Second Photographer Rights?

Hey All,

 

Trying to clarify some complex concepts to the copyright thing.

 

If a second photographer goes with me or if I go as second hired by a studio or

some other photographer. Does the second photographer have the right to use the

images on his portfolio only? (not for sale)

 

Thanks,

 

Claudio

That is up to the primary photographer.

We have a contract that we implement for the second shooters that work with us. We provide CF's at the beginning of the day to be returned to us at the end of the day. After we process the images, we give the origional images back to the second shooter. The images can only be used for hard print presentations and can not be used in any other digital medium to include email, website, personal website etc...

 

There is no set standard and like Rachel said, it's up to the individual photographer who contracts out their studio's work. In my opinion, if one gives their photos back to the second shooter, like we do, then you NEED to have that stated in the initial contact with the customer.

claudio - I'm no lawyer, but my understanding is that unless there is an agreement to the contrary, every photographer has copyright and control of the image they take, even if someone already paid them.

 

an agreement to the contrary would be something like a 'work for hire' agreement. that means that someone pays the photog to take pictures AND to give up ownership/control/copyright to the payer.

 

if the studio or hiring photographer has not said anything about a work for hire arrangement or make an agreement about who will control the images, my understanding is that in the eyes of the law, the studio or hiring photographer has NO say about how the images are used, sold, published, etc, etc, etc.

 

That said, just because I take a picture does NOT mean I can sell it - I usually would need a model release to be safe...of course, unless the image falls within certain categories of usage. images that fall under a news interest, for instance, do not need any model releases to be published. going into a private party, however, and then selling pictures of the party is something different.

 

if you hire someone to shoot a wedding and don't have an agreement on copyright transfer, then the images are theirs. however, the client could probably take legal action if the photographers uses those images without a model release...

 

again, not a lawyer. just my rough understanding.

Claudio,

 

In the absence of any formal agreement, when you are working for someone else, weather for an hourly wage as an employee or as an independent contractor, the rights belong to to the studio. You did the work on their time (and on their dime).

 

As an example, if you were a chemist working for a large company and you invented some drug, even though you were doing it on your lunch hour, the rights to that drug belong to the company. You used their equipment and did it on their property and possibly even with knowledge gained through being employed by that company.

 

I'm not a lawyer either but I've seen this played out in courts many times.

 

However, many studio owners, myself included, will let the other photographer use the images in his/her portfolio but they may not sell any copies.

 

The key here is to have an agreement in writing which clearly spells out what the 2nd photographer is or is not allowed to do.

 

Jim Marby

Jim,

 

I don't think that you are correct. As said earlier, unless there is another agreement in place, the rights start with whoever pushes the button. In the case of the chemist, we are talking about patent law, not copyright, but the result is still similar. In this case, the chemist might owe some portion of the resulting product to his employer, but only because is has used their facilities. Again, in the absence of another agreement. It is, however, likely that the chemist would have been required to sign a "Patent Rights Assignment Agreement" with his employer. This document would have tried to assign patent rights for anything that the chemist developed while employed, even if the product was developed in his spare time at home. I was required to sign several of these agreements when I worked in the software industry.

 

Ed

Jim, it's not that clear cut. Generally "work for hire" is very clear in the case of full-time employees. If you work for a newspaper as a photographer, photos shot on the job belong to the paper. Same would apply to a photographer working full-time for a studio. The same would probably apply to part-timers for the work they do on the job. But the distinction is whether the part-timer is an actual employee or is an independent contractors. An independent contractor is most definitely not doing work for hire and does retain the right to his images unless he signs a contract saying otherwise. Like Jim, I'm not a lawyer. But in addition to being a photographer (part time) and writer (full time) I've been a reporter covering both criminal and civil courts, a reporter covering the passage of various laws by state legislatures, a press secretary on Capitol Hill involved in passage of many federal laws, and currently do PR for a lobbying organization involved in passage of federal laws. That's enough background to tell me the real answer: you need to ask a lawyer. :)

I also disagree with Jim's analysis. I think that you can hire people by the hour for all sorts of things - just because they are getting paid does not mean they don't own their work.

 

It is my understanding that most employees in creative fields are under work for hire agreements, but there are probably some who aren't.

The hiring "pro" who doesn't work this out in advance with a lawyer to understand what needs to be included in the contract that they execute with employees/help is asking for trouble. Likewise, a person working for others expecting to retain rights had best be completely clear on this as well.

 

Start here:

http://www.copyright.gov/circs/circ09.pdf

 

You'll note that it says this at one point:

"The closer an employment relationship comes to regular, salaried employment, the more likely it is that a work created within the scope of that employment would be a work made for hire. However, since there is no precise standard for determining whether or not a work is made for hire under the first part of the definition, consultation with an attorney for legal advice may be advisable."

