Hypothetical question about copyright

[funcrunch]

<blockquote>

<p>you are asking someone to do work for you (hey friend, will you take a picture of me using my camera), other person says sure, compensation is a thank you. This could be interpreted as a work for hire....</p>

</blockquote>

<p>On its face I disagree with this interpretation. My friend asked me to do some work for her (take photos at her wedding), I said sure, compensation is money. But not a work for hire; I am retaining copyright on the photos I am taking at her wedding.</p>

<p>Of course the proposed scenario is quite different than a wedding, but again, I don't believe that a work for hire agreement was implicitly created here either, legally speaking.</p>

[mariosforsos]

<p>There's a legal as well as practical level here. True, legally, the person clicking the shutter would own the copyright (after all, the camera can be seen, in the eyes of the law, as a temporary loan, much like when I lend my camera to friends or they lend theirs to me). One could be seen as entering a grey area IF the subject had set the camera on a tripod, made ALL the settings, including perfect composition and then simply asked the bystander to press the shutter button - but I wouldn't swear as to the possible outcome in a court.</p>

<p>I will agree with your friend that this is not work for hire, because that requires a dependency relationship between the two parties, something which is not present here. Hell, it is not even present in assignments for large publications when they effectively hire you to go out and take photos...the copyright still remains with the photographer!</p>

<p>Furthermore, I agree that the photographer (the person who presses the button) puts a LOT more into the image than simply clicking because they effectively choose the frame and, despite common belief, they choose the timing as well. And let me tell you, all the times this has been asked of me (and it HAS been asked a lot of times, as people see someone with two massive cameras and think "hey, here's a professional, let's ask HIM to take our photo so it'll be amazing!") the resulting photo has never been the same as if, for example, my sister had taken it.</p>

<p>HOWEVER, practically, I can never track down all those people, even if they sell one of my images to NG and make millions (hahaha) and demand compensation because there is absolutely NO way to prove that I have taken that shot. True, it is obvious the camera owner has NOT taken it (s/he is IN the image after all!), but they can easily claim a tripod or something and I would not be able to claim otherwise.</p>

<p>So, legal and practical, in this instance, are simply divergent enough to be entirely separate.</p>

[john_h.1]

<blockquote>

<p>If the passerby claimed copyright to the photo, you could claim you never gave him/her a model release!</p>

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<p>Since almost all uses do not require a release, it would usually be a pointless assertion.</p>

<blockquote>

<p>you are asking someone to do work for you (hey friend, will you take a picture of me using my camera), other person says sure, compensation is a thank you. This could be interpreted as a work for hire....</p>

</blockquote>

<p>This is an argument for contract formation and a rather weak one. In any event, its not the sort of specific contracting required nor is there any discussion of how enough control is being asserted over the shooter.</p>

[steve m smith]

<p>Legally the person pressing the shutter might own the copyright but as they walk away and leave you with the film or memory card in your camera, it is irrelevant.</p>

[martin_engineer]

<p>So, I gather this: "it's not what you know, it's what you can prove in court".<br>

What happens when several people come forward and claim ownership. How do you determine who is lying and who actually pressed the button? Granted there are ways to verify the identity of the actual shooter, what if there are no other witnesses nor security cameras to verify who took the actual photo. What might a judge determine in such as case?<br>

I would argue that......An artist 'draws' a picture of you. When he gives you the picture you now own it. The act of giving you possession of the only copy of a digital image also gives you full rights to it. </p>

[steve m smith]

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<p>What might a judge determine in such as case?</p>

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<p>It's highly unlikely that such a case would ever get to judgement.</p>

 

<blockquote>

<p>I would argue that......An artist 'draws' a picture of you. When he gives you the picture you now own it.</p>

</blockquote>

<p>Whilst you own the physical materials of the picture, you do not own the right to copy it.</p>

[charleseagan]

<blockquote>

<p>Since almost all uses do not require a release, it would usually be a pointless assertion.</p>

</blockquote>

<p>Without a model release, your uses are very limited.</p>

[df]

<p>I say forget the copywrite issue, just be happy you got your camera back.</p>

[Matt Laur]

<blockquote>

<p>Without a model release, your uses are very limited.</p>

</blockquote>

<p>They are limited to enjoying and even selling the photo as deocrative or fine art, and to using it in an editorial capacity when publishing online, in print, in news, etc. The only thing you can't do is use it in a commercial way (as in, using the image as part of an advertisement). There are more ways to use an image without a release than there are ways to use it it with one.<br /><br />Of course, a model release isn't the same as a license to use the image, approved by the copyright holder ... which brings us back to the whole point of this thread. Ethics (and the still-dangling issue, in my mind, as to whether the meat tripod is the copyright holder) aside, in practical terms the fellow tourist has no way to establish that they were holding the camera for you at the time the image was taken. Which means they'd have a very hard time giving <em>you</em> a hard time about supposed infringement.</p>

[john_h.1]

<blockquote>

<p>I would argue that......An artist 'draws' a picture of you. When he gives you the picture you now own it. The act of giving you possession of the only copy of a digital image also gives you full rights to it.</p>

