Copywrite hypothetical

OK. We've all been there. Most of us at least. We're on vacation and there's a scene we'd like to capture and have

US in it. We set up the camera; ie, pre-focus, f stop, etc, and mark out a spot on the ground. The we ask a passer-

by to stand exactly there and simply point and shoot. After doing everything except compose the shot, can you say

that you hold the copywrite or does it go to the person who pressed the shutter?

 

Just a question to see what your thoughts on this are for interest's sake. Has there been any case law? I doubt the

chances of the

passer-by to see the photo would be very high, but with the number of on-line photo and social networking sites, I

guess it would be possible.

 

Thanks in advance for your thoughts.

 

Ian

Two things. First, it's "copyright," since that whole topic refers to who has the <i>right</i> to reproduce the created

image. Just sayin'.

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Second: look at this from an analogous point of view. It's perfectly reasonable for a studio photographer to work with

an elaborate crew of people... grips, makeup artists, lighting experts... even people who might operate the laptop that

a camera is tethered to. Possibly even someone who releases the shutter on cue from the photographer who's

running the show. These are all assistants who are doing things on behalf of the person who can be said to be

creating the resulting image. Finger-on-shutter-button, or fellow-tourist-as-meat-tripod doesn't alter the technical

thought behind your choice of camera position/settings, or the vision you had when choosing the timing and nature of

the shot.

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I'm sure there could be some legal hairsplitting if someone really put their mind to it, but I doubt that any reasonable

jury in a civil trial over reproduction rights would consider the voluntary assistance of a passing ciitzen to be a

fundamental shift in who owns that particular image. This would seem to be especially irrelevent when the image was

being produced outside of any deliberate commercial context. The particulars would depend on the country, no

doubt. But the Sanity Smell Test says (to me): don't give it another thought.

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Speaking of copyrights, I hereby lay claim to the phrase, "Tourist Meat Tripod" as used in this (and only this!)

context.

I'm a professional. I expect to earn money from my photography. I often have a fancy camera hanging around my neck, and as one might expect, I'm often asked by people such as yourself to take their pictures with their cameras, perhaps because I'm viewed as someone who knows how to use a camera. I have no problem doing that and, in fact, am quietly amused. It's something I enjoy doing for others, as I get to participate briefly in a happy moment, and it gives me a moment or two to play with a different model of camera (which is kinda fun). I don't mention that I'm a pro. I don't ask for money. And if I were to see a photo I took appear on the web, I could care less. I would imagine that amateurs would care even less than I do. I can't imagine that there would ever be an issue with anyone else.

I had a good friend did that once. As soon as the shot was set up, the "passer by" ran off with the camera and was never seen again......just sayin'.....cheers, Bob

Here's an even more confusing situation: My camera. I compose, focus, adjust parameters, and she clicks the shutter. Now, what if she owned the camera? What if neither of us owned the camera?<div></div>

The law is clear (lots will argue it isn't but it is). The work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device. That happens when the shutter is released. Who released it? The guy with the camera in his hands. It's arguing angels on the head of a pin to try to parse down the excuses as to why that's not the case. Assuming this casual stranger is sufficiently well-versed in copyright law to claim ownership, they would be savvy enough to claim that the image is the result of their creative actions after they got the camera, they selected the right moment, they waited for the right facial expressions, etc.

 

The practical matter is that a casual passerby and a vacation photo simply doesn't have the visibility or the value to turn into a legal contest over who owns the copyright. "Professional" photography businesses, movie production companies, etc., address ownership in their employment documents.

 

Is it impossible that a set of circumstances might exist that you turn your camera over to someone else and a Pulitzer Prize winner shot opportunity occurs? Sure. Won the Lottery recently? Case law? None that I'm aware of. The only imagery that I'm familiar with having the kind of "value" that might make it worth arguing might be something like the Zapruder films where out of sheer fate, something of earth-shattering importance happens to occur while you (or your passerby) are taking a picture.

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Good question, nice case.

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The third paragraph Matt Laur wrote above about sums up my thoughts on this. Technically speaking, the person who

presses the button probably owns the rights, as this is the moment the photo is taken. But in most countries, if such a

case would go to court, you'd have to pass a judge, and in some systems even a jury, who make up for the more human

face in the legal system, and they would bring in aspects such as expectations and common sense. With that in mind, I

don't think that the copyright would suddenly be owned by the person who "just" presses the button.

