Has Anyone Here Ever Heard of "Joint and Several Ownership"?

Discussion in 'Business of Photography' started by robert_drouhard, Sep 11, 2011.

  1. Hello everyone!
    I am a newbie who needs some help. I have been asked to enter into an agreement where I would "joinly and severally" own the copyright to my photos with another person. The other party promises this means I retain all the rights to the photos, but I'm doubtful. I can't find any information on this type of arrangement.
    Also, what should I charge for this? I ask because it is a very large number of photos (just over 4,000). They are digital pictures of the Middle East taken with a D50.
     
  2. Greetings, Robert. First let me compliment you on acquiring such a significant image collection! Secondly, this proposal sounds risky, and I would definitely consult with a copyright attorney before signing anything! AFAIK, the photographer owns copyright to his own images, unless he gives specific publication/use rights over to a second party. Good luck!
     
  3. Joint and several ownership means that each person owns the full right to use the property to the fullest extent it can be used and potentially suffer up to all all the liability that may arise from it as well. Each party has what the other party has. When one person dies the other is left with sole ownership. Its like a joint checking account in many ways. This is distinguished from ownership known as tenants in common although that phrase is often associated with real estate. Tenants in common own a half interest. They may be able to use something to some large extent but ultimately they only are credited to owning half. Particularly when something is liquidated or someone dies, ect.
    Basically, the effort in joint ownership is to take as much ownership right as you have but you are stuck with whatever they do with the images and vice versa. Would you want them to sell an exclusive license to someone else and not be compensated? Prudence would dictate that other terms be incorporated into any agreement to deal with usage, profit ect. if there is any agreement at all to be made.
    If they think they can make money, can't they buy a substantial tailor made license from you? Why would they need to own the images with you?
     
  4. Thank you Steve and John. The person proposing this agreement is a professor and author, and wants to be able to use my photos for projects (commercial and non-commercial) without having to ask my permission. I have already given him (through a written agreement) perpetual, non-exclusive, royalty free use of them but he wants to change the agreement. I have done some research on the fair market value of these, but I can only find value for licencing, not "joint and several ownership." I don't think he knows how much these are actually worth. Thanks again guys!
     
  5. Under the U.S. Copyright Act "[a] “joint work” is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole."
    This relates to the creative phase but, absent authority to the contrary I haven't found, is consistent with the general legal features of joint ownership discussed above. I would refer to the copyright law where you live to see if there is any specialized rules for jointly owned copyright material. But now you know what joint ownership basically is.
     
  6. He doesn't need joint ownership to accomplish those particular goals. You can tailor design a licensing agreement to achieve them. The biggest issue though is not needing your clearance but you can still give him that in a license. With joint ownership he can tie you up with his agreements with others and you can do the same. If he wants freedom with the images, why would he want to let you be in a position to tie him up as well? To get around it, you would need additional terms like neither party being allowed to grant exclusive licenses and stuff like that.
    That was a lot of photography work. Personally, I'd put a very high price tag on what he wants. There's already been generous permissions granted as it is. But that's a personal choice for you to make.
     
  7. I meant to say he wants to be able to grant others use without having to clear it with me first.
     
  8. The rights you have granted already allow him to use the images for commercial and non-commercial projects except that it may not include the use by others, only himself--depends on your wording as the wording here would limit the use of the images by others even if he is behind it.
    There is absolutely no reason to mess with the copyright itself as this can be handled with language that gives him what he wants while you hold the copyright. If you grant him the interest in the copyright he is asking, he can license the image to anyone for any purpose without your permission.
    It used to be common that the sale of an image for exclusive unlimited use as to time and commercial use--would carry a price of $50,000 an image. With 4000 images, one would certainly bend somewhat from this but even $100 an image is $400,000 and would be more than reasonable for such a large grouping. Actually, $1000 per image would not be unreasonable. Either of these numbers would have been more than reasonable for the first grant of use as well.
    Look to give him the rights he needs without the copyright interest but be sure you get a reasonable compensation for it. If he scales back the number of images to a much lower number, the price per image should increase. Part of the reason you take less for so many is that you know most will either never be used or used in limited ways. The less taken, the more likely they would be used in major ways.
     
