraint of trade and arrises
from a sort of anti-trust action on their part (though "anti-trust" is a US
term not used here within the Competition Act on similar subjects, there are
similar prohibitions on industry agreements to set terms and conditions or
otherwise abuse their position cooperatively).
>
> > As work for hire is a no longer recognised concept in the UK ...
>
> What do you mean? You can't sign work-for-hire contracts in the UK?
> (Not that you'd want to, I'm just curious.)
>
Copyright, Designs and Patents Act 1988
http://www.hmso.gov.uk/acts/acts1988/Ukpga_19880048_en_2.htm#mdiv9
First Ownership of Copyright
11.-(1) The author of a work is the first owner of any copyright in it,
subject to the following provisions.
(2) Where a literary, dramatic, musical or artistic work is made by an
employee in the course of his employment, his employer is the first owner of
any copyright in the work subject to any agreement to the contrary.
(3) [applies only to UK government documents]
NOTES: When revised in 1988 and brought into force in 1989 the former
provisions on work for hire (in the 1949 version of the Act) were removed.
Thereafter, for actual employees acting in the course of their employment,
but excluding contractors, copyright for a work will continue, as in
previous, versions of the Act to subsist in the employer not the employee.
Employers may contract with employees in writing to the contrary (allowing
the employee retention of the copyright in their name); but at the same time
such "contractee / employers in fact" or "commissioners of a work" no longer
have automatic copyright interest in works that are ordered from, or
commisioned to, independent contractors for their creation, as provided for
in the previous versions of the Act.
Contractural methods aside, effectively, in the UK, the work for hire
doctrine is dead. UNLESS the creator is factually an "employee", the creator
if hired in (contracted) or commissioned is the first owner of the
copyright.
Thus, we get into problems with some of the other associated people I
mentioned (art directors / make-up artists / stylists / ect.) IN THAT they
are seldom employees in the strictest, or any legal, sense and their
contribution to a work may not be a distinguishable part of the whole
(photographic work); thus they could automatically assert a claim of
joint-authorship with the photographer under the following provision. These
contributions can NOT be treated as in the US as "work for hire" where the
contribution - by a contractor under a work for hire agreement - would
subsist in the contractee / employer in fact or the commisioner of the
work - in this case the photographer.
http://www.hmso.gov.uk/acts/acts1988/Ukpga_19880048_en_2.htm#mdiv9
Works of joint authorship.
10.-(1) In this Part a "work of joint authorship" means a work
produced by the collaboration of two or more authors in which the
contribution of each author is not distinct from that of the other author or
authors.
NOTES: Though no longer automatic as in work for hire, release and transfer
of any such independent copyright interest is permitted by contract means in
the UK.
-------------
ON THE ISSUE OF THE MODEL'S FOREKNOWLEDGE OF THE COPYRIGHT STATUS...there is
a culpability clause in the (UK) copyright act that makes it important to
note it in writing as the model is often the conduit through which other
infringing parties secure initial copies of the work to facilitate the
imfringement - note the last sentence:
Secondary infringement: possessing or dealing with infringing copy.
24.-(1) Copyright in a work is infringed by a person who, without the
licence of the copyright owner-
(a) makes,
(b) imports into the United Kingdom,
(c) possesses in the course of a business, or
(d) sells or lets for hire, or offers or exposes for sale or hire,
an article specifically designed or adapted for making copies of that work,
knowing or having reason to believe that it is to be used to make infringing
copies.
NOTE: As models are virtually always self-employed independent contractors,
and distinguishable business entities from the agent and agency, or any
other third party, and they are in possesion of "an article...ect" - "...in
the course of a business...". it is important, therefore, in the proof
["...knowing or having reason to believe..."], that they acknowledge the
copyright status at the onset to any works in their possession that may be
infringed by other (third) parties with their assistance, or to whom they
may provide access to the work. Thus the terms and conditions of the model
release release.
Lastly, there are important characteristics about the UK law on copyright
that do not apply in the US. Just as there are provisions in the US that do
not apply in the UK, such as the work for hire doctrine. Hope this expands
usefully on my previous remarks.
Journalist
PTRAVEL
I don't know anything about UK law. In the US, models have no basis
in lawaiming copyright of photos taken of them.
> There is no issue of a unilateral contract just as there is no issue of
> adequate compensation for the paid models. For commissioned work everything
> is better dealt with in a confidentiality agreement then in a general
> release in any case.
That's interesting. As I said, I don't know anything about UK law
(other than the UK is a Berne Convention signatory). In the US,
confidentiality agreements have nothing to do with copyrights.
Confidentiality could be a concern with respect to models in the US if
the subject matter of the photograph in which the model appears
constitutes a trade secret or other proprietary or sensitive
information of the model's employer.
>
> Copyright is a property right; the uses issue is an economic right; both
> need to be dealt with. Moral rights, as well, need attention...as noted
> below...where third party uses, authorised or unauthorised, are anticipated.
Sigh. What is so difficult about this. I'll say it in capital
letters:
THERE ARE NO COPYRIGHT CONCERNS WITH RESPECT TO PHOTOGRAPHING A MODEL.
