Copyright issues with an assitant and models...

I know this has probably been covered before, but a search turned up

nothing helpful. If you go on a shoot, and have assitants take some

shots, who is the copyright holder? The actual photographer (the

person who pushed the button), or the owner of the equipment? The

emplyer? The studio? Or what? I've been "volunteering" as an

assitant at a photograhy studio doing dances, weddings etc, with no

formal agreement. We have a handshake that when I become proficient

I will get paid. (getting better, but not there yet.)

Also, I ride mountain bikes, if I ask someone to take a picture of

me out on a trail, am I the copyright holder, or is he? If I shoot

my friends, get a GREAT shot, and could sell it as stock or some

other place, do I now need to go back and get a model release? Or is

that implied because they are my friends? It's all a bit hazy.

Thanks,

Dan

The copyright belongs to the creator of the work.

As an assistant, you are a couple of notches lower than an employee. The photographer, or if he is an employee of the studio, then the studio will own the copyright.

The copyright of a shot of you on your mountain bike belongs to the person who makes that image. If you make the image (ie, conceive of the image, set up the camera, construct the framing, determine the exposure, etc), but have someone else push the button, then you own it. But if you are simply the model in the image, then you are a couple of notches lower than an assistant in a studio.

If you do a great shot of friends on a casual basis, then you own the copyright.

Model releases are a form of insurance - protection against what-if contingencies. Whether you NEED one will will be defined by the purchaser of the image (or the stock house if you go that route) - they will have policies about model releases, and if they say you need one, then you need one.

I brought this up last year - one, and only one, person responded and even they tended to dismiss the theory, contrary to what is allowed in both copyright law and court precedent, that where there is more than one "creative mind" involved you may intentionally, or even unintentionally, create a work of "joint authorship"... and consequently also one of joint ownership. The US and UK courts have held that the amount of creative input need only be minimal. Read the thread and make of it what you will. You can protect yourself by contractural means, but, sadly, NOT after the fact.

http://www.photo.net/bboard/q-and-a-fetch-msg?msg_id=009JIl

Following more recently than that thread, in the UK, a session musician was told to play a riff in the background of his own choosing. He was not told what to play and was not working from writtten or pre-arranged music. The song containing his work was at first a bomb but several years later became popular (I believe it was used in an advertisement.) It was then that he expressed an interest in the value his creative input, as a joint author, and sued for part of the profits. HE WON THE CASE. The interesting thing, and a bit different as well, about that case was that the court held that he could just ignore the original release when it bombed and did not have to make any claim to joint authorship at the onset. But that he also had the right to assert his claim at the later time when the song was making money.

Could the same thing happen to a photographer? You bet! And, I mention one California case in that thread against a photographer specifically to support that claim. Though decisions in the 9th Circuit Court are not binding on the others, that decision would surely be cited in other similar cases outside the 9th Circuit.

Methinks that IF you are shooting, even as an "assistant," in circumstances where you choose the camera settings, angles, lighting, ect. and finally end the process by releasing the shutter... you probably have a claim on the image copyright either entirely in yourself or possibly as a joint author.

Hunter

Quick correction:

I said: You can protect yourself by contractural means, but, sadly, NOT after the fact.

Should have said: THE PHOTOGRAPHER YOU ARE ASSISTING can protect himself by contractural means, but, sadly, NOT after the fact.

Hunter

Dai, one side thing, under UK law if you are employed as an assitant and you make images as part of your employment then your employer owns the copyright. Says so explicitly in the Copyright designs and patents act.

Whether a "Volutneer" assitant is said to be employed or not I'm not sure.

There are a variety of issues at work but if you haven't read the Library of Congress site, then you haven't done your homework. If you employ assistants (or are an assistant and intend to boink your boss because you got the gem) and haven't established the legal relationship, you haven't done your homework.

It's quite clear in the law that absent the contractual agreements (etc.) making it work for hire - and the laws do define that relationship - the creator of a work owns the copyright.

If you really think the waiter in the West Podunk Spoon de la Grease is going to come out of the woodwork and bother you about your casual family vacation snapshots and the like, then you may want to see about a tripod and a remote.

James O'Neill , feb 28, 2005; 06:42 p.m.

Dai, one side thing, under UK law if you are employed as an assitant... (break in text) Whether a "Volutneer" assitant is said to be employed or not I'm not sure.

