wedding work and copy right
John or Jenn
In article <5lqs8v$5k$2...@hpax.cup.hp.com> Duc Tran, dt...@cup.hp.com
writes:
>All of wedding photographers I have talked with have a form
>to have me to grant them exclusive right of my wedding
>pictures and free use of it if they want to.
Where do you think all the samples of their work that you use to
select your photographer comes from?
>I think our pictures are ours, that we own them.
>Why wedding photo shops insists that they own the
>picture that I HIRE them to do?
Because, legally, they do.
>What is the copy right law in this country (USA) regarding
>my issue?
In general, the person creating the image (e.g. the photographer) owns
the copyright to the image. There are exceptions...there零 a copyright
FAQ floating around somewhere...
In general, unless you work out an agreement with your photographer,
they hold the copyright and can use the images. Perhaps you can
find a photographer who will be willing to line out that part of
the contract? We did that once...got some great shots that we
would靶e loved to have used. Couldn靖...frustating. We no longer
work this way. We suggest that the couple look for another photographer.
That零 just us, though.
Best of luck,
John
Classic I
Duc,
Photographs produced by a professional photographer are copyrighted. Just
as books, music, and works of art are copyrighted. How would you like it
if I paid you $500.00 to write a book and then turned around and made
100,000 copies and sold them for $5.00 a piece? Making myself a nice sum
of $500,000.00? You would be upset! This is why copyright laws exist.
To protect the creator. If you take the pictures then you are the
creator. As professional photographers, we are the creator of the images.
It is our right to control the distribution of our images (even when they
are images of you!)
As a client, you contract a professional photographer to create portraits
of you. He sells individual prints to you, but retains the right to
control the negatives. It is illegal to copy the image without his
permission.
If it is important to you to retain the negatives or to have free and
clear copyright of your own images, you can negotiate this with the
photographer, but most photographers do not release their negatives.
There are a few good reasons for this that benefit you (the client), but
most benefit the photographer. For instance, what if you suffered a fire,
or flood, or other catastophe? All of your posessions lost! You could go
back to the photographer and get another copy of the image! But for the
most part, photographers retain their negatives and copyrights because
that is how they earn their living.
Interestingly, commercial photographers often times give up their
copyrights to their images, but they are usually well compensated for this
fact. These are the images that are used in national ad campaigns, etc.
By the way, it is sometimes possible to negotiate for what you want from a
photographer. Myself, if someone insists that they don't want me to use
their images for publicity or display, I respect this and don't "force"
them to allow me to do this. If you wanted the negatives from one of my
shoots, I would make them available for sale, but this price would be
considerably higher than just for portraits. By asking a photographer to
give up his negatives, you are essentially asking him to surrender his
right to make money from your session. For me, to release a negative, I
would at least want 2-3 times the cost of an average size portrait (per
negative).
It becomes a matter of why you want the negatives at that point. Do you
want the negative to be able to make your own copies? Or do you want the
negatives to be able to retain them for safe keeping? Photographers will
seldom surrender the negatives for a meager price.
Hope it helps and best wishes on your wedding.
Rick Schiller
There was a change in USA copyright law several years ago. Unless the
arrangement is made before hand between the client and photographer
that the job is a "work for hire", then the photographer owns the
negatives and the rights to the negatives.
Wedding photographers fall into two camps: those who keep their negs
and sell the cleint prints plus charge and upfront fee. And those
photographers who charge a fee upfront and specifiy that the client
will receive the negatives.
Rick Schiller
In article <5lqs8v$5k$2...@hpax.cup.hp.com>, dt...@cup.hp.com says...
>
>
>All of wedding photographers I have talked with have a form
>to have me to grant them exclusive right of my wedding
>pictures and free use of it if they want to.
>
>I think our pictures are ours, that we own them.
>Why wedding photo shops insists that they own the
>picture that I HIRE them to do?
>
>What is the copy right law in this country (USA) regarding
>my issue?
>
>
>Duc
>
>
David Shrader
Duc Tran wrote:
>
> All of wedding photographers I have talked with have a form
> to have me to grant them exclusive right of my wedding
> pictures and free use of it if they want to.
>
> I think our pictures are ours, that we own them.
> Why wedding photo shops insists that they own the
> picture that I HIRE them to do?
>
> What is the copy right law in this country (USA) regarding
> my issue?
>
> Duc
the photographer owns all image rights, you purchase a set of prints for
personal use but you don't purchase any right to have them copied. All
future copies, for 55 years, belong to the photographer, heirs, assigns,
etc.
You have an option to purchase the copyright from the photographer. I
have sold such rights in the past (my mistake). You can also make
arrangements with the photographer to include copyright transfer in your
contract for a fee.
In a nutshell, your fiancee takes a picture. She gives you a copy for
$1.00 (US). You like the picture! You take it to a lab for an
enlargement without written permission. Most likely you have broken the
copyright law because she took the picture and owns
the copyright!!
Go to your favorite search engine, Yahoo, Lycos, Alta Vista, etc.
Keyword search "Library of Congress"+copyright
PhotoDzine
Federal copyright law clearly states that when it's created it is
copyrighted.
Similar to a movie producer having a song written for a movie. The movie
director does not own the rights to that song.
Why would you care if the photographer used your photo for a display
print? You would probably end up getting the print when he was done with
it. If you don't want a pro to use your photo, hire one that will agree
not to use any of the images produced at your wedding. Or get that friend
of yours that "has a really good camera and took a class one time at a
local community collage" to photograph the most important day of your
life.
Duc Tran
TomLang1
>Federal copyright law clearly states that when it's created it is
>copyrighted.
Holding a copyright does not confer permission or authority to use a
photograph for commercial purpose. Unless the contract explicitly grants
a model release to the photographer and the photographed parties
understand what they are signing away, the photographer can get into
serious trouble down the line.
Last time I looked, ownership of the image was still being considered in
the courts. It may be your negative but it is my face and you have no
right to invade my privacy beyond the limits I have specifically granted
to you.
Consider another situation, similar, but slightly different. Say you
enter into a contract with a corporation to photograph various aspects of
their plant. Said photographs are intended to be used in a company paper.
As it turns out, you consider one or more of the shots to be
representative of your best work but the company decides not to use it
(them) in their paper or brouchere.
Let's say you print up that (those) pictures and display them at a show
along with 30-40 more of your works. Is this legal? Probably not since
you are using the images for a purpose other than originally intended.
Take it a step further, let's say that one of those photos discloses one
of the company's trade secrets and is seen by a competitor who rips it
off. Who is at fault? Who is going to get sued? What if one of your
photographs discloses an OSHA violation of which you were not even aware?
Holding the copyright to images protects the photographer from
unauthorized reproduction for fun or profit by others, it does not confer
or imply that the photographer has freedom to use them willy-nilly as he
sees fit.
If most bridal couples were faced with a contract that granted an
unconditional model release to the photographer and if they fully
_understood_ what they were being asked to sign, they would do a little
more shopping around. A contract (model release) obtained under duress or
one where the party was under emotional stress or duress, would likely be
set aside by practically any court.
My two cents on reusing the wedding photos.
Tom Langseth
Rodger
On the other side of the issue:
Does anyone have any experiences, know
of any experiences or court cases where:
the photographer used the photographs for
self promotion without written permission,
or compensation?
What was the result?
Rodger
-- following from article ---
Dan Eisenman
Duc
Hi;
Well you own the prints ;however you do not have the right to copy
them .It is similar to ownership of software,just becouse you
paid for it does not allow you to make copies.
Hope this helps.
Dan
All pro Photo
Dan Eisenman
In the very competitive field of wedding photography, there is no reason
you or anyone cannot go shopping for a photographer that will enter into
whatever contractual agreement you so design.
Whenever I enter into a contract with a photographer I specify the terms,
not him or her. I own the negatives and all of the rights associated with
them. It is inconceivable for me to allow a "hired hand" to control the
future of my memories and of those of family members indefinitely. I
suffered through one photographers incompetence when he lost all the
proofs and negatives of a deceased relative. I refuse to ever let it
happen again.
If I sub work out, the photographer that refuses to agree to do this very
simply does not get the job. It is a buyer's market out there and it is
in your best interest to work out the deal you think is best for you. Do
not think for a second that you are under any obligation to sign a
contract just because it is preprinted. You are free to demand changes
and amendments as long as it is done before signing. If the photographer
refuses...walk away and knock on another door...soon you will find an
agreeable one.
Don't knock on my door.
Dan
All Pro Photo
SCOOTERTRS
Ken Neely
Here's a useful idea -
It can be possible for everyone to win at this game. If the results of
the shoot are good enough that the photographer might wish to reuse
them, why not NEGOTIATE a favorable arrangement with the subjects, via a
price break or whatever, to allow reuse ? Given the price of our work,
this might be a good inducement. I don't see the need to force everyone
to allow reuse with a standard contract that specifies it, when we don't
always need to do that.
This approach is part of treating your clients with respect, and
maximizes the likelyhood that they will recommend your services to
others.
rfph...@bellatlantic.net
In article <19970524030...@ladder01.news.aol.com>,
I like most photographers would be willing to release the negs and the
copyright of our weddings, but there is a rub. Most clients would not be
willing to pay the price. There is a big difference in selling the negs
with the package and selling them 3-4 years after the wedding. Selling
them years after the fact I will charge $125 for them, if they are
included with the package the price will be in the neighborhood of $1500
plus the price of the package. Like it or not photographers derive their
income from selling photographs and without negs. that source has dried
up.
Rich Foley
Rich Foley Photography
-------------------==== Posted via Deja News ====-----------------------
http://www.dejanews.com/ Search, Read, Post to Usenet
Len
buy it, you buy the rights to use it. Most of the time you can now make
back-up copies for your own use. Many times there are multi-copies
licenses for the software so that more than one copy can be used in an
organization. There are also programs where you purchase the right to
have a certain number of cpu's running the software at the same time.
So even in software there are many options.
One last point. If you hire a software programmer to write a certain
code for your needs and it is contracted that you own the rights to the
code, it is yours and not the programmers. Kind of like being a gost
writer for a high profile celebrity. Do you really think Dennis Rodman
writes and edits his own books? Just because you take the photo does
not automatically give you the rights to it. You may want to keep them,
but I may be willing to pay you not to.
--
To reduce spam ".nosp" was added to the end of the reply to address.
Please remove it to e-mail me.
SPECTRUM
Dan Eisenman wrote:
>
> All of wedding photographers I have talked with have a form
> to have me to grant them exclusive right of my wedding
> pictures and free use of it if they want to.
>
> I think our pictures are ours, that we own them.
> Why wedding photo shops insists that they own the
> picture that I HIRE them to do?
>
> What is the copy right law in this country (USA) regarding
> my issue?
>
> Duc
>
> Hi;
> Well you own the prints ;however you do not have the right to copy
> them .It is similar to ownership of software,just becouse you
> paid for it does not allow you to make copies.
> Hope this helps.
> Dan
> All pro Photo
Who is Duc and what is his address so that I may mail him(?) a few good
reasons that we have a copyright law in the USA ! This is the typical
attitude of quite a few people from out of the USA who don't seem to
understand that a photographer that is worth contracting is worth paying
for.
I covered a wedding between a Korean girl and one of the locals about a
year ago. The photo's were great. Especially considering that the entire
affair was chaos ! So the brides mother asked to have several copies
made of the photo's to send back to Korea for the family. no problem
until I told her how much. She changed into medusa right in front of me
! And my prices are pretty low(8X10=$20) for custom prints. She had
ordered about $500 and I gave her 50% off for repeats after the first 2
prints.
Then the bride started in on me. I asked her how much her husband made
in a day as a house painter. She told me around $500 gross/day. Then I
asked her if I should make less than him. I have more invested in
equipment, materials adn processing than he does in his rollers and
brushes so a wedding cost more to produce than the painting of a couple
of rooms in a house. Oh. Now she understands ! Still no order ! I'm not
to surprised ! That's why i reminded told them the cost of the order
before I started printing it. I wonder what she would have done if I had
printed it out and called her to pick up her order ?
--
Regards,
John S. Douglas
Spectrum Photographic Inc.
Pine Beach, N.J.
908.505.8393
http://www.cybercomm.net/~spectrum/
"I gave my life to become the person I am right now.
Was it worth it ?"
Richard Bach
One
Joe McCary
SCOOTERTRS wrote:
>
> In the very competitive field of wedding photography, there is no reason
> you or anyone cannot go shopping for a photographer that will enter into
> whatever contractual agreement you so design.
