Another copyright question

[manning]

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]

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]

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]

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]

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!]

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?

Can anyone explain how this works?

 

[jcb]

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]

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?

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]

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]

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]

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?

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]

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 issues.

If I hand my camera to another person to shoot a few frames, who owns the copyright for the images?

She has several posts addressing model releases.

 

[rtphokie]

If you take a picture with someone else's camera, who owns the copyright?

You do.

Copyright belongs to the photographer, not the equipment.