Hypothetical question about copyright

<p>A friend of mine (who also happens to be a client) posted a hypothetical question on Facebook yesterday, and she and I have been going back and forth a bit on the answer. I asked for and received her permission to post the original question here:</p>

<p>"If I hand my camera to a stranger and ask them to take a picture of me (with someone, in front of a landmark, whatever) who owns the copyright?"</p>

<p>My answer was that, from my understanding, the photographer would legally own the copyright, even if as a practical matter proof that s/he took the photo would be impossible. My friend and her fiance stated that if they handed the stranger their equipment and had no way to contact them, said photographer appeared to be giving up his right of ownership. So if the photo turned out to be valuable, the camera owner could sell the photo, and the photographer, assuming they somehow found out, would have no recourse.</p>

<p>I'm interested in others' take on this scenario.</p>

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<p>In the situation you're describing (where one defines the person taking the picture as the photographer, and you're just the equipment owner), this is more of an "orphaned works" issue than a you-own-the-copyright-since-that-seems-simpler issue.<br /><br />I think the main way to look at this would be that you (as the photographer) are choosing the scene, the exposure, the lighting, the composition, the timing, etc., and are using the bystander as a meat-based tripod and remote control device. You're still the photographer. Not unlike a cinematographer who is telling a crew of people specifically what to do in order to make the shot.</p>

<p>Same logic might be applied (if you used a tripod,) would <strong>the tripod</strong> hold the copyright, or <strong>the self-timer</strong> on your camera?</p>

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<p>Interesting responses. My friend in the hypothetical scenario is not a photographer though, and not specifying the exposure/lighting/shutter speed for the bystander; she's just asking them to take a photo and posing for it. I'm not sure that really qualifies the bystander as a "meat-based tripod".</p>

<p>The bystander hasn't made the decision to take the picture, chosen the subject(s), scene, angle of view, camera settings (even if it's [P]rofessional Mode), etc.<br /><br />The more that the camera owner leaves those decisions up to the meat tripod, the more the meat tripod becomes the photographer, and (in my mind) the copyright holder. Of <em>course</em> it's subjective and hard to nail down. But I doubt that people who give zero thought to the nature of the photograph as they're setting it up are likely to be the types to worry about copyrights, either.</p>

<p>See there's the thing - the average Joe on the street would not change the camera settings and would just take the photo without worrying about composition, etc. But hand the camera to a pro and they might put more effort into such things. At the very least, they would probably come up with a more pleasing composition and angle.</p>

<p>I don't think the choice of subject or scene is relevant here, because if a pro were hired to shoot, say, a wedding, they would have a specific setting and subject for their photos, yet that wouldn't invalidate their ownership. This issue came up in the original Facebook thread as well, when one said that the fact the bystander was required to shoot something at a specific time and place would imply a work-made-for-hire situation. </p>

<p>Again, in this scenario the bystander would not be able to prove that s/he took the photo. Yet the question remains of whether they would be legally entitled to such copyright.</p>

The camera operator is acting under the direction of the camera owner. The camera owner has chosen the spot, the

subjects, and the timing. Even if that's been done very casually, the photo would not happen without the camera owner

taking several key directorial steps.

<p>Hmm. I see the point you're making, but I still don't agree that the subject of the photo should be a deciding factor here. Portrait photographers have a specific subject they are told to shoot. And as far as timing, again, for event photographers they are required to shoot at a specific time and place. </p>

<p>It could be regarded as a "work for hire", in that case the owner of the camera would own the copyright.</p>

<p>Lorne - That's what my friends suggested, but I disagreed, unless the bystander were an employee of the camera owners.</p>

<p>What about the possibility that, depending on each person's level of involvement in creating the photo, the copyright would be held by both people?<br>

From the U.S. Copyright Office <em>Copyright Basics</em>: "The authors of a joint work are co-owners of the copyright in the work, unless there is agreement to the contrary.</p>

