Who Own's the copyright???

Discussion in 'Digital Photography' started by Patrick L., Apr 15, 2004.

  1. Patrick L.

    Patrick L. Guest

    "Mark C" <> wrote in message
    news:c5ma8t$35g47$-berlin.de...
    > I was under the impression that the photographer owns the copyright to all
    > photos taken whether he is paid by the client or not. Now I am also

    under
    > the impression the client has some rights as well and in order for the
    > photographer to use the photo's he must get some kind of release, correct?
    > And if the client wants sole use of the photo's they must get the
    > photographer to sell his copyright to them, correct?
    >
    > Here is the question. In a situation where the client is unhappy with the
    > result, and as a matter of policy the photographer refuses to accept

    payment
    > for the session (because he promises 100% satisfaction) Who owns the
    > copyright to the photos?
    >
    > Your thoughts and opinions are most appreciated?
    >
    > Mark C
    > Nashville,TN
    >
    >






    Even without a prior agreement, by law, you have the originals, copyrights
    are yours to keep, reassign, reassign with limitations, etc. , whatever you
    want to do. Consult an attorney,



    Patrick
     
    Patrick L., Apr 15, 2004
    #1
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  2. Patrick L.

    Mark C Guest

    I was under the impression that the photographer owns the copyright to all
    photos taken whether he is paid by the client or not. Now I am also under
    the impression the client has some rights as well and in order for the
    photographer to use the photo's he must get some kind of release, correct?
    And if the client wants sole use of the photo's they must get the
    photographer to sell his copyright to them, correct?

    Here is the question. In a situation where the client is unhappy with the
    result, and as a matter of policy the photographer refuses to accept payment
    for the session (because he promises 100% satisfaction) Who owns the
    copyright to the photos?

    Your thoughts and opinions are most appreciated?

    Mark C
    Nashville,TN
     
    Mark C, Apr 15, 2004
    #2
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  3. Patrick L.

    JR Guest

    The photographer owns the copyrights. It's pretty simple. If the
    photographer owns the film (or digital media) then he owns the
    copyright. Now using that shot for commercial purposes is another
    matter. The images cannot be used without a release form.

    JR


    In article <c5ma8t$35g47$-berlin.de>,
    "Mark C" <> wrote:

    > I was under the impression that the photographer owns the copyright to all
    > photos taken whether he is paid by the client or not. Now I am also under
    > the impression the client has some rights as well and in order for the
    > photographer to use the photo's he must get some kind of release, correct?
    > And if the client wants sole use of the photo's they must get the
    > photographer to sell his copyright to them, correct?
    >
    > Here is the question. In a situation where the client is unhappy with the
    > result, and as a matter of policy the photographer refuses to accept payment
    > for the session (because he promises 100% satisfaction) Who owns the
    > copyright to the photos?
    >
    > Your thoughts and opinions are most appreciated?
    >
    > Mark C
    > Nashville,TN
    >
    >
     
    JR, Apr 15, 2004
    #3
  4. Patrick L.

    Barry Bean Guest

    "Mark C" <> wrote in
    news:c5ma8t$35g47$-berlin.de:

    > Here is the question. In a situation where the client is unhappy with
    > the result, and as a matter of policy the photographer refuses to
    > accept payment for the session (because he promises 100% satisfaction)
    > Who owns the copyright to the photos?


    What did the contract say?
     
    Barry Bean, Apr 15, 2004
    #4
  5. Patrick L.

    Frank ess Guest

    Mark C wrote:
    > I was under the impression that the photographer owns the copyright
    > to all photos taken whether he is paid by the client or not. Now I
    > am also under the impression the client has some rights as well and
    > in order for the photographer to use the photo's he must get some
    > kind of release, correct? And if the client wants sole use of the
    > photo's they must get the photographer to sell his copyright to them,
    > correct?
    >
    > Here is the question. In a situation where the client is unhappy
    > with the result, and as a matter of policy the photographer refuses
    > to accept payment for the session (because he promises 100%
    > satisfaction) Who owns the copyright to the photos?
    >
    > Your thoughts and opinions are most appreciated?
    >
    > Mark C
    > Nashville,TN


    I believe ownership defaults to the author if it is not otherwise
    specified in the contract.

    If the photographer is an employee of the "buyer", ownership resides
    with the buyer: it is "work for hire".

    I assume from your question that you had no written contract, and that
    the photos are yours until the buyer accepts them under conditions of
    your agreement. If they are no longer on offer, they remain yours.

