jole_t

<p>Craig wrote "they want to be clear that if the circumstances of the shoot aren't a "work for hire" <br />set of circumstances in themselves, that this agreement creates ownership for them. Not you."<br /><br />Correct. They want a "work for hire" agreement <br />but if a court later rules they don't have a "work for hire" they <br />still want the copyrights so as a fallback they put this (contingent) <br />assignment of the copyrights in the agreement. So either way they get the copyrights created <br />from the photographers work under the agreement ("hereunder").<br /><br />"contracts often have an “belt and suspenders” kind of clause involving <br />language providing that in the event a work is deemed not a “work made for hire” that, <br />nonetheless, the author has agreed to an assignment of the full copyright to the commissioning party. This is common particularly with software development agreements, since software is clearly not an included category in Section 101 of the Copyright Act."<br /><br />Source for above quote: http://www.mandklegal.com/2010/01/copyright-work-for-hire-doctrine/<br /><br />Some may wonder why, if they are not certain they have a relationship that can be subject to a <br />"work-for-hire" agreement, they don't just get a straight assignment of the copyrights and be done with it. Because the "work-for-hire" is better for the client. If it's "work-for-hire" the photographer won't have statutory rights to terminate the copyright assignment.<br /><br />Another question. Why don't lawyers write in plain English ?<br>

<br />I'll guess habit, laziness, poor drafting skills, believing the client expects the document to include gibberish, so the client thinks its more esoteric then it is, to keep the document shorter, thinking it's more precise or clear (often the opposite, as the OP's question makes clear), are some reasons that come to mind.<br>

============WARNING================<br>

My post is NOT legal advice. No one may rely on it. If I was thinking of the worst place to ask a legal question and expect an accurate response I'd be hard pressed to come up with a better place then online. A photo forum? You have to be kidding. Speak to a local lawyer if you want legal advice.</p>

<p>"In the United States, copyright can only be transferred in writing."<br>

FYI:<br>

Exclusive rights must be in writing. Non-exclusive rights may be licensed verbally. Though obviously it's a good practice to spell everything out in writing.</p>

<p> </p>

<p>Actually you could file within 412 time limits and the dates are different. Opps.<br>

In fact that would not be uncommon.</p>

<p> </p>

<p>If registration is timely (i.e., within section 412 time limits) then, yes, the two dates are the same.<br>

But that doesn't alter the rule which cares only about date of first publication. I think its problematic to tell people it's the date of registration and assume they are making a timely registration. It states the wrong rule and potentially gets people into trouble if the assumption is wrong.<br>

As for the OP, I also did not understand the question.</p>

<p>"...it is the year of registration if you have in fact registered it, "<br>

It's strange that you write Jole is correct and then write that.<br>

If you still want to use the year of registration instead of the year of first publication, then be aware that in the view of the copyright office a notice dated more than one year later than the date of first publication is considered the same as omitting the notice altogether. (Source : US Copyright Office Circular 3 Copyright Notice under "omission of notice")</p>

<p> </p>

<p>"Standard form for copyright statement if you are reserving all rights:<br>

Copyright © 2009, Ed Tobin, all rights reserved."<br>

Your "standard form" does not comply with the statutory form set forth in the Copyright Act. If you use the wrong form it may open the door to a judge disregarding the benefits you would otherwise be entitled to for placing a notice (there are some benefits despite the fact that notice is optional).<br>

In your case, pick the word copyright OR the symbol. And lose the words "all rights reserved." <br>

The statute is clear:</p>

<p >"Section 401 (b) Form of Notice. — If a notice appears on the copies, it shall consist of the following three elements:</p>

<p >(1) the symbol © (the letter C in a circle), or the word “Copyright”, or the abbreviation “Copr.”; and</p>

<p >(2) the year of first publication of the work; ....</p>

<p >(3) the name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner."</p>

<p>"my experience demonstrates that it is possible to seek damages in a lower court without a lawyer and with a minimum of expense."<br>

The only thing your experience demonstrates is that you can find a judge in small claims court that is clueless. Big deal.<br>

I wouldn't go advising other people to pursue a legal strategy that relies upon finding a judge that will commit a legal error. <br>

You're lucky she didn't speak to a lawyer any one of which would have informed her that the small claims court has no jurisdiction over a copyright claim. Ever.</p>

<p>Classic.<br>

Translation: give us all your photos for free and we'll use them and pay you nothing. We will give you a photo credit.<br>

(I tried that on my doctor last week but it was a no go. I said I wouldn't pay him but I'd give him credit whenever someone asked me who did the work.)<br>

The offensive distortion of the law part follows:<br>

"Yulia is also a registered brand name / trade mark with iponz which means her images, as part of her brand can only be used with permission."<br>

Yeh, good one. No, that's not what having a trademark means. Not in the US and not in New Zealand.<br>