THE MODEL HAS NO CLAIM TO ANY COPYRIGHT IN A PICTURE OF HIM OR HER.
>
> It is precisely the failure to be explicit ENOUGH that sees dozens of these
> "Who owns the copyright?" or "Can I use the photo?" questions on Internet
> photography forums.
Well, I disagree. The only reason these questions result in
protracted threads like this one is because a lot of people with
absolutely no understanding of the law provide their opinion, guised
as fact.
>In my case I KNOW who owns the copyright, I KNOW who
> owns the economic rights and I KNOW who conditions the moral rights...and so
> do the subjects I photograph.
Well, that's nice.
>
> You really need to see the flip side when working with some agents and
> agencies.
Why? The law is the law, and completely unambiguous. Models have no
claim to the copyright of a photograph taken of them. Period. That's
the law. End of discussion.
>They try to make a rights grab all their own. Hire and/or
> photograph their "talent" and they want you to agree, by contract,
> effectively a "release" as well, to restrict uses to: a single photo from a
> shoot that may consist of hundreds of images, for one year only from the
> date of the shoot (not the date of first use); in one medium; in one
> territory (the UK).
None of which has anything to do with copyright.
> ything else? They want more money! Unanticipated uses?
> More money! Additional territories? More money! Use beyond one year? More
> money! Test or experimental images? Never (without time limit or an
> alternate payment schedule) to be used commercially! Overall, these
> contracts do NOT provide for usage rights buy-outs on the one hand or agency
> offsets or buy-outs of the copyright on the other.
So what? I can buy the copyright in a photo which, nonetheless
carries contractual restrictions that limit my use. Again, nothing to
do with copyright.
>
> They grandly note in their client contract that "...the photographer owns
> the copyright..." (which is big of them, I think, as it could be no other
> way short of a buy-out)
That's because the photographer owns the copyright. Again, I don't
know UK law, but in the US, such a statement is entirely unnecessary.
- but they want the client/photographer, however, to
> agree never to exploit it.
Different issue entirely.
>These (UK) contracts typically run with NO stated
> time limit...a situation that is, de facto, against public policy (if
> unstated and implicit for a term beyond 5 years) because they exactly and
> closely limit the photographer's economic rights for the run of the
> copyright term (life +). Paying for the use of their "talent" and, at the
> same time, signing off on those client contracts (in UK law) is like buying
> a car but agreeing never to actually drive it. They tend to instruct their
> talent NEVER to sign releases and to instruct the client NEVER to discuss
> the terms of the client agreement with the "talent" - and - then they try to
> collect the specified added fees long after the "talent" may have left the
> agency, left the business or has died. And, this on top of the 33.3% agency
> fees (or more) they charge going in.
So what?
>
> As photographic models are explicitly not employees of agents or agencies
> and are, likewise, promoted and dispatched explicitly as independent
> contractors over whom the agency has purportedly little control (e.g. the
> agency disclaims responsibility even if the model doesn't show up for a
> booking - or - for any other reason they misbehave or you can't use them
> because of the state they are in e.g. doing drugs or hung over or so tired
> from the all-nighter they were on that they fall asleep at noon) - models
> must also be seen as free agents. I would much rather deal on my terms then
> the agent's or agency's.
Well, good for you. What has that got to do with the subject of this
thread?
>
> >
> > >
> > > Copyright is mine automatically
> >
> > That's correct (as long as you're not someone else's employee). By
> > operation of law, it's yours and has absolutely nothing to do with your
> > model.
> >
> > > and the model acknowledges this
> >
> > Why should he/she acknowledge it? Should she also acknowledge that you
> own
> > the grant deed to your house? The pink slip to your car?
>
> +++ It does matter,
Not in the US it doesn't.
> ain in my particular case, just as it is often the #1
> bane of wedding photographers,
Not from the standpoint of copyright.
> I am shooting a lot of commercial talent
> for promotional (publishable and commercial) purposes. Some of the persons I
> have photographed have been known to supply their photos to an agent or
> agency and for the agent or agency to reproduce it or use it in other ways
> that bump up against my copyright;
Yes, it is, at least under US law. What has that to do with getting a
release from the MODEL? You're a photographer, you're not a lawyer.
I'm a lawyer, not a photographer. It astonishes me that a UK
photographer non-lawyer would debate a US intellectual property lawyer
about US intellectual property law. You don't understand the
difference between right-of-publicity an copyright, two completely
separate concepts.
> economic or moral rights. It is not
> unknown for a model or agency to just pick out an image from a package and
> print up a zillion copies on their model's comp cards, agency head sheets,
> in the agency book, or on promotional literature (everything, in fact, from
> flyers, to event tickets, to advertising materials, to editorial
> illustration, to...you name it) or attempt to use one or more on a CD album
> cover, ect. all without license. Many simply think that because they own the
> physical work they also own that right to repro the work that way. The
> language in the release makes clear to the model that they do not.
Okay, you're just rambling, here. Photographers in the US don't need
copyright releases from models. Period.
Paul N. Tauger, Esq.
California State Bar Number 160552
Ken Weitzel
Hi...
