Who own the images--second photographer?

Discussion in 'Wedding and Event' started by marcos agrelli, Oct 28, 2009.

  1. <p>The photographer that subcontract the second photographer or The Second photographer that took the photos?<br />I have a friend/photographer when I have a wedding invite him to be a second photographer, he does greats shoots, but sometimes he asks me to put some of these photo on his website to promote himself. Now my questions:<br />1- Who has rights on these photos?<br />2- He can use these photos on his website, or there are my property?<br />3- What's the best to solve this kind of problem?<br />4- Could I use on photos my Studio name and his(second photographer) name toghether? Ex: Prisma Photography by Marcio daklsjfnwef<br>
    Tks,<br>
     
  2. You probably own the photo rights since he was working for you.
    The solution is a written contract with him that spells out the fact that you own the photos.
    You could also allow him limited use, i.e. on his web site but not for sale.
    I like your point #4 quite a lot - very inclusive and friendly.
     
  3. It's all in the contract. If the answers aren't in the contract, then you have no legal recourse to stop your friend from using the images in any way he wants. If that's fine, then so be it. But if not, make sure and include a clause in the next contract so that it is clear what rights he has to the pictures he takes.
     
  4. Perfect, I definitely need a contract. Today they are my friends, tomorrow could be anyone.
    Thanks so much!
     
  5. Marcos--I would do some searches on this forum, such as the previous thread below, but I would also check on independent contracting laws for your state and get/read some books on independent contracting in general, including sample contracts. There are also several books specific to photography that cover samples second and assisting contracts.
    http://www.photo.net/wedding-photography-forum/00TypL
     
  6. Not only for your state, but your country as well - if you don't reside in the US. If you're in Canada - it doesn't matter who takes the photos - the person contracting for them (follow the money) does.
    Dave
     
  7. "Charles Beddoe [​IMG], Oct 28, 2009; 02:25 p.m.
    "You probably own the photo rights since he was working for you."
    -interesting.. I'd guess just the opposite.
    You were working for the bride, but she doesn't own, because unless you specifically sign over rights, they're yours by pressing the shutter (is what I"ve read over and over-- not a lawyer). And by the same token, if he was working for you, the same would apply (he keeps rights), unless your contract with him states otherwise. If he was working AS AN EMPLOYEE of you (which I'm guessing not), then he'd likely sign an employment contract giving rights to his creative work to you. Either way, if you don't spell it out in contract, I'm guessing he's got rights. At least, in the U.S., agree with the Canada comment above.
     
  8. You probably own the photo rights since he was working for you.​
    The answer is determined by analyzing whether the work is done as an employee or as an independent contractor. If merely "working for" someone were the standard, the photographer's client would automatically own the copyrights as that is who a photographer is "working for". That's not how it works.
    If the answers aren't in the contract, then you have no legal recourse to stop your friend from using the images in any way he wants.​
    The answer is determined by analyzing whether the work is done as an employee or as an independent contractor. If the second shooter is an employee, then there IS legal recourse to stop the second shooter from using the images because the primary shooter will own the images as an employer.
    if he was working for you, the same would apply (he keeps rights), unless your contract with him states otherwise. If he was working AS AN EMPLOYEE of you (which I'm guessing not), then he'd likely sign an employment contract giving rights to his creative work to you.​
    The answer is determined by analyzing whether the work is done as an employee or as an independent contractor. A second photographer could be an employee even without signing an employment contract and, if they are determined to be an employee, then signing over the copyrights is unnecessary because an employer owns the copyrights anyway.
    Having a properly drafted contract in place is critical when seeking to avoid these type of disputes.
     
  9. Depends really.
    He took them, let him display his work.
     
  10. Read the "work-for-hire" exception to the Copyright Act.
    It reads as follows: A "work made for hired" is a work prepared by an employee within the scope of his or her employment, or a work specially ordered or commissioned for certain uses (including use as a contribution to a collective work), if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. The employer is the author of a work made for hire.
     
  11. If you hired him then they are your images. Best way to solve the issue, I think, if give him the card and at the end of the day, he gives you the card back (so you invest another $20-30 in CF, SD, Sony Sticks or w/e else is out there) but again, you'll get your images that night when you go home and YOU select, if you choose to, what your second camera(wo)man will have if anything at all.
    Double naming watermark, I think is silly. There are ethical rules , that I strongly believe still exists today where if client comes and shows specific style, studio owner can say that he/she will hire THAT SPECIFIC photographer who shot these...
    Times definitely have changed :)
    Adam
     
  12. "if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire"
    --this seems the operative phrase -- operative word "if"
    "If you hired him then they are your images."
    but the above, to me, is certainly not automatic if there's no agreement in place!
     
  13. If you hired him then they are your images.​
    The answer is determined by analyzing whether the work is done as an employee or as an independent contractor. If merely "hiring" someone were the standard, the photographer's client would automatically own the copyrights as that is who is "hiring" the photographer(s). That's not how it works. It has to meet the standards of a "work for hire" as found in the Copyright Act in order for the work to be owned by the hiring party.
    See Circular 9 at copyright.gov.
     
  14. I believe that Keith is correct in this situation. You must have it in writing by both parties. What I think is as important is to have a discussion as to who owns the work. I shoot weddings with a partner on occasion. She owns what she shoots - I own what I shoot and who ever is assembling the album gets the raw files. That's our deal. If hire a second shooter to assist - you give them CF cards - they give them back at the end of the wedding. No issue as to who owns what - or if you want to allow them to use the photos - spell that out too. I think the main thing is to think about what your postion is and stick with that. I personally never show anything on my site or in my portfolio that I did not shoot. I just find that unethical.
     