  9. The rights you have granted already allow him to use the images for commercial and non-commercial projects except that it may not include the use by others,​
    That makes no sense. Robert didn't tell us the extent of the use allowed so the commercial/non commercial aspect is obviously as uncertain to us as the sub licensing aspect is.
     
  10. I didn't specify the use in the original agreement, so I assume as long as he does not allow some other third party to use them, he can use them in any project he wants. I never wanted this to be so complicated. I have worked as a research assistant for him for several years, and this is all out of the blue.
     
  11. John, why does this not make sense?
    If I license an image to a company without limit as to use by them, that does not give them the right to allow others to use it. This is common licensing, but it does not include third party uses.
    Robert, I just find the joint copyright thing a bit odd. You should be profiting from the use of your photos and not someone else (third party licensing you posted as I was making my first post). Even if the professor doesn't intend to charge, it is your work and you should profit even if it only is a small amount. Without proper compensation, it would seem to be a situation of a professor taking advantage of a staff member/student. Doesn't feel right to me. Just my opinion.
     
  12. It didn't make sense because Robert didn't tell us the scope of the use in his licensing areement so we couldn't have known if it were personal, commercial, third party, silent, or whatever. Therefore, the scope was uncertain and not magically knowable. Since then, he told us what it is so its a moot point now.
     
  13. Yes John, thus the words "may not".
     
  14. "Joint and Several" describes liability, not ownership. It is therefore meaningless in this context.
    You, or he, want either joint ownership with right of survivorship, or ownership in common. Find out which and then we can talk.
     
  15. "Joint and Several" describes liability, not ownership. It is therefore meaningless in this context.
    You, or he, want either joint ownership with right of survivorship, or ownership in common. Find out which and then we can talk.
     
  16. I think part of the issue is also that he has a JD, and uses legaleese that I think sometimes he doesn't understand.
    I really appreciate all the advice. I am going to point out how much what he is asking for is worth, as well as the tremendous value he is already receiving and hopefully he will just drop it.
    Suffice to say I have learned a lot in the last few days.
     
  17. I have a JD too. He may not understand his use of legalese, but I do. Just trust me on this.
     
  18. Thanks Gerald. After finding no example of this kind of agreement, I kind of figured it was nonsense.
     
  19. By the way, this is the current agreement I have with him:
    "Robert Drouhard grants xxx perpetual, non-exclusive, royalty free license to use any and all photographs taken while on tours with xxx in digital or print form. Robert Drouhard retains ownership of the copyright for all photographs taken while on tours with xxx."
     
  20. Translation: xxx can use any of these photos for free, for ever.. BTW, so can you. What do you get for your magnificent gift? I don't know.
     
  21. Experience. :p
    Well, that and an introduction (and endorsement) to a CEO that looks like it will turn into a career that marries two of my favorite interests.
     
  22. thus the words "may not".​

    John, you claimed that the license allowed both commercial use and non-commercial use. We had no way of knowing that. Then you said that it "may not" apply to the separate and distinct issue of third party use. IOW, you told us commercial and noncommercial WAS allowed and that third party use MIGHT NOT be. IOW again, You told us the Professor could use the images himself commercially or non-commercially but that he might not be able to let others use it (Whether their use is commercially or not ). I trust that clears up any confusion arising from location of the "may not" in your sentence. Its still a moot point.
     
  23. Joint ownership and several ownership are contradictory because joint means co-own and severally means solely owned. I presumed, however, that the good Professor knew the distinction and was looking for the benefits of joint ownership and joint and several liability which would be to his advantage ownership wise and potentially liability wise. Hence the discussion of both ownership and liability.
     
  24. If you were employed through a university, the university will most likely have rules that control copyright, and an office that enforces them. In certain staff positions, you may not retain the copyright for pictures you took if this they are considered work for hire. Usually (in the US), research staff retain the copyright to their own work.
     
