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01/14/2005 11:54:12 PM · #1 |
The thread "Can she do that" raised some interesting questions/issues regarding rights to photos. I am curious about why photographers feel so bold as to "reserve" this right, rather than asking permission on a case by case basis.
After all, isn't it a case of "work for hire"? The studio photographer, is getting paid a sitting fee (I'll assume, I know that's not always the case, for the 'discount' places like JC Penny), and making money off of the reprints. So why should they have the unlimited right to use the subject's image, whereas typically, they reserve copyright, and the subject has very limited use of the portrait they paid for.
Sure, they can put it in a contract, but why should we blindly sign off?
I don't imagine it works that way when Candice Bergen walks into your studio.
Not to pick on studio photographers, but the same is true (perhaps moreso) for wedding/event photographers (though I know there are exceptions, like Eric Limon, who says so on his website). But that always bugged me a bit as a consumer of photo services: If I hire someone to take pictures, why should they retain the rights to them? It's a work for hire, and from what I can see, well paid at $150 per hour and way up.
Now I realize all contracts are negotiable (and in fact we did so with the photographer we hired for our daughters bat miztzvah), but I'll ask those who have posted about such rights. Suppose someone comes into your studio and says, I want pics taken, and I want the digital images/negatives out of the photo session, and no, you cannot use them at all. Has this happened? What would you do?
(I admit I've been looking at this from the consumer point of view. Ok, I'll go into hiding now... ;-)
Message edited by author 2005-01-14 23:54:20. |
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01/15/2005 12:06:25 AM · #2 |
Partly it has to do with the default legal definition of a person in a "work for hire" position. Typically, those people are employees, with their employer paying SS taxes, unemployment, FICA and the like.
You may "hire" a photographer to shoot your wedding, but they are not considered your employee and you do not have the same rights to their work as their employer would.
If you want to negotiate the rights to the images you hire a photographer to do, you should do just that, but be prepared to offer consideration for those rights.
If someone did ask me for such rights, I'd probably do it, but for a premium. It would really depend on the situation.
Also, while the photographer retains the copyright, you still retain the right to restrict commercial use of your own likeness unless you signed it away (like with a model release).
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01/15/2005 12:12:09 AM · #3 |
Originally posted by nshapiro:
Now I realize all contracts are negotiable (and in fact we did so with the photographer we hired for our daughters bat miztzvah), but I'll ask those who have posted about such rights. Suppose someone comes into your studio and says, I want pics taken, and I want the digital images/negatives out of the photo session, and no, you cannot use them at all. Has this happened? What would you do?
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You can do that, no problem. But no the customer is not the boss in the typical sence. The customer does not pay the light bill or the insurence, nor does he or she pay for the equipment or the leasing of the equipment. This is not work for hire in the legal sence. The rights of the image remain with the photographer as intelectual property unless stated (in writing) otherwise.*
Most photographers would be glad to hand over the negs or original files for an added fee. And this is very understandable. If you pay me to take your picture and I charge you $350 for a 24x20 print I have made money. If you want another of the same image I might charge $250 for the second. If I just handed you the negs with all rights after I sold you the first, why would you come back? Hell no, you're going to Wolf Camera or Walmart and getting all the prints you want for $10 each. I wouldn't touch a deal like that for under a thousand.
On the other hand the woman had no right, legal or otherwise, to publish those images without a release.
*US copyright law.
Message edited by author 2005-01-15 00:14:51.
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01/15/2005 12:13:00 AM · #4 |
What about other artisans? If i hire a painter to make a portrait of me, i own it lock stock and barrel, so to speak. Same for a sculpture or mural, etc.
Just because photographics can be duplicated more easily, does that make them a special class?
If you have your pic takein in HS and put in the yearbook - and later become Madonna (etc) - who owns the rights to the old yearbook pic? (or baby pics, newspaper freelance pics, etc) At some point it would become a leagal nightmare to research who owns what rights to what.
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01/15/2005 12:17:46 AM · #5 |
Originally posted by Prof_Fate:
What about other artisans? If i hire a painter to make a portrait of me, i own it lock stock and barrel, so to speak. Same for a sculpture or mural, etc.
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With a painting, just as with a photo, you own the object itself, not the copyright. For example, you can't buy a painting from an artist and use it to make lithographs and start selling those without acquiring the rights to do so from the artist. Same with a sculpture, you can't use the original to make reproductions without the rights to do so.