>
> Whenever I enter into a contract with a photographer I specify the terms,
> not him or her. I own the negatives and all of the rights associated with
> them. It is inconceivable for me to allow a "hired hand" to control the
> future of my memories and of those of family members indefinitely. I
> suffered through one photographers incompetence when he lost all the
> proofs and negatives of a deceased relative. I refuse to ever let it
> happen again.
>
> If I sub work out, the photographer that refuses to agree to do this very
> simply does not get the job. It is a buyer's market out there and it is
> in your best interest to work out the deal you think is best for you. Do
> not think for a second that you are under any obligation to sign a
> contract just because it is preprinted. You are free to demand changes
> and amendments as long as it is done before signing. If the photographer
> refuses...walk away and knock on another door...soon you will find an
> agreeable one.
This is an interesting attitude! I can see both sides of the
discussion. My former business partner used to shoot lots of weddings
under a seperate business I was NOT part of at all. He died last summer
and this exact problem is arising. The answer (or suggested solution)
from me was to offer the sale of all negatives to the respective
brides. Todate none have accepted the offer! This has taken
consideralble time to chase. The brides seem to not want their images
now that the album is finsihed but they don't want the negs to be
destroyed either. Again, it is a real problem to deal with.
Your answer on dealing with photographers is certainly a possibility
although if I were the photographer I would pass on your "offer." From
the photographer's point of view you must remember that print sales is
part of his living and future sales is also part of that as well. The
current copyright law favors the photographer and unless he/she releases
that copyright they have a powerful tool on thier side to control sales
of prints. Any labs that copy proofs etc are breaking that law and can
be sued for lots of dollars and they will loose.
Joe McCary
W. John Jones
Len (CIA...@aol.com) writes:
(clipped) Just because you take the photo does
> not automatically give you the rights to it. You may want to keep them,
> but I may be willing to pay you not to.
I'm not sure what Len means by "I may be willing to pay you not to." if
that means he can purchase the full rights to a photograph he could be
correct, if the owner of copyright is willing to sell. As for the first
statement, "just because you take the photo..." he is not correct in every
case. In the U>S>, Copyright exists in a work from the time the work is
created. Generally the copyright immediately becomes the property of the
author who created the work. When a work is "made for hire" the employer,
not the employee, is considered the author. A work is made for hire when
it is prepared by an employee within the scope of their employment, or when
parties agree in writing that a work shall be considered a work made for hire.
In Canada, things differ slightly. The author of the work, (
photographer) is the first owner of copyright, however when someone orders
a photographer to take an image, and pays for that order, then the person
who ordered the photograph will own copyright in it, unless the
photographer has an agreement with that person to to contrary. So as I
do, many Canadian photographers include a copyright clause in the original
agreement when someone requests their services. Otherwise they would not own
copyright to their work.
> To reduce spam ".nosp" was added to the end of the reply to address.
> Please remove it to e-mail me.
--
W. Jones & Associates Photography serving The National Capital Region
.......................................................................
(613) 728-5287 Weddings, Events, Corporate, Portrait: Children, Pets, Group
SCOOTERTRS
Len has hit the nail on the head. The words for hire are critical. If a
photographer is hired to take pictures of a wedding, a party or for an
event where General Motors wants pictures of a brand new prototypical
automobile, he is hired for that job. Do you believe General Motors will
allow a discussion about negative ownership to go on for more than a
second? Hardly! The photographer in this scenario is a tool, a means to
an end. Art is involved, but just because there is art involved does not
make it personal property of the maker.
Lets compare this with a wedding taking place in a public park. A
photographer with all his equipment happens by. Sees an opportunity to
take some interesting photos and does his thing amongst two "hired"
phototographers. Not a word was exchanged between the organizers and the
photographer that just happened by. By some unexplainable reason the film
that the two hired pros were using was previously damaged and now the only
record of this once in a lifetime event are the photos taken by the
photographer that was not hired! See the difference?
A photographer is no different from an attorney writing a creative brief,
a writer ghosting a book (s Len said), an artist doing a sculpture under
contract... What I believe has happened in time is that contract portait
or wedding photographers do not believe that they could get what their
efforts are worth up front and still compete in the field. It seems that
the photographer will effectively "low-ball" the job with minimal prints
included. They then bank on the possession of the negatives and the
"copyright" of said images for further income. This is done when the
"once in a lifetime" opportunity for the pictures has passed us by. Many
times during initial contracting, seekers of the service are not told
what reprints will cost, if they are told that they don't own the
negatives at all. If this is not "back-dooring", what is?
I have spent a large part of my life taking surveillance photographs
world-wide. Some working for the government and some under contract for
the private sector. I always surrender my negatives along with my proofs
to my employer. I price my jobs accordingly.
Another issue is why should the individual being photographed have to
allow the photographer to use his/her picture for promotional purposes?
They have a right to say no! and the photographer should honor their
desires. (You know that Cindy Crawford has been photographed numerous
times...I betcha few photographers have rights to her picture...maybe when
whe was just starting out?
Anyway...my point is a contract is nothing but a piece of paper which is
supposed to reflect the intentions and desires of the parties entering
into it. Just because it is pre-printed does not mean it is right, nor
unchallengeable in court. Furthermore, they can be altered to fit any
specific situation as deemed necessary.
Charge fairly, charge according to your experience, equipment necessary,
difficulty of the job, time investment required, etc. Get it in writing
and before the job is done and NO MORE BACK-DOORING. My dad always said
"You should not be able to get through the back door what you could not
get through the front"
SPECTRUM
SCOOTERTRS wrote:
>
> Len has hit the nail on the head. The words for hire are critical. If a
> photographer is hired to take pictures of a wedding, a party or for an
> event where General Motors wants pictures of a brand new prototypical
> automobile, he is hired for that job. Do you believe General Motors will
> allow a discussion about negative ownership to go on for more than a
> second? Hardly! The photographer in this scenario is a tool, a means to
> an end. Art is involved, but just because there is art involved does not
> make it personal property of the maker.
Deletion of total nonsense !
If we charged "fairly" then a wedding should start around $3000 and go
to about $15,000 given our experience, the equipment requirements of the
trade, the amount of bologna that we have to take care of for the bride
and groom the day of the wedding and the total amount of time that we
spend with each couple.
About " Get it in writing and before the job is done and NO MORE
BACK-DOORING" what working professional in any field would take on any
job today without a written contract explaining the details of
responsability and liability. Perhaps the Weekend Warriors use this
practice but any pro has far to much to lose when they aren't covered by
a contract.
>" Anyway...my point is a contract is nothing but a piece of paper..."
yeah and the Constitution of the United states is another piece of paper
! Unless you have O.J.'s attournies (read MONEY!)you probably can't
afford to go head to head with the likes of the PPA or the WPPI. And why
should you have to ? If you know the terms at the outset then you have
no recourse. You'll be running in circles with nobody but yourself !
"It seems that the photographer will effectively "low-ball" the job"
and the first words out of a brides mouth is........"How much ?" Boy
aren't you surprised that photographers "low ball" everything ? It's
called competition. There's always another "photographer" around the
corner ! He might be that plumber that fixed your pipes or that teller
that works 9-5 at the bank or any number of others that aren't full time
pro's. People only care so much about quality ! So much as it doesn't
inconvienience them !
"Many times during initial contracting, seekers of the service are not
told
> what reprints will cost," I agree here to a certain extent though you really have to lay it at the doorstep of the contracting parties. We show all of our pricing right from the consultation onward. If the bride books her wedding in '97 for '99 she get a copy of the prices at the time she books her wedding and they don't change for one year fter the wedding date.And that's in the contract ! And I don't mind selling the negatives but I've only had one couple ask for them and he was a retired photographer !
"Art is involved, but just because there is art involved does not make
it personal property of the maker." So I guess those coyright laws that
the Supreme Court passed are just for fun ? Come to think of it you must
be one of the very few "photographers" who would give up the rights to a
neg/pos. I know quite a few photographers in all walks, from stock to
portrait, from bridal to auto to fine art and not one of them would
seriously entertain the idea of giving the negatives up without a really
good compensation. And I don't think GM or Ford really care to much
about the negatives as they own the photographers ! Or did you think
that they have outside photographers shoot everything for them ?
I strongly suggest that you pay a visit to :
http://lcweb.loc.gov/copyright/
and then maybe work for a week in the field of portrait/bridal
photography as a studio owner to see things a little more clearly.
And if you have any idea's of how we ripoff artist can get the average
couple to pay the aforementioned $3000 and up then I'm all ears. If you
don't believe that it might very well be worth that much then i suggest
that you go through Dejanews postings and find my breakdown on studio
cost. We have to "sell" at least $11,000 in work every month just to
make ends meet.
____ From the U.S. Copyright Office____
Copyright protects "original works of authorship" that are fixed in a
tangible form of expression. The fixation need not be directly
perceptible, so long as it may be communicated with the aid of a machine
or device. Copyrightable works include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
These categories should be viewed quite broadly: for example, computer
programs and most
"compilations" are registrable as "literary works;" maps and
architectural plans are registrable as"pictorial, graphic, and
sculptural works."
cleeds
SCOOTERTRS wrote:
>
> Len has hit the nail on the head. The words for hire are critical. If a
> photographer is hired to take pictures of a wedding, a party or for an
> event where General Motors wants pictures of a brand new prototypical
> automobile, he is hired for that job. Do you believe General Motors will
> allow a discussion about negative ownership to go on for more than a
> second? Hardly!
This is totally, completely mistaken. While it is true that the
importance of "work for hire" is enormous, what this poster has
described is definitely NOT "work for hire". A bride who hires a
photographer to shoot her wedding has not engaged a photographer under
the legal definition of "work for hire". Not even close! There is no
question that - under such an arrangement - the photographer is indeed
the owner of the copyright.
--
********************************************************
Curtis Leeds cle...@idt.net
"A man hears what he wants to hear, and disregards
the rest."
********************************************************
Jim Stewart
cleeds wrote:
>
> SCOOTERTRS wrote:
> >
> > Len has hit the nail on the head. The words for hire are critical. If a
> > photographer is hired to take pictures of a wedding, a party or for an
> > event where General Motors wants pictures of a brand new prototypical
> > automobile, he is hired for that job. Do you believe General Motors will
> > allow a discussion about negative ownership to go on for more than a
> > second? Hardly!
>
> This is totally, completely mistaken. While it is true that the
> importance of "work for hire" is enormous, what this poster has
> described is definitely NOT "work for hire". A bride who hires a
> photographer to shoot her wedding has not engaged a photographer under
> the legal definition of "work for hire". Not even close! There is no
> question that - under such an arrangement - the photographer is indeed
> the owner of the copyright.
Now I'm confused. I've hired photographers to do product shots for me
twice and there was no discussion of copyrights, no long agreements,
just shoot the stuff, pay the bill and give me the negs/transparencies.
Both me and the photographers understood that what I was buying was both
the physical media and the right to use the image any way I saw fit.
Now are you saying that if I hired someone to shoot my daughter's
wedding, the rules are all different? If so, it is a matter of
marketing, because the laws are the same.
Jim
DBari21137
>Just because you take the photo does
>not automatically give you the rights to it. You may want to keep them,
>but I may be willing to pay you not to.
This is actually a common misconception. The moment anyone takes a
photograph, they automatically own the copyright. If you pay a premium on
top of my normal rate, I will transfer the copyright to you. That's
simply the law in the U.S. Copyright is litigated in the Federal Court
system.
Thanks for your help!
Dave Bari
<dbari...@aol.com>
DBari21137
In article <19970528135...@ladder02.news.aol.com>,
scoot...@aol.com (SCOOTERTRS) writes:
>Len has hit the nail on the head. The words 'for hire' are critical. If
a
>photographer is hired to take pictures of a wedding, a party or for an
>event where General Motors wants pictures of a brand new prototypical
>automobile, he is hired for that job.
This is close. One of the critical distinctions is whether the
person is considered an independent contractor, or an employee. An
independent contractor owns the product of his work unless the parties
expressly contract otherwise. The obverse is true for an employer,
employee relationship.
Do you believe General Motors will
>allow a discussion about negative ownership to go on for more than a
>second? Hardly!
Actually, G.M. is fully aware of the laws of the U.S. They expressly
contract for full ownership of all products produced by independent
contractors. At first, independent contractors who were under contract
with G.M. could charge higher rates in exchange for complete ownership of
the work. However, over time, G.M. got smarter and the competition got
stiffer. Now, G.M. is able to pay below union wages for independent
contractors. Now the union people are upset.