You are right James EXCEPT that also there is no work-for-hire applicable in the UK and many paid "assistants" are de facto contractors NOT employees. Thus, in the UK such a paid "assistant," if a (by the day) contractor, will retain copyright in his own contribution, and I argue that he also could be joint author of a collaborative work if his contribution can not be seperated from the whole (re: both UK and US copyright law on that point.) As a side note, in the US, AIUI, there must be some expression of intent to create joint works... that is not true in the UK where the contribution itself is enough to result in a vested right to the claim of joint authorship.

Most assistants that I know (in Britain) are paid a day rate with no tax witheld and that does not necessarily rise their relationship to the mininum requirement to establish an employment relationship with the hirer. There are, of course other tests of "employment" that can be applied to that question, and Inland Revenue usually does that. That was the essence of the music case with the session musician - who was, after all, paid for his time (as a contractor) but still had, so the court said, a copyright interest in his independently created and unseperable contribution to the larger work. Many others in the UK, in particular, are in the same position as the paid "assistants" - the model, paid a day or hour rate is NOT an employee; the independent lighting technicians on big productions - usually hired as contractors on hour or day rates are NOT employees; the make-up and hair techs - usually hired on hour or day rates are NOT employees; how about set designers?; how about art directors?; how about the fashion consultants?; and the list goes on. Each makes a contribution inseperable from the whole in a photograph. Each, at least in theory, could make the claim of joint authorship.

You make the assumption that merely being paid (as an assistant - or in the case of any of the others) automatically establishes an employer / employee relationship - it most certainly does NOT in British law.

As for unpaid "volunteer" assistants - highly unlikely that the UK courts would hold that such work was factual employment. Thus, they most likely retain copyright in any independent work they create or contribute even on someone elses' shoot. If they contribute creative input does that give rise to a work of joint collaborative effort - it would seem to on it's face, and therein lies the danger for the photographer who may presume, and wrongly, that he has the entire copyright ownership.

It is also of interest that copyright ownership and interest can be transferred by contract BUT moral rights can NEVER be sold or contracted away. Interesting in light of the movie industry when you see credits roll at the end... everyone... literally everyone... from the principal actors to the guy servicing the porta-potty is listed. They have absolutely no copyright interest, that is clear in copyright law because copyright usually is automatically vested in the producer and / or director of a motion picture, but they do have moral rights and those credits are an expression of those moral rights in their contribution.

In the US there is a work for hire doctrine in play and so work by a factual contractor (paid) may be the property of the hirer... I wonder what a lawyer might say, however, especially where there is no contractural relationship OR financial recompense in the case of a "volunteer" assistant.

"It's quite clear in the law that absent the contractual agreements (etc.) making it work for hire - and the laws do define that relationship - the creator of a work owns the copyright."

The creator (or who counts as the creator) may be an independent person or independent contractor or it is an employer of the actor. The employee/independent contractor dichotomy is governed by a continuum of factors which show control over the work of another. Where more control is shown, it is more likely that an employment relationship exists.

Its not in the label, its in the conduct of the parties. A contract can be useful and is often crucial for evidentiary purposes and its terms may show the level of control, or the lack thereof. The fact that a certain type of contract exists may itself tend to show control or a lack of control over another party. In such an instance, it is a factor considered in the continuum and often a big one. While a contract is very important and prudent to have, don't fall into the trap that it is the sole determination of the parties relationship in the employment/IC question.

There are countless employer/conmtractor cases where a relationship is declared and/or contracted as one relationship where the courts find it as the opposite. Its not what you call the relationship, its what the relationship actually is.

With deference to Craig, an excellent contributer, this discussion could have been part of his "ect."

As always, do not rely on legal advice from internet forums. Consult an attorney.

Dan,

On the first question...being the assistant...are you wanting to know if YOU have the copyright and can sell the pictures? Or are you wanting to see if you have any financial claim on the work? Seems like answering that question would narrow it down a bit.

If you shoot your friends, and get a GREAT shot, and want to sell it, get a release. If it's your friend, it won't be any problem to get the release. And if you sell it, the person buying will assume you have a release. The problem you could have is somebody that your friend doesn't know could be using that picture to advertise something ten years from now. (The recent coffee-picture debacle comes to mind.) Your friends now may not always be your friends, and they aren't your customer's friends. Get the release there.