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<p>What about the possibility that, depending on each person's level of involvement in creating the photo, the copyright would be held by both people?</p>

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<p>Hmm, interesting possibility, and one that could potentially provide a satisfactory solution for both parties, should such a situation (the sale of a photo and its subsequent discovery by the bystander who took it) actually occur.</p>

<p>wow... what if you set the camera on a tripod to take a picture, and a bird landed on it triggering the shutter? would the bird be the owner? or if a gust of wind knocked it off the tripod and triggered the shot?</p>

<p>Mother Nature now has a say in the whole scenario.</p>

<p>L.J., I appreciate the humor but I'm trying to seriously address the legal aspects of my friend's hypothetical scenario, however unlikely it is to come to pass. 99.99% of the time if someone just asks a bystander to take a casual snapshot of them, questions of ownership and copyright would not become an issue. She was specifically thinking about a rare but possible case where the photo happened to capture some major developing event and the image became valuable for resale.</p>

<p>Copyright isn't determined by who owns a camera (except that equipment ownership is one of many factors in a work for hire which is not applicable here). Nor is copyright determined by by whose likeness happens to be in the image. All of this was well settled long long ago and still is.</p>

<p>The person who creates the image is the owner. Determining who created the image is the determining issue. Depending on the scenario, it could be more than one person if the involvement of another person is substantial enough.</p>

<p>Let's put this in technical legal terms. You have directed the person holding the camera what to shoot, how to shoot, and what equipment to use. It is my opinion that this makes him or her your agent. You hold the copyright.</p>

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<p>Let's put this in technical legal terms... ...It is my opinion that this makes him or her your agent.</p>

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<p>Copyright is not created by being an "agent" unless the agent is also an employee or contracted as a work for hire under the Copyright Act. (See Circular #9 at copyright.gov for the actual applicable "technical legal terms").</p>

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<p>The person who creates the image is the owner. Determining who created the image is the determining issue. </p>

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<p>Thank you John - This was essentially my opinion on the situation as well.</p>

<p>Just to flesh out the discussion, maybe someone could make an argument that the factor test for employment is sufficiently met to make this a work for hire in such a scenario. Any takers?</p>

<p>It does seem entirely reasonable to say that holding the camera and pushing the shutter button is <em>not</em> necessarily the measure of who created the image, or mostly did so.</p>

<p>Howdy!</p>

<p>I find this to be so improbable as to not be worth worrying about. It's far more probable that while a complete stranger is taking your picture, he keeps telling you to back up, you get hit by a bus, and he walks away with a new camera.</p>

<p>But if you're really worried about somebody making money off a casual snapshot (and I'm very concerned about you if you do) the solution is easy. As soon as the picture is taken, grab your camera back, say "Thank you very much!", do not exchange names, and move on. That's what you would do ordinarily anyway.</p>

<p>Anybody insisting on copyright would have to seize your camera or your flash card in order to enforce it. Then it becomes a mugging instead of a nice gesture to a stranger, for which the penalties far outweigh the benefits.</p>

<p>Later,</p>

<p>Paulsky</p>

<p>If the passerby claimed copyright to the photo, you could claim you never gave him/her a model release! Also, if your standing in front of the eiffel tower at night, you or he may also need a property release.</p>

<p> Copyright exists at the moment the work is placed in it's tangible medium of expression. The button is pushed, the person pushing the button did it. The law provides for procedures for control of circumstances like employment, etc. </p>

<p>You're kind of stuck with the results of the created scenario, if you have a set of circumstances where the random (or not so random) "other" is the author, they are the author.</p>

<p>Craig: What if the person with their finger on the shutter button didn't push it until you, from ten feet away, said, "Push the button ... <em>now.</em>"</p>

<p>you are asking someone to do work for you (hey friend, will you take a picture of me using my camera), other person says sure, compensation is a thank you. This could be interpreted as a work for hire....</p>