</blockquote>

<p>You can argue that but the argument has no merit. Photographers have been making images for decades and giving possession of images to others while retaining copyright. The Copyright Act governs ownership and merely giving an image to someone, even if the recipient is seen in the image, doesn't transfer copyright under the act. Many artists 'drawing' images of someone and giving it to the subject that do not assert copyright ownership do so because its impractical or unhelpful to their business under the circumstances.</p>

[john_h.1]

<blockquote>

<p>Without a model release, your uses are very limited.</p>

</blockquote>

<p>Unless the use is advertising/endorsement/promotional or a few other rare instances, the images can be used. That's different from there being little interest in using them.</p>

[ellis_vener_photography]

<p>Even if the hypothetical stranger you possibly handed the hypothetical camera to tracked you down and asserted their claim to the hypothetical photo's copyright they would have to provide evidence and proofs that they were the person you hypothetically handed the hypothetical camera to. The discovery process in the hypothetical case your hypothetical scenario is built on would be pretty amusing.</p>

[john_bellenis]

<p>It's an interesting hypothetical discussion about intellectual property rights... in reality I can't see this situation ever becoming an issue.</p>

<p>I am a professional photographer and have been asked on countless occasions to take people's pictures (friends and strangers) on their own cameras. I do take a little time to make sure it's framed and focused properly and on more than one occasion have made adjustments to the camera settings. I would not, and do not, see that image as being mine or feel that I should have any ownership or copyright of that image. If the law decided it's mine, that is irrelevant in my case as I would never pursue it and would sign the rights over to the camera owner and subject in a heartbeat if required.. This is surely not the kind of case for which the copyright laws were written.</p>

[denniswms]

<blockquote>

<p>Without a model release, your uses are very limited.</p>

</blockquote>

<p>I absolutely agree. </p>

Other than exhibition and self promotion (including a viable portfolio) what uses regarding photographic images with identifiable people but without model releases pay for homes and cars and all the other fun things?

 

<p>Interest that cannot be capitalized on financially is hollow at best. Servicing the brand for theoretical benefit later on only goes so far .</p>

 

[dan_south]

Tourists ask me to take their photo all the time, and I'm happy to do it unless I am busy trying to get my own shot of some fleeting

phenomenon. I couldn't care less about who owns the copyright, but to suggest that I don't choose the composition is inaccurate. I

agree that the photo would never have existed if the people had not asked me to take it. But you could make the same argument

about a photo that I took of them walking down the street. If they weren't there, the photo wouldn't exist, but in the latter case, the

photo is definitely my own creation.

 

 

The photo that I take for the tourists, well, I just consider that a five or ten second donation to their

vacation experience. I want them to have nice photo, so I give it my best shot, so to speak. But I make no claim to rights on the image. Unless their names are Brad and Angie and the photo could make me big bucks, taking their picture is a favor that any decent person would do for someone else. It's like holding a door for someone or picking up someone's hat and handing it back to them if it blows off of their head. It's a small gesture of common courtesy. Hopefully, courteous gestures will never be regulated by copyright laws.

[Spearhead]

<blockquote>

<p>Interest that cannot be capitalized on financially is hollow at best.</p>

</blockquote>

<p>"Uses" does not automatically imply advertising/promotion usage. And, for editorial photographers, there is certainly a lot of opportunity with images without releases. One should look at the big picture rather than one's own personal slice.</p>

<p>Some uses that do not require a release:</p>

<p>Printing and selling the prints to the person in it.<br>

Printing and putting in a show.<br>

Selling to a periodical for editorial usage.<br>

Selling to a book publisher for usage inside.<br>

Selling to a website for editorial usage.</p>

[funcrunch]

<p>Thanks to everyone for your comments thus far. As I stated before, I agree that enforcement in this hypothetical scenario would be impossible. And I'm certainly not going to refuse to take photos of tourists or insist on exchanging contact information for fear that they would try to sell my work. The main legal points I wanted to establish (and I do recognize that not everyone agrees with these conclusions) are:</p>

<p>- Absent an established employer-employee relationship or explicit work-made-for-hire contract, the person making the image owns the copyright; </p>

<p>- Whether or not the photographer owns the equipment used is not in and of itself relevant to whether s/he is entitled to the copyright; </p>

<p>- The act of someone asking for a specific photo to be taken does not automatically make the transaction a work made for hire.</p>

<p>As to the separate issue of model releases, as stated by others these releases are not needed for editorial use, of which there are many. I just sold a non-model-released photo via a stock agency yesterday, for use in a textbook. No I'm not paying the rent with that one sale, but the point is that many valid, income-producing, non-commercial uses exist.</p>

 

[john_bellenis]

<blockquote>

<p>And I'm certainly not going to refuse to take photos of tourists or insist on exchanging contact information for fear that they would try to sell my work. </p>

 

</blockquote>

<p>I'm intrigued by this comment. Are you saying that if couple X asks you to take their photo with their camera on their vacation, with some landmark in the background as a favor, and they subsequently sold that image, that you would consider they were "selling your work"? </p>

[funcrunch]

<blockquote>

<p>I'm intrigued by this comment. Are you saying that if couple X asks you to take their photo with their camera on their vacation, with some landmark in the background as a favor, and they subsequently sold that image, that you would consider they were "selling your work"?</p>