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Stretching it even further, and maybe too far, you could also argue that the photo represents a scene that has been

made up by you (composition and otherwise). Technically, this scene would be protected by copyright as well, as this is

a form of creation, the rules for when copyright applies are somewhat vague (at least where I live). You might compare it

to taking a photograph of a painting or another photograph. But again, this might be stretching it a bit too far.

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Interesting. My picture on my bio page is of me swimming the butterfly in a meet at Harvard. When I was not swimming I was photographing other swimmers. So when it came time for me to compete, I gave my friend Rich my camera and told him to stand at the end of the lane and shoot a couple of pictures of me. I set the exposure, he used AF, and I showed him how to fire the shutter. He liked what he was doing and took several other pictures as well as I saw he was having fun and the damn camera was getting heavy from a three day meet. I also put the strap around his neck because I don't really know that a 70-200 cast iron lens would float. I assumed that the rights to these pictures belonged to Rich. As Sara says, I did a lot of sports and a lot of people have handed me cameras and I have taken a picture or two for them. The white lens draws them. I have never even thought about claiming a copyright to a picture of some unknown family or their football playing son taken by their Point and Shoot. I have never minded doing it and if someone under those circumstances later asked I would assign the rights to them.

Second thought. I don't go the web for legal advice. Jurisdictions vary. See a local lawyer or research case law where you live.

<I>"These are all assistants who are doing things on behalf of the person who can be said to be creating the resulting image." </I><P>It's also worthy to note that all of these people probably also have a contract that states what rights they do have to the images, which is unlikely the case with the meat tripod/hominid cable release situation.

You know Sarah, I have noticed something similar that last few years since I have really gotten in to photography. Whenever I have my camera out shooting or hanging around my neck I get a lot more people asking me to take their picture.

Interesting questions.

 

1 - If an author dictates a novel to a secretary, who owns the copyright?

 

2 - If a photographer sets up a shot and gets someone else simply to press the shutter, who owns the copyright?

 

...and what is the difference between #1 and #2?

 

3 - If a photographer picks a location but just hands the camera to a total stranger and the stranger composes the shot, who owns the copyright?

 

Just to complicate the matters, "joint copyright" exists where a work has more than one author.

When the subject/camera owner pockets his camera, goes to the airport, and flies home is he stealing some other person's copywrighted image tucked away in his camera? Did the button pusher carelessly leave his creation on a stranger's film/memory card? When does lost property belong to a finder.

The keyissue here is intellectual ownership and not who presses the button.

Bob Atkins, I know that in my field of work (media), copyright usually goes to the employer, which is written in a contract,

and if this clause is left out of the contract, I believe it is assumed so. There's probably no difference between #1 and #2,

situation #3 is a bit different, I believe because of the input of the "stranger". But again, I don't think this will hold in any

legal system.

Tim Mestrom, I think you are right, but I believe intellectual property only goes for commercial appliances, whereas

copyright is something non-commercial subjects (art) are covered by as well.

Martijn, zeg maar Ton ;-)

Luister u twee, kunnen wij Amerikanen niet omhoog met u houden.

 

And we're no good at using online English -> Dutch translation tools, either!

Wow Matt, you keep surprising me. where did you pick that up?

I was raised on Rien Poortvliet books (thanks, Mom).

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And, with a family tree full of Lauers, Hendrixes, Kuykendahls, Rasmussens, Keairneses and other frosty northern tribes, I've got no excuse for pretending it's hard to parse a phrase or two from elsewhere.

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But... full disclosure! Being a modern web-oriented guy... I make up for my lazy American linguistic ways by using <a href="http://babelfish.yahoo.com/" target="_blank"><b>The Babel Fish</b></a>. The trick is to hope you're not embarassing yourself with some wretchedly mis-used idiom. It's a great tool, though - especially when you're trying to follow along in a critique thread that's entirely en Español.

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Unfortunately, some of the coolest photographs on this site seem to involve critique threads that are entirely in Romanian or some other fascinating, but utterly untranslatable (for me!) Eastern European tongue. The web language widgets will catch up, at some point! Luckily, I can always enjoy the photographs, and no translation required (er, usually... there are some Eastern European visual sensibilities with which I'm still coming to terms).

The answer is, I think, both. In this case, the people who contributed to making the decisions, as a partnership, would own the

copyright. It would be clear, in the OP example, that the person who pressed the shutter made a key contribution, but his decision-

making would have been minimal. What you have here is a partnership or group effort in making the photo. It would be analogous to a

corporate or group effort to build a fashion photo, with assistants and retouchers.