May I respectfully ask that you write me one
email that I may reply to privately?
Reply = just once (without further invitation,
and speaking to a subject unrelated to the subject
line)
Thanks, and take care.
Ken
Mxsmanic
> The agencies use what they purport to be a "standard client
> contract" take-it-or-leave-it.
So they've conspired to create a contract of adhesion?
> You are right...models are thick on the ground and so I
> do use a lot of non-agency models - but if I want to use experienced agency
> models I am confronted by that client contract.
I suppose it's a judgement call. But with so many pretty faces in the
world, it's hard to imagine why I'd be willing to sign away so much just
for one specific pretty face. Experience is certainly important but
it's hard to believe that the only source for experienced models is a
top-tier agency.
> My thinking, though I have never filed a formal complaint
> on the subject with the regualtors, is that it is representative
> of, and tantamount to, a restraint of trade and arrises
> from a sort of anti-trust action on their part ...
From your description, I agree (see my comment above).
> NOTE: As models are virtually always self-employed independent contractors,
> and distinguishable business entities from the agent and agency, or any
> other third party, and they are in possesion of "an article...ect" - "...in
> the course of a business...". it is important, therefore, in the proof
> ["...knowing or having reason to believe..."], that they acknowledge the
> copyright status at the onset to any works in their possession that may be
> infringed by other (third) parties with their assistance, or to whom they
> may provide access to the work. Thus the terms and conditions of the model
> release release.
But this seems tantamount to saying that anyone holding or using a
copyrighted work who has not be explicitly advised of the fact that it
is protected by copyright can defend against a charge of infringement by
saying that he was ignorant of the copyright status of the work. And
that would open the door wide to massive infringement with impunity. So
what is special about the model case that requires this explicit notice?
> Lastly, there are important characteristics about the UK law on copyright
> that do not apply in the US. Just as there are provisions in the US that do
> not apply in the UK, such as the work for hire doctrine. Hope this expands
> usefully on my previous remarks.
It's interesting, but it certainly sounds as though you are being
shafted by agencies. It's especially bizarre when you say that all the
models are legally independent contractors (who can thus sign their own
contracts).
PTRAVEL
"Ken Weitzel" <kwei...@shaw.ca> wrote in message
news:UH1hc.184218$Ig.34139@pd7tw2no...
Sure . . . use the email address in my post. It works.
>
Journalist-North
> Journalist-North writes:
>
> > NOTE: As models are virtually always self-employed independent
contractors,
> > and distinguishable business entities from the agent and agency, or any
> > other third party, and they are in possesion of "an article...ect" -
"...in
> > the course of a business...". it is important, therefore, in the proof
> > ["...knowing or having reason to believe..."], that they acknowledge the
> > copyright status at the onset to any works in their possession that may
be
> > infringed by other (third) parties with their assistance, or to whom
they
> > may provide access to the work. Thus the terms and conditions of the
model
> > release release.
>
> But this seems tantamount to saying that anyone holding or using a
> copyrighted work who has not be explicitly advised of the fact that it
> is protected by copyright can defend against a charge of infringement by
> saying that he was ignorant of the copyright status of the work. And
> that would open the door wide to massive infringement with impunity. So
> what is special about the model case that requires this explicit notice?
>
Why make the models sign on the copyright question? You ain't seen nothin
yet...(sic)
From an "agency" website based in the UK: Terms and Conditions (CLIENT)
6.0 REPRODUCTION RIGHTS
6.1 Images - All images and details reproduced in association with [agency
name] are supplied by the individual model and/or their associates and with
the full permission and consent of the individual model/associates. [agency
name] cannot be held responsible for any loss howsoever caused through the
model misrepresenting themselves in any way.
6.2 Media Reproductions - [agency name] reserves all rights to reproduce in
any media (electronic, telegraphic, print, etc) any images supplied to
[agency name] by any individual model/associate.
6.4 Lawful contract - All models/associates on submitting any images to
[agency name] give all reproduction rights to [agency name] and lawfully
accepts and abides by all the terms and conditions set and modified at any
time by [agency name].
---------
And...they are not alone. I have found similar language elsewhere within the
(UK based) industry. They (model OR agency) use one of my images like that
and I'll have their ass!
Journalist
PTRAVEL
What you've posted above refers to models providing pictures to agencies,
not photographers taking pictures of models. Note the language referencing
"submitting images."
>
> Journalist
>
Journalist-North
>
>
> What you've posted above refers to models providing pictures to agencies,
> not photographers taking pictures of models. Note the language
referencing
> "submitting images."
>
READ THE WHOLE OF IT THEN:
That is ex: their CLIENT booking T&C that the CLIENT signs off on. These
T&Cs are NOT the representation agreements with the models. The "client" may
or may not be the photographer in any particular case. The photographer may
indeed be hired in to do the work - by a de facto agency "client" [who
actually hires the model from the agency] or even by the model in their own
right. But as there is no "work for hire" doctrine in operation the
photographer is the author and owns the copyright to all the work [absent a
client buy-out agreement between agency client or model and the
photographer]. It also contains the fees structure and usage structure, ect,
as you will see:
See: http://www.sugarbabes.com/bookings.htm
Here is another with near identical wording...also a CLIENT booking
form...but at least here they mention copyright clearance [licensing ?]