Some general background info may be obtained here.<br>

http://www.iponz.govt.nz/cms/contact/ask-a-question/trade-mark-faqs</p>

<p> </p>

<p>CA civil code section 3344(a) requires consent not compensation.<br>

http://caselaw.lp.findlaw.com/cacodes/civ/3344-3346.html</p>

<p>Just like the applicable NY statute, NY civil rights law 51.<br>

http://www.supnik.com/ny51.htm<br>

The reason you don't find a statute in MO is because there isn't one. Control of your likeness for commercial purposes is a common law right in MO not a statutory right (at least if that article I linked to is correct; I have not read the cases).<br>

I took a quick look at the Getty form. It uses NY law as the governing law so presumably it is drafted so it works under NY law.<br>

NY doesn't require consideration for a release. It requires prior written consent. I can only speculate that the Getty lawyers considered it advisable to word the release as a contract because their "release" arguably asks for more from the model than only consent to use the images (e.g., ability to combine images with other photos, use of other ethnicities to describe the subject). <br>

Also despite use of the word release multiple times in the Getty form it's not a release. It grants permission to use the images which has the consequence that there is no claim available to model under NY civil rights law 50-51. A release would say "I hereby release Getty etc.. against any claims blah blah blah." That's a release. Not granting permission to use the images.</p>

<p> </p>

<p>Brian -- wrong.<br>

The relevant law is state law and, therefore, any release should conform to the particular state law. And when drafting it is always a good idea to track statutory language when such language exist. So if your state has a statute that says you can't use someones likeness unless X then you get X in your release.<br>

That aside, the reason that many releases work in most states (maybe all, I haven't checked) is because the laws in this area similar. But they are not identical.<br>

I don't know MO law but if the linked to article is accurate it says that MO protects a right of publicity in its common law.<br>

"In Missouri, the right of publicity has been held to prohibit the use of an individual's name or likeness to refer to that individual, without consent, and with the intent to obtain a commercial advantage"<br>

http://www.mobar.org/f78bee79-17e0-47a7-acbd-3f8428f18ade.aspx<br>

See section C. "Right of Publicity"</p>

<p> </p>

<p>Even Scholastic, which owns the Harry Potter franchise"</p>

<p>I believe Scholastic only owns US publishing rights.</p>

<p>There is good information available to you linked from the address you provided in your post. It's basically all in there.</p>

<p>http://www.a21group.com/?bank.html</p>

<p>Someone buys your contract, they pay you any money owed on it.<br>

Someone doesn't and you get your photos back.<br>

If you are owned money on the contract prior to Dec 4 (the date of the bankruptcy filing) then your an unsecured creditor. FILE A PROOF OF CLAIM WITHIN THE DEADLINE. This will put you in line with other unsecured creditors.<br>

Any money earned on your contract after Dec 4 is treated as an "administrative expense" and not an unsecured claim (like the pre-Dec 4 monies owed you) which moves you up in terms of priority. It's a good thing.</p>

<p>In any event, file a proof of claim:</p>

<p>http://www.uscourts.gov/rules/BK_Forms_Pending_2008/B_010_1208.pdf</p>

<p> </p>

"Can people tell a good photo from a bad one? "

Don't you think you need to define "good" and "bad" photo for your question to have any meaning. I didn't have to read your post to know where it was going though. "Good" photos to you are technically good, eh?

I was in the photography wing at the MOMA in NYC recently and most of the pictures were "bad" according to your measure.

As for anyone in the mall being able to take the same pictures. So what. What does that have to do with running a business. Negotiating the space, dealing with employees and customers. And everything else that goes into running a mall photo business. Taking the photo must be the least of the issues. The fact that I can make a tasty hamburger doesn't mean I can or want to run a hamburger joint.

"Jole, so sorry to keep it on Topic and helpful to the OP, have fun with your OT debate."

I appreciate the effort to keep a post on topic but if almost every reply relates to another topic then the topic

has arguably changed. And it had changed from the first reply. It appears that most posters find the legal

position of more interest than the how do I deal with my friend, which they can probably figure out for

themselves. So I will continue with the fun.

JH,

I said, "how can you write this ----> "Ownership of an image is the equivalent of ownership of the copyright of

an image"

You said "Because an image is a generally a visual concept as opposed to a print or other "material object". "

And "Of course using words like print or something would have made things obvious. "

But it should be obvious from the way the Copyright Act works. Your statement doesn't make any sense if you were

using image to mean "visual concept".

Here is your statement replacing my words with how you say you read them. "Ownership of the visual concept is the

equivalent of ownership of the copyright of an image"

You can't own the "visual concept." There is no copyright available in a "visual concept".

Section 102(b), in part, "In no case does copyright protection for an original work of authorship extend to any

.... concept, ...."

There is no copyright, as I think you know, until your create an "original work of authorship" which is "fixed in

any TANGIBLE medium."

I forgot to address this:

"Could you quote the part of the act or reference the section number that bars verbal licenses granting exclusive rights?"

OK.

