PDA

View Full Version : Another copyright question


Pea-n-Me
04-21-2011, 06:58 AM
If you take a picture with someone else's camera, who owns the copyright?

WilsonFlyer
04-21-2011, 07:20 AM
Generally speaking, a photographer owns the work he/she photographs. I believe that's the "law", per se. There are exceptions, such as work for hire, and the contractual agreements that may apply to those situations, obviously.

There's probably case law out there somewhere where a photograph taken with someone else's camera has become valuable later on, for some reason, and it became a legal case. I'm sure there's precedent but I really haven't researched the case law. My gut tells me that who took the photograph trumps the "possession is 9/10 of the law" thing but guessing what a judge may rule is tricky, at best (I'm being nice. LOL).

It's an interesting question and I honestly can't say I've ever even really thought about it. It will be interesting to see if someone knows the answer.

jcb
04-21-2011, 08:08 AM
Copyright exists the moment the work is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.

The photographer owns the copyright. It doesn't matter who owns the equipment, unless, of course, there is an agreement with the equipment owner to share or transfer copyright in any works created. If your employer provides you with a camera to use in your job, the employer probably owns the copyright.

LPZ_Stitch!
04-21-2011, 10:33 AM
I'm not a lawyer, but copyright law interests me and I've read a lot about it.

IIRC, absent prior contracts or agreements, the copyright belongs to whomever clicks the shutter button ... regardless of equipment ownership.

How you'd *prove* that in court without some sort of supporting video showing you behind the camera at the moment, I don't know... :lmao:

FireWoman
04-21-2011, 07:43 PM
As a second shooter for weddings, I often use the company's camera. I always sign a contract of shared copyright, and the couple is aware of it.

I have had a hard time in one instance, where I clicked a couple of photos, using another photographer's camera. A great photo came from it (and I mean GREAT). I asked her to send me the digi file, and she never did, and has it framed and up in her studio. :sad2:

It has prevented me from working seriously with her, despite her asking, and that occured 7 years ago!

Pea-n-Me
04-22-2011, 09:42 AM
Thank you for your thoughts. This is actually an elementary school situation. A friend volunteers in the classroom and asked me to take pics. I feel there could be liability unless there are signed permission slips from all parents. I also wondered about using my own camera vs using my friend's.

WilsonFlyer
04-22-2011, 02:52 PM
Totally different situation. Just because you TOOK the photo and own the copyright to the photo, doesn't necessarily mean you have release rights to use the photo for commercial or "for profit" (which has a W I D E interpretation to it) purposes. You're also potentially in a precarious situation since your friend is a volunteer and not the person administratively responsible for said classroom (the teacher). You could be potentially putting your friend, the teacher and yourself, in a very liabilous situation. Should it be? Of course not, but we all know how people are these days.

Get model releases from the kids' parents at a minimum. It would be a good idea to get a release from the school administration too, if possible, despite the fact that it may technically be "public property."

None of this may apply to you because you never said what the purposes of the photos was. Just covering some of the bases and forcing you (hopefully) to think about the scope of things before deciding how to handle it.

Pea-n-Me
04-22-2011, 03:06 PM
You're also potentially in a precarious situation since your friend is a volunteer and not the person administratively responsible for said classroom (the teacher). You could be potentially putting your friend, the teacher and yourself, in a very liabilous situation. Should it be? Of course not, but we all know how people are these days.
These were my thoughts too. No money would be involved, I would just be taking them for a friend, who volunteers with a dog in the classroom. The teacher has given permission for pics to be taken. I didn't feel comfortable doing it for all the reasons you mentioned. But I just wondered if I used my friend's camera could it still be a libelous situation for me? (Sounds like it could be.) FWIW, I've done pics for my own kids' classroom and yearbooks, etc, but I really don't know any of these people other than my friend and I know how people feel about their kids' pictures being taken.

GrillMouster
04-22-2011, 06:09 PM
If you take the picture with your friend's camera, but your friend uses the pictures for commercial use without permission, then it's your friend (not you) that's in trouble.