  25. Joint and several is usually used in loans such as joint mortgages. It is so that the lender can claim from the remaining borrower if the other one disappears or refuses to pay.
     
  26. "Joint and Several" is a form of ownership, usually of real property, that has the characteristics of tenency in common, but all title passes to the survivor in the event of death of one of the tenants. It is irrelevant to this discussion.
     
  27. IANAL and the OP really does need to talk to an IP lawyer on this because I am 99.9% sure that joint copyright ownership would not give the other party what he wants. Joint ownership does not allow either party to do whatever they want with the creative work in question - in fact exactly the opposite. neither party can exploit the property without the permission of the other. This opinion is based on several cases where software publishers and developers co-owned copyright and neither were able to develop sequels or other versions without the others permission.
    What is actually needed is a licensing agreement which allows the other party to sub-license the images - which has the added advantage that the copyright ownership stays with the OP.
    Having said that I don't see why the OP feels the need to grant additional rights to this individual. They have already benefited from the free licensing of these images. If these images are now going to be licensed to other third parties then the OP (and the copyright holder) should be the one gaining any benefit. No reason why this individual should now gain further benefit and be able to sell these images to others.
     
  28. "Joint and Several" is a form of ownership, usually of real property, that has the characteristics of tenency in common, but all title passes to the survivor in the event of death of one of the tenants. It is irrelevant to this discussion.​
    There seems a lot of confusion about this on this thread. As someone mentioned earlier, "Joint and several" is not the right phrase in relation to ownership.
    Joint and several is a kind of liability where one person has the option to sue two or more other parties either separately or together (jointly) at the plaintiff's option, and each of those parties can be liable for the whole sum. So the plaintiff can choose whom he prefers to sue. It's not about ownership of property, it's about liability, usually under a contract.
    What the professor really meant (presumably) was "joint ownership". There are (under English law) two kinds of joint ownership, which can apply to any kind of property - whether real property (buildings), or ownership of IP such as photos:
    1. "Joint tenancy". Here the parties own the property together in equal undivided shares. If one of them dies, the other automatically becomes the sole owner of the property.
    2. "Tenancy in common". Here the ownership of the property has been conceptually divided eg. one party may own, say 60% of the property, and the other 40%. If one co-owner dies, then that person's share passes through their estate to whoever is entitled to the property share according to their will.
    All of that is more information than is needed to answer this question. The professor is clearly trying to get his grubby paws into an ownership share of the photos. From what has been described, he neither has the right to do so, nor the need to do so. All he needs is an appropriately worded license.
    As an alternative, you could offer to sell him part ownership, but if you do, then value the pictures appropriately. So, if for example you decide that part ownership of each image would be worth on average $200 (that is actually a very cheap price for selling part ownership of an image), then 4000 images x $200 would cost $800,000. You could offer him the choice between paying $800,000 for part ownership, or a license for a more reasonable sum, and see which he goes for... ;)
     
  29. Thanks all. Dan, the reason I am asking about "the need to grant additional rights to this individual" is because he is asking me to sign a new agreement concerning my photos.
    Simon, your comments are very helpful! I am going to point out the fantastic deal he currently has.
     
  30. Robert, I understand that you are asking because of his request... I just don't understand why you feel any need to agree to his request. :) Seems to me he has had his cake, eaten it and now wants you to make more cake that he can give to anyone and everyone.
    Is he intending to sell these images or just give them away to anyone? If the former then you should get a share. If the latter why should these others get free use of your images.
     
  31. Slightly off topic, but you might find this pre-recorded webinar inspiring. It was put on Blake Discher & Photoshelter, and is about negotiating with clients. http://vimeo.com/27036957
    Obviously we don't know the full details about your original deal, but whenever a client of mine wants to negotiate additional rights to something of mine, there's definitely some compensation involved.
     
  32. "They are digital pictures of the Middle East taken with a D50."
    If nothing else, the initial ownership issues will depend on the laws in the countries where they were taken. After that, one can duffle about with US law and contracts. But the OP needs to know what his rights are in the first place - and that "first place" is the country where the pictures were taken.
     
