craig_gillette Posted February 12, 2011 Share Posted February 12, 2011 <p>What if he/she shot before you said "Now!" or paused a bit. You can't establish things like this either way. "he said... she said...no I didn't...yes I did."</p> <p>The (not a ) surprise is how so many people apparently don't understand this, not in a hypothetical scenario like this, but apparently from various threads, they work with or for others and don't secure ownership when there really are financial or other real considerations.</p> Link to comment Share on other sites More sharing options...
Matt Laur Posted February 12, 2011 Share Posted February 12, 2011 <blockquote> <p>What if he/she shot before you said "Now!" or paused a bit. You can't establish things like this either way. "he said... she said...no I didn't...yes I did."</p> </blockquote> <p>Still doesn't matter. How <em>well</em> someone is taking your direction doesn't change the fact that you were in charge and providing it.</p> Link to comment Share on other sites More sharing options...
parv Posted February 12, 2011 Share Posted February 12, 2011 An opinion about the tripod & live remote use ... Q&A – Who Owns the Copyright? – Updated, http://www.photoattorney.com/?p=1492 ... which makes the case for joint copyright ownership. Link to comment Share on other sites More sharing options...
funcrunch Posted February 12, 2011 Author Share Posted February 12, 2011 <blockquote> <p>An opinion about the tripod & live remote use ...<br /> Q&A – Who Owns the Copyright? – Updated, <a rel="nofollow" href="http://www.photoattorney.com/?p=1492" target="_blank">http://www.photoattorney.com/?p=1492</a><br /> ... which makes the case for joint copyright ownership.</p> </blockquote> <p>Ah excellent, so this question has been raised before! Good to see an opinion from an actual attorney specializing in photography.</p> <p>Note that her initial answer addresses my friend's exact scenario: simply handing a camera to someone and asking them to shoot a photo of you. In that case, the photo attorney posits that you likely would have implied personal use, but not the right to sell.</p> Link to comment Share on other sites More sharing options...
john_h.1 Posted February 12, 2011 Share Posted February 12, 2011 <blockquote> <p><a rel="nofollow" href="http://www.photoattorney.com/?p=1492" target="_blank">http://www.photoattorney.com/?p=1492</a><br> Did you collaborate with the other to make the shot? Did the person who tripped the shutter contribute copyrightable expression?</p> </blockquote> <p>Exactly...<em> as discussed before... "meat tripod" vs. something more involved</em> ect.</p> <blockquote> <p>you likely would have implied personal use</p> </blockquote> <p>Yes, because licenses are easily transferable including by implied contracting and mere permission, copyrights are not.</p> Link to comment Share on other sites More sharing options...
zack_zoll Posted February 12, 2011 Share Posted February 12, 2011 <p >John, I'm putting my initial comments in italics, because I don't know how to do a 'quote within a quote.'</p> <blockquote> <p ><a href="http://www.photo.net/photodb/user?user_id=937861">John Henneberger</a><a href="http://www.photo.net/member-status-icons"><img title="Hero" src="http://www.photo.net/v3graphics/member-status-icons/hero.gif" alt="" /><img title="Frequent poster" src="http://www.photo.net/v3graphics/member-status-icons/2rolls.gif" alt="" /></a>, Feb 11, 2011; 10:28 p.m.</p> </blockquote> <blockquote> <p><em>the copyright belongs to the person that clicked the shutter, even if someone else did all the work. Always always always.</em><br> Can you provide some authority for this "Always, always, always" scenario?</p> </blockquote> <p>First off, I should have said "always always always ... unless you signed something saying otherwise." I figured it was understood that a waiver of ownership superceded regular ownership. That said, click the link posted on the next page. It explains it nicely.</p> <blockquote> <p><em>If you're shooting film, the act of returning the camera (and thus giving away the negatives) legally constitutes giving away the copyright.</em><br> Assuming the shooter owns the copyright, the Copyright Act contradicts this as a method by which copyright can be transferred. </p> </blockquote> <p>The flaw in the logic here is the 'assuming the shooter owns the copyright' part. What you've basically just told me is that if the shooter owns the copyright, the shooter owns the copyright. As per the copyright act sec. 201c, if you do most of the work (exposure, etc.) and someone else clicks the shutter, it is considered a collective work, and you both own the copyright. Now whether or not you can sell the other person's share is a question I don't have the answer to, but it does mean that you hold the copyright as well, and not just the other guy. That also means that you can sell the image the other guy took, provided you helped make it. Which you did, since you did all of the work that wasn't clicking the shutter.<br> Sec. 202, which is what I assume you're referring to, does not entirely contradict me, thank you very much. It states, "Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object ..." This DOES clearly state that if the other person makes a print for you, you don't have the right to duplicate it. As far as negatives go, you would need to get your lawyer and my lawyer in a room with a judge to argue about how important the artistic decisions made between negative and final print are to determine if the negative constitutes the actual work or not. If they determine that the negative IS the final print, you are correct and I am wrong. If they determine that artistic lisence was taken between the negative and the final result, I am right and you are wrong.<br> In other words, if you found the master copy of The White Album in an attic somewhere, you can't make copies and sell it. But if you found the master tracks that were mixed down to record The White Album, you can, as doing so creates a (technically) new record, and you are considered a collaborator on the final result. Giving away a negative is the same thing. Bear in mind that Apple Publishing would probably squish you like a bug if you tried to do this though ... another example that having a really good lawyer is better than actually being right.