    See Yahoo! group Editorial Photo
    <http://groups.yahoo.com/group/editorialphoto/messages>
    <http://groups.yahoo.com/group/editorialphoto/database>
    <http://www.editorialphoto.com>
    for expert opinion.


    Frank ess
     
    Frank ess, Apr 15, 2004
    #5
  6. Patrick L.

    Barry Bean Guest

    "Mark C" <> wrote in
    news:c5ma8t$35g47$-berlin.de:

    > Here is the question. In a situation where the client is unhappy with
    > the result, and as a matter of policy the photographer refuses to
    > accept payment for the session (because he promises 100% satisfaction)
    > Who owns the copyright to the photos?


    What did the contract say?
     
    Barry Bean, Apr 15, 2004
    #6
  7. "Mark C" <> wrote in message
    news:c5ma8t$35g47$-berlin.de...
    > I was under the impression that the photographer owns the copyright to all
    > photos taken whether he is paid by the client or not. Now I am also

    under
    > the impression the client has some rights as well and in order for the
    > photographer to use the photo's he must get some kind of release, correct?
    > And if the client wants sole use of the photo's they must get the
    > photographer to sell his copyright to them, correct?
    >
    > Here is the question. In a situation where the client is unhappy with the
    > result, and as a matter of policy the photographer refuses to accept

    payment
    > for the session (because he promises 100% satisfaction) Who owns the
    > copyright to the photos?
    >
    > Your thoughts and opinions are most appreciated?
    >
    > Mark C
    > Nashville,TN


    The photographer owns the copyright, if he is not being paid to make the
    photos. In some cases, there is a contract that overrides that rule. Was
    there a contract? That may settle the matter, depending on what is in it..
    Declining an offered payment may not have changed the rules. Absent clear
    contract provisions, thre matter is complex enough to require advice from a
    qualified lawyer.

    There is clear, detailed info on the U.S. copyright laws at
    http://www.copyright.gov/.
     
    Marvin Margoshes, Apr 15, 2004
    #7
  8. Patrick L.

    Guest

    Mark C <> wrote:
    > I was under the impression that the photographer owns the copyright to all
    > photos taken whether he is paid by the client or not. Now I am also under
    > the impression the client has some rights as well and in order for the
    > photographer to use the photo's he must get some kind of release, correct?
    > And if the client wants sole use of the photo's they must get the
    > photographer to sell his copyright to them, correct?


    > Here is the question. In a situation where the client is unhappy with the
    > result, and as a matter of policy the photographer refuses to accept payment
    > for the session (because he promises 100% satisfaction) Who owns the
    > copyright to the photos?


    > Your thoughts and opinions are most appreciated?


    The photographer probably owns the copyright. I am not an attorney and free
    legal advise is worth exactly what you paid for it. If you have a dispute
    with a client, you need to consult an attorney who specializes in intellectual
    property law.
     
    , Apr 15, 2004
    #8
  9. Patrick L.

    Mark C Guest

    There was no contract, per se'........just a verbal agreement on my fee and
    cost of prints.......I have learned a valuable lesson........get it in
    writing upfront!!!!
    "Barry Bean" <> wrote in message
    news:Xns94CC70DD74360eatmorecotton@207.14.113.17...
    > "Mark C" <> wrote in
    > news:c5ma8t$35g47$-berlin.de:
    >
    > > Here is the question. In a situation where the client is unhappy with
    > > the result, and as a matter of policy the photographer refuses to
    > > accept payment for the session (because he promises 100% satisfaction)
    > > Who owns the copyright to the photos?

    >
    > What did the contract say?
     
    Mark C, Apr 15, 2004
    #9
  10. You as the photographer own the copyright, and the subject owns his or her
    image unless a release is signed.

    Paul Riemerman

    <> wrote in message news:c5md4q$941$...
    > Mark C <> wrote:
    >> I was under the impression that the photographer owns the copyright to
    >> all
    >> photos taken whether he is paid by the client or not. Now I am also
    >> under
    >> the impression the client has some rights as well and in order for the
    >> photographer to use the photo's he must get some kind of release,
    >> correct?
    >> And if the client wants sole use of the photo's they must get the
    >> photographer to sell his copyright to them, correct?

    >
    >> Here is the question. In a situation where the client is unhappy with
    >> the
    >> result, and as a matter of policy the photographer refuses to accept
    >> payment
    >> for the session (because he promises 100% satisfaction) Who owns the
    >> copyright to the photos?

    >
    >> Your thoughts and opinions are most appreciated?