The photographer in this scenario is a tool, a means to
>an end. Art is involved, but just because there is art involved does not
>make it personal property of the maker.
This would seem to be the most intuitive solution, however, it is
incorrect. The copyright laws were recently revised to automatically
reserve the copyright of the product to the producer. The photographer is
considered by the courts to own the copyright to all work produced in an
independent contractor relationship.
>A photographer is no different from an attorney writing a creative brief,
>a writer ghosting a book (s Len said), an artist doing a sculpture under
>contract...
Again, this is a common mis-conception. Your analogies are
reasonable on their face, however, the federal courts (which have original
and specific jurisdiction of all copyright legislation) unanimously
differentiate between work produced through a professional
relationship(attys., physicians, engineers, accountants, etc,), and work
which was produced through an 'artistic' relationship (photographers,
lyricists, sculpters, painters, computer programmers, architects, etc.)
What I believe has happened in time is that contract portait
>or wedding photographers do not believe that they could get what their
>efforts are worth up front and still compete in the field. It seems that
>the photographer will effectively "low-ball" the job with minimal prints
>included. They then bank on the possession of the negatives and the
>"copyright" of said images for further income. This is done when the
>"once in a lifetime" opportunity for the pictures has passed us by. Many
>times during initial contracting, seekers of the service are not told
>what reprints will cost, if they are told that they don't own the
>negatives at all. If this is not "back-dooring", what is?
Personally, I believe that most people simply don't understand why the
photographer, whom they barely know, automatically owns the copyright to
their wedding photos. I admit, the idea is quite counter-intuative on its
face. I would suggest that photographers should first attempt to educate
their clients on the basics of copyright law. Then the pricing of the
prints and of the negatives may make better sense. Maybe not.
>I have spent a large part of my life taking surveillance photographs
>world-wide. Some working for the government and some under contract for
>the private sector. I always surrender my negatives along with my proofs
>to my employer. I price my jobs accordingly.
This is a perfect example. While you worked for the gov't. you were
either an employee, or they contracted for the copyright upfront, or you
began employment with them before the copyright revisions went into
effect. Regardless, the gov't. would have pre-arranged for all rights to
all work produced under their contract terms.
>Another issue is why should the individual being photographed have to
>allow the photographer to use his/her picture for promotional purposes?
>They have a right to say no! and the photographer should honor their
>desires.
Again, the photographer owns the copyright by default. If the client
really is concerned with owning the copyright, then they should willing to
pay a premium for it. Unless the client pays this premium, the
photographer keeps the copyright. That's simply how copyright law works.
It's implied into the contract by the Federal Courts that the photographer
owns it.
(You know that Cindy Crawford has been photographed numerous
>times...I betcha few photographers have rights to her picture...maybe
when
>whe was just starting out?
Cindy Crawford has a tort action against anyone who 'appropriates'
her likeness without her permission, and attempts to make money with it.
However, this luxury is available only to those who's likeness is worth
something to the public.
>Anyway...my point is a contract is nothing but a piece of paper which is
>supposed to reflect the intentions and desires of the parties entering
>into it. Just because it is pre-printed does not mean it is right, nor
>unchallengeable in court. Furthermore, they can be altered to fit any
>specific situation as deemed necessary.
Yes. Perfectly correct. It is excellent advice to feel free to
cross out any terms of any contract which you don't want to become a part
of the deal. However, the law of Contracts implies many clauses into all
contracts which are silent on particular issues. These are called default
clauses or default terms. Copyright law is one of these defaule terms.
The photographer owns the copyright unless the parties explicitly contract
otherwise. Furthermore, the party who wrote the contract wants every
written term to be included in the 'deal'. If you object, you will have
to negotiate, i.e., increase your price, in exchange for omitting a term
from the printed form. There may be some particulars which you feel so
strongly about that the entire 'deal' will be contingent on them (hence
the term 'deal-breaker'). Contract negotiation is a fine art and requires
a lot of quid pro quo. You must be willing to exchange something for each
term.
DBari21137
In article <338CAD...@jkmicro.com>, Jim Stewart <jste...@jkmicro.com>
writes:
>Now I'm confused. I've hired photographers to do product shots for me
>twice and there was no discussion of copyrights, no long agreements,
>just shoot the stuff, pay the bill and give me the negs/transparencies.
>Both me and the photographers understood that what I was buying was both
>the physical media and the right to use the image any way I saw fit.
>Now are you saying that if I hired someone to shoot my daughter's
>wedding, the rules are all different? If so, it is a matter of
>marketing, because the laws are the same.
>
>Jim
Courts will imply terms into every contract. One very important
indication of which terms should be applied is customary trade practices.
For example, all magazine publishers expressly contract for ownership of
the copyright. If you were to do some photography for one such magazine,
and you forgot to sign their standard contract, the court would imply the
terms from that form into the 'contract'. Commercial clients tend to
vary, however, the photographer usually gets a premium if the client wants
the copyright. Portrait clients are generally all the same. They usually
are only interested in the prints. If nothing is expressly agreed to, the
photographer retains the copyright.
Rick Schiller
"Work for Hire" is simply nomenclature meaning the employer has
purchased ownership of the negatives.
Rick Schiller
In article <338C8C...@idt.net>, cle...@idt.net says...
>
>SCOOTERTRS wrote:
>>
>> Len has hit the nail on the head. The words for hire are critical.
If a
>> photographer is hired to take pictures of a wedding, a party or for
an
>> event where General Motors wants pictures of a brand new
prototypical
>> automobile, he is hired for that job. Do you believe General Motors
will
>> allow a discussion about negative ownership to go on for more than a
>> second? Hardly!
>
>This is totally, completely mistaken. While it is true that the
>importance of "work for hire" is enormous, what this poster has
>described is definitely NOT "work for hire". A bride who hires a
>photographer to shoot her wedding has not engaged a photographer under
>the legal definition of "work for hire". Not even close! There is no
>question that - under such an arrangement - the photographer is indeed
>the owner of the copyright.
Chris Bitmead uid(x22068)
Joe McCary <mcc...@erols.com> writes:
> This is an interesting attitude! I can see both sides of the
> discussion. My former business partner used to shoot lots of weddings
> under a seperate business I was NOT part of at all. He died last summer
> and this exact problem is arising. The answer (or suggested solution)
> from me was to offer the sale of all negatives to the respective
> brides. Todate none have accepted the offer!
Yeah, but how much were you asking??
Chris Bitmead uid(x22068)
clas...@aol.com (Classic I) writes:
>
> Duc,
>
> Photographs produced by a professional photographer are copyrighted. Just
> as books, music, and works of art are copyrighted. How would you like it
> if I paid you $500.00 to write a book and then turned around and made
If you are dumb enough to write a book for $500 then tough! I work all
day writing computer programs. But I've got no rights to use the
programs I write! That's what happens when someone pays you to do
something. They should own what they've paid for.
> A wedding is a very personal thing. I think they should get the negs.
> There are a few good reasons for this that benefit you (the client), but
> most benefit the photographer. For instance, what if you suffered a fire,
> or flood, or other catastophe? All of your posessions lost! You could go
> back to the photographer and get another copy of the image! But for the
> most part, photographers retain their negatives and copyrights because
> that is how they earn their living.
Anyone who cares to preserve their memories must make their own
provisions. I wouldn't trust to be able to get my photos back from a
pro in 10 years time.
SCOOTERTRS
> Curtis Leeds cle...@idt.net responds
>This is totally, completely mistaken. While it is true that the
>importance of "work for hire" is enormous, what this poster has
>described is definitely NOT "work for hire". A bride who hires a
>photographer to shoot her wedding has not engaged a photographer under
>the legal definition of "work for hire". Not even close! There is no
>question that - under such an arrangement - the photographer is indeed
>the owner of the copyright.
> Curtis Leeds cle...@idt.net
> "A man hears what he wants to hear, and disregards
> the rest."
>********************************************************
OK I will play...Individual A contracts individual B to do a particular
job. Individual A pays individual B for such job. Individual B does said
job. Why would the specifics of a particular job matter. If an
individual receives a w-2, or a 1099, or has to issue a receipt and charge
sales tax, is getting financial compensation for doing something he would
not have done otherwise, the inividual is doing work for hire.
What legal definition of "work for hire" is this poster referring to? I
do not know, but I was always raised so that if something quacks like a
duck, acts like a duck, and looks like a duck, then it must be a duck.
Looks to me a photographer is a "hired hand" with special skills...whether
we like the term or not. In fact, if we are discussing definitions...a
professional is an individual that provides a service for a
fee...basically no product is sold. If your livelyhood depends mainly on
the sale of your reprints...how are you any better than the counter person
at the 60 minute quick print at Eckerds or Wallmart?
cleeds
Jim Stewart wrote:
> Now I'm confused. I've hired photographers to do product shots for me
> twice and there was no discussion of copyrights, no long agreements,
> just shoot the stuff, pay the bill and give me the >negs/transparencies.
> Both me and the photographers understood that what I was buying was >both
> the physical media and the right to use the image any way I saw fit.
Of course, this is the photographer's option. Any photographer is free
at any time to sell his negatives for any price.
> Now are you saying that if I hired someone to shoot my daughter's
> wedding, the rules are all different? If so, it is a matter of
> marketing, because the laws are the same.
This is not at all a matter of marketing; it is solely a matter of law.
In your orignal post to which I responded, you claimed that if you hired
a photographer to shoot a wedding, you owned the negatives and all
rights to them because you hired the photographer and that constituted
"work for hire". As I indicated to you in my response, such a
relationship does not constitute "work for hire". "Work for hire" has a
legal definition in the context of copyright law. The selection of a
wedding photographer most definitely does NOT fall intio the category of
a relationship defined as "work for hire".
Of course, the wedding photog is still free to sell you the negatives,
but it's his option. Under current (US) copyright law, the photographer
clearly owns the negatives and their coprights. There is no question or
ambiguity in this instance.
--
********************************************************
cleeds
Rick Schiller wrote:
>
> "Work for Hire" is simply nomenclature meaning the employer has
> purchased ownership of the negatives.
No, this is completely and totally mistaken. The term "work for hire"
has a specific legal definition, and refers to the relationship between
the photographer and the person contracting the work, as well as the
conditions under which the images were made. That a photographer may be
willing to sell negatives or the copyrights on the image has no bearing
at all as to whether the work was done under a "work for hire"
arrangement.
SCOOTERTRS
Your points are well taken...with one small difference of opinion...
Tipically if a contract is silent on a particular term, common law and
practices will be applied. If any extraneous information is about, the
courts will listen to the parties to determine content and
credibility...even if it is oral and the contract specifies that it is all
inclusive and no parol evidence will be admitted...specially when dealing
between a "professional and a client" oftentimes the doubt will be
resolved in favor of the inexprienced and against the author. Another
issue is if a scribners error occurrs, the issue may be resolved w/oral
testimony...The main concern of the courts is What was the real intent of
the parties? After all, the only purpose of the contract is to evidence
the intent or meeting of the minds of the parties.
That is why it is so important that the client read and UNDERSTAND all
contracts they enter into. Remember, if the writer is having you sign his
contract to protect his a___, who is protecting yours? Take your time,
take it home, get help if you have to, but do not rush into the signing of
a contract...specially if the "pro" tells you that it is a "mere
formality", a "simple technicality" or that it is a "standard form" that
cannot be changed. Check around, look at other contracts and you may find
other photographers that are more up front and not so enamoured of their
negatives who are willing to give them up for a reasonable price.
thanks
SCOOTERTRS
.
This is actually a common misconception. The moment anyone takes a
photograph, they automatically own the copyright. If you pay a premium on
top of my normal rate, I will transfer the copyright to you. That's
simply the law in the U.S. Copyright is litigated in the Federal Court
system.
Dave....that was exactly my point....read my last sentence...you may want
to keep my negatives, but I may not want you to and am willing to pay for
them.
I do not know if the issue of Wedding photos or portrait work has actually
been addressed or resolved in Federal Court, but I doubt it. I will look
into it. I do believe that most of these issues arose because of
misunderstandings, misconceptions, bad intentions, concealed motives etc.
all related to a poorly worded contract or to a non existent contract
W. John Jones
cleeds (cle...@idt.net) writes:
> SCOOTERTRS wrote:
>>
>> Len has hit the nail on the head. The words for hire are critical. If a
>> photographer is hired to take pictures of a wedding, a party or for an
>> event where General Motors wants pictures of a brand new prototypical
>> automobile, he is hired for that job. Do you believe General Motors will
>> allow a discussion about negative ownership to go on for more than a
>> second? Hardly!