  33. initial ownership issues will depend on the laws in the countries where they were taken​
    Not exactly. The legal system that initially determines the rights attaching to copyright is the "country of origin" of a photo, which is the laws of the country where the photo is first published. If the photo is unpublished, then it's the laws of the country of which the photographer is a national.
    In fact, it's a bit more complicated than that, but that's the starting point. See Article 5 of the Berne Convention.
     
  34. If the photo is unpublished, then it's the laws of the country of which the photographer is a national.​
    If the photo is un-published then it is irrelevant.
     
  35. If the photo is un-published then it is irrelevant​
    Why? The OP is asking about 4000-odd photos. The chances are, that many of them will be unpublished. The OP is probably still likely to be interested on the copyright law in relation to those photos.
     
  36. "Published" or "unpublished" (in treaty terms) changes the way copyright ownership is determined. Just for fun, the OP passed some or all of the images on to the user while in an airport of a third country, one which is a party to the treaty. Published/unpublished irrelevant?
    ("(3) The expression “published works” means works published with the consent of their authors, whatever may be the means of manufacture of the copies, provided that the availability of such copies has been such as to satisfy the reasonable requirements of the public, having regard to the nature of the work. The performance of a dramatic, dramatico-musical, cinematographic or musical work, the public recitation of a literary work, the communication by wire or the broadcasting of literary or artistic works, the exhibition of a work of art and the construction of a work of architecture shall not constitute publication.")
    In reality, the two parties should come to a reasonable accommodation without getting wrapped around the jots and tittles of an international treaty, unless of course, paying lawyers one picture at a time seems like a good idea.
     
  37. Why? The OP is asking about 4000-odd photos. The chances are, that many of them will be unpublished. The OP is probably still likely to be interested on the copyright law in relation to those photos.​
    Until ownership of the copyright is challenged, then the law will not need to be applied.
     
  38. Until ownership of the copyright is challenged, then the law will not need to be applied​
    I'm not sure what you're trying to say, but a challenge to the copyright, and the legal position in relation to the ownership and use of the images, is what this thread is all about.
     
  39. In reality, the two parties should come to a reasonable accommodation without getting wrapped around the jots and tittles of an international treaty​
    The international treaty isn't relevant to them. I only raised it because you said that ownership would depend on the law of the place where the pictures were taken. It doesn't. Leave international law to one side, it's a red herring.
     
  40. Since we don't know where the images were taken, whether they were published, where the publishing (if any) took place, any contractual details of the relationship between the OP and the other party, and since countries party to the treaty incorporate the provisions in their laws, and the treaty establishes how to proceed if the countries aren't parties to the treaty, it's silly to suggest it applies and then it doesn't.
    If nothing else, it's going to be important in determining if any given court has jurisdiction. Again, unless they intend to fight this image by image, they'd be better off coming to some kind of agreement and not going to court.
     
  41. Craig, I'm afraid that is all pretty much wrong. Which country the pictures were taken doesn't matter to this thread, whether the pictures were published or not and where doesn't have any effect on whether the OP's home courts have jurisdiction to decide the matter (I'm assuming that the Professor is in the same country as the OP), the international treaties won't affect ownership issues, they wouldn't need to fight it image by image, it's what the OP's and professor's home jurisdiction says about their agreement and ownership that matters in this case.
    It's not worth your time and my time going into detail having a discussion about why international treaties are not relevant to this. International law is really a complex area, it would take time and effort to explain, and making wild and uninformed statements about it doesn't help.
     