    >
    > The photographer probably owns the copyright. I am not an attorney and
    > free
    > legal advise is worth exactly what you paid for it. If you have a dispute
    > with a client, you need to consult an attorney who specializes in
    > intellectual
    > property law.
    >
     
    Paul Riemerman, Apr 15, 2004
    #10
  11. Patrick L.

    Jeremy Guest

    "Mark C" <> wrote in message
    news:c5mda3$38hf8$-berlin.de...
    > There was no contract, per se'........just a verbal agreement on my fee

    and
    > cost of prints.......I have learned a valuable lesson........get it in
    > writing upfront!!!!
    > "Barry Bean" <> wrote in message
    > news:Xns94CC70DD74360eatmorecotton@207.14.113.17...
    > > "Mark C" <> wrote in
    > > news:c5ma8t$35g47$-berlin.de:
    > >
    > > > Here is the question. In a situation where the client is unhappy with
    > > > the result, and as a matter of policy the photographer refuses to
    > > > accept payment for the session (because he promises 100% satisfaction)
    > > > Who owns the copyright to the photos?

    > >
    > > What did the contract say?

    >


    Without a contract, the photographer owns the copyrights by default (U.S.
    law--other countries' may be different).

    You'd need model releases signed by any natural persons in the photos if you
    wanted to use them for commercial purposes.
     
    Jeremy, Apr 15, 2004
    #11
  12. Patrick L.

    Jeremy Guest

    "Paul Riemerman" <> wrote in message
    news:407ec042$...
    > You as the photographer own the copyright, and the subject owns his or her
    > image unless a release is signed.
    >


    Just to explore this a bit further, the photographer may own the copyrights
    to the photos, but he would be on thin ice if he attempted to use the photos
    for his own commercial use, whether or not he accepted payment from the
    subject, unless he first obtained model releases.

    Presumably he did not get model releases, because he was doing this work for
    hire--to the specifications of his client--and not for his own use.

    If he subsequently does not transfer prints of the images to his client,
    that does not mean that he is now free to use them for his own use, if they
    contain images of natural persons or images of private property.

    I am uncertain of what his rights are if the images do not violate
    privacy--such as if he was hired to take travel brochure photos of national
    landmarks, and the client subsequently didn't pay for and receive the
    prints.

    But, if he is hired to shoot Madonna's wedding ceremony, and Madonna doesn't
    like the pics and does not take them, he had better not offer to sell them
    to the National Enquirer for publication--unless he's prepared for a legal
    battle . . .

    :)
     
    Jeremy, Apr 15, 2004
    #12
  13. Patrick L.

    Wayne Ball Guest

    JR () wrote:

    > The photographer owns the copyrights. It's pretty simple. If the
    > photographer owns the film (or digital media) then he owns the
    > copyright. Now using that shot for commercial purposes is another
    > matter. The images cannot be used without a release form.
    >


    This is how I always understood things to work, but reading it
    just now reminded me of something I've been curious of.
    How do the folks who make a living stalking celebrities
    for photo ops sell their product?

    Wayne
     
    Wayne Ball, Apr 15, 2004
    #13
  14. "Mark C" <> writes:

    > I was under the impression that the photographer owns the copyright to all
    > photos taken whether he is paid by the client or not.


    Assuming you are in the US, unless the photographs are part of a work for
    hire contract, the person making the photos owns the copyright in them.

    > Now I am also under
    > the impression the client has some rights as well and in order for the
    > photographer to use the photo's he must get some kind of release, correct?


    That is a different issue from copyright. There are privacy laws which
    govern whatever rights a person _may_ have in the copyright owner's use of
    the images. You don't say where you are. There are no federal privacy laws
    in the United States; state laws govern, and they vary widely. I believe
    New York state has given consumers some rights in the photographs and
    negatives, but I can't remember whether the law was proposed _and_
    passed. See a New York lawyer. :-> As for Tennessee, I have no clue.

    > And if the client wants sole use of the photo's they must get the
    > photographer to sell his copyright to them, correct?


    There is a difference between the "paper and film" and the copyright. That
    is to say, the medium of the image is not the copyright. A photographer may
    sell or give away prints and even negatives, without also assigning the
    copyright.

    >
    > Here is the question. In a situation where the client is unhappy with the
    > result, and as a matter of policy the photographer refuses to accept payment
    > for the session (because he promises 100% satisfaction) Who owns the
    > copyright to the photos?