 

Many businesses don't leave this kind of thing to interpretation, they make it clear in the employment contracts they use.

We employ photographers. They are paid a casual wage. They use the company`s (studio) equipment and the resultant images are owned by the company, moreover the contract they sign for casual employment states that all image rights belonged to the company (studio): in that regard so do all the images I take, whilst `on the job` for the studio. (i.e. my images belonged to the company even when I was an owner of that company.)

 

That does not in any way answer your question: the laws and the nuances of the law varies from region to region. But it does highlight what might be necessary to secure or not secure the copyright of images taken by a third party.

 

Also, all our photographers were allowed to use selected images they had taken, in their portfolio, provided they credited the Studio, as well as themselves. (`selected` meant only the really excellent ones) eg: `Photography by William W, Copyright A Wedding Studios, Australia 2004`

 

IMO releasing images for a portfolio in this manner is common curtesy and also common busienss sense.

 

WW

Weather anyone agrees with my assessment of the ownership rights or not, I think we can all agree that a written agreement up front is a must.

 

Besides, it's possible I could be wrong, it happened once before.

 

 

Jim Marby

Thanks all for the help,

It is a difficult topic and I will follow the advices above but still seams like there is no pre-set rule for that.

All I would be able to do is to use the images I took and let the photographers I hire to use then on their portfolios or would make no sense to be a photographer if I can not create my portfolio.

This looks like a total insecurity from the photographer or studio that hires because in fact the intellectual propriety belongs to the photographer that took the picture, that is physical, the guy was actually there and took it, now who will commercialize that is a different story. All I want is to be able to use my own images and let whoever I hire to build their portfolio.

Will we be able to have that in a civilized way or we still need lawyers (no offense to them)?

 

Claudio

It is explained on the US Copyright Office web site under "Who can claim copyright":

http://www.copyright.gov/circs/circ1.html#wccc

"unless there is an agreement to the contrary, every photographer has copyright and control of the image they take, even if someone already paid them."

 

The other exception is if they are an employee due to sufficient control excercised by the hiring party. The timing of when compensation paid is irrelevent to the issue.

 

"when you are working for someone else, whether for an hourly wage as an employee or as an independent contractor, the rights belong to to the studio. You did the work on their time"

 

This is a complete misunderstanding of the issue because the entire issue is resolved by determining if one is acting as either an employee or an independent contrator.

 

You cannot be an employee and and independent contractor at the same time. You are either acting as one or the other. If you are working as an independent contractor, the creative work is yours. If you are an employee because someone excercise sufficient control over you or by written agreement, the image is the employer's. Performing the work on "their time" is not dispositive because both employees independent contrators can perform duties hourly and at desginated times set by the hiring party. If the assertion above were true, wedding photographers would not own the images they shoot because the B&G or whoever hired the photographer would simply assert the fact that the photographer "did the work on their time". Control over a schedule is a control factor in the empolyee/IC analysis but one off events like a wedding is not the degree of control that changes the equation.

 

We can all agree however that a written agreement is best.

 

The goverment circulars linked here provide reliable information.

>>> If the assertion above were true, wedding photographers would not own the images they shoot because the B&G or whoever hired the photographer would simply assert the fact that the photographer "did the work on their time". <<< (JH)

 

Gee, I really like that sentence: it says so much, succinctly.

 

A great summary sentence for the third speaker, and a real big pin in the balloon, I think.

 

WW

Jim: "Besides, it's possible I could be wrong, it happened once before."

 

I like that! I remember the one time that I thought that I was wrong, but I was mistaken . . .

 

Ed

It's really a lot more simple than all this.

 

The second shooter shoots under the Studio's contract agreement. If they disrespect that agreement, in our case, than they will never shoot for our studio again nor will they ever receive referels from us. Common Sense really. If the second shooters have a problem with our contract agreement, they they do not shoot for us.

 

It comes down to clarifying these things way before hand before entering into a working relationship.

>>> It's really a lot more simple than all this. <<<

 

Yeah . . .

 

but life wasn`t meant to be simple: remember that rude church?

 

:)

 

WW

When I hire a second shooter, the images they take are burned to CD for me, and after that, they can do whatever they want with them, as long as they dont sell them to the BG.

"When I hire a second shooter, the images they take are burned to CD for me, and after that, they can do whatever they want with them, as long as they dont sell them to the BG."

 

The problem with this is that the 2nd photographer could misrepresent as his/her own work the creative work that was done by the main photographer and use that work as samples to promote him/her self.

 

Best to get a clear signed statement that all work done is work for hire. I would assume they would sign it if they like the money you are paying them. If they don't, I would suspect their motives for shooting for you.

 

There is nothing wrong with keeping your cards close to your chest. I worked for a photographer called Irv Simon in Port Washington, NY in the 60s and he wouldn't even tell me where he had his lab work done.

 

Larry