 

Say, for example, that this person wasn't taking a photo. Say they were writing a text for copyright and later publication. I want to do

the writing; you lend me a pencil; my friend gives me a pad of paper. Who wrote the book? All three, yet with one primary writer. If

there was a dispute over who owned the finished product, that dispute would have to be reviewed and judged, probably in some legal

hearing or mediation. In many respects, because of our western cultural trends, we will put one person to the forefront as responsible for

the overall action. Yet, with the three people who wrote the book, I think we can all see that each were somehow important.

 

My guess is, as a practical matter, the passerby wouldn't matter much in the OP example. In the case of photographers, we frequently

see owner/operators who possess the equipment and do most of the deciding. As long as you don't promise someone something and

refuse to deliver it later, it's unlikely that the passerby would have a quarrel.

 

"Has there been any case law?" While I am not an attorney, I think the answer is a yes. For example, when writing for an insurance

company, editing and updating their contracts, it was a common practice for employees to sign agreements which give the ownership of

the documents to the corporation itself. This way, a hired writer could not abscond with the contract; situation is similar to "for hire"

agreements for photographers.

 

Also, we see this in numerous contracts between Universities, their students and the faculty. Most higher education institutions will

have some rule that says in order for the person to remain an accepted student, their homework would be the property of the University

itself. Probably not a rigorously enforced idea, but it's an important premise; it allows people in educational activities to stop bickering

over who owns the final product, and focus on building a quality product instead. A student wouldn't have to worry about the

marketability or sales quality of a document they wrote for a University; they could concentrate on making their point instead.

 

All of the participants in the OP's example would have a possible stake in it; but, in reality, only one would bother; and, if others wanted

to participate in matters further, then they, too, might also have the responsibility or liabilities associated with making the picture. Say,

for example, something bad occurred as a result of the picture. Either the makers take responsibility and get both the credit and the

blame, or they don't hold the rights. The rights and responsibilities would end up going together.

 

In the US, there can be multiple individuals who hold claim to a document; but, usually one person will be appointed, or stake claim, as

the primary contact or manager for that copyright. Even our copyright forms have provisions for this built in. Also, an author (or

photographer) can appoint someone else as a representative to manage his copyright affairs. Common roles for those representatives

might include business partners, spouses, will executors, and the like.

 

http://www.copyright.gov

 

There's a lot to copyright law's details; but, fundamentally, an honest overview of Who Made It would have to take place; the true answer

would depend a lot on the situational specifics.

I guess one of the most compelling aspects of the question of Who Has the Right To It would also be who is going to

take responsibility for it? If you think about it, assuming responsibility for what could happen when things go wrong

might very well be enough to scare anyone into not publishing anything, ever. Sometimes, we are really gambling

against a lot of obstacles just to be brave enough to put our names behind our artifacts.

 

Let's say someone in the OP's question decided they wanted to stake their copyright claim because they participated in

making the photo. Now, they want royalties. In order to get the good stuff, there's a fair chance that they might also

have to assume some of the bad; like, taxes, attorney's fees, costs of settling the dispute, publication overhead, etc.

 

I think if I was the photographer who got someone else to trip the shutter, I would assume responsibility for the

copyright; but, at the same time, admit that someone else helped.

 

Thanks for posting the question. I liked thinking about this. J.

The point isn't that you can "assume" responsibility for the copyright. You own it or you don't. A joint work is a unified work, the various authors sharing in ownership - with the complexities that might be expected when multiple parties own a single "thing." The OP's question deals with a situation with the camera owner passing the camera to another person and the ownership being contested, not an amiable joint ownership.

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Ton Mestrom, I am so sorry about that! Don't know why I came up with Tim ... :-)

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John O'Keefe-Odom, funny you mention the university case. There was this project at my university where students

could participate in a real-life project (computer science), led by a rather big company here in the Netherlands. Some

students, including me, refused to participate, because the company was claiming all the rights of the product (code)

made. While I totally agree on the rights of things produced during the study also go to the university, as this might help

future students to work further on the material, I do not agree on having a commercial company mangled up with our

educational system. As far as I know, our university just claims user's rights, not copyright, which is totally fine with me.

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Matt, Babel Fish can bite you in the butt if you aren't careful. I remember translating a portion of a speech I had to give in a college Spanish course that I was to lazy to translate manually and WAY to lazy to check after I translated it. Well just so you know for the future, talking about castrated goats (accidently), not the best way to get an A, but it will get you a lot of laughs. To this day I don't know how Cabra Castrada didn't leap out at me.