who owns copyright

[daviddbfotoart]

I am an Australian photographer, so not sure if it is different with laws around

the world.

If I shoot a wedding as a contractor for a company that has the rights to shoot

all commercial photography at a particular venue, whom owns the copyright on the

images; me or the company I contract too?

[d_gillespie]

Its it the contract they want you to sign. If you can post that we can help. If it does not stipulate then the local laws were you are working would govern. Here in the US our laws won't mean zip for your situation.

[keith_van_hulle1]

You might want to check the archives. I could swear I remember a post about this last year and, in Oz, for weddings, the client owns the copyright. I remember because I thought it so odd. But I could be having a brain fart too.

[daviddbfotoart]

David,

 

It isn't a written contract, just a general concept. I have a copyright issue at the moment where the owner of the business is claiming copyright over the photographer.

[Jerry_]

As noted above: generally if you are 'hired' to be the photographer, and your work agreement states the 'company' that hired you retains the copyright, that is what the legal outcome would be.

 

 

 

In the U.S., working for a studio, the studio keeps the copyright (and income) from the images taken.

 

 

 

 

If the idea rankles your mindset, consider going in business for yourself: then the copyright is yours alone.

[William Michael]

I am the Principal of an Australian Registered Company.

 

We employ (casual) photographers and they are paid an hourly rate.

 

We supply all equipment used to fulfil any assignment.

 

The casual employee further signs a document ensuring the copyright of the images taken, resides with the company.

 

I understand that the criteria above probably does not apply to your situation, I mentioned the details however, because we have found this method of operation makes it quite clear and transparent to all parties from the outset. This is an area which we are terribly aware can cause ill feeling and we always want clarity from the beginning.

 

Our company rarely has had issue with any photographer using images they have captured as part of their personal portfolio and thus to promote themselves.

 

I am not aware that any client has ever owned the copyright to any images we have taken under a contract or assignment, including Weddings.

 

As to your specific question: it is not specific, if you know what I mean, therefore I think it might be better asked, generally, of a solicitor, but if the issue can be resolved amicably without legal intervention that most likely would be the best solution for everyone.

 

I hope it works out for both parties.

 

WW

[daviddbfotoart]

William W

 

Thank you for your inciteful comment. The only way I can be more specific is to say that no contract, written or verbal, is in place. The equipment is all owned by the photographer, and payment was made on a commission basis.

 

I would love to hear your thoughts on this.

[alec_myers]

You will need to check with a lawyer to be sure, but I believe that Australia is similar to the UK where the copyright belongs to the photographer unless he/she is formally an employee, or there is a contract that states otherwise.

[alec_myers]

I am no lawyer, but I think this is how it might work ...

 

the exclusive contract between the venue and the company is between themselves. It doesn't bind you as a third party.

 

You take photographs at a venue by permission of the venue owner/manager. If you take photographs having been told not to then you are a trespasser and the venue owner (not the photography company) can take action against you, for instance, to recover the profits of your having sold the photographs (should you have made any)

 

If the company wanted to own the copyright in the photos that they allowed you to take then they should have made this clear to you in writing or even verbally at the outset. They cannot pursue you afterwards for it.

 

Hold on to the fact that the agreement between the venue and the company is their own business and concerns you not at all; you were not told by the venue managment that you should not take pictures so they were legally obtained; in the absence of an agreement otherwise, you own the copyright.

[William Michael]

Mr Blair and Mr Myers, Hello,

 

I also am no lawyer, so what I write is an opinion based upon what I understand from my conversation with our solicitor when we set up how we do things: ie to avoid problems like you now have.

 

Also the points I make might sound a tad pedantic, but in this case correct language seems necessary, should you want to articulate issues later.

 

Hope this all helps: I really dislike this area of work, it seems to me so simple if things are clear and common sense at the start, but hey the world ain`t perfect: I`ve been harassed on several occasions.

 

David:

 

Points of technicality, if there was a payment made then there is a contract: I understand the legal people refer to such as `implied`.