  15. I believe that Keith is correct in this situation. You must have it in writing by both parties.​
    Keith correctly cites the Copyright Act but the portion of it that you are discuss above is irrelevent to the situation here. The portion of Keith's quote that is relevent is the part that reads... "prepared by an employee within the scope of his or her employment" So, once again, the answer is determined by analyzing whether the work is done as an employee or as an independent contractor.
    Again, see Circular 9 at copyright.gov.
    Also again, having a properly drafted contract in place is critical when seeking to avoid these type of disputes and, in your scenerio, it seems like you have a verbal one bolstered by a 'course of dealing'.
     
  16. My brief experience:
    I worked for some years to a Studio as a photographer. When the owner of the studio needed a photographer, called me, told me the place and time. After job I gave him the films or CD, got the money and that's it. I knew the pictures were of him and could not use them, because he hired me just for a service. So done and no rights, or photos, or images...
     
  17. In the day, such agreements between studios and independent contractor photographers were done verbally, many times, with the photographer not having any access to the images once they were turned over (film).
    Today, you definitely need a contract because second photographers and assistants who shoot are used more frequently by non studio photographers, plus the seconds and assistants come and go more quickly, and we now have online publishing and increased access to images to complicate things.
     
  18. Interesting, I would say that you would need to have it spelled out in a contract.
    But another question to ask is....do you want to use someone Else's work on your site...and mislead people into thinking the work is yours? I see it all the time and however you slice it...contract or not...your taking credit for someone else's work.
    So ownership is one thing...but how you package it is another. There have been times that i have used other photographers besides my son. But i never use theirs images on my site. The reason...the statement 'images by Chase & Dave Gardner' on the site. I do use them for the B&G and i always let the photographer use his/her images.
    One step more...what if the 2nd shooter gives you the RAW files...but then you take them and adjust, crop, tint, etc. Now, are they the same photos? And who owns those? Another can of worms opened. So i would get it spelled out in a contract...but stay friends.
    IMO....if there's a contract...that's a test of legality. To use them without credit...that's a test of character.
    Dave
     
  19. Well my thoughts are, the couple hired you to photograph the wedding. Whether you invited a friend to help you take photographs for their wedding or not, they hired your business. I would ask the bride and groom if they are okay with the second photographer posting their pics for his own portfolio. If I were the couple and I hired you to take my photos (whether you had someone else with you or not) and I found my photos on someone else's website, I would be a bit upset. If they are okay with it and you are as well, there is no need to worry about him posting them.
     
  20. Exactly Toth!!!
    This is a problem... if my customer (bride & groom) see their pics in another website besides the website of Photographer that they hire to.
    We need to see from a diferent point of view: from Photographer, from Second photographer, from customer. There are 3 possible diferent answer.
     
  21. "To use them without credit...that's a test of character"
    I agree. I think the overall issue that's cropped us is not owning credit (it wouldnt be right and Dave so directly explained), but owning the value. The main shooter has the gig, the connections, the equipment that's borrowed by the 2nd, so on. She/he bears the brunt of profit and loss. Main shooter should also own the value of the subcontracted work, though not necessarily the credit. Say the 2nd takes a shot that goes to time magazine and then on some oligarch's marble wall at a 10k value. The 2nd gets a credit, but the main shooter, by virtue of their investment in the gig way back in time, gets 50% or 80%, or almost all of the monetary gain, whatever is decided. If the 2nd wants credit and ownership for it all, then they can go out and be a main shooter next time.
     
  22. Spearhead

    Spearhead Moderator

    I suspect that most posters on this forum don't know John Henneberger, who posts a lot on the Business Forum. If you want to get the right answer, the one a good lawyer will give you, listen to what John says. Anyone that doesn't support John's viewpoint should be questioned about their legal knowledge and credentials. You don't have to agree with John on photography issues, but there isn't much point posting "my view" and things like that when you can get something that will really help.
     
  23. You don't have to agree with John on photography issues
    I know what I need to know for my own photography. So many here know much more than I so I don't post as much on equipment, technique or parts of the industry I am unfamiliar with. Unless I have reason to know I can actually help someone, it is better to read and learn instead. In these business and event forums there are people seeking help to avoid problems beyond photography itself. Many contribute feedback in these areas to be helpful but sometimes rely on notions or unwittingly adopt notions from others presented elsewhere and arrive at conclusions that seem correct but are not or are less certain as presented. This can produce unintended and very undesirable consequences for the reader.
    I'm not a 'know it all' but I know about some things. I am interested in photography and these business and legal matters and this is a place where these things meet. This tends to lead to corrective comments when something is said that is not quite accurate. I hope that no one has been offended. The intention is not to disagree for the sake of disagreeing but to alert people posting questions or reading responses to potential issues they may face. Hopefully this has helped some people along the way.
     
  24. It was also touched on above but it's important to consider that besides copyright, the use of the images to promote one's business, either the primary or second shooters, etc., is a matter that also needs to be covered legally. The subjects of the photos have the right to control the use of thier images. It's their "right of publicity." Typically this is covered with a model release and sometimes, sort of, with language in the photographer's contract (each individual has the right to control their own images, a contract can only authorize use for those signing the contract, not other persons at the wedding).
    The release or contract could have language allowing the photographer to assign or allow use by his/her business affiliates, partners, etc., and if there is an established business/contract relationship, then there is a link or trail showing the permission. If the "second" isn't linked, the issue could arise from the couple or other member of the wedding asking how if "A" shot the wedding, some other person is using the images.
     

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