This isn't a copyright issue (unless you want to sue your friend for using an image for which you own the copyright).

FireWoman
04-25-2011, 12:28 AM
I know almost all schools have parents sign a right to photograph disclosure. If it's FOR the school, and you and the teacher are not keeping the image for your own use, whether personal or professional, you should be fine.

But if it's for anything at all besides school use, I would refer to the advice you've been given.

AndrewWG
04-25-2011, 05:46 AM
I take pics in classrooms all the time for the newspaper. There has NEVER been a problem. There are a couple things to keep in mind though. It is good to allow the school to see the photos before using them for anything. They can identify the children, check for parental permission and let you know of any conflicts. The only time I have run into an issue is with Foster children. I am not sure if it is the program of Foster children or what it is, but their photo can appear in the newspaper, just not a name. Unfortunately, the un-named photos rarely make it into the paper.

Now, if the photos are going to be used for advertising, I would suggest just trying to get pics of the kids from behind them so that none of their faces can be seen. Most parents are happy to see their kids in the newspaper, but I am not sure they would be so happy to see them on a billboard.

Also, just to cover your butt, I would make sure that the school has a CORI form filled out for you and your friend. Parents expect that nowadays and it will go a long way to build their trust.

BigDaddyWill
04-25-2011, 07:55 AM
I think that the issue is not so much copyright, but a privacy issue. As the students are minors, you could not use their images without the parent or guardian's approval. I have shot several times for our schools and given the pictures to them. They can post them publicly in the school building but cannot post them on the internet without permission.

Will

Pea-n-Me
04-25-2011, 09:00 AM
I probably didn't explain this clearly enough, although I think WilsonFlyer understood what I was getting at.

My friend volunteers in classrooms (and other places like libraries) with a dog in a Reading Therapy program. He asked me to take pics of him, at work in one of these classrooms, using my camera, for his own personal use. The teacher said it was ok. My friend is CORI'd. He's also worked really hard training his dog for this. They go into hospitals as well. I would be doing this as a favor to my friend, no money involved. I've taken many pics of him and his dog together before and he knows I like to do it - but these have always been outside with just the two of them, not in a classroom.

Once I give my friend the pic, I have no control over what happens to it.

My concern was, as the photographer (with my camera) owning the copyright, if these pics wind up on Facebook or somewhere that a parent (or parents) objects to, that I could be held liable.

Since I would like to help my friend out, I thought maybe I could just use his camera. But I wondered about my own liability in this situation as well. The first few posters seemed to say that as the picture taker, I would at least have some involvement of liability - if there was some. (And yes, I know it's unlikely, but you never know in today's world.)

I'm sure I could frame the pic (if I do it) without showing kids' faces.

FWIW, as I mentioned before, I take pics of my own kids' classrooms and sports teams and such, but in these cases I know they wound up in a school sanctioned yearbook and in our own family albums; and in the case of sports I only share my pics with other team members and grandparents and such, but I do give all parents the option of "opting out" at the beginning of each season in case they have objections. So yeah, I take it pretty seriously because I know how people feel about their kids' pics.

In this case, I just don't know that I feel comfortable with it given that it's a classroom situation.

I know as a parent I have to sign waivers at the beginning of the year to allow my kids' image to be used for school sanctioned pictures. This is different where it's not for school use, but for personal use.

ssanders79
04-25-2011, 09:24 AM
I probably didn't explain this clearly enough, although I think WilsonFlyer understood what I was getting at.

My friend volunteers in classrooms (and other places like libraries) with a dog in a Reading Therapy program. He asked me to take pics of him, at work in one of these classrooms, using my camera, for his own personal use. The teacher said it was ok. My friend is CORI'd. He's also worked really hard training his dog for this. They go into hospitals as well. I would be doing this as a favor to my friend, no money involved. I've taken many pics of him and his dog together before and he knows I like to do it - but these have always been outside with just the two of them, not in a classroom.