 

It is like when you walk through an unlocked shop door, during business hours; the fact that the shop exists is the `offer`, you take a roll of film to the counter; that is the beginning of `the acceptance of the offer` or if you like the `negotiation`; the sales staff says `$4.95` that forms part of the `terms of the contract`; you pay money which is your `confirmation of acceptance`.

 

David and Alec:

 

`Verbal`: our legal person interprets `verbal` as literally `of words`, (which is its old route meaning), that is words `written or oral`. Although in common usage people say `verbal` to mean `oral` (ie `spoken` not `written`) I understand the law (well our solicitor) makes the distinction as `verbal` means `of words, written or oral`, so in the `contract` above (buying the roll of film) the contact was confirmed `verbally`, more specifically: `orally`, and in the contracts that our employees sign they too are confirmed `verbally`, more specifically `written`.

 

Re Alec`s comments:

 

As I interpret what Alec has written and what my solicitor says, Alec is correct on every point he makes, with one grey area.

 

In this area GB and Australia are very similar, for obvious reasons of history.

 

It is interesting to note that photonet has a majority of USA members, and thus the comments on threads such as this often are from a US perspective: the laws are quite different in the USA (to GB and AUS) in regards to many issues of: trespass; copyright; public and private places and subject`s and published image rights.

 

Piece by piece:

 

> You will need to check with a lawyer to be sure, but I believe that Australia is similar to the UK where the copyright belongs to the photographer unless he/she is formally an employee, or there is a contract that states otherwise.<

 

Yes, again this is MY understanding only, based upon a conversation when we set up the contracts we use. As Alec mentions if you want accurate advice see a legal eagle.

 

>the exclusive contract between the venue and the company is between themselves. It doesn't bind you as a third party.<

 

Yes, any contract is between only those in it.

 

>You take photographs at a venue by permission of the venue owner/manager. If you take photographs having been told not to then you are a trespasser and the venue owner (not the photography company) can take action against you, for instance, to recover the profits of your having sold the photographs (should you have made any)<

 

Yes this bit sounds logical and I agree, I understand the laws of trespass similarly, although you probably would be asked to leave, or escorted by security gaurds.

 

But there is the grey area: the `implied contract` between you and the person paying your commission.

 

>If the company wanted to own the copyright in the photos that they allowed you to take then they should have made this clear to you in writing or even verbally at the outset. They cannot pursue you afterwards for it.<

 

Yes I agree, except we must recognize that that the company paying you commission CAN pursue it later: anyone CAN pursue what they might consider a legal injustice or breech of contract, I think the point Alec is making is how unsuccessful they might be, which I agree, hence our company has a written contract with employees.

 

Obviously the company paying commission could say that you were informed (orally) that the copyright was theirs and you accepted the commission payments on that basis, then it becomes what my solicitor calls a `he says you says` case.

 

Note here that what has happened in the past (with other commissioned photographers) might have weight.

 

 

>Hold on to the fact that the agreement between the venue and the company is their own business and concerns you not at all; you were not told by the venue managment that you should not take pictures so they were legally obtained; in the absence of an agreement otherwise, you own the copyright.<

 

Yes that sounds logical and correct to me, noting the `grey area` I mentioned above.

 

Alec:

 

Trust you don`t mind me taking apart your comments thus, it seemed the easiest way for me to add mine.

 

Also on another note, I read with interest your comments on `Children of Guests on the Internet` I think you hit the nail on the head there too: and I add, Wedding (the ceremonies in a Church, Hall etc) in Australia are also `a pubic place`, no one (yet) can prohibit access or photographs being taken.

 

And just one for the road and how silly some of this privacy and protection stuff can be:

 

We had a very interesting situation about two years ago when a local council banned photography at a council run (ie public) swimming pool.

 

A school swimming carnival was held, several parents, carrying cameras (video and still) were asked to leave, three resited and were `arrested` by the security staff.

 

It just so happened, that outside were two TV news crews (funny coincidence), of those that resited and arrested were two QCs whose daughters were swimming that day.

 

The council had a meeting that night and quashed the bylaw: the case for unlawful arrest has not yet been heard, as also pending, is a suit for damages against the council, because the families do not have images of their daughter`s swimming, which is apparently causing them great heartache.

 

It is all fun, I think?

