'Work For Hire' Copyright Question

<p>I suppose this could go in the Business, or Portrait forum just as likely as this one.</p>

<p>I have read many times where wedding or portrait photographers say that they own the copyright to the photos they have taken.</p>

<p>But the Copyright Act seems to disagree with this point of view.</p>

<blockquote>

<p>(b) Works Made for Hire. — In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.</p>

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<p>From http://www.copyright.gov/title17/92chap2.html</p>

<p>When a bride or portrait customer hires you to take his or her photos, this appears obviously as work for hire. And the customer owns the copyright.</p>

<p>My question is...<br>

Am I interpreting the law incorrectly?</p>

<blockquote>

<p>... unless the parties have expressly agreed otherwise in a written instrument signed by them ...</p>

 

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<p>Most contracts would specify that the photographer owns the copyrights. Or, if someone insists that they want the copyright and you still want the work, at least specify that you can use the images for promotional purposes.</p>

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<p><em>"Most contracts would specify that the photographer owns the copyrights."</em></p>

</blockquote>

<p>That might be true, and it would appear to be a deceptive practice to me because it takes advantage of customers' lack of knowledge of their rights. </p>

<p>What customer, knowing their rights, would voluntarily sign their rights away for no benefit whatsoever in return? </p>

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<p><em>"Or, if someone insists that they want the copyright and you still want the work, "</em></p>

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<p>That's even more offensive. Why would a photographer make someone insist on having their rights preserved? </p>

<p>It's sounding more like deception and misrepresentation; elements of fraud. </p>

The legal definition of "work for hire" is NOT simply that someone hired you to take photos. Here's the wikipedia article with a general description: http://en.wikipedia.org/wiki/Work_for_hire

<p>Mike,</p>

<p>That's all well and good. But "...or other person for whom the work was prepared" is broad enough to include a customer commissioning and paying for the work. For they are hiring a photographer to do the work that they want done.</p>

<p>It appears obviously that it does not need to be an employer. </p>

<p>Your wiki entry appears to say that the Copyright Act, as written, is unConstitutional. How is that so, and how does the law remain so, as written?</p>

<p> </p>

In the relevant chapter of the copyright code, "...or other person for whom the work was prepared" is not presented as a definition of work for hire; it simply indicates who the copyright holder is in the case of a work made for hire.<P>

 

Here's the definition according to the copyright code:<p>

<i>A "work made for hire" is— (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, <b> if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.</b> (17 U.S.C. § 101)</i>

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<p>(2) a work specially ordered or commissioned for use as a contribution to a collective work,</p>

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<p>So if a bride has two photographers hired for her big day, then she owns the copyright to the photos? But if she only hires one photographer, the photographer does?</p>

Richard, this is the second time in one thread that you've ignored fairly clear and explicit explanations in favor of choosing a particular phrase out of context. I'm not wasting any more time with you.

Mike,

 

It is quite apparent that you are not a lawyer. They love to argue. Where's John Henneberger when I need him?

 

You must be just a photographer.

 

/smile

<blockquote>

<p>So if a bride has two photographers hired for her big day, then she owns the copyright to the photos? But if she only hires one photographer, the photographer does?</p>

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<p>No, that's not how it works.<br /><br />Is that unlawerly enough?</p>

<p>http://www.copyright.gov/circs/circ09.pdf</p>

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<p>What customer, knowing their rights, would voluntarily sign their rights away for no benefit whatsoever in return?</p>

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<p>Maybe someone who wants a high-quality photographer to photograph their wedding. <br>

I also Googled "wedding photographer contract". The first three I opened all said the photographer should specifically claim copyright in writing. So this<em> is</em> common practice.</p>

<blockquote>

<p><em>"Or, if someone insists that they want the copyright and you still want the work, "</em><br>

That's even more offensive. Why would a photographer make someone insist on having their rights preserved?<br>

It's sounding more like deception and misrepresentation; elements of fraud.</p>

 

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<p>So, now you have a client that won't hire you if the contract says "the photographer owns the copyright". You could walk away. Or, if you really need the work, you could change the contract. All I am suggesting is that in this case you keep some rights yourself. Where is the deception and misrepresentation?</p>

 

<p>Aside from in the context of creative commons discussions, in which some participants might argue against the very existence of copyright, this is possibly the first time I've seen an artist refuse to accept the fact that, according to U.S. law, unless they sign a contract explicitly stating otherwise, they own the copyright to their own work.</p>

<p>There are two critical factors in the "Work for Hire" concept and both have been outlined here.</p>

<p>First, a work for hire exists when an individual creating work is an employee of another. The copyright belongs to the employer.</p>

<p>Second, in all other cases the "work for hire" agreement MUST be in writing and signed by the person accepting the work for hire arrangement.</p>