>
> This is totally, completely mistaken. While it is true that the
> importance of "work for hire" is enormous, what this poster has
> described is definitely NOT "work for hire". A bride who hires a
> photographer to shoot her wedding has not engaged a photographer under
> the legal definition of "work for hire". Not even close! There is no
> question that - under such an arrangement - the photographer is indeed
> the owner of the copyright.
> --
> ********************************************************
> Curtis Leeds cle...@idt.net
> "A man hears what he wants to hear, and disregards
> the rest."
> ********************************************************
In the U.S. perhaps the above is true, however in Canada it is essential
that you include in your original agreement/contract that you as
photographer remain the holder of copyright to the images. I would think
that in the U.S. you would be advised to state as such also, just to cover
your bases. You are then being up front about your rights and there is no
question as to your intentions.
cleeds
> OK I will play...Individual A contracts individual B to do a >particular
> job. Individual A pays individual B for such job. Individual B does >said
This is not "play". This is all a matter of carefully crafted,
well-designed law, and the law exists, is enforceable, and is actually
rather unambiguous. (We're talking U.S. law, here.) The specifics matter
because lawmakers have seen fit to protect those who create work which
is itself entitled to protection.
Again, I repeat: US law - not your idle imagination or theorizing -
has defined what constitutes a "work for hire" relationship between
photographer and client. With the exception of that specific situation,
the photographer of an image - by federal law - is the sole owner of the
copyright of an image, at least until he decides to sell or transfer
that right.
You can wrestle with this, you can argue about this, you can protest or
site contrary experience. No matter. The law stands on its own with or
without your recognition of it. If you doubt it, check with a
professional organization or an attorney who specializes in copyright
and trademark law. This is very basic stuff.
cleeds
SCOOTERTRS wrote:
>The moment anyone takes a
> photograph, they automatically own the copyright.
This usually, but not always, true. (Again, we're talking US law, here.)
If the conditions under which the image were made staisfy the legal
definition of "work for hire", then the photographer does not own the
copyright to the image.
> I do not know if the issue of Wedding photos or portrait work has actually
> been addressed or resolved in Federal Court, but I doubt it. I will look
> into it...
The matter has been fully addressed in the most recent copyright law. If
you seek clarifications, I suggest you contact a professional
organization, such as the PP of A.
DBari21137
In article <19970529113...@ladder02.news.aol.com>,
scoot...@aol.com (SCOOTERTRS) writes:
>What legal definition of "work for hire" is this poster referring to?
I believe the important distinction is whether the relationship is an
employer, employee relationship, or an independent contractor, client
relationship. The independent contractor owns the copyright to the
product. The employee is bound by the terms of their employment contract.
If the contract is silent on the ownership of the copyright, the employer
will own it.
Work for hire is kind of in between the two. The employed is
generally a freelancer, however, the nature of the above specific contract
is one where the employer has more control than the employed.
John Lull
In the waning years of the 20th century, scoot...@aol.com
(SCOOTERTRS) wrote (with possible deletions):
> OK I will play...Individual A contracts individual B to do a particular
> job. Individual A pays individual B for such job. Individual B does said
> job. Why would the specifics of a particular job matter.
Because the law *says* they matter.
> If an
> individual receives a w-2, or a 1099, or has to issue a receipt and charge
> sales tax, is getting financial compensation for doing something he would
> not have done otherwise, the inividual is doing work for hire.
This is simply not true. In general, if you are legally an employee,
taking pictures within the scope of your employment, you are doing
work for hire. If you are an independent contractor, you are *not*
doing work for hire.
How many people do you know who hire a wedding photographer as an
employee, getting workman's comp insurance, paying social security,
etc? Not many, I'll wager. Wedding photography is almost always done
on a contract basis.
Note, however, that the person who actually takes the pictures may be
an employee of the studio he works for, and is in fact doing work for
hire *as an employee of the studio* -- that's why in this case the
*studio* owns the copyright, not the person holding the camera. He's
still not *your* employee, and therefore not doing work for hire *for
you*.
> What legal definition of "work for hire" is this poster referring to?
The definition stated surprisingly clearly in the copyright laws.
> I
> do not know, but I was always raised so that if something quacks like a
> duck, acts like a duck, and looks like a duck, then it must be a duck.
In legal matters? You must be joking.
> Looks to me a photographer is a "hired hand" with special skills...whether
> we like the term or not.
No. In most cases, the photographer or studio is an independent
contractor -- *not* an employee -- and legally that makes all the
difference in the world.
I write software for a living, as an independent contractor. Legally,
I *own* the software I write. When I negotiate a contract, I can, if
I want to, legally transfer the copyright to my client, or I can give
them a limited or unlimited license to copy, create derivative works,
etc. -- but that has to be negotiated and *must be* spelled out in
writing. The software I write *is not* a work for hire -- because I
am not an employee of my client.
If you don't believe any of the numerous posters who disagree with
you, go read the law for yourself -- paying particular attention to
the legal definitions of "author" and "work for hire".
Regards,
John
John Lull
In the waning years of the 20th century, cleeds <cle...@idt.net> wrote
(with possible deletions):
> That a photographer may be
> willing to sell negatives or the copyrights on the image has no bearing
> at all as to whether the work was done under a "work for hire"
> arrangement.
Not quite, because if the work is legally a "work for hire", the
photographer *does not own the copyright*, and therefore *cannot*
legally sell it.
"Work for hire" refers to who the legal author is -- in a situation
involving work for hire, the *employer* is the legal author, and
therefore owns the copyright. If it is to be sold, the *employer*
must do the selling.
Regards,
John
BGurfinkel
That should be "copyright", one word.
"Copy right" is what I tried to do in school without getting caught.
Subscribe to alt.usage.english if you like grammar.
:-)
Bob Gurfinkel
W. John Jones
SCOOTERTRS (scoot...@aol.com) writes:
>> Curtis Leeds cle...@idt.net responds
>>This is totally, completely mistaken. While it is true that the
>>importance of "work for hire" is enormous, what this poster has
>>described is definitely NOT "work for hire". A bride who hires a
>>photographer to shoot her wedding has not engaged a photographer under
>>the legal definition of "work for hire". Not even close! There is no
>>question that - under such an arrangement - the photographer is indeed
>>the owner of the copyright.
>
>> Curtis Leeds cle...@idt.net
>> "A man hears what he wants to hear, and disregards
>> the rest."
>>********************************************************
> OK I will play...Individual A contracts individual B to do a particular
> job. Individual A pays individual B for such job. Individual B does said
> job. Why would the specifics of a particular job matter. If an
> individual receives a w-2, or a 1099, or has to issue a receipt and charge
> sales tax, is getting financial compensation for doing something he would
> not have done otherwise, the inividual is doing work for hire.
> What legal definition of "work for hire" is this poster referring to? I
> do not know, but I was always raised so that if something quacks like a
> duck, acts like a duck, and looks like a duck, then it must be a duck.
> Looks to me a photographer is a "hired hand" with special skills...whether
> we like the term or not. In fact, if we are discussing definitions...a
> professional is an individual that provides a service for a
> fee...basically no product is sold. If your livelyhood depends mainly on
> the sale of your reprints...how are you any better than the counter person
> at the 60 minute quick print at Eckerds or Wallmart?
>
>
Wait a minute...
When did the conversation stray into reprints? If you don't know the
difference between paying for a lab to re-print YOUR prints, and paying a
photographer for re-prints of THEIR prints, then you haven't a clue.
You're paying for service and paper in the former, you pay for the "image"
in the latter.
SCOOTERTRS
People, if even in a small group as this there is such a diversity of
opinions and such a broad knowledge of the law, is it not clear yet that a
crucial aspect of the hiring process for a shoot involves a CLEAR
UNDERSTANDING of the contract, which should include all issues that apply
to the job and specify FUTURE OWNERSHIP of the negatives, with an option
to the buyer placing a set price for them in addition to the basic shoot
fee plus a model release(of the people in the pictures, not their dad or
uncle) in the case the buyer refuses to buy the negatives
Buyers must make informed decisions and the decisions must be made before
hey sign on the dotted line of that contract.
Remember...Copyright or not, we diverged from the original topic, the
copyright is an asset that can be bartered with, sold or bought. But this
must be done before the contract is entered into. Buyer must take his or
her time, consider the options, go on to the next if terms displease and
enter only into the contract that explicitly contain all or most of the
terms that are considered important.
John or Jenn
In article <338D69...@idt.net> cleeds, cle...@idt.net writes:
> Of course, the wedding photog is still free to sell you the negatives,
>but it's his option. Under current (US) copyright law, the photographer
>clearly owns the negatives and their coprights. There is no question or
>ambiguity in this instance.
and the interesting part is that (I understand) if the photog sells the
negs, he still keeps the copyright to the image, unless he also assigns
that when selling the negs. Cute, eh? :-)
cleeds
Well you have both begged the question and taken my words well out of
context, for sure. Observe, if you will, the title of this thread:
"wedding work and copyright". The original issue that I've been alone in
attempting to clarify here is that the relationship between wedding
photog and client is NOT "work for hire"; hence, the photographer owns
the copyright.
--
********************************************************
JLacyPhoto
I'm jumping into this in the middle, so maybe I don't understand the
question. That said you should know that "work for hire" would apply to a
wedding studio which under a written agreement hires a photographer to
represent them. Understanding that the studio supplies the film and the
client and is entitled to the ownership (copyright) of film produced under
the assignment. Many corporate photo departments are set up like this
too. The end client- the bride's mother or similar, has also entered into
a contractual agreement for services which may or may not include a set of
prints. The contract between the studio and the "mother" should also
declare the ownership of negatives and copyright by the studio.
Under no circumstances is the relationship between the studio and the
"mother" work for hire unless clearly stated in a contract. If the
"mother" provided film to be shot to a hired photographer she might have a
chance in court, but it would be a slim one.
In your work agreement (contract form) you should always make it clear
what you own and what the client gets. I can't tell you how many times a
client has hired me with too little notice to produce a job estimate with
terms (contract), only to have the client come back and say that they
thought they own the negatives and photos "for all the money I paid I get
the right to buy print from you?", that's right!
John
John Lacy Photography
JLacy...@aol.com
DCJPhtgrfy
scoot...@aol.com (SCOOTERTRS) said,
<OK I will play...Individual A contracts individual B to do a particular
<job. Individual A pays individual B for such job. Individual B does
said
<job. Why would the specifics of a particular job matter. If an
<individual receives a w-2, or a 1099, or has to issue a receipt and
charge
<sales tax, is getting financial compensation for doing something he
<would not have done otherwise, the inividual is doing work for hire.
<What legal definition of "work for hire" is this poster referring to? I
<do not know, but I was always raised so that if something quacks like a
<duck, acts like a duck, and looks like a duck, then it must be a duck.
<Looks to me a photographer is a "hired hand" with special
skills...whether
<we like the term or not.
If you do not know what you are talking about, and are just giving an
uneducated opinion, you should not speak on the subject. This applies to
everyone.
INDEPENDENT CONTRACTOR v. EMPLOYEE
We are frequently asked whether it is safe to treat a particular service
provider as an independent contractor -- and almost always our answer is
"No." Here's why. What is an Independent Contractor? The concept of
"independent contractor" is first and foremost a concept of tort law.
Generally, a person who retains the services of another, but who does not
control how the services are performed, is not held liable for any
injuries or damages caused by that independent service provider. For
example, if your business retains the services of an independent trucker
to deliver products to your customers, you should not be liable for any
injuries or damage caused by the trucker in the course of delivering your
products because you do not control how he carries out his duties. If, on
the other hand, you own the trucks and hire and train the drivers of those
trucks, you should be liable for their negligent acts -- you have made the
delivery of products part of your business.