Once I give my friend the pic, I have no control over what happens to it.

My concern was, as the photographer (with my camera) owning the copyright, if these pics wind up on Facebook or somewhere that a parent (or parents) objects to, that I could be held liable.

Since I would like to help my friend out, I thought maybe I could just use his camera. But I wondered about my own liability in this situation as well. The first few posters seemed to say that as the picture taker, I would at least have some involvement of liability - if there was some. (And yes, I know it's unlikely, but you never know in today's world.)

I'm sure I could frame the pic (if I do it) without showing kids' faces.

FWIW, as I mentioned before, I take pics of my own kids' classrooms and sports teams and such, but in these cases I know they wound up in a school sanctioned yearbook and in our own family albums; and in the case of sports I only share my pics with other team members and grandparents and such, but I do give all parents the option of "opting out" at the beginning of each season in case they have objections. So yeah, I take it pretty seriously because I know how people feel about their kids' pics.

In this case, I just don't know that I feel comfortable with it given that it's a classroom situation.

I know as a parent I have to sign waivers at the beginning of the year to allow my kids' image to be used for school sanctioned pictures. This is different where it's not for school use, but for personal use.

My initial thought regarding the pictures of your friend in a classroom with students could fall into the "Editorial" relm, which would not require a release. How many classroom shot can you recall seeing in the newspaper.

photo_chick
04-25-2011, 09:37 AM
Thank you for your thoughts. This is actually an elementary school situation. A friend volunteers in the classroom and asked me to take pics. I feel there could be liability unless there are signed permission slips from all parents. I also wondered about using my own camera vs using my friend's.


The copyright gives you the right to do what you want with it as long as that does not infringe on the rights of others. That's where the privacy laws in your location come into play.

Most schools have releases on file these days, even though legally they don't need them most of the time. If it's personal use you're good (not including the web), so you'd be fine making a print. But if you want to post it online in some areas you do need parental release. And obviously if you want to use it for commercial purposes. The school waivers usually cover this stuff as well as official school shots. If you're concerend, ask your school. THe laws are different from state to state so you really need to get specific to your area for the answer and the schools usually have at least some idea.

GrillMouster
04-25-2011, 02:16 PM
None of the following is legal advice.

Copyright establishes ownership of the intellectual property, so that only those persons or organizations that are given permission can use or reproduce the image.

When it comes to usage for commercial purposes, you will need permission from any recognizable person or owner of recognizable property in the photo (in the form of a signed model release or property release). If the recognizable person is a minor (under 18) that has not been adjudicated an adult, then you'd need the consent of the child's parent/legal guardian. Editorial (eg news, reporting) use and some fine art use are exempt from this requirement. However, there are limitations to this exemption (I think someone mentioned never having a problem photographing school kids for their local newspaper...this is why). The story which is accompanying the image must be considered newsworthy and relevant. For example, you can't have a story about a police raid on a crack house, and use a photo from a few years ago of a completely different house that has nothing to do with the current story. Sometimes stock footage will be used when there isn't available footage for the current story, but stock images tend to be owned or licensed and have necessary model/property releases. And for every "exemption" there's at least one court case that went the other way, so nothing's ever 100%.

As for who owns the copyright when person A uses person B's camera. Well, it's generally the person who actually tripped the shutter release that is the copyright owner. Copyright ownership occurs the moment the image is created; no formal copyright registration needs to be done, although it's difficult to seek damages without it. In the case of work-for-hire, there may be a contract that states that any images produced by person A for person (or company) B, are the property of person/company B. The contract may have "shared" or limited usage (eg person A may use the images in his/her portfolio, but not for commercial use or advertising). As for informal circumstances, like a stranger at WDW asking me to photograph him and his family using his camera, the arguement could be made that there was a verbal agreement/understanding that copyright and ownership belong to the owner of the camera. I'm not aware of such a case going to court, but I wouldn't consider it a "slam dunk". If it matters enough to you, get it in writing.

manning
04-26-2011, 12:51 PM
For Hire work

Unless specificly stated in the contract the party commisioning the photos owns the copyright. If you, as the photographer, want to retain the copyrights you should have it state so in the contract.

mabas9395
04-27-2011, 11:11 AM
So if I ask someone to take a picture of me and my family using my camera, is that "For Hire Work"?