<p>That is as simply put as it can be and, in case there is confusion on the issue, this is US law.</p>

<p>It should also be noted that as a freelance photographer, one should never sign a PO that has that three word phrase embodied in it, I have seen them cleverly hidden rather than as a paragraph (some do that). PO's are created for all kinds of work and rarely take into consideration artwork supplied--even to agencies--or rely on the photographer to catch it.</p>

<p>That is as simply put as it can be and, in case there is confusion on the issue, this is US law.</p>

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<p>So, now you have a client that won't hire you if the contract says "the photographer owns the copyright". You could walk away. Or, if you really need the work, you could change the contract.</p>

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<p>Or you could ask yourself if you really need the use of any of the images yourself. If the answer to that is no, then just work for an hourly rate.... like most other tradespeople do.</p>

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<p>ask yourself if you really need the use of any of the images yourself. If the answer to that is no, then just work for an hourly rate.... like most other tradespeople do.</p>

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<p>Most other tradespeople don't need ownership rights in their creativity in order to earn a living in their trade. That said, the digital age (and copying) has helped to usher in a trend for wedding photographers to provide digital files in addition to albums and structuring the fee based on that as opposed to after shoot print sales. Retention of copyright isn't as important in this particular area as it used to be.</p>

<p>"What customer, knowing their rights, would voluntarily sign their rights away for no benefit whatsoever in return?" -- The cusotmer doesn't have any rights to the images other than what the photographer agrees to sell/license to them. Under U.S. copyright law, the rights below solely to the photographer unless he/she agrees otherwise.<br />As for the bride being an employer, she's not. She's a client, a customer.</p>

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<p>"What customer, knowing their rights, would voluntarily sign their rights away for no benefit whatsoever in return?" -- The cusotmer doesn't have any rights to the images other than what the photographer agrees to sell/license to them.</p>

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<p>Correct. There are no such rights for them to 'sign away'.</p>

<p>Actually the customer has some rights and has the gold. The photographer isn't shooting the wedding on spec. Neither the customer nor the photographer go into the wedding (etc.) without already having an agreement in place as to what the photographer will be paid and what the photographer will deliver. Are there potentially some additional sales for Grandma and Aunt Suzy who couldn't be there? Yes. Do the pictures have downstream commercial value that make copyright ownership valuable. Nope. </p>

<p>Oh sure, now and then they might have some value to the venue or some of the vendors or advertising for the photographer. But then, the photographer has to deal with the rights the subjects do have.</p>

<p>Here is something for you all to enjoy.<br>

http://www.loc.gov/teachers/copyrightmystery/?#/copyright/</p>

<p>Here you go Richard, work for hire is explained quite well here.<br>

http://en.wikipedia.org/wiki/Work_for_hire<br>

As this is wiki there could be some errors of course...</p>

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<p>Actually the customer has some rights and has the gold.</p>

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<p>We were responding the the topic of whether they automatically have copyright ownership by merely hiring a photographer for a one off event. They don't have any such ownership to bargain away. </p>

<p>But, yes, they have potential to bargain to OBTAIN ownership.</p>

<p>Sure they can bargain for ownership - but for most there's little incentive to do so. It's clear under US law that the photographer owns the copyright but the reality is, it's of little value. Few photographers go to shoot weddings, for example, just to get the copyright of the images. They've already entered into agreements about what they will be paid and what they will deliver. Those licenses and deliveries are pretty much all that's going to come of the event. The typical customer doesn't understand the niceties of copyright law, ownership and licensing. More and more shooters are delivering digital media with almost unlimited copying and printing privileges licensed. (Shoot, for that matter, seeing the various threads over time from primes and second shooters, disgruntled ex-employees, etc., it's not clear that most photographers understand the niceties either.)</p>

<p>There will be some add on sales but few sales later. There's little or no downstream value for commercial purposes. They can't be used commercially without releases (if there are people in them) and the photographers seldom, if ever, have releases from other than the bride and groom, if even them.</p>

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<p>It's clear under US law that the photographer owns the copyright but the reality is, it's of little value.</p>

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<p><br />Craig brings up an important point, one that gets left behind in all the discussion of the legal issues. The plain and simple truth is that the average commercial value of a photo is almost zero. The only reason for most money-making photographers to care about copyright is for their own self-promotion. Most of the posts made here on copyright concerns are about situations in which the photographer will never have any use for the photos except to put on their own web site or business card.</p>

<p>In the end, this is what really matters, not the legal issues, but the actual value of the copyright. If it's zero, which, as Craig points out, it is for most photo jobs (let alone the photos that non-commercial photographers put on the web), then there's no reason to get stuck on it in contracts or on web forums.</p>