(putting the onus on the model to obtain it - but keep in mind that many of
these models are only 16 - 20 year old kids with less then zero
understanding of such things). For the width and breath of license they are
asking for the model and the agency would have to pay me to take his / her
pictures.
See: http://www.bmamodels.com/terms.asp
Neither of these agencies are anywhere near top tier. They are at best
regional and at worst merely local agencies.
Though un-stated, at least in these stark terms, agencies right up the line
from the three girl local ones to the top 10 international agencies in
London tend to use photos submitted by their models for various purposes -
WITHOUT ever obtaining licenses for any uses from the legal owner of the
copyrights. I have never been asked and I can't think of even one of my
colleagues that has either.
It is typical that a photographer might shoot a model for her book or
portfolio (a commercial proposition for the photographer) even before he /
she is signed by an agent, but the agency will use the images for what ever
purpose they like when they do sign him / her on to their books. Models on
non-exclusive representation agreements may even be represented by more then
one agency at the same time - and each agency obviously needs photos to
operate. Guess where they get them?
Typically for portfolio work, in addition to studio charges, a UK based
model will pay ca UK£20 to UK£35 per finished print for a series of prints
with NO license for any repro. The agency almost NEVER pays for portfolio
work but merely instructs the model to have it done. That transaction is the
only time, however, in 99.999% of the cases, that the photographer will ever
see any money from his work - but that work will show up in agency books,
headsheets, model comp cards, on agency websites, and the rest. Most of
which copies are ordered and paid for by, or at the direction of, the
agencies...and ALL of which images are supplied by the models.
Copyright? Economic rights? Moral rights? Even tear sheets from published
advertising or editorial work where-in the publication has independent
rights to the published edition of the work? Zerox and Cannon stock prices
would fall if the agencies had to quit colour copying in the back room..
When you deal with that industry, across the board, you have got to be
joking! Some photographers just don't care about IP rights, some don't have
a clue, but I am not one either of those.
Journalist
PTRAVEL
>
> "PTRAVEL" <ptr...@ruyitang.com> wrote in message
> news:qibhc.38990$QF4....@newssvr29.news.prodigy.com...
> >
> >
> > What you've posted above refers to models providing pictures to
agencies,
> > not photographers taking pictures of models. Note the language
> referencing
> > "submitting images."
> >
> -------
>
> READ THE WHOLE OF IT THEN:
Since you didn't post a reference I could only read what you quoted. It
clearly contemplated the models providing images to the agency.
>
> That is ex: their CLIENT booking T&C that the CLIENT signs off on. These
> T&Cs are NOT the representation agreements with the models. The "client"
may
> or may not be the photographer in any particular case.
It doesn't matter. The sections you quoted contemplated the models
providing images, not having images made of them.
> The photographer may
> indeed be hired in to do the work - by a de facto agency "client" [who
> actually hires the model from the agency] or even by the model in their
own
> right. But as there is no "work for hire" doctrine in operation the
> photographer is the author and owns the copyright to all the work [absent
a
> client buy-out agreement between agency client or model and the
> photographer].
I don't know whether the UK uses the same work-for-hire assumptions as the
US or not. Either way, it is irrelevant. It does not matter whether the
photographer is an employee or independent contractor, there are no
circumstances, ever, in which the subject of a photograph has any claim to
the copyright of the photograph (excluding, of course, photographs of other
copyright-protected works, e.g paintings etc.).
>It also contains the fees structure and usage structure, ect,
> as you will see:
>
> See: http://www.sugarbabes.com/bookings.htm
>
> Here is another with near identical wording...also a CLIENT booking
> form...but at least here they mention copyright clearance [licensing ?]
> (putting the onus on the model to obtain it - but keep in mind that many
of
> these models are only 16 - 20 year old kids with less then zero
> understanding of such things). For the width and breath of license they
are
> asking for the model and the agency would have to pay me to take his / her
> pictures.
And, again, I have no idea what point you think you are making. Nothing in
the agreement that you posted suggests that models have claim to copyrights
in photographs taken of them.
>
> See: http://www.bmamodels.com/terms.asp
>
Same.
> Neither of these agencies are anywhere near top tier. They are at best
> regional and at worst merely local agencies.
>
> Though un-stated, at least in these stark terms, agencies right up the
line
> from the three girl local ones to the top 10 international agencies in
> London tend to use photos submitted by their models for various purposes -
> WITHOUT ever obtaining licenses for any uses from the legal owner of the
> copyrights. I have never been asked and I can't think of even one of my
> colleagues that has either.
I don't know about the UK, but in the US, licenses can be implied-in-fact,
i.e. no express writing is necessary.
>
> It is typical that a photographer might shoot a model for her book or
> portfolio (a commercial proposition for the photographer) even before he /
> she is signed by an agent, but the agency will use the images for what
ever
> purpose they like when they do sign him / her on to their books. Models on
> non-exclusive representation agreements may even be represented by more
then
> one agency at the same time - and each agency obviously needs photos to
> operate. Guess where they get them?