Section 204(a) : "[A] transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent.”

A "transfer of copyright ownership" is defined in section 101 to include "exclusive license."

You're welcome.

Rennie, I don't much care about how it should be resolved. It's a friend. She should sit down and work it out. Or

she should conform to normal second shooter customs. Duh.

And I do realize that was the OPs question but I'm having a legal discussion with JH. You're not required to read it.

Now back to business.

JH, said

"I should have replaced the words 'transfer ownership' with 'vest ownership with another party' or something to

that effect so that was a hasty mistake to use that language on my part."

So long as you are still referring to the IMAGE (The photo. The physical thing.) and not the COPYRIGHT IN THE

IMAGE, its doesn't change the answer. The copyright law does not require a writing to, using your new words,

"vest ownership with another party" of the image. Transferring the IMAGE ("vesting ownership of it in another

party" if you prefer) doesn't require a writing.

It is the transfer of the COPYRIGHT IN THE IMAGE that requires a writing.

"By the way 204(a) is limited to situations that do not arise from operation of law so it is incorrect to say

that the clause requires a writing"

The general rule is you need a writing. The rather limited exception is "by operation of law." Not something most

photographers would likely find relevant when entering into a normal business arrangement. For example, if you

want to acquire Getty Images by means of a merger vehicle then, yes, section 259 of the Deleware Corporate Law

would transfer ownership of the copyright assets "by operation of law" without requring a seperate assignment of

the copyrights. You describe 204(a) by referring to the exception ("operation of law") as if it is the general

rule.

"It requires it when transfer does not occur due to other legal reasons. "

No, it isn't "other legal reasons". It's VERY SPECIFICALLY "by operation of law" such as the example I gave above.

"You also ignore 201(d) which also addresses transfers."

I ignored 201(d) because it isn't the rule that requires the writing. The conveyance must be in writing, wills

(last I checked) have to be in writing and I've discussed "operation of law." However, if you die without a will

you've transferred your copyrights without a writing. Did you think intestate succession was important to point

out?

"Finally, your quote is internally contradictive. Ownership of an image is the equivilent of ownership of the

copyright of an image. So you are arguing that a writing is needed and in the next sentence you are arguing that

it is not."

Let's be a bit more clear. There are two distinct things. There is the ownership of a copyright and there is

ownership of any material object (such as "the photographic image") in which the work is embodied. And they are

distinct. But you know that already. So how can you write this ---->

"Ownership of an image is the equivilent of ownership of the copyright of an image"

My previous post was in response to the JB but I always seem to hit reply when JH posts.

JH said "Just because copyright law may require a writing to transfer ownership of an image absent a work for hire scenerio doesn't mean contract law also requires a writing for USE of an image."

Nuh uh.

The Copyright Act doesn't require a writing to transfer ownership of the image. You need a writing to transfer the copyright ownership. (Sec. 204(a))

And in case you missed my earlier post, as far as the use rights in the image, the Copyright Act bars verbal licenses granting exclusive rights. Section 204(a) will trump state law. However, there is no such prohibition on verbal licenses of non-exclusive rights.

Alexander,

201(b) sets forth the consequence of a "work-for-hire." But it doesn't tell you when you have "work-for-hire". For that, you need to look in section 101.

To figure out if you fall under the first test (employer-employee) you need, of course, all the facts surrounding the relationship between the parties and some understanding of agency law.

To figure out if you fall under the second test (commissioned work), you need to determine (1) whether a written "work-for-hire" agreement exists and (2) whether the subject matter of the agreement falls into one of the nine permitted categories for "work-for-hire".

No written agreement and no employer-employee relationship = no "work-for-hire."

Absent creation of a joint work or written assignment of copyright by shooter 2 to shooter 1 (neither of which seem to exist), I don't see shooter 1 owning the copyright, which is distinct from the question of whether shooter 1 owns the images themselves, and what she can do with them.

The Copyright Act bars verbal licenses granting exclusive rights but there is no such prohibition on verbal licenses of non-exclusive rights. (e.g., "My intention is that she would use these for the couples album, personal stuff.")

Applicable IL law --->

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2241&ChapAct=765%26nbsp%3BILCS%26nbsp%3B1075%2F&ChapterID=62&ChapterName=PROPERTY&ActName=Right+of+Publicity+Act.

That other posters answer was scary.

Apart from negotiating specific terms of the investment (and despite what the other poster believes both debt and equity are, of course, investments) you need to understand how to do a private placement so as not to violate the securities laws.

I assume what I wrote won't be meaningful to you which is why you really need to consult a lawyer or accountant with familiarity with private placements before trying to raise money on your own. That person should also be able to help you think through an appropriate deal.

JM, "In addition, you may want to consider forming an LLC, which could provide some protection of your personal assets in the event that you cause (or are even accused of causing) injury or damage in the course of your business."

Really? What protection is that ?

70-200/2.8

300/2.8

400/2.8

www.proTennisPhotos.com