Independent Contractors and the Tax Code
The concept of "independent contractor" takes on new meaning under the
Internal Revenue Code, primarily because of the payroll tax withholding
rules. Employers are responsible for payroll tax withholding from
employees, but not from independent contractors. (An independent
contractors is, by definition, a separate employer.) The Service favors
classifying a service provider as an employee rather than an independent
contractor because it improves the likelihood of proper payroll tax
withholding. The battle with the IRS over the independent
contractor/employee issue has been fought for quite some time. Several tax
court cases have listed the factors that determine whether a person is an
independent contractor or an employee. Some of the key factors are the
amount of control exercised by the employer over the services provided;
who supplies the tools; who does the scheduling; who provides specific
instructions and training; who hires, supervises and trains assistants;
whether regular and recurring services are provided; whether the service
provider has his own separate office or business; and whether the service
provider performs more than minimal services for others. Unfortunately,
evaluation of these factors is a subjective exercise, and the IRS and the
employer frequently disagree as to the conclusion that should be reached
after these factors are considered. To stem the Service's aggressiveness
in re-characterizing independent contractors as employees, Congress
enacted Section 530 of the Revenue Act of 1978. That provision states that
an employer has a right to treat a person as an independent contractor if
it has been the practice of the industry to treat individuals performing
such services as independent contractors. Unfortunately, where the
industry practice is clearly to treat certain individuals as independent
contractors, the IRS may not agree. In a recent controversy over the
status o f emergency room physicians, the Service rejected a study
commissioned by the American College of Emergency Physicians that
demonstrated that the industry practice is to treat emergency room
physicians as independent contractors, stating that the employer must
prove a "local" standard. Few taxpayers have been willing to fight for the
protection offered by Section 530 because the appeals process is costly.
Ironically, as more and more taxpayers settle with the Service, many
industry practices have effectively been transformed from "independent
contractor" to "employee." The Current State of Affairs Public comments
from IRS officials suggest that the Service is preparing to step up its
attacks on independent contractors. The Service's tough public stance and
the extraordinarily high cost of fighting the Service over this issue
argue against the creation of independent contractor relationships unless
the Service has previously ruled in a taxpayer's favor in a very similar
situation. If someone insists on contracting with you as an independent
contractor and you are concerned about these tax issues, you should insist
that the individual incorporate. It appears that contractual relationships
with a corporation are less likely to be challenged than contractual
relationships with individuals.
----- Brought to you by - THE 'LECTRIC LAW LIBRARY(tm) The Net's Finest
Legal Resource For Legal Pros & Laypeople Alike. WWW:
http://www.lectlaw.com -- e-mail: st...@lectlaw.com
Austin Franklin
> > I think our pictures are ours, that we own them.
> > Why wedding photo shops insists that they own the
> > picture that I HIRE them to do?
> >
> > Well you own the prints ;however you do not have the right to copy
> > them .It is similar to ownership of software,just becouse you
> > paid for it does not allow you to make copies.
> > Hope this helps.
I have been a professional commercial photographer for years (oh...20 or
so) and I definitely disagree with the concept that the wedding
photographer owns the pictures if he/she is PAID to shoot the pictures. If
they are pictures done for stock or on your own, then the photographer
definitely does own the exclusive rights. Once someone pays you to shoot a
job, they own them. I understand that the general wedding photography
industry sees this differently.
Honestly, there aren't many good wedding photographers out there...just my
opinion...
Now if the photographer wants to do the wedding on 'spec' and hopes I will
buy the pictures after the fact, then, I would say the photographer owns
them ;-) Try getting a wedding photographer to do that!
The software analogy is not applicable, you did not pay the company to do
the work for you, you bought a bunch of floppies (or CD), and you own these
floppies (or CD). Along with this, you have the rights to use the contents
of the floppy (or CD) much like a book. You own the book, but not the
right to reproduce the book. This is, of course, unless you paid for the
development of the software in the first place, or paid someone to write
the book...it's just like being employed by a company, they company pays
you to do a job for them, they own what you did...you don't.
Austin Franklin
dark...@ix.netcom.com
DBari21137
In article <01bc6d42$a1a22b00$cccab7c7@drt1>, "Austin Franklin"
<dark...@ix.netcom.com> writes:
This is really starting to get silly. I'm not even going to attempt
to respond to the above piecemeal because I don't believe I could without
being condescending. I will, however, simply state that, personal
feelings aside, you are completely and unequivocally wrong.
DBari21137
In article <s6yenaq...@aalh02.alcatel.com.au>,
Chris....@alcatel.com.au (Chris Bitmead uid(x22068)) writes:
>If you are dumb enough to write a book for $500 then tough! I work all
>day writing computer programs. But I've got no rights to use the
>programs I write! That's what happens when someone pays you to do
>something. They should own what they've paid for.
Wrong. Read your contract or speak with someone who is in a position in
your industry that you hope to be in some day.
Chris Bitmead uid(x22068)
dbari...@aol.com (DBari21137) writes:
> In article <s6yenaq...@aalh02.alcatel.com.au>,
> Chris....@alcatel.com.au (Chris Bitmead uid(x22068)) writes:
>
> >If you are dumb enough to write a book for $500 then tough! I work all
> >day writing computer programs. But I've got no rights to use the
> >programs I write! That's what happens when someone pays you to do
> >something. They should own what they've paid for.
>
> Wrong. Read your contract
I have read it. I have no rights to what I write.
> or speak with someone who is in a position in
> your industry that you hope to be in some day.
What position might that be?
DBari21137
In article <s6yoh9p...@aalh02.alcatel.com.au>,
Chris....@alcatel.com.au (Chris Bitmead uid(x22068)) writes:
>> Wrong. Read your contract
>
>I have read it. I have no rights to what I write.
Well then you are bound by the terms of that contract. Next time,
negotiate the terms before you sign it. Just because someone pays you to
write a program does not automatically mean that they get the copyright.
If fact, the opposite may very well be the case. The Federal Courts will
imply terms into the contract to provide for situations that the parties
have not discussed, including ownership of the copyright. The courts
often look to industry standards. As far as portrait and wedding
photography is concerned, the photographer owns the copyright by default.
>> or speak with someone who is in a position in
>> your industry that you hope to be in some day.
>
>What position might that be?
I don't know. You tell me. I would guess that it would be someone whom
you respect as a pioneer in your industry. Perhaps he/she is simply very
successful. My point is that just because someone pays you to do a job
for them does not automatically mean that they get the copyright. It's
not that simple.
JLacyPhoto
So who, by your explaination, owns the negatives and the copyright?
DBari21137
In article <19970602232...@ladder02.news.aol.com>,
jlacy...@aol.com (JLacyPhoto) writes:
>So who, by your explaination, owns the negatives and the copyright?
The photographer owns the negs and the copyright unless the parties
specifically contract otherwise.
cleeds
DBari21137 wrote:
> The photographer owns the negs and the copyright unless the parties
> specifically contract otherwise.
In the US, this is totally false. Copyright law has been (relatively)
clearly stated, so it's a wonder that so many participants in this
thread continue to assert that the law is how they "think" it should be,
or that the law is the way that it "ought" to be. Follow the advise of
these people at your own risk.
The law is unequivocal on this topic: when work is produced under
circumstances defined by law as "work for hire", the photographer is
positively NOT the owner of the negatives or the copyright. No specific
agreement or contract is necessary for this to be true.
SPECTRUM
Obviously we need a word in from professionals that aren't found on
this group. Afterall this is such bologna that I can't believe that it's
even being talked about !
This is a copy of a posting from the PNN newsgroup for professional
photographers. Perhaps after reading this your still confused you will
go to
http://lcweb.loc.gov/copyright/
Not to mention,
Where you'll find that the copyright act of 1976 protects all acts of
expression. I wonder if photography qualifies as a medium for expression
? Ugh, oooohhh don't strain yourself let me help. YES !
So what have we learned today ? Well "Work for Hire" is written into a
contract between an employee and an employer. As a freelance
photographer I don't work for the bride !
And photographs are works of expression and as such are protected by
copyright law !
Now isn't that better !
"Transfer of Copyright
When an agency purchases photography or illustration under a transfer of
copyright agreement with the creator, the client owns all rights.
'Work-for-hire' once a widely relied-upon doctrine, has been reassessed
based on several court cases, most recently toe Case of Community for
Creative Non-Violence versus Reid, No. 88-293 (June 3, 1989), in the
U.S.
Supreme Court.
In essence, the Court ruled that a freelancer generally cannot be bound
by
'work-for-hire'. Work-for-hire would clearly apply only when the
creator
(photographer or illustrator) is an employee of the client or agency
commissioning the assignment."
>From "Guide to Buying Advertising Art & Photography"
published by Art Services Committee-American Association of Advertising
Agencies 1991
cleeds wrote:
>
> DBari21137 wrote:
>
> > The photographer owns the negs and the copyright unless the parties
> > specifically contract otherwise.
>
> In the US, this is totally false. Copyright law has been (relatively)
> clearly stated, so it's a wonder that so many participants in this
> thread continue to assert that the law is how they "think" it should be,
> or that the law is the way that it "ought" to be. Follow the advise of
> these people at your own risk.
> The law is unequivocal on this topic: when work is produced under
> circumstances defined by law as "work for hire", the photographer is
> positively NOT the owner of the negatives or the copyright. No specific
> agreement or contract is necessary for this to be true.
--
Regards,
John S. Douglas
Spectrum Photographic Inc.
Pine Beach, N.J.
908.505.8393
http://www.cybercomm.net/~spectrum/
"I gave my life to become the person I am right now.
Was it worth it ?"
Richard Bach
One
J Scott Hobson
cleeds wrote:
>
> DBari21137 wrote:
>
> > The photographer owns the negs and the copyright unless the parties
> > specifically contract otherwise.
>
> In the US, this is totally false. Copyright law has been (relatively)
> clearly stated, so it's a wonder that so many participants in this
> thread continue to assert that the law is how they "think" it should be,
> or that the law is the way that it "ought" to be. Follow the advise of
> these people at your own risk.
> The law is unequivocal on this topic: when work is produced under
> circumstances defined by law as "work for hire", the photographer is
> positively NOT the owner of the negatives or the copyright. No specific
> agreement or contract is necessary for this to be true.
>
> --
> Curtis Leeds cle...@idt.net
> "A man hears what he wants to hear, and disregards
> the rest."
> ********************************************************
Wrong, wrong, wrong. Unless the work is produced by an employee during
the regular course of the employees work, a written agreement is indeed
required.
J Scott Hobson
J Scott Hobson Imaging
Austin Franklin
<previous post with my opinion on wedding photographers copyright snipped>
> This is really starting to get silly. I'm not even going to attempt
> to respond to the above piecemeal because I don't believe I could without
> being condescending. I will, however, simply state that, personal
> feelings aside, you are completely and unequivocally wrong.
Just saying someone's opinion is wrong doesn't make them wrong. And saying
what was wrong (incorrect) usually goes along with saying someone is wrong
about if you want your opinion to be taken seriously. But, what I said in
my post was an opinion, just because you don't like it, doesn't make it
wrong, it just means you disagree with my opinion.
It may be that you just didn't understand what I wrote. I received e-mail
from others, and they did understand it, and basically agreed. I received
a few e-mails stating that their wedding photographer did their wedding on
spec! And they were quite pleased with that arrangement.
Austin Franklin
dark...@ix.netcom.com
Austin Franklin
> >The moment anyone takes a
> > photograph, they automatically own the copyright.
>
> This usually, but not always, true. (Again, we're talking US law, here.)
> If the conditions under which the image were made staisfy the legal
> definition of "work for hire", then the photographer does not own the
> copyright to the image.
That is also my understanding, and the understanding that both my clients
and I have been working under for 20 years. To me, it is honest business.
Austin Franklin
dark...@ix.netcom.com
Thomas Ryan
> > The photographer owns the negs and the copyright unless the parties
> > specifically contract otherwise.
>
> In the US, this is totally false. Copyright law has been (relatively)
> clearly stated, so it's a wonder that so many participants in this
> thread continue to assert that the law is how they "think" it should be,
> or that the law is the way that it "ought" to be. Follow the advise of
> these people at your own risk.
> The law is unequivocal on this topic: when work is produced under
> circumstances defined by law as "work for hire", the photographer is
> positively NOT the owner of the negatives or the copyright. No specific
> agreement or contract is necessary for this to be true.
>
> ********************************************************
> Curtis Leeds cle...@idt.net
> "A man hears what he wants to hear, and disregards
> the rest."
> ********************************************************
Correct and incorrect.
The statement that is in dispute is "the photographer owns...unless the
parties specifically contract otherwise." This statement is legally
true. In order for a work for hire condition to be in place, the "Work
for Hire" agreement must be in place _before_ any work is completed. Any
"work for hire" agreements presented after the fact, _even if they are
signed by both parties_, are not legally binding. The law is _very_ clear
on this, based on the legal definition of "work for hire" within the
confines of the Copyright law.