Most photo printing places don't let you print photos if someone else holds the copyright. So if I'm at Disneyland and I ask a stranger to use my camera and take a photo of me and my family in front of the castle (so that I can finally be in one of the photos), am I then unable to print or post or do anything with that photo because that stranger holds the copyright?

I doubt that would ever be enforced, but is that the letter of the law?

jcb
04-27-2011, 11:24 AM
So if I ask someone to take a picture of me and my family using my camera, is that "For Hire Work"?

Most photo printing places don't let you print photos if someone else holds the copyright. So if I'm at Disneyland and I ask a stranger to use my camera and take a photo of me and my family in front of the castle (so that I can finally be in one of the photos), am I then unable to print or post or do anything with that photo because that stranger holds the copyright?

I doubt that would ever be enforced, but is that the letter of the law?

As to the first question, no. The full explanation of a work made for hire is at http://www.copyright.gov/circs/circ09.pdf

Simple explanation is an employee's photographs are copyrighted by the employer. Photopass photographers (assuming they are WDW employees) do not own the copyright, in other words.

For "commissioned" works, there must be a written ("work made for hire") agreement for the copyright to be owned by the person making the commission. In a practical sense, "commission" doesn't mean asking someone else to take your photo. For your example, you are arguably a co-owner of the copyright not so much because you own the camera used as because you probably contributed to the creative work (set the camera so that the other user simply had to push the shutter button). It never comes up practically, of course. The more interesting question would be where you had a photopass photographer take your photo using your own camera. Don't take this to the bank as legal advice, by the way.

photo_chick
04-27-2011, 02:57 PM
For Hire work

Unless specificly stated in the contract the party commisioning the photos owns the copyright. If you, as the photographer, want to retain the copyrights you should have it state so in the contract.

This is not true. Check the code.

manning
04-27-2011, 04:43 PM
This is not true. Check the code.

http://www.copyright.gov/circs/circ09.pdf

Who Is the Author of a Work Made for Hire?

If a work is a work made for hire, the employer or other
person for whom the work was prepared is the author and
should be named as the author on the application for copyright
registration. The box marked “work-made-for-hire”
should be checked “yes.”

Who Is the Owner of the Copyright in a Work Made for Hire?

If a work is a work made for hire, the employer or other
person for whom the work was prepared is the initial owner
of the copyright unless there has been a written agreement to
the contrary signed by both parties.

photo_chick
04-27-2011, 05:42 PM
http://www.copyright.gov/circs/circ09.pdf

Who Is the Author of a Work Made for Hire?

If a work is a work made for hire, the employer or other
person for whom the work was prepared is the author and
should be named as the author on the application for copyright
registration. The box marked “work-made-for-hire”
should be checked “yes.”

Who Is the Owner of the Copyright in a Work Made for Hire?

If a work is a work made for hire, the employer or other
person for whom the work was prepared is the initial owner
of the copyright unless there has been a written agreement to
the contrary signed by both parties.

First... thanks for posting a link to that particular publication. I've only looked at the actual code and obviously misunderstood it. And this is interesting.. So according to that if you're hired to shoot a wedding or portraits then the client owns the copyright. That is contrary to everything I've ever been told, and I'm not saying that to say it's not true, just that I've always been told exactly the opposite by people who are supposed to know far better than I do. There are a lot of photographers out there who believe the client who has hired them does not own the copyright.

Editied to add... Ok.. no... wait... I'm wrong there...
If you are not an employee, but were commissioned it has to fall under a certain set of categories...

2 a work specially ordered or commissioned for use as a contribution to a
collective work, as a part of a motion picture or other audiovisual work, as
a translation, as a supplementary work, as a compilation, as an instructional
text, as a test, as answer material for a test, or as an atlas, if the parties
expressly agree in a written instrument signed by them that the work shall
be considered a work made for hire.