I won't guess. Under US law, the photographers own the copyright in the
photographs absent a written agreement to the contrary. However, in such
circumstances it is at least arguable that an implied license to make
copies, etc. is granted if the photographer knows for what purpose the
photos are being taken.
>
> Typically for portfolio work, in addition to studio charges, a UK based
> model will pay ca UK£20 to UK£35 per finished print for a series of prints
> with NO license for any repro. The agency almost NEVER pays for portfolio
> work but merely instructs the model to have it done. That transaction is
the
> only time, however, in 99.999% of the cases, that the photographer will
ever
> see any money from his work - but that work will show up in agency books,
> headsheets, model comp cards, on agency websites, and the rest. Most of
> which copies are ordered and paid for by, or at the direction of, the
> agencies...and ALL of which images are supplied by the models.
That's no different than here in the US, for actors as well as models.
>
> Copyright?
Implied license in the US.
> Economic rights?
No such thing in the US.
> Moral rights?
Limited, but essentially meaningless in the US.
> Even tear sheets from published
> advertising or editorial work where-in the publication has independent
> rights to the published edition of the work?
Depending on how it is used, it would almost certainly constitute fair use
in the US.
> Zerox and Cannon stock prices
> would fall if the agencies had to quit colour copying in the back room..
What is it that you're so upset about? Modeling agencies making copies of
models' portfolios? There's nothing to stop a photographer from entering
into a contract with the model that precludes such use, which would defeat
any implied license. Of course, no model would ever hire a photographer
under such circumstances.
>
> When you deal with that industry, across the board, you have got to be
> joking! Some photographers just don't care about IP rights, some don't
have
> a clue, but I am not one either of those.
I don't know what you are, other than someone who likes to argue. What
you've just described has nothing to do with the original thread which was,
"Who Own's the Copyright?"
>
> Journalist
>
Mxsmanic
> Though un-stated, at least in these stark terms, agencies right up the line
> from the three girl local ones to the top 10 international agencies in
> London tend to use photos submitted by their models for various purposes -
> WITHOUT ever obtaining licenses for any uses from the legal owner of the
> copyrights. I have never been asked and I can't think of even one of my
> colleagues that has either.
What rights would you normally withhold from a model/agency?
> Some photographers just don't care about IP rights, some don't have
> a clue, but I am not one either of those.
Within certain limits, it's often more cost-effective to just get paid
for taking the pictures and license with very generous rights, rather
than try to collect money again and again for each use. I routinely do
this for some of the types of work I do (including any sort of portfolio
work).
Mxsmanic
> Implied license in the US.
Can you explain further how this works? I've heard it mentioned but I
don't know under what conditions an implied license would be held to
exist. I presume that if you shoot someone's portrait, you grant an
implied license for certain uses, but the limits of such a license are
unclear to me.
I usually explicitly grant extensive rights to a model. Indeed, if the
primary merit of the photos is her face or body, then I generally see no
reason to grant her a license to do whatever she wants with the photos.
If the photos have some other merit or interest (i.e., if they might be
useful as stock photos), I may restrict the rights that are the most
commercial and the least directly connected to the model's own career,
but even then I'm generous.
It seems a bit conceited to be hired to take someone's picture and then
severely restrict the rights of that person to use his own photograph.
What's the point of the exercise if you don't grant him extensive
rights?
PTRAVEL
> PTRAVEL writes:
>
> > Implied license in the US.
>
> Can you explain further how this works? I've heard it mentioned but I
> don't know under what conditions an implied license would be held to
> exist.
Sure -- as best as I can, it's been a while since I looked at this.
Anything less than a total assignment of all rights in copyright does not
need to be in writing, i.e. there's no need for a license to be express. If
the specific facts are supportive of license, then an implied one may be
found as a matter of law.
If I'm an actor and I hire a photographer to do my headshot, it's understood
that I'm going to take the print to a duplication house and have several
hundred copies made. The photographer retains the copyright (as a matter of
law), but the facts support an implied license to make copies
_in_that_specific_context_, i.e. headshot duplicates to hand out to casting
directors. A license wouldn't be found if, for example, I took my headshot
and sold it to a company who wanted to use it in a magazine advertisement.
> I presume that if you shoot someone's portrait, you grant an
> implied license for certain uses, but the limits of such a license are
> unclear to me.
It will always be fact-specific.
>
> I usually explicitly grant extensive rights to a model.
Have you hired the model, or has she hired you, e.g. to do a portfolio? If
you've hired her, she's got no rights to any photos that you take, other
than whatever limited rights you're willing to grant to her, e.g.
"duplicates are okay, but you can only give them to agencies," etc. If
she's hired you, there's an implied license for her to use her portfolio
shots as a model normally would, e.g. get zed cards made, send copies to
agencies, etc. She wouldn't, however, have a license to manufacture
t-shirts with your photo on them which she tries to market.
> Indeed, if the
> primary merit of the photos is her face or body, then I generally see no
> reason to grant her a license to do whatever she wants with the photos.