  42. "The person proposing this agreement is a professor and author, and wants to be able to use my photos for projects (commercial and non-commercial) without having to ask my permission. I have already given him (through a written agreement) perpetual, non-exclusive, royalty free use of them but he wants to change the agreement."
    ""Robert Drouhard grants xxx perpetual, non-exclusive, royalty free license to use any and all photographs taken while on tours with xxx in digital or print form. Robert Drouhard retains ownership of the copyright for all photographs taken while on tours with xxx.""
    He's licensed them to a user. Is that "publication" and where did he do it?
    As you already pointed out, Article 5 applies. Looks to me like it does apply (he can claim protection in the US Federal courts (para 2) against infringements in the US). (Federal courts also would have jurisdiction if there international disputes if an ownership issue developed out of the laws of the country where first published, per the treaty (4a).) That process is expensive and time consuming.
    Here it is:
    Article 5

    (1) Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention.
    (2) The enjoyment and the exercise of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work. Consequently, apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed.
    (3) Protection in the country of origin is governed by domestic law. However, when the author is not a national of the country of origin of the work for which he is protected under this Convention, he shall enjoy in that country the same rights as national authors.
    (4) The country of origin shall be considered to be
    • (a) in the case of works first published in a country of the Union, that country; in the case of works published simultaneously in several countries of the Union which grant different terms of protection, the country whose legislation grants the shortest term of protection;
    • (b) in the case of works published simultaneously in a country outside the Union and in a country of the Union, the latter country;
    • (c) in the case of unpublished works or of works first published in a country outside the Union, without simultaneous publication in a country of the Union, the country of the Union of which the author is a national, provided that:
      • (i) when these are cinematographic works the maker of which has his headquarters or his habitual residence in a country of the Union, the country of origin shall be that country, and
      • (ii) when these are works of architecture erected in a country of the Union or other artistic works incorporated in a building or other structure located in a country of the Union, the country of origin shall be that country.
     
  43. He's licensed them to a user. Is that "publication" and where did he do it?​
    No, issuing a license is not publication of the images. And the rest of your discussion of Article 5 therefore isn't relevant to this thread. In fact, it would be irrelevant even if that was publication, but that's another matter.
    I only raised Article 5 as an illustration of the fact that the place he took the photos is irelevant. That doesn't mean we have to replace that irrelevant discussion with another irrelevant discussion.
     
  44. Sorry, I don't mean to be brutal or rude about it. I have no problem that you're curious about the way law/international law works, but you keep making odd (ie. totally wrong) statements about it, and things are busy at the mo - I simply don't have time and power to get into a long explanation/discussion. And it's not relevant or useful to the thread, it just creates smoke and confuses anyone who may read the thread in what is (from the OP's description of it) quite a straightforward situation.
     
  45. I was wrong when I suggested that the laws of the country where the pictures were taken might apply. You were wrong to suggest that the treaty applies and then that it doesn't. My statements are no more totally wrong than yours are totally right. Nuf said.
     
  46. You were wrong to suggest that the treaty applies and then that it doesn't.​
    Sorry Craig, I can't let that pass. I didn't suggest that the treaty applies, nor did I say that it doesn't apply. I just said (quite a few times) that it's not relevant to answering the question in the thread.
    I worked for many years as an international lawyer, and I find it irritating to be told that I said something wrong about international law. I don't claim to be infallible, but I just had a read back through my posts on this subject, and they all seem pretty accurate to me.
    I would suggest just letting it drop, this whole talk about the treaty is a waste of time. If it turns out that the Professor is in a different jurisdiction from the OP after all, we might come back to it...
     
  47. I'll for the most part accept that you were "pretty accurate."
     
  48. "I'll for the most part accept that you were "pretty accurate."" Cool, we agreed in the end!
     
  49. I want to express my deep appreciation for all the advice and discussion on this thread! I am also happy to report that after I gave my prof a 6 page detailed (and footnoted) explanation of copyright law and the actual worth of my pictures, he agreed to abide by our previous agreement.
    He did try to claim that my photos fell under the "independent contractor" exception and that he specifically commissioned them, so he technically owns the copyright on them, but in the end, he admitted that since we did not have a written contract specifying that he could not prove it. I explained that there was no way on earth he specifically commissioned all 4000 of my pictures. Besides, even if he did "commission" them, he intends to use them in multiple works, and as I understand it, this would not be allowed under the "independent contractor" exception.
    I have learned so much here, and I look forward to gaining even more knowledge and wisdom about photography.
     

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