</p> <blockquote> <p><em>If you were a professional photographer and you let an assistant 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.</em><br> 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.<br> Moreover, this quote completely contradicts the first quote above.</p> </blockquote> <p>No it doesn't contradict anything. In this example, said assistant is assumed to be in a 'work for hire' situation, which means the employee is waiving copyright ownership. For your argument to hold water, you would need to someone hire and employee WITHOUT giving him full knowledge that he is shooting for you. I know that when I hire assistants, I always tell them that they are 'second shooter', 'helping with the assignment', or the like, and make it very clear (on and off paperwork) that they are shooting for me, and that this is my assignment. We can argue on wording, and I know I'll lose because I don't have the attention span for more than one long answer, but you can't argue that this is very clearly a work for hire scenario, and as such the assistant is not in full ownership of the copyright.</p> <blockquote> <p><em>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,</em><br> 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>Again, not true. If I hand someone a roll of film to be put on CD, I do so under the understanding that they will return the roll of film when they are done. I may be HANDING someone a roll of film, but I am not GIVING it to them. I still own the fim, even if it is currently in their posession. If they do not return my film, then they now own it under false pretenses. If we were to apply your statement to other parts of the service industry, that would mean that your mechanic can drive your car around when you 'give' it to him for an oil change. This is obviously not true, and is a bad example on your part ... especially because it deals with the service industry (copying already owned material) and not the commercial or artistic (making new material).<br> As per the previously referenced Sec. 201c, if I manage to procure an original Ansel Adams negative, I can make and sell all the prints I want, so long as I don't claim ownership for the parts of the photo I didn't do ... the actual shooting part. I can do this all I want, so long as I can make a legal case that the act of printing a negative is in itself an artistic act, which then makes me a collaborator in a collective work. I cannot simply copy one of his existing prints, as then I'm not responsible for any of the work, and I can't claim a collective right to the final image.</p> <p>This part of copyright law applies very much to the stock photography agency, and explains why people that buy lisences to use stock photography are required to alter it in some way before use.</p> <blockquote> <p><em>If he used his camera, then he would also hold the copyright</em><br> 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>Once again, this is a pointless statement. Boiled down, you just told me, "This doesn't apply, except for this one time when it does." The reason that using your own equipment may grant you copyright ownership is that it strengthens the argument that it was NOT a work for hire situation. Using your boss' camera implies work for hire; using your own gear could mean freelance work. Please stop using arguments that aren't arguments.</p> <blockquote> <p><em>Now I'll freely admit that I don't know how it works with digital files</em><br> With all due respect, you do not appear to know how it works at all.</p> </blockquote> <p>"You know why I hate that phrase? Because it's inevitibly followed by something disrespectful." With all due respect, neither do you. Sir. You asked for my documentation, and I gave it to you. I will admit that you will win any continuing argument, based solely on the fact that I'm too lazy to continue. However, I have given you proof that, in the situation I put forth of hiring an assistant, there is legal precedent behind my statements. I will also admit that if your lawyers are better than mine, you will beat me in court. I think that reflects more on the nature of our judicial system than the law itself though.</p> Link to comment Share on other sites More sharing options...
funcrunch Posted February 12, 2011 Author Share Posted February 12, 2011 <p>Zack - If you seriously believe that you would have the legal right to alter and sell derivatives of the Beatles' master tapes or Ansel Adams' negatives, I want what you're smoking. ;-)</p> Link to comment Share on other sites More sharing options...
Matt Laur Posted February 12, 2011 Share Posted February 12, 2011 <p>Zack, you're completely tap-dancing around the notion of derivative works. You have no right (outside of the very special case of fair use, and selling remixes of the Beatles or Adams prints absolutely don't fall into that category) to reprduce someone else's work in the manner that you're describing as examples. How you come by the stuff you're re-mixing or printing from doesn't change that in any way.<br /><br />As for paying someone to put film on CD? I could send my negs to a lab, have them scan the images, and tell them to burn the negs when they're done. Doesn't matter. My copyrights don't get modified in any way based on the location or status of the physical medium/a. I either have rights as I create the work (the for-hire or not issue), or must assign those rights away, in writing. Handing over the negs with a smile doesn't mean doodly, under any circumstances.<br /><br />And since when does a stock sale require modification of the image before end use? That's just silly on the face of it. Something like that would be subject to specific <em>license</em> language, but has nothing to do with copyrights. It would be a rare stock sale indeed that conveys actual copyrights to the buyer. Exclusive use, perhaps, or even (rarely) a completely unlimited license ... but that's not the same.</p> Link to comment Share on other sites More sharing options...