 

On a practical note, Mr Blair, I would advise that you look at the whole issue from a solely business perspective: that is to say NOT personal, choose an action based upon a cost benefit, to you as a professional.

 

Regards, good luck and let us know what happens.

 

WW

 

[jillian_leiboff]

http://www.copyright.org.au/publications/infosheets.htm

 

Hi David,

 

try this link and download the Photographers' info sheet,

 

Jillian

[alec_myers]

>>Obviously the company paying commission could say that you were informed (orally) that the copyright was theirs and you accepted the commission payments on that basis, then it becomes what my solicitor calls a `he says you says` case.

 

As you point out, it will boil down to who is more persuasive in front of the judge. The company can argue that they "always" make verbal agreements with their photographers, you can argue that you would "never" accept such a condition.

 

In addition to which, by the time your case ends up in court, you have both effectively lost, because of the time and attention diverted from other things.

[craig_gillette]

I'd suggest, that as always, competent local legal advice is going to be more appropriate than the musings of a broad array of photographers. Certainly when it comes to contract niceties. Winning a "legal" battle may sour your business relationships.

 

In the US, (briefly) the copyright laws establish that an item is copyrighted to the orginator when fixed in tangible form. But the laws also provide for several perfectly legal and acceptable alternatives. These employment or contract arrangements supercede the general circumstance and the laws provide how these exceptions are to be established, documented, etc. I would expect that Australian law (and most countries) would have similar provisions when their default or typical process isn't the one people want to follow. But if one doesn't adhere to the legal processes, then "pooh" happens.

 

There's no real good reason for businesses (the venue, the photographic business and the subcontracting/hired photographer) not to seek legal advice before engaging in business. Yet the forums are full of questions from customers, photographers, etc., saying "I had an agreement (not necessarily in writing) or we just never discussed (a - b - c) and now "this" has happened and what can I do?"

 

If the venue "thinks" they own the copyrights (due to a lack of understanding of the laws or a poorly documented relationship with the photo company), or the pro thinks he does, for the same reasons, or, by not following through properly in his sub-contracts, a third party photographer thinks he "owns" the copyrights, there is serious avoidable risk for disputes and legal actions.

 

I wouldn't begin to extrapolate (seriously) about the issues of a "church" service being open and public to all comers in a country which may or may not have an "established" church. In the US, there are those in the Episcopal Church that would point out that what might have been (still is?) a legal position in the CofE, is now one of custom and tradition in the American church. Yet "crashing" a service because "the law" or tradition is on your side for the purpose of taking and selling pictures is probably a very poor business decision.

[William Michael]

Mr Gillette, you are razor sharp and make great sense to me.

 

> There's no real good reason for businesses (the venue, the photographic business and the subcontracting/hired photographer) not to seek legal advice before engaging in business.<

 

100% agreement from me, I hope reading this type of thread would stimulate others to consider professional advice pertinent to their individual situation(s).

 

> I wouldn't begin to extrapolate (seriously) about the issues of a "church" service being open and public to all comers . . . . . . "crashing" a service because "the law" or tradition is on your side for the purpose of taking and selling pictures is probably a very poor business decision.<

 

100% agree again, but the world has many people who prove points at the expense of common sense and at their own business`s peril.

 

Have a wonderful day :)

 

WW

[neilambrose]

<p>British law is very clear on this: The copyright belongs to the person who took the

picture except in cases where it has been expressly transferred to another party. For the

transfer of copyright to be asserted legally it has to be documented as an explicit waiver.

Sometimes this happens in the smallprint of a work for hire agreement or an employment

contract. If you haven't signed anything that expressly waives your right to retain

copyright then that right remains with you. This supersedes any other agreement,

especially verbal ones.</p>

 

<p>As others have pointed out Australian law is very close to British law. But it would be

good practice to check with a solicitor to confirm the details of your specific case.</p>

[daviddbfotoart]

Thank you all, this has been amazingly explained, and I appreciate everyones assistance. Thanks especially go to William W and Alec Myers.

I am not planning on using this information, and am hoping the mess will go away and everyone loves each other again. :-)

 

It is, however, very handy to know if the need arises.