> If the photos have some other merit or interest (i.e., if they might be
> useful as stock photos), I may restrict the rights that are the most
> commercial and the least directly connected to the model's own career,
> but even then I'm generous.
Sounds right to me.
>
> It seems a bit conceited to be hired to take someone's picture and then
> severely restrict the rights of that person to use his own photograph.
Though, I suspect, there are some limitations to this for you. If a
magazine wanted to use your photo, done in the context of a portfolio shoot,
as a magazine cover, you'd probably expect compensation.
Journalist-North
> Journalist-North writes:
>
> > Though un-stated, at least in these stark terms, agencies right up the
line
> > from the three girl local ones to the top 10 international agencies in
> > London tend to use photos submitted by their models for various
purposes -
> > WITHOUT ever obtaining licenses for any uses from the legal owner of the
> > copyrights. I have never been asked and I can't think of even one of my
> > colleagues that has either.
>
> What rights would you normally withhold from a model/agency?
+++ As rights can be broken up, and licensed seperately, as well as to
multiple non-exclusive licensees, and, considering that the models pay for
the images in most cases not the agency - I usually generally, and
generously, licence rights to the model individually (recall that they are
independent contractors and self-employed just as I am and I do have
sympathy for their costs of doing business) for repro that remains under
their DIRECT control and for their personal promotion (e.g. their comp cards
WITHOUT an agency logo; or their personal website).
As for the agency(s) I insist that they license separately from the model
ANY uses NOT within the model's direct control and especially, but it is not
the only determinant, when they apply an agency name or logo. What I need to
realise monetarily from those licenses is based on the anticipated number of
prints (e.g repro of headshots) / other publication and distribution (e.g.
direct to agency clients or editorially) and computed by the normal methods
considering, where applicable, position [front cover / inside front cover /
inside page / inside back cover / back cover] + size on the page + type of
publication + circulation / or / commercial use e.g promotion of the
agency itself not the individual model...e.g. their website or agency books
and headsheets. Further, I license to them as they dictate in their client
contracts regards my use as a client - starting with one image, for one
year, in one medium, and one territory. What is sauce for the goose is sauce
for the gander, as the saying goes. Beyond that, they can negotiate with me
for any other use, time, territory or quantity. What I strongly disagree
with is them just using the images as if they were the copyright owner or a
legitimate licensee themselves, in circumstances when they clearly are
neither. There is neither fair use (called fair dealing in the UK) in any of
those uses or mediums, nor is there, in supplying master copies to the
model, an implied license to the agency.
I wouldn't withold any license completely unless it was in conflict with
another (e.g. exclusive) license, and such generalised witholding of
licensing can actually be challenged in the UK by application to a Copyright
Tribunal who, in turn can set a price and order a license issued. Hell, I
would probably let an agency use some images for nothing - provided two
things happen - they ask first (but they never do) and they credit me as the
maker of the image (which is a quid pro quo as advertising for me - and I
fully appreciate has offsetting value in exchange for their use of the work)
Where it begins to add up to a loss, however, is if the model signs with
agency A and the agency infringe the images multiple times and in several
ways adding up to, occasionaly, hundreds or even thousands of individual
copies; then later the model moves to agency B and they infringe the images
as well, ect. ect.
I am also not shy about stamping on other commercial uses, etiher, and have
DCMA'ed (in the US) every one of my non-licensed images that I have found on
the Internet ESPECIALY on [for]pay / subscription websites. In the UK I
merely have to cite copyright law and generally only by an e-mail - which
law, here, carries potential criminal penalties, as well, for intentional
infringement. ISPs will pull an image or a page post haste rather then see
me, or someone like me, in court. Occasionally they will pull a whole site
if there are suspected infringements of many images (presumptive in law
here) and the site owner can provide no evidence of licensing. And, if it
does come to going to law, here I can take such a case to small claims court
up to actual loss + damages in aggregate of UK£3500 and seek, there,
injunctive relief as well; or by using a slightly different system,
incorporating a fomal discovery element, called a "mid-track" procedure
(against the usual small claims procedure referred to as "fast track".)
Mid-track takes longer but can be used for a claim above UK£3500 and up to
UK£15,000. There is also a "long-track" procedure available, taken to Crown
Court (eq to US state/federal court proceedings) in high value cases with NO
upper claim limit (unlimited damages). How you go will be determined based
on the economic loss from the infringement, or, alternatively, the economic
gain to the infringer.
>
> > Some photographers just don't care about IP rights, some don't have
> > a clue, but I am not one either of those.
>
> Within certain limits, it's often more cost-effective to just get paid
> for taking the pictures and license with very generous rights, rather
> than try to collect money again and again for each use. I routinely do
> this for some of the types of work I do (including any sort of portfolio
> work).
>
+++ See above, but I will agree. Combination use licenses are entirely
practical based on anticipated use. even if, in the end, there are
over-runs. Thus, for an agency a one off payment for all anticipated use(s)
(but they never ask).