john_bellenis Posted February 12, 2011 Share Posted February 12, 2011 <p>Am I alone in thinking photographers should take photographs and let lawyers talk about the law - it's money well spent and avoids this kind of crazy guesswork and supposition? The law is a complex beast and court rulings can create precedents which further complicate issues. </p> <p>I promise not to try to be a lawyer or doctor if they promise not to try and take photographs for my clients. </p> Link to comment Share on other sites More sharing options...
john_h.1 Posted February 12, 2011 Share Posted February 12, 2011 <blockquote> <p>I should have said "always always always ... unless you signed something saying otherwise.</p> </blockquote> <p>You don't need to take my word for it, the link Parv provided shows your whoever clicks the shutter "Always, always, always" owns the copyright criteria is incorrect, writing or nor writing. You can even take your own word for it. In the next paragraph you tell us "if you do most of the work (exposure, etc.) and someone else clicks the shutter, it is considered a collective work, and you both own the copyright." I gather this is an indicative of your comment "I'll lose because I don't have the attention span for more than one long answer".</p> <blockquote> <p>As far as negatives go, you would need to get your lawyer and my lawyer in a room with a judge to argue about how important the artistic decisions made between negative and final print are to determine if the negative constitutes the actual work or not... ...But if you found the master tracks that were mixed down to record The White Album, you can, as doing so creates a (technically) new record, and you are considered a collaborator on the final result.</p> </blockquote> <p>This is total nonsense. Read up on derivative works. Very carefully.</p> <blockquote> <p><em>you let an assistant 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... ...</em>In this example, said assistant is assumed to be in a 'work for hire' situation, which means the employee is waiving copyright ownership. but you can't argue that this is very clearly a work for hire scenario</p> </blockquote> <p>You may have made assumptions about what you wrote but the writing, by itself, does not amount to an automatic result. I already explained that the are many factors that determine whether an image resulted from a work for hire or an independent contracts and that your equipment criteria is only one of them. Failing to include additional factors means the scnario can't possibly be "very clearly" a work for hire. Its a definite maybe however. Perhaps even a probably.</p> <blockquote> <p><em>the Copyright Act specifically differentiates the copyrighted subject matter from the physical medium it is on</em>... ...Again, not true.</p> </blockquote> <p>Sec. 202 of the Copyright Act: <em>Ownership of a copyright, or of any of the exclusive rights under a copyright, i<strong>s distinct from ownership of any material object in which the work is embodied.</strong> Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object;</em><br /> When choosing between your claim and what the Act actually says, I'll adopt the version the Act actually says.<em><br /></em></p> <blockquote> <p>If we were to apply your statement to other parts of the service industry, that would mean that your mechanic can drive your car around when you 'give' it to him for an oil change. This is obviously not true, and is a bad example on your part</p> </blockquote> <p>My examples cannot apply to other parts of the service industry" My examples compared copyrighted material with copyrighted material. This example compares copyrighted material with objects that cannot be copyrighted. One might not only say it "is a bad example on your part", it goes so far as to be wholly irrelevant.</p> <blockquote> <p>Sec. 201c, if I manage to procure an original Ansel Adams negative, I can make and sell all the prints I want, so long as I don't claim ownership for the parts of the photo I didn't do ... the actual shooting part. I can do this all I want, so long as I can make a legal case that the act of printing a negative is in itself an artistic act,</p> </blockquote> <p>How you can derive that conclusion from the language, I don't know.</p> <blockquote> <p>people that buy licenses to use stock photography are required to alter it in some way before use.</p> </blockquote> <p>People buy licenses to use an image so that they have permission to use the image.</p> <blockquote> <p>The reason that using your own equipment may grant you copyright ownership is that it strengthens the argument that it was NOT a work for hire situation. Using your boss' camera implies work for hire; using your own gear could mean freelance work. Please stop using arguments that aren't arguments.</p> </blockquote> <p>I mentioned that equipment ownership is one of many factors tending to show whether an image was produced as a work for hire or as an independent contractor. You characterized that as "a pointless statement. in the very same passage here where you give it great importance. The real difference is that you give equipment ownership great significance when it more correctly has only some.</p> Link to comment Share on other sites More sharing options...
Spearhead Posted February 12, 2011 Share Posted February 12, 2011 <p>I'm going to close this thread because there isn't any more to be said on the topic. If anyone is concerned about copyright issues that are similar to this thread's original post, hypothetical or real, carefully read John's responses. </p> Music and Portraits Blog: Life in Portugal Link to comment Share on other sites More sharing options...
Recommended Posts
Create an account or sign in to comment
You need to be a member in order to leave a comment
Create an account
Sign up for a new account in our community. It's easy!
Register a new accountSign in
Already have an account? Sign in here.
Sign In Now