Does the GSA really own my photographs?

[PaulWhiting]

<p>Last fall I was hired by some architects to photograph two buildings, one a federal courthouse, and the other private property, but bought by the GSA for the site of a new courthouse. I was working directly with the architects, and took black and white photos for eventual use by the National Register of Historic Places.</p>

<p>All went well, but I later was told by the GSA that although I may show these photos, I could not sell them. A couple of them turned out well and will soon hang in a local gallery - but I according to the GSA I may not sell them.</p>

<p>On previous projects, with other architects, I was free to sell them on my own after providing the architects with a set for their purposes.</p>

<p>So, is this really true, that I may not sell those photos provided to the GSA? I didn't sign anything that indicated that, the only document I signed was a proposal to the architects (who in turn were contracted by the GSA).</p>

<p>Any thoughts would be appreciated. Thank you!</p>

[mikael_karlsson]

<p>What does the contract say? In general, they would it seems, want to prevent images of federal buildings to be sold for some strange reason - but I very much doubt they can. Unless we're talking high security sites - and federal court houses are not that. I shoot editorial stock and have images of the interior and exterior of federal courts with agencies, and I've licensed them myself to book publishers etc with no problems at all. I have images from inside Leavenworth Penitentiary (not the military prison) that have also been licensed numerous times with no issues.<br /><br />Since there are no releases needed for editorial usage in the US I don't think they have a leg to stand on. Unless the no-sale is negotiated into the contract but that would make very little sense, unless you're shooting specifically for the gummint.<br /><br />Oh, and many of these photos have been licensed to various federal publications with no issues.<br /><br />Private property can be a different matter. IANAL so I'll leave that one to those that are, or have more experience than I do.</p>

[bob_sunley]

<p>A lot depends on the contract between the GSA and the architects. As a subcontractor you are probably bound by the master agreement even if you were never shown it.</p>

<p> </p>

[Matt Laur]

<p>Indeed - very likely that you were, indirectly, being employed by the GSA. Essentially, the taxpayers own those images because the taxpayers arranged to have them made and paid the bill. It's not about the government not wanting an image of those buildings being sold, it's about the government not wanting a photographer to be double-dipping, and selling something that was already paid for through a federal contract. Maybe. Ask to see the contract.</p>

[curt wiler]

<p>Standard disclosure: IANAL. However, I was involved in Government contracts in my (former) career, and the architects should have "flowed" any requirements such as this down to you in your subcontract. If your agreement with the architects specifically allows you to sell prints this is an interesting problem; but in any event I would not risk getting your clients involved in a fight with the Government.</p>

[kelly_flanigan1]

<p>Sometimes GSA gets into auctions too:</p>

<p>"A letter was sent by GSA OIG investigators to the director of the Blanden Memorial Art Museum, advising her of GSA's ownership of any federal art at the museum and asking her to remove any federally owned art pieces from the auction. The director sent a reply listing 15 pieces of federally owned artwork and advised that none of them would be sold. Eight of the 15 were on the publicly available list of items to be auctioned."</p>

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<td width="40" valign="top">11/24/2009</td>

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<p>New Deal Artworks Pulled From Iowa Auction Will Stay at Local Museum</p>

<p>http://oig.gsa.gov/allnews.cfm</p>

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[kelly_flanigan1]

<p>Here is the GSA social media handbook;</p>

<p>http://www.gsa.gov/graphics/staffoffices/socialmediahandbook.pdf</p>

<p>I looks like the are looking under many rocks</p>

[kelly_flanigan1]

<p>copyright-free collection available to the public<br>

http://www.gsa.gov/Portal/gsa/ep/contentView.do?contentType=GSA_BASIC&contentId=20564</p>

<p>Carol M. Highsmith, a prominent architectural photographer, photographed more than 20 buildings during 2005 and 2006</p>

[PaulWhiting]

<p>Many thanks to each and every one of you.</p>

<p>Just to touch on a few of the points here... first, I don't want my client (the architect) to get in a wrangle with the feds. I enjoyed the project, was paid well for it, and would like to do more work with her. That said, no, I did not sign a contract as such. Just submitted a proposal with my signature, and she sent it back with her signature. My proposal simply stated # of photos, which elevations, so many interiors and exteriors, format of submission (archival prints) and gold CD of files. No mention of ownership. Have only worked with architects before who were solely engaged in their own practice, not contracted to the feds. And with those architects I was always free to sell those images on my own.</p>

<p>Let me say also I don't make a living at this. I'm a serious part-time photographer, merely supplementing my income and covering expenses. But it's gotten to the point where I do a few shows and do sell some prints. Would be nice to sell these, but if not possible, so be it. Certainly wouldn't have turned down the job if I'd known these restrictions up front.</p>

<p>Nevertheless, I do appreciate all your responses. I waited a while to see what would come in... turning out to be a lively thread! Perhaps others will continue to join in.</p>

[kelly_flanigan1]

<p>The photographer Highsmith probably knows a tad about this issue too.</p>

[photomark]

This is pretty confusing. Technically, I don't see how you can assign copyright to another party without explicitly doing

so in the contract. That's a pretty fundamental tenet of copyright law. Also, I think it would be really tough for someone

to argue that you are working for hire as a freelance photographer shooting a single job. My guess (and it's just that) is

that your contact at the GSA doesn't know enough about these things and is just repeating something they heard. If it

was me, I'd ask for clarification and ask them to underline the part of the contract where you relinquished copyright.