    Without an agreement on the matter (preferably written), copyright resides
    in the author of the work. An issue not addressed is who owns the physical
    materials -- any prints and the negatives or digital medium containing the
    'fixed images.' You need to ask a local lawyer, because state laws
    (assuming you are in Tennessee) vary on who owns what.

    >
    > Your thoughts and opinions are most appreciated?


    I know you don't want to hear this, but you ought to talk this over with a
    local lawyer who does intellectual property work, not just general contract
    law. Have that lawyer draft a contract that covers these issues.

    On a non-legal, practical basis, if you promise a hundred percent
    satisfaction and the customer isn't satisfied, they owe you nothing. I
    don't know what else is promised in your guarantee, but if the client is so
    unhappy they don't want any evidence left of the work, I'd offer to destroy
    the prints in their presence and to erase the memory or destroy the negs,
    as the case may be. As a photographer, I would not be willing to _give_
    prints to unhappy customers, as it opens me up to working for free for
    unscrupulous customers. But as others have noted, this should be covered in
    your guarantee. (On the other hand, if the customer wants the tiny little
    scraps of paper left after I ripped them into a thousand pieces, I'd be
    happy to turn those over. Just not useable prints.)

    Customers can go really crazy on you. If they insist that no trace be left,
    and you use digital imagery, you may not be able to prove to their
    satisfaction that there are no copies of their photos left. You may want to
    ask that lawyer to address this issue in your guarantee -- given that even
    erased images can be unerased, what is to be done if the customer insists
    on destruction. It may be better to say the customer has no say in
    destruction of the digital file, just the paper prints. A local lawyer will
    be able to better advise you on this and other issues, taking into account
    the consumer protection laws of your state.
    --
    Philip Stripling | email to the replyto address is presumed
    Legal Assistance on the Web | spam and read later. email to philip@
    http://www.PhilipStripling.com/ | my domain is read daily.
     
    Phil Stripling, Apr 15, 2004
    #14
  15. Patrick L.

    Jeremy Guest

    "Wayne Ball" <> wrote in message
    news:407ecdfc$...
    > JR () wrote:
    >
    > > The photographer owns the copyrights. It's pretty simple. If the
    > > photographer owns the film (or digital media) then he owns the
    > > copyright. Now using that shot for commercial purposes is another
    > > matter. The images cannot be used without a release form.
    > >

    >
    > This is how I always understood things to work, but reading it
    > just now reminded me of something I've been curious of.
    > How do the folks who make a living stalking celebrities
    > for photo ops sell their product?
    >
    > Wayne


    Celebrities are considered to be "Public Persons," and do not have the same
    presumption of privacy as do mere mortals like us.

    Also, don't forget that most celebrities benefit from the increased interest
    generated by such photos, regardless of how much they may whine about it.
    If no one were interested in taking their photos, a lot of 'em would be none
    too happy.

    Do you remember a few years ago, when the then-Speaker of the House of
    Representatives (Livingston?) was about to have details of his sexual
    affairs published by Larry Flynt ("Hustler"), and he immediately stepped
    down? This was during the Clinton/Lewinsky affair, and Flynt was going to
    expose other politicians that were also guilty of extramarital dalliances,
    in an attempt to deflect criticism from Bill Clinton. He apparently was
    getting details on some of those pols through transcripts of their previous
    divorce proceedings.

    Once Livingston he stepped down from his official position, he was no longer
    considered to be a "public person," and the news media refused to touch the
    story.

    Now, if you shoot photos of even a celebrity through their bedroom windows,
    for example, you'll probably be on thin ice. But if you restrain yourself
    to photographing them within the context of public places, you'll probably
    be within your rights.
     
    Jeremy, Apr 15, 2004
    #15
  16. Patrick L.

    Alfred Molon Guest

    Wayne Ball <> wrote:

    >This is how I always understood things to work, but reading it
    >just now reminded me of something I've been curious of.
    >How do the folks who make a living stalking celebrities
    >for photo ops sell their product?


    Don't know about the USA, but here in Germany you don't need releases
    for photos of celebrities. Celebrities are so-called "persons of the
    current history", and the public interest over what is going on with
    them is higher valued than their privacy rights.
    --

    Alfred Molon
    ------------------------------
    http://groups.yahoo.com/group/Olympus_405080/
    Olympus 5050 resource - http://www.molon.de/5050.html
    Olympus 5060 resource - http://www.molon.de/5060.html
    Olympus 8080 resource - http://www.molon.de/8080.html
     
    Alfred Molon, Apr 15, 2004
    #16
  17. Patrick L.