Certain magazines are famous for including "work for hire" provisions in
their PO's which, unfortunately, some photographers sign without reading.
The provision has been proven to not be legally binding (in court).
Tom
Jim Stewart
After reading nearly all the posts on wedding work and copyright, I feel
obligated to point out a couple of things. First of all, this is more
of a marketing issue than a copyright issue. The photographer can
either retain the negs/copyright or turn them over to the client. If
they are retained, the most likely reason is to gain future income from
reprints. Even if there were no copyright law, a photographer could
still do this contractually. At best, the use of copyright law to
justify retaining the negs/copyright is somewhat weak. I also suspect
that a photographer who shoots a wedding without a written agreement
would have a difficult time convincing a court that he should have the
sole rights to the negs/copyright. If someone who has access to a legal
search system could pull up some legal precedent, it would be most
informative.
To take the discussion one step further, what about a printer. You give
the printer your camera-ready copy. He shots it on his copy camera,
makes a neg and burns a plate. Does he own the copyright to the neg and
plate? He is a photographer. He can claim that he knows tricks to
doing a good job that makes it an "art". Clearly, he cannot use the neg
and plate to print your book and sell it. On the other hand, you
probably paid for the plate when you contracted with him. He may or may
not be willing to give you the plate when he is done, but in any case,
he will not invoke the copyright law to justify his position. On the
other hand, If you take your book, that he printed from his neg and
plate, and copy it, I don't believe he would have any recourse. What's
my point here? That I don't know where the line is drawn between "art"
protected by copyright and the purely technical act of copying
something, which presumably, is not.
Jim
jack_gurner
In article <33944E...@cybercomm.net>, SPECTRUM says...
>
>Obviously we need a word in from professionals that aren't found on
>this group. Afterall this is such bologna that I can't believe that it's
>even being talked about !
>
I'll second that. However, copyright is one of those threads that brings
out a lot of emotion...like discussing photography as art.
All of the legal mumbo-jumbo is almost worthless in practice. Talk to a
lawyer about taking a copyright case to court. Watch his eyes glaze over.
...unless, of course, you have very deep pockets.
Jack Gurner
jgu...@watervalley.net
Austin Franklin
But, the reason there is so much disagreement around this issue is because
in NO other industry do people think that they can keep the work that they
got paid a fee to do (I'm not talking about the prints)! There is such
precedent set throughout other industries, that this issue goes against!
It's funny to me that keeping the 'rights' to someone elses wedding
pictures is so important to some people. I gladly give them to clients,
and if they don't want them, I will save them. I understand you want the
re-print money, but that's subsequent to the fact you got paid to do the
work in the first place! If you did an excellent job in the first place
(and didn't price gouge your clients), most people will come back to you
for the reprints anyway. And besides, if you have to survive on making
money off of wedding reprints, you might want to try another line of work
;-)
Does anyone have the real (not your understanding of) legal definition of
'work for hire'? I couldn't find it in my Law Dictionary...
Austin Franklin
dark...@ix.netcom.com
Chris Bitmead uid(x22068)
dbari...@aol.com (DBari21137) writes:
> In article <s6yoh9p...@aalh02.alcatel.com.au>,
> Chris....@alcatel.com.au (Chris Bitmead uid(x22068)) writes:
>
> >> Wrong. Read your contract
> >
> >I have read it. I have no rights to what I write.
>
> Well then you are bound by the terms of that contract. Next time,
> negotiate the terms before you sign it.
If I did that I would not get any work at all.
Can you imagine if I rolled up at Microsoft trying to get contract
work, but then wanted terms in the contract that I could use any
source code to Windows 95 that I write for my own purposes? They would
tell me to get lost.
DBari21137
In article <tjr3-03069...@d137.dialnet2.interaccess.com>,
tj...@interaccess.com (Thomas Ryan) writes:
>The statement that is in dispute is "the photographer owns...unless the
>parties specifically contract otherwise." This statement is legally
>true. In order for a work for hire condition to be in place, the "Work
>for Hire" agreement must be in place _before_ any work is completed. Any
>"work for hire" agreements presented after the fact, _even if they are
>signed by both parties_, are not legally binding. The law is _very_
clear
>on this, based on the legal definition of "work for hire" within the
>confines of the Copyright law.
Thanks. I thought I was alone on this one.
DBari21137
In article <01bc7079$d5660d00$a8cab7c7@drt1>, "Austin Franklin"
<dark...@ix.netcom.com> writes:
>That is also my understanding, and the understanding that both my clients
>and I have been working under for 20 years. To me, it is honest
business.
>
>Austin Franklin
Just because you and your clients have been working under an
assumption for 20 years does not make it true. Of course, courts do give
great weight to those assumptions and expectations.
An important fact to note is that commercial photographers and
wedding/portrait photographers operate in different commercial atmospheres
with different expectations. If I misinterpreted your last post, then I
apologize. However, I must say that your comment concerning wedding
photographers was unfair. Not because you are not entitled to a differing
opinion, but instead because I sense that you are comparing the skills of
a wedding/portrait photographer with your own.
At least in my neighborhood, most commercial photographers sneer at
wedding/portrait photographers, as a matter of course, regardless of their
respective positions in their own specialties.
DBari21137
In article <01bc707d$619d6860$a8cab7c7@drt1>, "Austin Franklin"
<dark...@ix.netcom.com> writes:
>But, the reason there is so much disagreement around this issue is
because
>in NO other industry do people think that they can keep the work that
they
>got paid a fee to do (I'm not talking about the prints)! There is such
>precedent set throughout other industries, that this issue goes against!
Actually, this is not true. Examples of other industries in which
ownership of the copyright is retained in the 'author' are architecture,
computer programming, song writing, painting, drawing, etc., etc.
I do understand your conundrum; it does seem counter-intuitive that
some guy with a camera would own the sole rights to copy, distribute,
derive, preform, display, yada, yada, yada, your wedding photos. However,
this is how the Federal Courts interpret copyright law.
DBari21137
>Wrong, wrong, wrong. Unless the work is produced by an employee during
>the regular course of the employees work, a written agreement is indeed
>required.
>
>J Scott Hobson
Thanks.
DBari21137
In article <tjr3-03069...@d137.dialnet2.interaccess.com>,
tj...@interaccess.com (Thomas Ryan) writes:
>Certain magazines are famous for including "work for hire" provisions in
>their PO's which, unfortunately, some photographers sign without reading.
>The provision has been proven to not be legally binding (in court).
>
>Tom
If I recall correctly, the courts ruled for the photographer by
following section 2-207 of the Uniform Commercial Code.
1. "...a written confirmation which is sent within a reasonable time
operates as an acceptance even though it states terms additional to or
different from those offered or agreed upon ... " (eg., P.O.s with small
print giving the purchaser the copyright)
2. " ... Between merchants such terms become part of the contract unless:
a. the offer expressly limits acceptance to the terms of the offer;
b. they materially alter it; or
c. notification of objection to them has already bgiven or is given
within a reasonable time after notice of them is received.
Number 2(b) is the key. The P.O. with the copyright provision will not
become a part of the contract because it would materially alter the
existing agreement between the photographer and the publisher.
John Lull
In the waning years of the 20th century, "Austin Franklin"
<dark...@ix.netcom.com> wrote (with possible deletions):
> Does anyone have the real (not your understanding of) legal definition of
> 'work for hire'? I couldn't find it in my Law Dictionary...
Go to:
http://lcweb.loc.gov/copyright/
for anything related to copyrights.
Specifically, see (on that web site):
Copyright Information Circulars
Circular 9 - Work-Made-For-Hire Under the 1976 Copyright Act
Regards,
John
Curtis Leeds
SPECTRUM wrote:
>...you'll find that the copyright act of 1976 protects all acts of
> expression. I wonder if photography qualifies as a medium for expression
> ? Ugh, oooohhh don't strain yourself let me help. YES !
At issue here is not whether photography qualifies as a medium of
expression. The question is: who is protected?
The Copyright Act Of 1976, by the way, has been superceded more than
once.
> So what have we learned today ? Well "Work for Hire" is >written into a
> contract between an employee and an employer.
We have also learned that your definition of "work-for-hire" differs
from that as defined by US law.
--
Curtis Leeds
Austin Franklin wrote:
> ...the reason there is so much disagreement around this issue >is because in NO other industry do people think that they can >keep the work that they got paid a fee to do (I'm not talking >about the prints)! There is such precedent set throughout other >industries, that this issue goes against!
This is quite mistaken. The reason that there has been such disagreement
over this issue on this thread is that many people who've contributed
simply don't know what they are talking about. Lawmakers and the courts
have long held that it is in society's interest to afford legal
protection to "intellectual property" and creative works, of which
photography is but one. Musicians, writers, designers of all sorts, and
others enjoy protection under the copyright laws. For an example of
extreme protection, you might investigate the sorts of rights that
architects such as I.M. Pei have reserved for themselves l-o-n-g after
they've been well paid for their work. These protections have been
upheld by the courts.
Of course, you are free to assign your rights as you see fit. However,
it would be mistaken for you to assert that all others should do the
same.
Austin Franklin
Dave,
> Actually, this is not true. Examples of other industries in which
> ownership of the copyright is retained in the 'author' are architecture,
> computer programming, song writing, painting, drawing, etc., etc.
How do you figure computer programming? No person I know (and I live in
NewEngland, where there are computer programmers on every street corner,
and I have a lot of friends who are in the field too) keeps the rights to
the software they wrote when paid to do it (on a contract basis, as a
wedding photographer is...) by someone else...no one would hire them if
this was the case. A programmer obviously own the rights to what ever they
wrote for themselves, but definitely NOT when they are paid by someone else
to do.
Can you name a court case where a programmer was paid to do work for
someone and without it being explicitly stated in a contract, he/she was
able to re-sell the work they had done for another client (or something
like that)?
at http://lcweb.loc.gov/copyright/circs/circ9 it says:
Examples of works for hire created in an employment relationship
are:
* A software program created by a staff programmer for Creative
Computer Corporation.
(my thanks to John Lull for pointing me to this information)
I also had a house designed by an architect, and I paid him for his
work...he does NOT own the rights to reproduce what it was I paid him to do
for me. General conceptual aspects of it, yes, they are part and parcel of
that industry. I believe the general rule of thumb is it must be more than
%50 different, but that got pulled out of some recollection of some past
experience... If the architect did the plans (not for a specific client)
and I subsequently saw them, and then bought a set from him/her, then he
definitely owns the rights.
> I do understand your conundrum; it does seem counter-intuitive that
> some guy with a camera would own the sole rights to copy, distribute,
> derive, preform, display, yada, yada, yada, your wedding photos.
However,
> this is how the Federal Courts interpret copyright law.
People have said 'these laws have been upheld...', I'm curious if someone
can name a case that this is true...because as we all know, different cases
have different circumstances. It would be interesting to know all the
circumstances...
I appreciate that you agree this copyright logic used by (wedding)
photographers is counter-intuitive. Needless to say, law is interpretive
(as you say...) and this interpretation can change when new light is shed
on the subject, or just aimed from a different direction ;-) To quote the
aforementioned copyright circular:
"The court left unclear what factors must be present to establish the
employment relationship under the work for hire definition..."
To me 'work for hire' would be simply defined as someone was paid a fee to
do specific work. It's a matter of what you have invested. If you're
getting paid (your set rate/fee) to do a job, then you don't own the
results of that job...you had nothing at stake. If you have something at
stake (say, did it on spec...) then you should own the results of your
work. My opinion may not be how the laws seem to be currently interpreted.
My general approach to law is more common sense/intuition, instead of
loopholes, complications, contradictions and vagaries (most modern law)...
I think if more people understood what this 'law' was about, and how it
affected them, this law would be written quite a bit differently. This law
reminds me of the inheritance tax law... even though it's wrong (in my
opinion), people really don't pay attention to it because they only
encounter it once or so in life, it happens during a complicated time in
their lives, and it doesn't happen to many people at the same time.
Austin Franklin
dark...@ix.netcom.com
John Lull
In the waning years of the 20th century, "Austin Franklin"
<dark...@ix.netcom.com> wrote (with possible deletions):
> Examples of works for hire created in an employment relationship
> are:
>
> * A software program created by a staff programmer for Creative
> Computer Corporation.
Note the key word here -- "staff". If you're not on the staff, and
*absent any agreement to the contrary,* you own the software you
write.
Of course, you're not likely to get the contract to begin with unless
you're willing to either assign all copyright or provide an exclusive
license ....
