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legal question
So if I pay someone to take headshots lets say, and I get receipt...does that make me the owner of the pics or should I get the photographer to sign some kind of release? May 11 05 09:43 am Link photographer ownes the copyright unless you get him or her to sign it over and thats unlikely. May 11 05 10:00 am Link Posted by Naomi Jay: The short answer - No. You are not the owner. May 11 05 10:06 am Link When you hire a photographer to shoot headshots, it is understood that you will need a release allowing you reproduction rights to mass duplicate. A professional photographer shooting headshots will understand this and grant you that permission. Many photo reproduction labs, printers, etc., will not duplicate photos that appear to be professionally shot unless you have a release specifically from the photographer stating that permission. That said... Headshots are worthless unless you are provided the right to reproduce. You don't own copyright, but do need the right to produce them in quantity for your agent, submissions, etc. May 11 05 10:08 am Link Legally Speaking, If there is no contract / release in place, then the copyright holder is both. (although you almost always have to go to court to prove it.) Copyright belongs to the Creator of the image. The Creator is the photographer, but also the model. Without the model, the Photographer could not create. Therefore a case can be made in court that Both have copyrights to the images. If there is a waiver, or if money changes hands, that changes things. If you as a model pay for the pictures, Then the Pictures are YOURS, and unless the photographer stipulates in the agreement he has rights, He forfeits them as a service provider. At that point, he is no different than K-Mart or Sears photography, both of which were sued in the past over using pictures of people they photographed without consent or compensation. Hope that helps. May 11 05 10:09 am Link Ok I guess my question should be...If by some chance he has an option to sell the image. what type of paperwork do I get to say he must approach me first and we spilt money? May 11 05 10:09 am Link he has to get a model release from you in order to sell the photos of you and that model release has be pretty clear May 11 05 10:12 am Link Austin, You are wrong. Eric, You are right, but only in the reference, not in responding to her. From the copyright code you sited... § 201. Ownership of copyright1 (a) Initial Ownership. Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are coowner of copyright in the work. (b) Works Made for Hire. In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright. They are Co-Creators. So in item 1, the initial rights are joint. It is work for hire, therefore, number 2. SHE IS OWNER. Know the law. Do NOT rely on others to cite it for you. Always Always Always research it. May 11 05 10:13 am Link Model and property releases have absolutely nothing to do with copyright. I wrote a paper for a graduate class titled "Legal Considerations for Photographers on the Internet" that covers copyright. You can find it here: http://www.rasquel.com/files/ts5509legal.pdf If you find it valuable, paypal me a few bucks. May 11 05 10:14 am Link Posted by Norris Carden: She asked if he could sell the shots of her, he cant without a model release. Perhaps copyright is another issue, just answering the question she asked. May 11 05 10:17 am Link Posted by Norris Carden: Depends on what the release says. May 11 05 10:18 am Link Posted by Ty Simone: there is no differnce in copyright if i write a story about the model or if i take her picture..the model is the subject....not the creator, not half the creator. May 11 05 10:19 am Link I pay someone to take headshots lets say, and I get receipt...does that make me the owner of the pics or should I get the photographer to sign some kind of release? You will own the photos that the photographer gave to you and are allowed to display the photos for personal use. May 11 05 10:20 am Link something tells me this is going to be a heated debate, I see this one over and over again. It usually ends up with someone posting the written copyright laws on the board. The sooner the better. May 11 05 10:23 am Link Posted by Ty Simone: Try taking professionally shot images to a photo lab (especially somewhere as gun shy these days as a Walmart or the like) and get them reproduced without a release from the photographer. In all due respect, I deal with this on a daily basis as this industry relates to my full 100% daily income. I've shot probably 3 or 4 thousand headshots in the past 20 years. Make sure you have something in writing, model, granting you permission from photographer to produce the headshots (usually in quantity). May 11 05 10:23 am Link Posted by Naomi Jay: Easy. Simply put it in writing in the release. That is all you have to do. Just add that stipulation that he has to notiy you and you have to split the income. Remember, the release is just that - you are releasing your rights to the images - but you can place any stipulations that you want upon that. So, just put what you expect in the release and you and the photographer agree to it. May 11 05 10:26 am Link Ty, you are wrong. Models are not considered co-authors of the photographs they model for. I believe a case could be made in some circumstances, but that would be an uphill battle. Somewhere in a previous thread someone cited case law in which photographers were shown to have sole copyright just for pressing the little button. That said, Naomi, you would still need a copyright waiver to reproduce the images for yourself unless you arrange a work-for-hire situation. The photographer would still require a release to sell the images, copyright notwithstanding. And by the way, the next person to call a copyright waiver a release gets a cap in the ass. A release is a specific type of document. It is not a general term. Releases do in fact have nothing to do with copyright, even though many of the "standard" release forms throw in a setence about copright. It's superfluous under current copyright law. Some people include both a release and a copyright waiver in the same document, but that's a more complex contact than a simple release. May 11 05 10:27 am Link Posted by Doug Swinskey: Wrong. May 11 05 10:27 am Link Posted by EricMuss-Barnes: Ohmigod! You're dead? May 11 05 10:29 am Link READ THE FREAKING POST! IT IS COPYRIGHT LAW! And Austin, You are sadly mistaken. If I take pictures of you to a lab, then they may object. If I take pictures of ME to the lab, they do NOT object. They are not liable if Naomi makes copies of Naomi. They could be liable if Naomi makes copies of Theda. And a signed release that is not notorized is still useless for the purposes of protecting themselves. The law on it IS POSTED ABOVE! The cases for it can be researched easily. FACT - She HIRED a photgrapher to take shots. FACT - The copyright law specifically states - "§ 201. Ownership of copyright1 (a) Initial Ownership. Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are coowner of copyright in the work. (b) Works Made for Hire. In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright." Fact, Since it is a work for hire, and since she is the person that hired, SHE HAS THE COPYRIGHT! Unless you can site a reference other than, "I deal with it everyday." or "I know what I am talking about" or "someone posted something..." It is nothing more than mere dribble. READ THE LAW! APPLY THE LAW TO THE SITUATION! May 11 05 10:33 am Link Posted by Ty Simone: (a) Initial Ownership. Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are coowner of copyright in the work So the makeup artist and stylist are co-owners of the copyright? May 11 05 10:37 am Link The legal review from the Childress case (which is now the governing law on copyright for the question of joint ownership) as it relates to photographers. Favorable decision Photographers have good reason to be encouraged by the Childress court's two-part test for joint authorship. First, another party's contribution to creation of an image will not qualify unless it is copyrightable -and as indicated, copyright is only available for the expression of the image, not the ideas embodied in that expression. Inevitably, there are some cases with a gray area between the two poles of idea and expression -in those instances, the outcome depends on the facts of each case. For that matter, there are some cases where the contribution does indeed constitute copyrightable expression. But in many other situations commonly encountered by photographers-such as the art director contributing ideas about the nature and effect of the planned image, and the photographer giving expression to such ideas -the claimant will be left with the shorter end of the legal stick. Second, it is not sufficient for the claimant to establish a mutual intent to create a unified work. The claimant must establish that the parties intend at the time of creation to be joint authors. Absent a written agreement, the claimant in situations commonly encountered by photographers is likely to have a difficult time establishing such intent." The SECOND piece is important. Since both people are working towards the picture, NOT just the photographer, and this refers to TFP situations with no agreement, NOT paid, their is case (and it is still in the courts) for joint ownership. If you want to prove me wrong, PLEASE POST YOUR SOURCE! May 11 05 10:39 am Link Posted by Mary: Posted by Ty Simone: (a) Initial Ownership. Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are coowner of copyright in the work So the makeup artist and stylist are co-owners of the copyright? No, Read above. May 11 05 10:41 am Link Naomi is the owner of her face. The photographer who took the picture of her face is that owner of that picture and associated copyrights. The section of law you quoted does not define authoriship of a work, which is crucial. You need to look at case law for that, which as far as I've read so far, does not support the idea that a model is co-author. The section of case law you quote supports just the opposite position. Copyright defaults to the photographer unless a pre-existing *explicit" agreement to share copyright exists. In order for work for hire agreements to hold up, you need to be able to demonstrate such an agreement exists. Berbal contracts are binding if you can prove them. Written but unnoarize contracts are binding if you can prove tyou signed them. Notarizing is just the way we legal schmucks cover our asses and say "no really. that's their signature. i swear. i pinky swear." Really, why am I arguing with a photographer that he doesn't have sole copyright. Yes, I own joint copyright. Absolutely. Oh yes. *Jedi mind trick* May 11 05 10:42 am Link Posted by theda: "You don't need to see his copyright." May 11 05 10:45 am Link Ok, so I buckled and called my agency (I hate to ask stupid questions but, I was confused). Basically, under NY law, he cannot sell the pics without a release from me let's say to a mag. However, if he wishes to use the pic in an ad for his photography, he can do that. It's still considered promotional use. I have to ask his permission to make copies for my book/comp (by the way folks, I have my own printer). This point is kinda mute as when you pay for someone to do headhsots, they know you will be mass producing (duh). I would only pray some mag would want to use my headshot! May 11 05 10:46 am Link Posted by Naomi Jay: Posted by Theda: COpyright law Are you not seeing the link here. May 11 05 10:46 am Link Work for hire is not that simplistic. May 11 05 10:48 am Link "Even with the benefits of Childress, photographers should by no means assume that joint copyright claims are a thing of the past. First of all, there will of course continue to be some cases in which a claimant may be able to meet both parts of the Childress test. But more important -and as the court itself emphasized-joint authorship can always be established by contract, even where the contribution is not copyrightable. What this means for the photographer is that in matters of joint copyright, as elsewhere, good paperwork is vital for protection of rights. If a purchase order, book contract, or any other document submitted to the photographer includes provisions giving the other party joint authorship, it is up to the photographer to object to such provisions and make sure they are deleted. And of course the photographer's own paperwork should spell out that the photographer is the sole copyright owner of the images." More of the review of Childress for those interested. May 11 05 10:49 am Link Posted by theda: Really? May 11 05 10:49 am Link Posted by Ty Simone: You are demonstrating only further that you have little or no experience in the photography related business. Further, many labs are now keeping copies of the release on file (I know my release is on file at several photo duplication places and I have had to Fax one several times for models calling frantically saying they're at the lab and the lab won't release their pictures without). May 11 05 10:57 am Link Too freakin' lazy to put it in my own words. I'm supposed to be writing a stip for the people that pay me. So here's a copy and paste job from one of the immumerable websites defining "work for hire." Important! There are only two situations in which a work for hire can exist. They are: (1) a work created by an "independent contractor," and a (2) "work prepared by an employee" within the scope of her employment. A. Works Created by Independent Contractors For a work created by an independent contractor (or freelancer) to qualify as a work for hire, three specific conditions found in the Copyright Act must be meet: 1. the work must be "specially ordered" or "commissioned." What this means is the independent contractor is paid to create something new (as opposed to being paid for an already existing piece of work); and 2. prior to commencement of work, both parties must expressly agree in a signed document that the work shall be considered a work made for hire; and 3. the work must fall within at least one of the following nine narrow statutory categories of commissioned works list in the Copyright Act: (1) a translation, (2) a contribution to a motion picture or other audiovisual work, (3) a contribution to a collective work (such as a magazine), (4) as an atlas, (5) as a compilation, (6) as an instructional