Journalist
Mxsmanic
> If I'm an actor and I hire a photographer to do my headshot, it's understood
> that I'm going to take the print to a duplication house and have several
> hundred copies made. The photographer retains the copyright (as a matter of
> law), but the facts support an implied license to make copies
> _in_that_specific_context_, i.e. headshot duplicates to hand out to casting
> directors. A license wouldn't be found if, for example, I took my headshot
> and sold it to a company who wanted to use it in a magazine advertisement.
Does this also mean that a photographer has an implicit release to use
photos he takes in his own portfolio (without an explicit model or
property release)?
> Though, I suspect, there are some limitations to this for you. If a
> magazine wanted to use your photo, done in the context of a portfolio shoot,
> as a magazine cover, you'd probably expect compensation.
It would depend on exactly what was in the photo. The more the photo
represented creative choices on my part, the more I'd worry about
protecting my rights. But if the attraction of the photo is just in the
model, I'm little more than a technician, so I don't have any delusions
of grandeur with respect to rights.
Mxsmanic
> I am also not shy about stamping on other commercial uses, etiher, and have
> DCMA'ed (in the US) every one of my non-licensed images that I have found on
> the Internet ESPECIALY on [for]pay / subscription websites. In the UK I
> merely have to cite copyright law and generally only by an e-mail - which
> law, here, carries potential criminal penalties, as well, for intentional
> infringement. ISPs will pull an image or a page post haste rather then see
> me, or someone like me, in court. Occasionally they will pull a whole site
> if there are suspected infringements of many images (presumptive in law
> here) and the site owner can provide no evidence of licensing. And, if it
> does come to going to law, here I can take such a case to small claims court
> up to actual loss + damages in aggregate of UK£3500 and seek, there,
> injunctive relief as well; or by using a slightly different system,
> incorporating a fomal discovery element, called a "mid-track" procedure
> (against the usual small claims procedure referred to as "fast track".)
> Mid-track takes longer but can be used for a claim above UK£3500 and up to
> UK£15,000. There is also a "long-track" procedure available, taken to Crown
> Court (eq to US state/federal court proceedings) in high value cases with NO
> upper claim limit (unlimited damages). How you go will be determined based
> on the economic loss from the infringement, or, alternatively, the economic
> gain to the infringer.
So, I assume you don't mind other copyright holders having your
equipment and images seized because you photographed a copyrighted work
without their authorization, right? Remember, almost everything in
every image not carefully taken under tightly controlled studio settings
is subject to copyright.
PTRAVEL
> PTRAVEL writes:
>
> > If I'm an actor and I hire a photographer to do my headshot, it's
understood
> > that I'm going to take the print to a duplication house and have several
> > hundred copies made. The photographer retains the copyright (as a
matter of
> > law), but the facts support an implied license to make copies
> > _in_that_specific_context_, i.e. headshot duplicates to hand out to
casting
> > directors. A license wouldn't be found if, for example, I took my
headshot
> > and sold it to a company who wanted to use it in a magazine
advertisement.
>
> Does this also mean that a photographer has an implicit release to use
> photos he takes in his own portfolio (without an explicit model or
> property release)?
As I said, everything is fact specific. I would assume, though, no.
Journalist-North
> Journalist-North writes:
>
> > I am also not shy about stamping on other commercial uses, either, and
have...
(snip)
>
> So, I assume you don't mind other copyright holders having your
> equipment and images seized because you photographed a copyrighted work
> without their authorization, right? Remember, almost everything in
> every image not carefully taken under tightly controlled studio settings
> is subject to copyright.
>
In UK copyright law there is an explicit exception for the incidental
recording (e.g in a photograph) of other works in which copyright (or design
/ trademark protection) subsists but that are not the principal subject of
the new work - and that is explicitly not infringement in the UK by reason
of the Copyright Act. Neither is it fair dealing (US - fair use) because it
is not within framework of the fair dealing exceptions, but rather in a
completely separate and specific section.
Thus I could record an image on a street, or in an art gallery (where
photography is permitted), or in a studio, or in a public place, of a person
as the principal subject of my new work but incidentally record in the new
image the image of another copyright work = no infringement. Imagine a shot
of a person as my principal subject in a room with a coffee table, and on
the table in clear view there are magazines and on the wall behind my
subject is a painting (arguably copyright works - not my own) - no
infringement occurs even if the magazines and the painting are in clear and
obvious view in the new photograph.
Likewise, in UK copyright law there are also explicit no-infringement
provisions for art on public display in public places (e.g. sculptures in
town centres, or in front of corporate buildings, ect). Take a picture of
such a thing = no infringement.
Likewise, in UK law there are explicit no-infringement provisions regarding
making images of buildings, ect. Photograph a building even though some
design protection may subsist in the architecture and rendering = no
infringement.
These exceptions within copyright law are generally supportive of, and arise
from, the three, so called, "public place rule(s)" (in common law) that are
often cited in doing street or press photography (in the UK) as a reason not
to be concerned as far as securing releases from building owners, ect. If
you can see it, if it is in a public place or can be seen from a vantage
point in a public place, and to which the public has access, you can shoot
it as an incidental element in a new work, and in more limited circumstances
even as the principle subject in the new image, and no infringement occurs.