Nevertheless, the law is quite clear. If you're writing software as
an independent contractor, you are *not* doing work for hire. An
appropriate written copyright agreement of some sort is therefore
*required*. If your client doesn't get one, then he's not getting
even marginally acceptable legal advice.
Regards,
John
Ron Frank
Boy,
There is much incorrect info on this thread it's a riot!
I'll respond to some but the main lesson to be learned is:
GET IT WRITING IN THE CONTRACT
------------------------------
OK here goes.........
scootertrs wrote:
> Looks to me a photographer is a "hired hand" with special skills...whether
> we like the term or not. In fact, if we are discussing definitions...a
> professional is an individual that provides a service for a
> fee...basically no product is sold.
Wrong, read your dictionary. A professional has little to do with products or
services, but how one makes a living. And the term "work for hire" is not the
same a "hired hand" since that term has no legal defination that I'm aware of,
but "work for hire" constitutes a special (if not grossly misunderstood) legal
defination.
> If your livelyhood depends mainly on
> the sale of your reprints...how are you any better than the counter person
> at the 60 minute quick print at Eckerds or Wallmart?
The main difference here would be a Wallmart operator is an employee of that
corporation and not an independant contractor (as are most photographers).
If there is no contract at all, the individual who takes a photo (professional
or not) owns that image. Now there may be some difficulties in getting it
published without a model or property release, but that's beside the point.
Obviously ScooterTRS your head has hit the pavement one too many times, and you
have little or no understanding of what it takes to run a photography business,
although you may have more knowledge than most as to what it take to be a
Wallmart employee. Why did you respond to this thread since you have no
practical knowledge (or learned knowledge) of the subject of copyright?
Cris Bitmead wrote:
> I work all
> day writing computer programs. But I've got no rights to use the
> programs I write! That's what happens when someone pays you to do
> something. They should own what they've paid for.
Wrong. Cris if you could get a client to agree that what you write is yours,
or shared, than so it would be. Bill Gates wrote DOS (in part) and then Windows
(in part). Would you dispute that he owns the copyright (or HIS company
Microsoft) to those products.
"Austin Franklin" <dark...@ix.netcom.com> writes:
>I have been a professional commercial photographer for years (oh...20 or
>so) and I definitely disagree with the concept that the wedding
>photographer owns the pictures if he/she is PAID to shoot the pictures.
Then Austin, in the 20 years you've been in business you've not bothered to
study much about copyright law.
>If they are pictures done for stock or on your own, then the photographer
>definitely does own the exclusive rights. Once someone pays you to shoot a
>job, they own them.
If you choose to "work for hire" and give up the rights to your images that's
your choice. But do NOT confuse your way of doing business (which is more common
when doing commercial photography) with the law. Copyright law states that the
individual who makes a photographic image owns that image unless otherwise
stated in a legal document.
> I understand that the general wedding photography
> industry sees this differently.
>
>Honestly, there aren't many good wedding photographers out there...just my
>opinion...
The general Wedding photography industry is not alone. There are many commercial
photographers who have the reputation to demand to at least reproduce/sell their
images, if no keep the copyrights exclusively. If you do not so be it, but maybe
it's your failure at understanding you rights.
Austin Franklin then wrote:
> ...the reason there is so much disagreement around this issue is because in NO
> other industry do people think that they can keep the work that they got paid
> a fee to do (I'm not talking about the prints)! There is such precedent set
> throughout other industries, that this issue goes against!
Well this is just B.S. In many areas there has been major issues over
ownership. This includes the Beatles getting screwed out of the music THEY wrote
along with many young groups out of the 60's. When offered large sums of $$$,
recording contracts, etc, many musical artists gave up the copyright to their
music without even understanding they were doing so.
This is also true of inventors who have thier ideas rejected by industry, only
to have their design show up on the shelves a few months later. Had the
photography industry been alone in their problem with ownership, and copyright
issues, than I doubt so many broad laws would exist today to protect the
interest of the individual.
Ron
Mirror Image
David Shrader
Thomas Ryan wrote:
>
> > > The photographer owns the negs and the copyright unless the parties
> > > specifically contract otherwise.
> >
> > In the US, this is totally false. Copyright law has been (relatively)
> > clearly stated, so it's a wonder that so many participants in this
> > thread continue to assert that the law is how they "think" it should be,
> > or that the law is the way that it "ought" to be. Follow the advise of
> > these people at your own risk.
> > The law is unequivocal on this topic: when work is produced under
> > circumstances defined by law as "work for hire", the photographer is
> > positively NOT the owner of the negatives or the copyright. No specific
> > agreement or contract is necessary for this to be true.
> >
> > Curtis Leeds cle...@idt.net
> > "A man hears what he wants to hear, and disregards
> > the rest."
> > ********************************************************
>
>
> The statement that is in dispute is "the photographer owns...unless the
> parties specifically contract otherwise." This statement is legally
> true. In order for a work for hire condition to be in place, the "Work
> for Hire" agreement must be in place _before_ any work is completed. Any
> "work for hire" agreements presented after the fact, _even if they are
> signed by both parties_, are not legally binding. The law is _very_ clear
> on this, based on the legal definition of "work for hire" within the
> confines of the Copyright law.
>
> their PO's which, unfortunately, some photographers sign without reading.
> The provision has been proven to not be legally binding (in court).
>
> Tom
I'm not a lawyer but the definitions of "work made for hire" is
interesting:
United States Code, Title 17, section 101
"A "work made for hire" is-
(1) a work prepared by an employee within the scope of his or her
employment; or
(2) a work specially ordered or commissioned for use as a contribution
to a collective work, as a part of a motion picture or other audiovisual
work, as a translation, as a supplementary work, as a compilation, as an
instructional text, as a test, as answer material for a test, or as an
atlas, if the parties expressly agree in a written instrument signed by
them that the work shall be considered a work made for hire."
Additionally: section 102, chapter 1 Subject matter and scope of
copyright.
"(a) Copyright protection subsists, in accordance with this title, in
original works of authorship fixed in any tangible medium of expression,
now known or later developed, from which they can be perceived,
reproduced, or otherwise communicated, either directly or with the aid
of a machine or device. Works of authorship include the following
categories:
(1) literary works
(2) musical works...
(3) dramatic works...
(4) Pantomines and choreographic
(5) pictorial, graphic, and sculptural works..."
Sub paragraph (5) includes photography as defined in later sections.
In work done for hire the employer has the responsibility of withholding
taxes, paying social security, having workmans compensation, etc all the
marks of an EMPLOYER.
The second clause requires a contractual agreement, written, before the
work is started to qualify as a "work done for hire".
David Shrader
original photographer.
"a "derivative work" is a work based upon one or more preexisting works,
such as a translation, musical arrangement, dramatization,
fictionalization, motion picture version, sound recording, art
reproduction, abridgement, condensation, or any other form in which a
work may be recast, transformed, or adapted. A work consisting of
editorial revisions, annotations, elaborations,or other modifications
which as a whole represent an original work of authorship, is a
derivative work."
GUYS, OUR PHOTOGRAPHS ARE COPYRIGHTED, EVEN IF THEY ARE NOT PUBLISHED,
UNLESS WE ARE MEMBERS OF A COLLABORATIVE WORKING ON A JOINT PROJECT AND
HAVE AGREED TO SURRENDERING OUR COPYRIGHT TO THE OWNER OF THE
COLLABORATIVE IN A WRITTEN CONTRACT BEFORE THE WORK BEGINS.
NOW, I CAN CHOOSE TO WAIVE MY COPYRIGHT, TO SELL AN UNRESTRICTED USE, TO
SELL A RESTRICTED USE, ETC. BUT IT MUST BE BEFORE THE WORK IS DONE. THAT
IS MY CHOICE.
Hmmm....even my wife snap shots of our grandchildren are her
copyright!!!
David Shrader
David Shrader
many contributors
David Shrader
added to this never ending thread. It makes for an interesting half hour
reading, even covers....computer programs(ugh!)
<http:///www.law.cornell.edu/uscode/17/101.html>
John Lull
Curtis Leeds
Jim Stewart wrote:
>... I also suspect
> that a photographer who shoots a wedding without a written agreement
> would have a difficult time convincing a court that he should have the
> sole rights to the negs/copyright. If someone who has access to a legal
This is not a matter of legal precedent. This is a matter of existing US
Copyright law. Your suspicion is mistaken; the law clearly grants the
photog the negatives and rights in this example.
> To take the discussion one step further, what about a printer. You >give
> the printer your camera-ready copy. He shots it on his copy camera,
> makes a neg and burns a plate. Does he own the copyright to the neg >and
> plate?
He would own the rights only if the photographer (or other copyright
holder) granted him those rights. Since the original negative was
presumably already copyrighted, the printer cannot legally copy the
negative unless granted that limited right to copy it in the first place
by the copyright holder.
--
DBari21137
In article <01bc70e5$464e75a0$a8cab7c7@drt1>, "Austin Franklin"
<dark...@ix.netcom.com> writes:
>How do you figure computer programming?
It was on the list of authored works protected by copyright which I
saw somewhere.
No person I know <snip> keeps the rights to
>the software they wrote when paid to do it <snip> by someone else...no
one would hire them if this was the case.
This may be the case, however, I suspect it is due to current market
forces and not due to copyright laws. The programmers are probably
selling their copyright protection, with little or no premium, due to the
fact that it is a buyers' market. Those who contract with computer
programmers are generally more sophisticated than those who contract with
wedding photographers. (not intended to be perjorative) They would
probably negotiate specifically for the copyright of the work produced.
A programmer obviously own the rights to what ever they
>wrote for themselves, but definitely NOT when they are paid by someone
else
>to do.
Surprisingly enough, the programmer retains the copyright to works
they authored while acting as an independent contractor, unless they
specifically contract otherwise. Of course, those who contract with
computer programmers always contract for the copyright.
>Can you name a court case where a programmer was paid to do work for
>someone and without it being explicitly stated in a contract, he/she was
>able to re-sell the work they had done for another client (or something
>like that)?
I can't right now, but I will look into it.
>at http://lcweb.loc.gov/copyright/circs/circ9 it says:
>
>Examples of works for hire created in an employment relationship
>are:
>
> * A software program created by a staff programmer for Creative
>Computer Corporation.
The key distinction in the above example is the fact that the
programmer is an employee of Creative Computer Corp. Being a work for
hire relationship, the programmer gets nothing more than his salary. I
would, however, speculate that Creative Computer Corp. would retain the
copyright even though another corp. may have paid them to create the
software in the first place.
If, on the other hand, Creative Computer Corp. farmed out the work to
a sub-contractor, the sub would own the copyright unless they contracted
specifically otherwise. Of course, Creative is probably aware of this and
would negotiate for the copyright up front. In fact, it would probably be
more cost effective simply to hire someone, have them do the program, then
fire them for some silly reason. Of course, that would be a breach of the
duty of good faith, however, that's another post altogether.
>I also had a house designed by an architect, and I paid him for his
>work...he does NOT own the rights to reproduce what it was I paid him to
do
>for me.
Again, I'm not sure about the specifics, but architecture was on the
list of authored works protected by copyright laws. How long ago did you
deal with the architect? Double check your contract if you can find it.
Does it mention copyright anywhere?
I believe the general rule of thumb is it must be more than
>%50 different, but that got pulled out of some recollection of some past
>experience...
Actually, that does sound familiar. However, I would guess that it
would be more like 15%. Who knows?
>People have said 'these laws have been upheld...', I'm curious if someone
>can name a case that this is true...because as we all know, different
cases
>have different circumstances. It would be interesting to know all the
>circumstances...
Good Question. I'll take a look.
>To me 'work for hire' would be simply defined as someone was paid a fee
to
>do specific work. It's a matter of what you have invested. If you're
>getting paid (your set rate/fee) to do a job, then you don't own the
>results of that job...you had nothing at stake. If you have something at
>stake (say, did it on spec...) then you should own the results of your
>work. <snip>
>Austin Franklin
>dark...@ix.netcom.com
It would make a lot more sense. However, those of us who hope to be
attorneys someday wouldn't be able to charge $150/hour if it made perfect
sense.
By the way, what the hell is an F-stop, or reciprocity failure, or a
catadioptic lens? ;)
Lapdog69
Hi all
I have read all of the postings and have seen laws cited, statutes listed,
but not a single, solitary actual case where the copyright law was applied
in an real situation involving wedding pictures.
This issue was touched on by other posters before me. Some may be
repetitive.