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01/15/2005 12:18:06 AM · #6 |
Originally posted by copyright law:
"In the case of works made for hire, the employer and not the employee is considered to be the author. Section 101 of the copyright law defines a "work made for hire" as:
(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
a part of a motion picture or other audiovisual work
a translation
a supplementary work
a compilation
an instructional text
a test
answer material for a test
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.... |
Which part of that makes wedding or portrait photography a "work made for hire?" Works made for hire is a legal term and the words can't be defined using their common usage. Under the above definition, it would be a work made for hire if I hired a photographer to work for Picture Infinity and they shot wedding photos. The copyright to those photos is MINE not his/hers. However, a client is not your boss under section 1 and it's not "part" of anything in section 102 unless you SPECIFICALLY agree to it (as the photographer).
M
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01/15/2005 12:22:25 AM · #7 |
Originally posted by Prof_Fate:
What about other artisans? If i hire a painter to make a portrait of me, i own it lock stock and barrel, so to speak. Same for a sculpture or mural, etc.
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You may own the painting but if you try to mechanically reproduce that image in any manner you have violated the original artist's copyright.
Originally posted by Prof_Fate:
If you have your pic takein in HS and put in the yearbook - and later become Madonna (etc) - who owns the rights to the old yearbook pic? (or baby pics, newspaper freelance pics, etc) At some point it would become a leagal nightmare to research who owns what rights to what. |
The images are the intelectual property of the original photographer or his or her heirs unless he or she signed away those rights at some point.
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01/15/2005 12:23:00 AM · #8 |
So i hire Suzy Photog to take my portrait, for whatver use (unspecified). Suzy owns the copyright.
I hire Suzy to take pics for a book I am writing/publishing. I now own the copyrights on those pics, correct?
So i take the portrait from exapmle 1 and use it on my dust jacket...i just screwed myslelf i suppose.
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01/15/2005 12:23:27 AM · #9 |
spasmo, you type faster then me.
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01/15/2005 12:29:34 AM · #10 |
Originally posted by Prof_Fate:
I hire Suzy to take pics for a book I am writing/publishing. I now own the copyrights on those pics, correct?
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If that's what you agreed to in the contract, yes.
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01/15/2005 12:42:05 AM · #11 |
When I did architectural photography, our clients hired us to photograph their buildings. By hiring us, they bought "limited rights" to the use of our images. We spelled those rights out in a contract. They included use to enter competitions, use in architect's portfolio, etc. They sepcifically did NOT include the right to give the images to magazines for publication without our express, written permission. Why?
Because the magazines were a major source of income and publicity for us, and if they could get our work for free from the client, why pay us for it? That's what copyright is all about.
When, as photographers, we license the use of an image to another indvidual or entity (a magazine, say) we need to spell out exactly what usage we are selling, and we adjust our prices accordingly. "One-time use" is the most common, and the elast expensive to purchase. "Unlimited use" is much more expensive, and "exclusive use" is most expensive of all.
When you "hire suzy to make photographs for a book you are publishing", typically you are buying limited use of the images, in that book and in publicity campaigns and PR materials for the book. Typically you will NOT own exclusive rights to Suzy's images, as you will not be willing to pay the high fees associated with them. Of course, if you can get Suzy to assign all rights to you, if she's satisfied doing that, this is another story; but usually, in publishing, this is not neccessary.
It becomes a different issue when the likeness of an individual is involved. Even if we own the copyright to the image, we do not have the right to exploit the individual's likeness commerically unless we have permission to do so ΓΆ€” hence, "model releases". And model releases will often (and should always) spell out specific categories of use for which the likeness is released.
Robt.
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01/15/2005 12:42:32 AM · #12 |
Good points, and I see that is the definition of work for hire. But it's also easy to see, like with the current digital millenium act, who was paying for drinks and lunches when they wrote that.
It still sounds wrong (in practice) to me. Perhaps if we use an example that doesn't hit so close to home:
I hire a painter to paint a mural on my house. Who owns it? Who owns the likeness of it? Can I take a picture of my house and sell it?
I hire a carpenter to build an addition to my house. He designs it and builds it. Who owns that part of my house? Can I submit my house to home and garden, and make money off of how good it looks? Can I build an extension to it -- producing a derived work? When I sell my house, do I owe a royalty?
My own personal opinion is that if I paid for it, it's mine. I'll just have to make sure the contract always says so.
As to the use of someone's image in advertising and to promote yourself, while it seems practical from the photographers point of view, consider this analogy: suppose the phone company, because you are their customer, reserved the right to use your name, and maybe even your telephone number, in advertisements. Or the cable TV company? I can see the ads now: "John Smith has been a 10 year subscriber to the Playboy channel -- he just can't do without it!"