(Honestly, if it was me, I'd probably let it slide unless the images seemed extremely valuable and unique)

 

Now lets suppose that somehow you did lose the copyright to the work. Who owns it? The Federal Government? That

would be an unusual case because, in general, works done for the Federal Government end up in the public domain. If

this is the case, then you can do what you like with the work, including selling it—at least as far as copyright is

concerned. It's not unusual for people to repackage and sell public domain work.

[will_daniel1]

It is explicit in U.S. copyright law that the U.S. government cannot hold a copyright. If you ever see the statement, "Copyright U.S. Government," or any department or agency of the U.S. government, that false statement is there because the government employees who handled the publication of that photograph don't know the copyright law. That mistake happens more often than you may realize by people who confuse copyright with patents and trademarks, which are covered by different laws, and the government may hold those. However, the issue of copyright can get really fuzzy when contractors and subcontractors get involved in shooting for the public. The contracts are usually reviewed by government lawyers before they are offered. But I've known government contracting lawyers who know absolutely nothing about copyright law (no kidding). Early in his administration, I saw copyright notices on photos by the president's official photographer, but I don't know if he is a government employee or contractor. I'm still not sure where that stands. I have posted military aviation photos here in the No Words forum that I shot when I was a federal employee. I was able to do that because the photos are in the public domain. Because they are public domain, any of you can snag those photos and sell them all day long. But, ironically, I can't sell them because of a stipulation in civil service employment rules that don't allow me to profit from my government employment.

[kelly_flanigan1]

<p>In mapping there are in some states ; maps of counties created; produced, printed on paper and pdf by the state highway dept.</p>

<p>One can do whatever one wants to BUT ; any print HAS to be the entire map; not a cropped part or you are in massive trouble.</p>

<p>If one gets 2 counties and connects them together side by side and makes a pdf or print one is in deep dung too; ie not allowed.</p>

<p>Thus if a customer wants me as a print shop to print the 2 counties seperately I can do it. If they are connected with an xacto or photoshop so one piece of paper/pdf is used; I have broken the law; in hot water; ie legal action from the state.</p>

<p>Then on the flip side the Highway patrol might have this cool map covering the same 2 counties one can buy but one cannot copy it legally. I had one customer who wanted 4 county maps connected together and was willing to PAY a royality for each print; paid to the state and it still is a no go; no matter if the royality is massive.</p>

<p>Thus some of this stuff is the government; really not about costs or making money; really about rules and bottlenecks</p>

<p>In photos I have seen where an image is free to print; but it has to be the entire image; if a sliver is cut off you are technically in teh wrong!</p>

[photomark]

<blockquote>It is explicit in U.S. copyright law that the U.S. government cannot hold a copyright.</blockquote>

 

<p>

That's not exactly true. The relvent section of Title 17 is:

</p>

 

<p><i>Copyright protection under this title is not available for any work of the United States Government, <b>but the

United States Government is not precluded from receiving and holding copyrights transferred to it by assignment,

bequest, or otherwise.</b></i></p>

 

<p>When it comes to contracting for the government, Will is right, it gets a little more difficult because Federal

Acquisition Regulation (FAR) is significantly more complicated than Title 17. For instance, FAR 52.227-17 allows for the possibility

of contractors assigning copyright to the federal govenement:</p>

 

<p><i>(ii) If the Government desires to obtain copyright in data first produced in the performance of this contract

and permission has not been granted as set forth in paragraph ©(1)(i) of this clause, the Contracting Officer shall direct

the Contractor to assign (with or without registration), or obtain the assignment of, the copyright to the Government or its

designated assignee.</i></p>

[will_daniel1]

You got me on that, Mark. I had heard about that provision, but I believe it isn't used very much. Thanks.

[walter_strong5]

<p>Welcome to the wonderful world of working with the federal government!</p>

[craig_gillette]

<p>This is the "I paid for it, it's mine." provision. Lots of people like to think along those lines when they have someone take pictures. The government, though, has the law to make it happen. "Data" is a very expansive range of materials that can result from the performance of a contract. In a simple sense, it's all the paperwork and similar matter that goes along with the contract line item "things." I used to work in configuration and "data" management in aerospace. "Data" can be things like the engineering drawings used to make the "widgets." Or the software coding to make the processor that controls the widget work.</p>

<p>There can be a fair amount of confusion and a lot of hate and discontent when contract requirements are misunderstood or not flowed properly to various layers of subcontracting. Especially if someone thinks they own rights in the data but the government thinks it paid for the development of the product.</p>

[Jerry_]

<p>If you consider contacting a lawyer, you could prepare a <strong>six-figure invoice</strong> for the <em>'price'</em> to transfer copyright-ownership of your federal courthouse-to-be images to the Federal government office that wants the ownership-rights-copyright.</p>

<p>Worse case is the invoice will go unpaid, but then again it is a 50-50 chance you will get a large check to confuse the hell out of the IRS at tax time for 2010.</p>

<p> </p>

[PaulWhiting]

<p>Oh, gosh, I don't want to contact a lawyer! I value my relationships with these architects too much to get litiginous (sp?). I think what might have happened is that when they signed the contract with GSA they may have overlooked the relevant clause. I'll check with them next time. Like I say, I wouldn't have turned down the job if I'd known this... they were satisfying projects, I got paid fairly, and may lead to more.</p>

<p>Thanks again to all for the comments... it has turned out be a useful thread and seems to have generated some good exchange.</p>