    Mark C Guest

    "Phil Stripling" writes:> Customers can go really crazy on you. If they
    insist that no trace be left,
    > and you use digital imagery, you may not be able to prove to their
    > satisfaction that there are no copies of their photos left. You may want

    to
    > ask that lawyer to address this issue in your guarantee -- given that even
    > erased images can be unerased, what is to be done if the customer insists
    > on destruction. It may be better to say the customer has no say in
    > destruction of the digital file, just the paper prints. A local lawyer

    will
    > be able to better advise you on this and other issues, taking into account
    > the consumer protection laws of your state.


    With regard to destroying the images....what you say is correct,with regard
    to digital images. However, I have been advised by my lawyer that it can
    only do what is reasonable and it is not reasonable to destroy my entire
    hard drive. It is, however, sufficient to stimpulate in writing that the
    images have been erased from my hard drive, all slides turned over to the
    client and the only images (copies) that exist are the ones that the cleint
    has and those that reside in my attorneys vault until the matter is
    resolved. Yes, I still own the copyright but I have agreed, in writing, not
    to use these images for any purpose whatsoever. He seems to think that this
    should be enough to put the matter behind us.

    Mark C
    Nashville TN
     
    Mark C, Apr 15, 2004
    #17
  18. Patrick L.

    PTRAVEL Guest

    "Patrick L." <> wrote in message
    news:...
    >
    > "Mark C" <> wrote in message
    > news:c5ma8t$35g47$-berlin.de...
    > > I was under the impression that the photographer owns the copyright to

    all
    > > photos taken whether he is paid by the client or not. Now I am also

    > under
    > > the impression the client has some rights as well and in order for the
    > > photographer to use the photo's he must get some kind of release,

    correct?
    > > And if the client wants sole use of the photo's they must get the
    > > photographer to sell his copyright to them, correct?
    > >
    > > Here is the question. In a situation where the client is unhappy with

    the
    > > result, and as a matter of policy the photographer refuses to accept

    > payment
    > > for the session (because he promises 100% satisfaction) Who owns the
    > > copyright to the photos?
    > >
    > > Your thoughts and opinions are most appreciated?
    > >
    > > Mark C
    > > Nashville,TN
    > >
    > >

    >
    >
    >
    >
    >
    > Even without a prior agreement, by law, you have the originals,

    copyrights
    > are yours to keep, reassign, reassign with limitations, etc. , whatever

    you
    > want to do. Consult an attorney,
    >
    >
    >
    > Patrick


    If you're speaking of US law, you're completely wrong.

    By law, the author, i.e. the photographer, owns the copyright, unless he is
    your employee (as distinguished from an independent contractor -- in the
    OP's scenario, the photographer would be an independent contractor and not
    an employee). Whether you have the originals is irrelevant.

    I am an attorney.


    >
    >
     
    PTRAVEL, Apr 15, 2004
    #18
  19. Patrick L.

    PTRAVEL Guest

    "Wayne Ball" <> wrote in message
    news:407ecdfc$...
    > JR () wrote:
    >
    > > The photographer owns the copyrights. It's pretty simple. If the
    > > photographer owns the film (or digital media) then he owns the
    > > copyright. Now using that shot for commercial purposes is another
    > > matter. The images cannot be used without a release form.
    > >

    >
    > This is how I always understood things to work, but reading it
    > just now reminded me of something I've been curious of.
    > How do the folks who make a living stalking celebrities
    > for photo ops sell their product?
    >
    > Wayne


    Everyone is confusing copyright with right-of-publicity issues. Copyright
    is owned by the author, i.e. the photographer (not the person who owns the
    film or digital media), unless he is an employee or a prior written
    agreement specifies that it is a work for hire.

    Most states have laws the preclude commercial appropriation of likeness.
    News gathering is an exception to this.


    >
     
    PTRAVEL, Apr 15, 2004
    #19
  20. Patrick L.

    Wayne Ball Guest

    Jeremy () wrote:
    >
    > Celebrities are considered to be "Public Persons," and do not have the same
    > presumption of privacy as do mere mortals like us.
    >

    [good example of above deleted]


    Thanks jeremy, that explanation makes sense.
    I figured they must have considered the
    papparazzi in some context desireable,
    otherwise their collective wealth would have
    found a way to stop them somehow.

    It does make for an interesting gray area, when
    does one transition from private person to public
    person?
    Does an athlete known only to a locality fall
    under the 'public person' legal status for local
    publications?

    Wayne
     
    Wayne Ball, Apr 15, 2004
    #20
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