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01/15/2005 12:53:48 AM · #13 |
Originally posted by nshapiro:
As to the use of someone's image in advertising and to promote yourself, while it seems practical from the photographers point of view, consider this analogy: suppose the phone company, because you are their customer, reserved the right to use your name, and maybe even your telephone number, in advertisements. Or the cable TV company? I can see the ads now: "John Smith has been a 10 year subscriber to the Playboy channel -- he just can't do without it!" |
If they have John Smith's permission to use his name and identity in that way, they are welcome to do so.
People get rich selling lists of names and numbers to folks like telemarketers and other people doing market studies, polls etc. Same with your address for direct mail marketers.
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01/15/2005 12:58:52 AM · #14 |
Originally posted by nshapiro:
Good points, and I see that is the definition of work for hire. But it's also easy to see, like with the current digital millenium act, who was paying for drinks and lunches when they wrote that.
It still sounds wrong (in practice) to me. Perhaps if we use an example that doesn't hit so close to home:
I hire a painter to paint a mural on my house. Who owns it? Who owns the likeness of it? Can I take a picture of my house and sell it?
I hire a carpenter to build an addition to my house. He designs it and builds it. Who owns that part of my house? Can I submit my house to home and garden, and make money off of how good it looks? Can I build an extension to it -- producing a derived work? When I sell my house, do I owe a royalty?
My own personal opinion is that if I paid for it, it's mine. I'll just have to make sure the contract always says so.
As to the use of someone's image in advertising and to promote yourself, while it seems practical from the photographers point of view, consider this analogy: suppose the phone company, because you are their customer, reserved the right to use your name, and maybe even your telephone number, in advertisements. Or the cable TV company? I can see the ads now: "John Smith has been a 10 year subscriber to the Playboy channel -- he just can't do without it!" |
Your mixing melons in with your oranges.
Right. The mural, you own the mural, but you do not own the right to sell posters of the mural unless you have a signed contract stating that you have that right.
With the carpenter. He is not the artist. The architect is the artist. He owns the rights to the design and the plans. You can sell a picture of the house, because the plans are only a small part of what went into that house, but you can't sell copies of the blueprint.
As far as the phone company or the cable station doing as you stated in your example, they have every right to do so AS LONG AS THEY HAVE A SIGNED RELEASE SAYING THEY CAN.
This is all silly. Do a simple web search and look up US patent laws. Problem with that? Write your congressman.
Message edited by author 2005-01-15 01:00:35.
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01/15/2005 01:03:53 AM · #15 |
I hire a painter to paint a mural on my house. Who owns it? Who owns the likeness of it? Can I take a picture of my house and sell it?
In an actual case, the homeowner wanted to repaint the house, covering the mural, and the artist sought an injunction to preserve his work of art. He failed to get the injunction. This was decades ago; I can't cite it any more specifically. It was in San Diego.
I hire a carpenter to build an addition to my house. He designs it and builds it. Who owns that part of my house? Can I submit my house to home and garden, and make money off of how good it looks? Can I build an extension to it -- producing a derived work? When I sell my house, do I owe a royalty?
The designer owns the design, not the work deriving from the design. Youc annot use the blueprints that came with your house to reproduce ana rchitect's work in a subdvision, say, without negotiating a fee witht he architect. But the architect has no control over what you do with your property.
The issue of royalties on resold works is actually a hot-button topic among artists of all sorts right now. A picture you painted in your 20's and sold for 125 dollars just sold at auction for a quarter of a million dollars and you don't get a penny of it. Is this fair?
Robt.
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01/15/2005 03:56:37 AM · #16 |
Originally posted by Prof_Fate:
I hire Suzy to take pics for a book I am writing/publishing. I now own the copyrights on those pics, correct? |
No, depends on the contract. In the most simple case you only own the rights to use the pics in the book and for nothing else.
You need to put in the contract that:
- You bought the exclusive use of the pics (is not the copyright),or
- You get the copyright on the pics
And then pay the fee that comes with such demands.
When you demand exclusive use instead of full copyright, you still have to pay for anything you want to do with them besides the book (like a poster for promotion).
Do note however that copyright laws vary from country to country.
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01/25/2005 01:46:31 AM · #17 |
| Speaking of Weddings photographers, I am still in the market for one. If anyone knows of a good, relatively inexpensive photographer from Eugene to Portland, Ore, please let me know asap, thanks! |
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