Photo retouching work rights legal question

Discussion in 'Business of Photography' started by anilafom, Aug 2, 2017.

  1. Hello,

    I am a photo retoucher and I have been cooperating with one photographer for a long time. Now we had an issue: I refused to do the time consuming work for 10$. He got mad and said he won't work with me any more plus some abuse, and that I cannot use his pictures in my portfolio any more.

    Do I have the right to post the images I edited for him in my portfolio? The photographer is mad and I want to be sure that legally I don't break any rights.
    But I have the credit for the picture, because I did the editing.

    I don't show the "before" image. I always put the photographer's and retoucher's name. I know that I am not allowed to post the images in my portfolio before they are in production (magazine).

    Thanks for help in advance.
  2. AJG


    Do you have written contract? If you do, it should specify what rights you have. If you don't, it might depend on where you are located, but you're probably out of luck.
  3. William Michael

    William Michael Moderator Staff Member

    I concur with AJG.

    Typically, in most areas of the world, if you do not have a contract specifying your Usage Rights of the images, then you will probably be at fault if you do publish any images in your portfolio that this photographer made.

  4. Talk to a lawyer who works on copyrights and patents. Given that you have been using these photographs in your portfolio in the past, I don't know if the answer is as clear as it might seem.
  5. Spearhead

    Spearhead Moderator

    You need to tell us what country you are in. If you are in the US, you can't use it. If you are in China, Vietnam, or Afghanistan, you can use it. That should be a guide as to which countries would allow usage.
  6. Spearhead

    Spearhead Moderator

    If the usage was unlicensed, that doesn't change anything. If someone allowed it before but there was no contract, that doesn't mean the usage can go on.
  7. I am from Ukraine, photographer is from USA. We worked via upwork. We didn't have a contract, we just have the chat where first he allowed the usage and after being mad - no. There are jobs, which are like contracts but it is never specified about photo usage.

    The old images that were already published in my portfolio I wasn't going to delete, because he has already given the permission. I wanted to know about the jobs that are still not published.

    Thanks a lot.
  8. I've been infringed by websites based out of the Ukraine. I can't find any attorney that will make my claim on a contingency basis. You're very likely okay legally, but if you want to get similar work in the future, you need to take that into consideration. Use a written contract in the future. Even if it's just an email and you ask your customer to answer back that they agree with the terms in the email. Many photographers will not want to grant you any usage rights.
  9. Thank you. I always ask about if I can use the images in my portfolio. And this client has permitted me before, after he got mad he said I am not allowed to use any more. I wanted to know if there is some right for the retoucher. Because I mean he posts his images with my post production, so I should have the right to be in the credits. It is the same if I say he is not allowed to use the images with my editing. He can use his original images.
  10. I can only speak about the USA, but without a license from the copyright owner, the processor has no right to display or publish. A license can be a mere email, or even verbal, but no exists without consent in some for from the photographer.
  11. Thank you, I guess I have no choice. I think it is just an extreme case, but it is a pity, because there were good works :(
  12. Hi Anilafom, You have the right to put those works up on your site as far as I understand copyright law. Let me clarify. A typical ad campaign is designed by an advertising agency art director or creative director and yet the copyright belongs to the photographer who actually created it. Copyright is awarded to the person who actually creates the work ( not the idea ). Similarly, you are the person who is doing the actual work ( in this case retouching ). The doesnt mean that you now own the photograph but you have rights over the work which you have contributed in creating this derivative work. "
    A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”. [FONT=Helvetica Neue, Helvetica, Arial, sans-serif]Chapter 1 - Circular 92 | U.S. Copyright Office[/FONT]
    The copyright in a work initially belongs to the author(s) who created that work. When two or more authors create a single work with the intent of merging their contributions into inseparable or interdependent parts of a unitary whole, the authors are considered joint authors and have an indivisible interest in the work as a whole. By contrast, if multiple authors contribute to a collective work, each Copyright Basics 3 author’s individual contribution is separate and distinct from the copyright ownership in the collective work as a whole. “Works made for hire” are an important exception to the general rule for claiming copyright. When a work is made for hire, the author is not the individual who actually created the work. Instead, the party that hired the individual is considered the author and the copyright owner of the work. If you havent signed a work for hire agreement, then the work is a derivative work. . Do not expect any support from photographers on this issue as there is a conflict of interest.
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