I am certain that we all are aware that we live in a country where common
law is basically the law unless some statute or regulation states
otherwise. Then, the statute or regulation as written is like a chunk of
clay, whereas like clay, it will be molded, interpreted, and applied by
the court system. It is then, after proper application and interpretation
by the courts that we get a true and complete meaning of what the law
truly is. Not before. Remember, the courts do not just take the written
law and apply it blindly. They look at the parties, their positions in
this controversy (power, control, wrote the contract, a professional or
not), equities involved in the controvery, legislative intent, and many
other factors (most important of all is LEGAL PRECEDENT), in order to
reach a conclusion that is fair and just while still complying with the
law as written. Even with numerous cases supporting your position
sometimes the courts will take a well supported situation and turn it on
its ear. If it was so "obvious" then there would not be an appellate
court system...what for?....if it is so obvious what the outcome should
be!!! It gets tiresome to hear words like "obviously it applies". Anyone
that thinks the application of the law is so "obvious", "obviously" has
not read any opinions penned by Hon. Judge Cardozo.
Maybe someone with access to Lexis or Westlaw can do some basic research
and clarify some of these "obvious" situations which are not obvious at
all to me. (Do some real legal research and use proffessional
associations newsletters and magazines only as a guide. Using the legal
conclusions proposed by the writer of the article printed in a self
serving newsletter or magazine is "obviously" fallacious.)
Just because you yell the loudest or stomp your feet the hardest..your
argument or reasoning is no better. In fact, it just crystallizes for all
to observe the overwhelming lack of sound legal basis you have to support
your argument.
DBari21137
In article <19970605130...@ladder02.news.aol.com>,
lapd...@aol.com (Lapdog69) writes:
>Just because you yell the loudest or stomp your feet the hardest..your
>argument or reasoning is no better. In fact, it just crystallizes for
all
>to observe the overwhelming lack of sound legal basis you have to support
>your argument.
Honestly, I'm just too damn lazy to look it up.
Austin Franklin
> Nevertheless, the law is quite clear. If you're writing software as
> an independent contractor, you are *not* doing work for hire.
John,
There are many things that determine "work for hire" and one of the most
important (especially with regards to computer programming) is who
defines/supervises the work, and whose equipment you are using and where
you are doing the work.
I claim it is considered "work for hire" if you a) are given a defined task
(specification) by the client, b) use the clients equipment to perform this
task, and c) do the work on the clients site. You brought nothing to the
party but your self, and that's what you are getting paid for. To me,
given this scenerio, the client owns what it is they hired you to do.
Personally, I believe 'a' is enough...you are embodying the clients work
(spec) into your own, and therefore cannot re-sell/re-use the work you did
based on the clients spec without the clients permission. I believe for
'a' to hold on its own, the spec would have to be non-generic, not like
'write me a serial port driver for Windows', but 'write a serial driver
using this method to interface to our user interface'.
Remember the "work for hire" definition is NOT cast in concrete! There are
certain 'conditions' that are 'symptoms' of "work for hire", but you do not
need to meet all of them.....just some of them... There are many grey
areas...given some circumstances, I agree the law is clear, but given other
circumstances, I do not believe it is clear.
Can you name any case that has gone to court between a computer programmer
on contract who claims to own what they got paid to write?
Austin Franklin
dark...@ix.netcom.com
Ron Frank
> Jim Stewart wrote:
> >
> > After reading nearly all the posts on wedding work and copyright, I feel
> > obligated to point out a couple of things. First of all, this is more
> > of a marketing issue than a copyright issue. The photographer can
> > either retain the negs/copyright or turn them over to the client. If
> > they are retained, the most likely reason is to gain future income from
> > reprints. Even if there were no copyright law, a photographer could
> > still do this contractually. At best, the use of copyright law to
> > that a photographer who shoots a wedding without a written agreement
> > would have a difficult time convincing a court that he should have the
> > sole rights to the negs/copyright. If someone who has access to a legal
> > informative.
> >
I can give you a legal precedent....ME! About 6 years ago a formal client (READ
BITCH!) thought she should not have to pay for her reprints, nor her proof album
ect., because she did not get all the photo's taken she wanted. The short story,
their limo did not show at the hotel, I ended up driving them to church, Wedding
started 45 minutes late...on & on.
So she took me to small claims court demanding 1/2 her money back, and a bunch of
free stuff (after I delivered everything I promised, and she decided not to pay).
The bottom line is that the judge did not even look at our contract (which I found
odd), but reviewed the work she received, declared that he wished his Wedding
photo's were as good, and denied her claim.
She then demanded the negatives stating that she paid for the photography, the
photo's where of her and her family, and therefore she owned the negatives/rights.
Then the judge did then ask to see our contract.
After reviewing it he stated that unless it's clearly in the contract the she (THE
CLIENT) retain the copyright, she had no right to even reproduce the prints. He
also noted that the contract clearly stated that all rights to the images were to
be retained by the photographer. He added that copyrights where owned by the
photographer if nothing was in the contract AND that she was way out of line since
our agreement covered copyright ownership which was not necessary on my part.
I still say that bottom line is GET IT IN WRITING IN A CONTRACT. However this judge
made it clear that even had I NOT put the copyright clause in my contract, I still
would have retained the rights to my images.
Ron
Mirror Image
Ron Frank
> Jim Stewart wrote:
> >
> > After reading nearly all the posts on wedding work and copyright, I feel
> > obligated to point out a couple of things. First of all, this is more
> > of a marketing issue than a copyright issue. The photographer can
> > either retain the negs/copyright or turn them over to the client. If
> > they are retained, the most likely reason is to gain future income from
> > reprints. Even if there were no copyright law, a photographer could
> > still do this contractually. At best, the use of copyright law to
> > justify retaining the negs/copyright is somewhat weak. I also suspect
> > that a photographer who shoots a wedding without a written agreement
> > would have a difficult time convincing a court that he should have the
> > sole rights to the negs/copyright. If someone who has access to a legal
> > search system could pull up some legal precedent, it would be most
> > informative.
> >
I can give you a legal precedent....ME! About 6 years ago a formal client (READ
BITCH!) thought she should not have to pay for her reprints, nor her proof album
ect., because she did not get all the photo's taken she wanted. The short story,
their limo did not show at the hotel, I ended up driving them to church, Wedding
started 45 minutes late...on & on.
So she took me to small claims court demanding 1/2 her money back, and a bunch of
free stuff. The bottom line is that the judge did not even look at our contract
(which I found odd), but reviewed the work she received, declared that he wished
his Wedding photo's were as good, and denied her claim.
She then demanded the negatives stating that she paid for the photography, the
photo's where of her and her family, and therefore she owned the negatives/rights.
Then the judge did then ask to see our contract.
After reviewing it he stated that unless it's clearly in the contract the she (THE
CLIENT) retain the copyright, she had no right to even reproduce the prints. He
also noted that the contract clearly stated that all rights to the images were to
be retained by the photographer. He added that copyrights where owned by the
photographer if nothing was in the contract AND that she was way out of line since
I had clearly stated in our agreement who retained copyright which was not
John Lull
In the waning years of the 20th century, "Austin Franklin"
<dark...@ix.netcom.com> wrote (with possible deletions):
> I claim it is considered "work for hire" if you a) are given
> a defined task (specification) by the client,
I've been doing contract engineering and programming for nearly 2
decades now. In all that time, I have *never* had a client who had
clearly defined, before contracting me, precisely what it was they
wanted.
> b) use the
> clients equipment to perform this task, and c) do the work
> on the clients site. You brought nothing to the party but
> your self, and that's what you are getting paid for.
Let's consider this for a moment. Assume I contract Michelangelo to
paint a creation scene on the ceiling of my chapel. I provide the
brushes, paint, scaffolding, etc. When he finishes, would you claim
it's not art because he "brought nothing to the party but himself"?
Even the IRS, who *loves* to classify contractors as employees, has a
list of 20 factors to consider, not just 3. In addition, the last
time I checked into it (admittedly quite some time ago), even those 20
factors were determinative only in 3-party contracts. 2-party
contracts still fell under "safe harbor" provisions in the law.
> Can you name any case that has gone to court between a computer
> programmer on contract who claims to own what they got paid to
> write?
No, and why should I? You're the one apparently claiming the law does
not MEAN what it clearly says. It is incumbent upon *you* then to
prove your point -- not on me to disprove it. Can you do so?
Note that work for hire is *clearly* dependent on whether you are an
employee or not. You can't, then, include as an example any case
involving a contractor who was declared by the court to have been an
employee.
If you want to convince anyone, then find a case where the court found
both that the programmer was not an employee, and that there was no
contract regarding the copyright, but still found the client owned the
copyright.
I've never heard of such a case involving an individual contractor
even getting to court. I suspect that is because the law is quite
clear on this point.
In the absence of a case to the contrary, the law means what it
clearly says. I choose to believe the law's clear language rather
than you. Anyone who enters into a contract not addressing this
issue, in expectation a court would find the opposite of what the law
clearly says, is a fool.
If I've misunderstood, and you're actually arguing that every
programmer working under contract is an employee for copyright
purposes, then please say so. That also is clearly *not* what the law
says, and deserves some evidence if you expect anyone to believe it.
Regards,
John
a...@sirius.com
I find this discussion sort of ironic. 50% of marriages fail, and most
of them have problems within the first 3 years. I don't do weddings but
a friend of mine does. His comment is get as much use out of the
negatives within the first 2 years and after the 3rd year sell the
negatives to them before they become useless.
JOe Pro
Ron Frank wrote:
>
> > Jim Stewart wrote:
> > >
> > > After reading nearly all the posts on wedding work and copyright, I feel
> > > obligated to point out a couple of things. First of all, this is more
> > > of a marketing issue than a copyright issue. The photographer can
> > > either retain the negs/copyright or turn them over to the client. If
> > > they are retained, the most likely reason is to gain future income from
> > > reprints. Even if there were no copyright law, a photographer could
> > > still do this contractually. At best, the use of copyright law to
> > > justify retaining the negs/copyright is somewhat weak. I also suspect
> > > that a photographer who shoots a wedding without a written agreement
> > > would have a difficult time convincing a court that he should have the
> > > sole rights to the negs/copyright. If someone who has access to a legal
> > > search system could pull up some legal precedent, it would be most
> > > informative.
> > >
>
> I can give you a legal precedent....ME! About 6 years ago a formal client (READ
> BITCH!) thought she should not have to pay for her reprints, nor her proof album
> ect., because she did not get all the photo's taken she wanted. The short story,
> their limo did not show at the hotel, I ended up driving them to church, Wedding
> started 45 minutes late...on & on.
>
> So she took me to small claims court demanding 1/2 her money back, and a bunch of
> odd), but reviewed the work she received, declared that he wished his Wedding
> photo's were as good, and denied her claim.
>
> She then demanded the negatives stating that she paid for the photography, the
> photo's where of her and her family, and therefore she owned the negatives/rights.
> Then the judge did then ask to see our contract.
>
> After reviewing it he stated that unless it's clearly in the contract the she (THE
> CLIENT) retain the copyright, she had no right to even reproduce the prints. He
> also noted that the contract clearly stated that all rights to the images were to
> be retained by the photographer. He added that copyrights where owned by the
> photographer if nothing was in the contract AND that she was way out of line since
>
> I still say that bottom line is GET IT IN WRITING IN A CONTRACT. However this judge
> made it clear that even had I NOT put the copyright clause in my contract, I still
> would have retained the rights to my images.
>
> Ron
Thank you for spreading some Real-life Facts into this discussion.
Obviously, with the advent of the Kodak insta-print, and Fuji
pictra-stat (either of which should be in MY studio for reprints!
hehe). The professional photographer must use his Right to Retain
Copyright and the Negatives in order to make a LIVING! What we do is a
blend of Art, technical know-how, experience, people skills, and
everything else that goes into GETTING GREAT IMAGES of a wedding or
other event.
Any jo-blo can take pictures, the professional photographer Makes
Images. Skeptics just ask why you hired out in the first place! Would
you like an album from a professional image maker, or aunt matilda's
snapshots (no offense to her!)
When we lose the rights to the copyright of our work, or profession
will end as we know it.
Thanks, Andrew Adams
Adams Photo / shawano WI
Joe McCary
I had a business partner that did wedding on the side. He died last
summer and left the wedding business a mess. A bride called and said
since he was dead and they had not received their album yet they wanted
their money (long spent) back. I refused and promiosed to make the
album they had paid for. They wern't too happy since they had
divorced! So, you are most correct!
Joe McCary