text, (7) as a test, (8) as answer material for a test, (9) or a supplementary work (i.e., "a secondary adjunct to a work by another author" such as a foreword, afterword, chart, illustration, editorial note, bibliography, appendix and index). Not all work performed by an independant contractor is considered work for hire. In the case of a photographer taking headshots, it's unsual to call it work for hire and it shouldn't be assumed. May 11 05 10:58 am Link Posted by Naomi Jay: Bingo and exactly. Most professionals who shoot headshots for models and actors know enough to provide permission by way of a photo release. This is Photo Business 101. May 11 05 11:01 am Link Work Made for hire - DIRECTLY RELATED- Argued March 29, 1989 Decided June 5, 1989 In the fall of 1985, petitioners - the Community for Creative Non-Violence (CCNV), a Washington, D.C., organization dedicated to eliminating homelessness, and one of its trustees - entered into an oral agreement with respondent Reid, a sculptor, to produce a statue dramatizing the plight of the homeless for display at a 1985 Christmas pageant in Washington. While Reid worked on the statue in his Baltimore, Md., studio, CCNV members visited him on a number of occasions to check on his progress and to coordinate CCNV's construction of the sculpture's base in accordance with the parties' agreement. Reid accepted most of CCNV's suggestions and directions as to the sculpture's configuration and appearance. After the completed work was delivered to Washington, CCNV paid Reid the final installment of the agreed-upon price, joined the sculpture to its base, and displayed it. The parties, who had never discussed copyright in the sculpture, then filed competing copyright registration certificates. The District Court ruled for CCNV in its subsequent suit seeking, inter alia, a determination of copyright ownership, holding that the statue was a "work made for hire" as defined in the Copyright Act of 1976, 17 U.S.C. 101, and was therefore owned exclusively by CCNV under 201(b), which vests copyright ownership of works for hire in the employer or other person for whom the work is prepared, unless there is a written agreement to the contrary. The Court of Appeals reversed, holding that the sculpture was not a "work made for hire" under the first subsection of the 101 definition (hereinafter 101(1)), since it was not "prepared by an employee within the scope of his or her employment" in light of Reid's status as an independent contractor under agency law. The court also ruled that the statue did not satisfy the second subsection of the 101 definition (hereinafter 101(2)), since sculpture is not one of the nine categories of "specially ordered or commissioned" works enumerated therein, and the parties had not agreed in writing that the sculpture would be a work for hire. However, the court remanded for a determination whether the statue was jointly authored by CCNV and Reid, such that they were co-owners of the copyright under 201(a). [490 U.S. 730, 731] Held: 1. To determine whether a work is a "work made for hire" within the 101 definition, a court should first apply general common law of agency principles to ascertain whether the work was prepared by an employee or an independent contractor, and, depending upon the outcome, should then apply either 101(1) or 101(2). Although the Act nowhere defines "employee," "employment," or related terms, it must be inferred that Congress meant them in their settled, common-law sense, since nothing in the text of the work for hire provisions indicates that those terms are used to describe anything other than the conventional relation of employer and employee. On the contrary, Congress' intent to incorporate agency law definitions is suggested by 101(1)'s use of the term "scope of employment," a widely used agency law term of art. Moreover, the general common law of agency must be relied on, rather than the law of any particular State, since the Act is expressly intended to create a federal law of uniform, nationwide application by broadly pre-empting state statutory and common-law copyright regulation. Petitioners' argument that a work is "prepared by an employee within the scope of his or her employment" whenever the hiring party retains the right to control, or actually controls, the work is inconsistent with the language and legislative history of the work for hire provisions, and would distort the provisions' structure, which views works by employees and commissioned works by independent contractors as mutually exclusive entities. Pp. 737-751. Sculpture rights to the person that ordered it, not the one that created it. CASE LAW. Sorry - the rest of the appeal thing got cut off. Because Reid was an independent contractor, whether "Third World America" is a work for hire depends on whether it satisfies the terms of 101(2). This petitioners concede it cannot do. Thus, CCNV is not the author of "Third World America" by virtue of the work for hire provisions of the Act. However, as the Court of Appeals made clear, CCNV nevertheless may be a joint author of the sculpture if, on remand, the District Court determines that CCNV and Reid prepared the work "with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole." 17 U.S.C. 101. 