So "for hire" work wouldn't affect us as photographers if we're commissioned to do the work, as is the case when someone hires you for a wedding or portraits because it does not fall under one of the 9 catagories listed in part 2. It only affects you if you work or a company, like a portrait studio, magazine or newspaper, etc.. as a photographer.

Am I understanding that correctly? Because if so then what I've always been told is true, I was just looking at "for hire" as something different than what this is referring to.

I'm so confused now. Thanks for tunring everyhting on it's ear for me. LOL

jcb
04-27-2011, 05:52 PM
First... thanks for posting a link to that particular publication. I've only looked at the actual code and obviously misunderstood it. And this is interesting.. So according to that if you're hired to shoot a wedding or portraits then the client owns the copyright. That is contrary to everything I've ever been told, and I'm not saying that to say it's not true, just that I've always been told exactly the opposite by people who are supposed to know far better than I do. There are a lot of photographers out there who believe the client who has hired them does not own the copyright.

I think your original understanding is accurate. What is missing here is a good understanding of a "work made for hire." An agreement (or "commission") to photograph a wedding or do a portrait isn't a work made for hire. A work made for hire agreement requires specific language in writing. If you do not sign a work made for hire agreement, you own the copyright (unless, per chance, the subject is your employer, then the ownership issue gets sticky).

Manning's first post was a little confusing on this point. He/She equated "commission" with a "work made for hire" and that isn't how the rules (as I understand them - but hey I could be wrong) work.

photo_chick
04-27-2011, 05:57 PM
I think your original understanding is accurate. What is missing here is a good understanding of a "work made for hire." An agreement (or "commission") to photograph a wedding or do a portrait isn't a work made for hire. A work made for hire agreement requires specific language in writing. If you do not sign a work made for hire agreement, you own the copyright (unless, per chance, the subject is your employer, then the ownership issue gets sticky).

Manning's first post was a little confusing on this point. He/She equated "commission" with a "work made for hire" and that isn't how the rules (as I understand them - but hey I could be wrong) work.

Yeah.. I got there. I was just a little slow on the uptake. And I was looking at "for hire" as something different than what is spelled out in there as well and it mucked everything up.

manning
04-27-2011, 06:42 PM
Commission is the same as contract.

http://thesaurus.com/browse/contract

If you are showing or displaying photos you may want to get a release from the subjects.

http://asmp.org/tutorials/property-and-model-releases.html

I have been out of the business (wedding) for many years, but I have heard that studios are starting to do this now to protect their butts. It may be unlikely you would get sued, but today you never know. If I was still doing it I would include it in the contract. Put it under the category of cross the "t"s and dot the "i"s.

LPZ_Stitch!
04-28-2011, 08:42 AM
All of this talk about copyright and ownership prompts me to ask a question about model releases that's bothered me for some time.

As I understand it, in order to use a photo of someone/something easily recognizable for commercial purposes (not just selling it as art, but for advertising, etc), you first have to obtain a model release.

What I don't understand is why anyone would ever sign a model release?

Surely if you found out that a photographer was going to be making a pile of money off your image, you'd want a piece of it, right? :lmao:

Can anyone explain how this works?

jcb
04-28-2011, 11:31 AM
Commission is the same as contract.

http://thesaurus.com/browse/contract

Please don't take offense. I completely agree with you on releases. My point was simply that a commission, while I agree it is a contract, is not the same as a work made for hire agreement. Not every contract meets the work made for hire requirements.

jcb
04-28-2011, 11:38 AM
All of this talk about copyright and ownership prompts me to ask a question about model releases that's bothered me for some time.

As I understand it, in order to use a photo of someone/something easily recognizable for commercial purposes (not just selling it as art, but for advertising, etc), you first have to obtain a model release.

What I don't understand is why anyone would ever sign a model release?