</blockquote>

<p>I'm saying that as a legal matter I believe I would own the copyright to that particular photo, but as a practical matter I wouldn't care, nor would I expect any other photographer to try to make a profit in this way.</p>

[john_h.1]

<blockquote>

<p>It's an interesting hypothetical discussion about intellectual property rights... in reality I can't see this situation ever becoming an issue.<br /> what uses regarding photographic images with identifiable people but without model releases pay for homes and cars and all the other fun things?</p>

</blockquote>

<p>Its pretty obvious that Julie's question was hypothetical. The question was about who would happen to own the copyright, not how often the situation will arise or matter. So who would own the copyright?</p>

[peter_e]

<p>Next time I'm asked to take a picture of someone with his/her camera, I'll keep the camera with the argument that it contains my picture. But I'd be willing to negotiate a copyright transfer for a fee that approximates the value of the camera... :)</p>

[zack_zoll]

<p>There's a vast difference between the hypothetical and the actual in this discussion. Technically speaking, the copyright belongs to the person that clicked the shutter, even if someone else did all the work. Always always always.</p>

<p>However.</p>

<p>If you're shooting film, the act of returning the camera (and thus giving away the negatives) legally constitutes giving away the copyright. With film, the owner of the negative is considered to be the owner of the copyright, and you would need to prove in a court of law that someone else got your negatives through illegal means to retain your copyright. Obviously you cannot do this without lying in the proposed situation.</p>

<p>If you were a professional photographer and you let an assisstant click the shutter on your camera, the fact that he is there to take photos FOR YOU with YOUR EQUIPMENT means that he is legally waiving his right to own that photograph. If he ran off with your film, you could make a case that since he was doing YOUR work, and he only has the negatives because he stole them, you still hold the copyright. If he clicks the shutter and you GIVE him the film, then he now holds the copyright to that image, unless you made him sign something saying otherwise. If he used his camera, then he would also hold the copyright unless you had something in writing.</p>

<p>Now I'll freely admit that I don't know how it works with digital files. But since copyright law was originally written when we were using film, I can't imagine it being too different.</p>

[funcrunch]

<blockquote>

<p> With film, the owner of the negative is considered to be the owner of the copyright,</p>

</blockquote>

<p>Are you sure about this? From what I understand, when film was the standard, it was not uncommon for photographers to submit slides (i.e. negatives) to clients and stock agencies for their licensed use, and expect to get said originals returned and retain the copyright throughout. Someone with more knowledge please correct me if I'm wrong on this.</p>

[john_h.1]

<blockquote>

<p>the copyright belongs to the person that clicked the shutter, even if someone else did all the work. Always always always.</p>

</blockquote>

<p>Can you provide some authority for this "Always, always, always" scenario?</p>

<blockquote>

<p>If you're shooting film, the act of returning the camera (and thus giving away the negatives) legally constitutes giving away the copyright.</p>

</blockquote>

<p>Assuming the shooter owns the copyright, the Copyright Act contradicts this as a method by which copyright can be transferred.</p>

<blockquote>

<p>If you were a professional photographer and you let an assisstant click the shutter on your camera, the fact that he is there to take photos FOR YOU with YOUR EQUIPMENT means that he is legally waiving his right to own that photograph.</p>

</blockquote>

<p>If you actually read the Copyright Act, you will learn that copyrights are owned by the creator unless its a work for hire which is either in writing with certain circumstances or in an employment level of control situation. As to the latter, using someone else's equipment is merely one of many other factors in determining whether the shoot is actually a work for hire.</p>

<p>Moreover, this quote completely contradicts the first quote above.</p>

<blockquote>

<p>If he ran off with your film, you could make a case that since he was doing YOUR work, and he only has the negatives because he stole them, you still hold the copyright. If he clicks the shutter and you GIVE him the film, then he now holds the copyright to that image,</p>

</blockquote>

<p>Once again, the Copyright Act specifically differentiates the copyrighted subject matter from the physical medium it is on. If this explnation were true, there would be a copyright transfer anytime anyone gave someone on object that had copyrighted material on it. film, prints, cds, dvds, ect. That runs completely counter to reality.</p>

<blockquote>

<p>If he used his camera, then he would also hold the copyright</p>

</blockquote>

<p>Ownership of a camera is irrelevant under The Copyright Act except as one of many factors to determine whether someone is working as an independent contractor or an employee in a work for hire dispute. Its not the be all and end all that its made out to be here.</p>

<blockquote>

<p>Now I'll freely admit that I don't know how it works with digital files</p>

</blockquote>

<p>With all due respect, you do not appear to know how it works at all.</p>

<p>Now Matt Laur with his "meat tripod" vs. something more involved inquiry is on to something.</p>

[Spearhead]

<blockquote>

<p>Now I'll freely admit that I don't know how it works with digital files. But since copyright law was originally written when we were using film, I can't imagine it being too different.</p>

</blockquote>

<p>I recommend reading the law rather than making wildly incorrect statements. The copyright laws are somewhat more "lay-friendly" than a lot of business law.</p>