If you set up a shot, ask someone to fire the camera as you go by, etc., I'm not sure of the legatilities. But it is VERY unlikely that some stranger would turn up demanding royalties on something like that. The catch is, the person pushing the button will never even see the photo- and a month later, won't remember much of the details of what was in it. So even if they might have a legal claim, it would be next to impossible to implement it.

Gobbly-gook pofundit gooker nide howziner.. EEKK! I just didn't know who owned the rights whay you had to "DO" to have copyrights. I didn't have any idea. I'm not trying to stick it to anyone, I was just wondering how the whole proces works, I pretty much got it straightened out, it's primarily the person who did the most "creative" work. I don't have any goldmine pictures. I was just trying to learn.

Dan

Dan Daly , mar 01, 2005; 05:12 a.m.

Gobbly-gook pofundit gooker nide howziner.. EEKK! I just didn't know who owned the rights whay you had to "DO" to have copyrights. (break in text)... I pretty much got it straightened out, it's primarily the person who did the most "creative" work....

Dan... A simple statement but you still don't have it quite right. It is not the one who did the MOST creative work. It can be ANYONE and EVERYONE who did ANY creative work as part of the whole. Who actually owns it (copyright) depends heavily on the employment or contract relationship.

Issues of copyright and employment law keep a lot of lawyers in Cheetos, not to mention driving Mercs, these days. There is a reason for that.

Hunter

<B><I>If you go on a shoot, and have assitants take some shots, who is the copyright

holder?

The actual photographer (the person who pushed the button), or the owner of the

equipment? The employer? The studio? Or what? I've been "volunteering" as an assitant at

a

photograhy studio doing dances, weddings etc, with no formal agreement. </I></B><P>

Unless you have a written (written because that way there is no doubt about what has

been agreed on) work for hire (WFH) agreement / contract stating that your employer owns

the copyright, the creator owns the copyright. Even if it is not a WFH arrangement, and the

assistant photographer (or friend) retains the copyright, that too should be in writing, at

least as a clearly stated term on your invoice. As it reads both you and the studio you are

volunterring for are putting yourself on potentially dangerous ground. What happens if

you get injured on the job? What happens if you suddenly decide that you own all of the

photographs you have made? What happens if you suddenly decide that you own all of the

photographs you have made and you go to work for another studio-- will you be able to

show that work you did elsewhere as part of your portfolio? What if the studio decides to

sell the client all rights to the iamges-- and you decide not to go along? Do they have the

right to sell the iamges you made too?<P><I><B>We have a

handshake that when I become proficient I will get paid. (getting better, but not there

yet.) </I></B><P> And who will be the judge of when that great day finally comes?</

I><P><I><B>If

I shoot my

friends,

get a GREAT

shot, and could sell it as stock or some other place, do I now need to go back and get a

model release? Or is that implied because they are my friends? It's all a bit

hazy.</I></B><P>It's not hazy at all: you need a model release. Just becasue they are

friends

now doesn't mean they will be in the future and this may especially be true once money

gets involved. Or what if you can't find them in a few years? It is far easier (and generally

cheaper) to get a model release in advance

that specifies what kind of compensation is being made in exchange for them granting

you the right to license or sell the image. Compensation could be a dollar amount, a six

pack of beer, a print or a percentage of any sales made of that image.<P>Photography is a

wonderful thing, professional photography is a business and you have to treat it like a

business. You are asking good questions that show you have a sense of this.

"Unless you have a written (written because that way there is no doubt about what has been agreed on) work for hire (WFH) agreement / contract stating that your employer owns the copyright, the creator owns the copyright."

Unfortunately, that is not the state of the law in the U.S. See my post above. Written is important but not the be all and end all.

so, just to follow up on the model's participation in this...

if I photograph a friend, and we are both contributing to the set-up of the photo... we both collaborate on the arrangement / set / etc., he is the subject, I do the shooting, I do the photo editing... then we would co-own the copyright?

and also, at what point does my candid photo of a person in public require a model's release? do they own their image and have the right to control it? or does their presence in a public place remove thier right to the photo copyright?

best,

Megan

If you are the hired photographer for a wedding, and another photographer starts shooting away. I have set up the lighting etc. for the image. Who owns the copyright to the image that the other photographer made before I told him/her to stop?

Thanks!