These UK exceptions are essentially safe-harbour provisions against claims
of incidental (primary or secondary) infringement.
Rule 1 - Public Place Rule - anything and anybody in public places is fair
game.
Rule 2 - Public Place Vantage Point Rule - Even if the place or person
photographed is (or is in or on) a private place but can be seen from a
vantage point in a public place - it is fair game. (There is no explicit
general law of privacy in the UK - unlike the various ones that exist at
state level in the US)
Rule 3 - Private Place Invitee Rule - If allowed access, on the payment of a
fee or not, to a private place and there is no express prohibition on
photography (e.g a nightclub) - then anything in view from any part of that
place to which you are granted unfettered access is fair game. This also
covers shots taken from one private place to which you have been granted
access (e.g.the garden of a residence) of another private place to which you
have a clear view (e.g the garden of the next door residence) but have not
been granted physical access.
None of these rules has anything specific to do with copyright BUT any image
taken within this framework and incorporating either images of people or
other potentially protected works under the rules can, and usually will,
fall within the infringement exceptions that are in the Copyright Act should
any of those other protected works be incidentally visible in an image you
make.
In your case in particular, as a photographer, you may, for example, have a
storefront and in the window there are examples of your work. There is
undoubtedly a copyright subsisting in that work. Starting from the
standpoint of the public place rule, in the UK I can shoot an image of your
storefront (and as for copyright in my work - rely on the building
exception) and including the copyrighted works on display in the window
(display in a public place and a place to which the public has access - or -
merely an incidental inclusion) and no infringement occurs. The situation
can completely turn around, however, if I choose a lens and point of view
and framing that ONLY incorporates a single and specific picture on display
in your shop window there-by making your copyrighted image the main and
principal subject of my photograph. Here infringement may, but still does
not necessarily, occur.
Journalist
Mxsmanic
> None of these rules has anything specific to do with copyright BUT any image
> taken within this framework and incorporating either images of people or
> other potentially protected works under the rules can, and usually will,
> fall within the infringement exceptions that are in the Copyright Act should
> any of those other protected works be incidentally visible in an image you
> make.
You're very lucky in the UK. In France, there are no exceptions at all.
Every time you photograph anything covered by copyright, it's an
infringement.
Bart van der Wolf
SNIP
> The situation can completely turn around, however, if I choose a
> lens and point of view and framing that ONLY incorporates a single
> and specific picture on display in your shop window there-by
> making your copyrighted image the main and principal subject of my
> photograph. Here infringement may, but still does not necessarily,
> occur.
It most likely does, as it certainly does in the Dutch copyright law (Berne
convention signatory), because shop windows are (usually) not *permanently*
displaying the work of visual art. That makes it markedly different from
e.g. statues or architecture (where different restrictions apply).
Bart
Journalist-North
"Bart van der Wolf" <bvd...@no.spam> wrote in message
news:40879ebc$0$567$e4fe...@news.xs4all.nl...
In that circumstance I will agree that it is, at best, a questionable image
and infringing. If however, in the other circumstance noted - where the
pictures in the window are only an incidental inclusion in a picture of the
overall storefront and not the main part of the image you make, because of
the specific exceptions available in that case (buildings and incidental
inclusion), then it most likely is not infringing.
One of the interesting circumstances where this comes up from time to time
is in photographing graffiti - where there is a work and many times a very
good piece of work; it is usually by an unknown maker; if a claim to
authorship were to be made there would be an enforceable copyright
subsisting in it; and it is painted on something (wall or building) clearly
in public view. The same might be asked of large billboard advertising. You
should be able to photograph them, or include them in a photograph as a
principal element, but I would be most cautious of putting the image to any
kind of commercial use. Editorial uses, such as to accompany a written
article on how graffiti (or advertising) appears in public places, or, to
develop an editorial style website on the subject of graffiti (or
advertising), would, however, be generally excepted.
In these cases, yes, you do begin to push along the edges of what is
infringing and what is not.
Journalist
Bart van der Wolf
SNIP
> In that circumstance I will agree that it is, at best, a questionable
image
> and infringing. If however, in the other circumstance noted - where the
> pictures in the window are only an incidental inclusion in a picture of
the
> overall storefront and not the main part of the image you make, because of
> the specific exceptions available in that case (buildings and incidental
> inclusion), then it most likely is not infringing.
Correct, in the Netherlands anyway, while respecting the copyright for the
storefront ;-).
Where I live, basically four simultaneous conditions must be met to restrict
the copyright for a work of visual art on public display.
1. On permanent display
2. Visible from public space.
3. Not a major part of the reproduction.
4. Copy is different in size or method.
All four must apply, to allow copying!
That would prohibit the right to photograph your example of graffity, unless
part of a larger scene (e.g. several 'contributions' photographed as a
composition). Although I've never heard of such an artist stepping forward
claiming his rights ;-), the rights are his/hers.
One might quibble about the percentage of the total scene, or whether the
display is permanent (e.g. if it is known in advance that periodic removal
is performed). Even non-permanent constructions at e.g. a world fair have
limited copyright.
Bart