Surely if you found out that a photographer was going to be making a pile of money off your image, you'd want a piece of it, right? :lmao:

Can anyone explain how this works?

There are many reasons. Of course, getting paid for the release is one thing. The model release won't, in fact, be worth the paper it is on without some consideration for the release.

Many organizations include a model release on their standard permission slips. For example, if you take part in certain activities (often time, put on by non-profits), there will be a sentence or two in the sign up papers you sign saying you give the organization permission to use your likeness.

I expect when folks participate in one of the many Disney marathons (goodness knows, I don't know from personal experience), the sign up sheet for it includes a release for any publicity rights.

If you don't want to sign the release, then the organization can refuse to let you participate in the event.

Experiment_626
04-28-2011, 12:31 PM
Surely if you found out that a photographer was going to be making a pile of money off your image, you'd want a piece of it, right?Sure -- but for most photographers, if someone refused to sign a release, that photographer would never do anything with the shot and there would never be that "pile of money," unless the photo in question was something really extraordinary, in which case he or she might be willing to consider an arrangement.

All of that presumes the release is being offered after the fact. I think in most cases, they're signed in advance of any shots being made. And a guaranteed "pile of money" is a rare thing indeed.

Scott

manning
04-28-2011, 04:26 PM
There are many reasons. Of course, getting paid for the release is one thing. The model release won't, in fact, be worth the paper it is on without some consideration for the release.

Many organizations include a model release on their standard permission slips. For example, if you take part in certain activities (often time, put on by non-profits), there will be a sentence or two in the sign up papers you sign saying you give the organization permission to use your likeness.

I expect when folks participate in one of the many Disney marathons (goodness knows, I don't know from personal experience), the sign up sheet for it includes a release for any publicity rights.

If you don't want to sign the release, then the organization can refuse to let you participate in the event.

Consideration can be in any form. It doesn't have to be money, IE they give you a tea pot. In the form of money only one dollar will meet the agreement.

photo_chick
04-28-2011, 07:20 PM
All of this talk about copyright and ownership prompts me to ask a question about model releases that's bothered me for some time.

As I understand it, in order to use a photo of someone/something easily recognizable for commercial purposes (not just selling it as art, but for advertising, etc), you first have to obtain a model release.

What I don't understand is why anyone would ever sign a model release?

Surely if you found out that a photographer was going to be making a pile of money off your image, you'd want a piece of it, right? :lmao:

Can anyone explain how this works?

You don't normally make a pile of money from stock unless that's all you do and a lot of those types of photographers, the ones who shoot a whole lot of stock, pay models or the models get the images for their portfolio or a combination of both. Editorial shots, which you can get a good amount of cash from one really awesome shot with, often do not require a release.

Commission is the same as contract.

http://thesaurus.com/browse/contract

The document that the link goes to says something different. Comissioned art is not the same as contract work. Now to me, portraits and weddings are actually more very short term contract work than the would be comissioned work when you get down to it. But the document referenced on the copyright site says otherwise.

The popular belief in the pro photography world right now is that the photographer owns the copyright for the photos taken for a client. I've been to seminars and been told this. I learned this in my classes while getting my degree. I've seen in it countless interviews and articles about the topic. Which is why I felt like my world was turned on it's ear when I thought that was wrong based on that one snippet from a much larger document. But it's not. You just have to read the wording very carefully and completely.

jcb
04-29-2011, 09:22 AM
Because this thread has raised interesting questions about copyright, I thought I would provide links to a blog written by a copyright lawyer who is also a professional photographer. She addresses several questions that have been raised here.

Works made for hire (http://www.photoattorney.com/?p=282)issues.

If I hand my camera to another person to shoot a few frames, who owns the copyright for the images? (http://www.photoattorney.com/?p=1492)

She has several posts addressing model releases (http://www.photoattorney.com/?s=model+release&x=0&y=0).

rtphokie
04-29-2011, 04:14 PM
If you take a picture with someone else's camera, who owns the copyright?

You do.

Copyright belongs to the photographer, not the equipment.