32 In that case, CCNV and Reid would be co-owners of the copyright in the work. See 201(a). Final result was a joint copyright. May 11 05 11:02 am Link THIS IS MY RELEASE ! I JUST SENT IT TO A NEW MODEL WHO ASKED...IN HOPES IT WOULD HELP HER... PLEASE LET ME KNOW IF IT COVERS EVERYTHING OK IN YOUR VIEW OR IF THERE IS ANYTHING WRONG WITH IT - U CAN SEE WHAT IM AIMING FOR BY READING... THANKS! PROFESSIONAL MODEL RELEASE / CONSENT FOR USE OF PHOTOGRAPHS DATE OF AGREEMENT__________________ In Consideration of £_______, paid and a copy of all images on CD - receipt of which is hereby acknowledged, I give my consent to ________________________, his successors and assigns, the right to use or publish, at any time, place, and in any manner, any photographs or digital/film which have been taken, or will be taken of me by ------------------------------- for any Non Adult purpose whatsoever. Both model and photographer will share content use of said images. It is agreed 50% of any and all sales / income / profit over the sum of £50.00 will be paid from one party to the other using e-mail below and all reasonable atempts to contact the other party . I, ...... known as ..... do NOT agree to any changes / use of images of me (or additions of text) that are unflattering, possibly degrading, or dishonest in any way, I definately do NOT agree to use of images which show sexually explicit nudity or are exhibited with any 'adult entertainment' purposes - either in photographic exhibitions, in print or on the web. This agreement contains the entire understanding between the parties. We have read this agreement, and fully understand and agree with the contents. Signature of Model (Legal Name) ______________________________ Model Name (if different from above) Name of Photographer __________________________________________ Signature of Photographer ________________________________________ Photographers Address____________________________________ PHONE NUMBERS _______________________________ e-mail ________________________________________________ Models Permanent Address _______________________________________ Phone Number ___________________________________________________ e-mail ___________________________________________________________ DATE OF AGREEMENT____________________ May 11 05 11:02 am Link Posted by Austin Models & Talent Agency: Posted by Ty Simone: You are demonstrating only further that you have little or no experience in the photography related business. Further, many labs are now keeping copies of the release on file (I know my release is on file at several photo duplication places and I have had to Fax one several times for models calling frantically saying they're at the lab and the lab won't release their pictures without). Talk about your personal attacks.... May 11 05 11:03 am Link Ty, most places will reproduce but, one place I went to, asked me for release..I am like who do you think sent me this large ass TIFF file? That's why I have my own printer. Honestly, a printing house should not be liable, the person paying to print should. May 11 05 11:08 am Link TY, when i am hired by a couple to shoot a wedding, commissioned to do a portrait or model portfolio shoot. it is not "work for hire"...the clients are buying images.. my images..images that i hold the copyright on.. when i am hired by a client for catalogs or web content.. if they want copyright ownership..they have to pay for it..... now if i am employed by some company to shoot portraits..the company owns the images not me...thats work for hire and no pro i know of works for hire unless it glamourshots or the sears photo center.. not the same thing May 11 05 11:11 am Link BTW, just so I can not be accused of not siting references.... the point of contention for photos taken by a "PAID" photographer, by a model is - "(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." Since they are headshots, for her Book, and she commissioned the shots, She has a claim for rights under that provision. The problem will always be, Do you want to pay a lawyer? May 11 05 11:12 am Link Posted by Austin Models & Talent Agency: Posted by Naomi Jay: Bingo and exactly. Most professionals who shoot headshots for models and actors know enough to provide permission by way of a photo release. This is Photo Business 101. And what happens when the photographer, as in this case here, Did not? May 11 05 11:13 am Link |
