Posted by Doug Swinskey: 
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

The Courts have been split on that issue Doug.
I have shown the cases here, and the Law.

Without a release, And I guarentee you have it in yours for whomever you are shooting for, It is up to the law and courts to decide, and they have ruled in both ways, depending on the case.

In her case, It is part of a compiliation and will fall into that category from the cases on record.

Posted by theda: 
Ty, re-read that. The work was deemed NOT to be work for hire. Looks like they threw them a bone and called it joint copyright, but the case law you cited contradicts your position on work for hire.

Yes, As my edit said, The rest of it got cut of.

The Court ruled in Favor of CCNV - then it was overturned, then that was affirmed but remanded based on a second aspect.

Posted by Ty Simone: 

Posted by Austin Models & Talent Agency: 

Posted by Naomi Jay: 
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).

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?

That is the point to discuss.

most professional photographers expect that the images will be reproduced in quanity and provide a reproduction release (license) with the images...if you not working with profesionals, this kinda stuff always happens...

Posted by Ty Simone: 
BTW, just so I can not be accused of not siting references....

Put down the references and apply some real life here.  While it is true that many places could care less and not ask for a release, it is also true that many places (especially the Walmart-type that many consumers/models end up at) do ask for release.  I get calls from models all the time who have "misplaced" the release to reproduce that I have given them and now their images are stuck at the lab.  I'm not going to get long winded to prove this to you.  It is entirely possible that you have not encountered this situation because you simply have not as yet done enough work to have come across it.  This is something many labs put in place in order to protect the REAL photographers who are in business to sell photos, enlargements, etc. 

Posted by Austin Models & Talent Agency: 

Posted by Ty Simone: 
BTW, just so I can not be accused of not siting references....

Put down the references and apply some real life here.  While it is true that many places could care less and not ask for a release, it is also true that many places (especially the Walmart-type that many consumers/models end up at) do ask for release.  I get calls from models all the time who have "misplaced" the release to reproduce that I have given them and now their images are stuck at the lab.  I'm not going to get long winded to prove this to you.  It is entirely possible that you have not encountered this situation because you simply have not as yet done enough work to have come across it.  This is something many labs put in place in order to protect the REAL photographers who are in business to sell photos, enlargements, etc.   

See, There you go with the personal attacks again Austin.

Let's get real world.
Real world is NOT AUSTIN TEXAS.
Despite what you may think.
Real world is EVERYWHERE.
And I can tell you, here in NYC area, It has never once been an issue that I have ever encountered, and talking to a few models, only one so far has encountered it, and that because it had the persons mark on the photo.

Photolabs have no reason to worry about copyright enfringment for work they reproduce at a customer's behest, And there are places where it is considered inappropiate for the lab techs to even look at the images, Hence a lot of automation is coming into play.

I am in the real world Austin.

We had this discussion before, Let it drop.
You run an "Agency" in Austin Texas.
It is licensed and Bonded.
you have real world experience.

Yeah, we heard it all a million times from you.

The fact you want me to but down the law and the references to the law is because it runs counter to your claim, and heaven forbid the great Austin should be wrong.

Posted by Aaron_H: 
I didn't realize there was a 2nd page to the thread and Theda had already posted the work for hire law before I posted.

Ty, you are misreading and misunderstanding so much...

The work for hire exception is posted as well.
Read.
It covers Visual Art works commissioned as part of a collection.

In the case sited, The lower court ruled in Favor of the comissioner for the single piece of work, under the "work for hire" clause.

The appellet court overturned it because it was not for a collection, but a single piece, commissioned as a single piece.

Headshots are commissioned as part of a collection known as the book.

Read the GAIMAN v. MCFARLANE CASE

That will shed light on what I am talking about.
Although not finished yet (still in courts) The issue is when something is commissioned as part of a collection.

The judge's preliminary statement in that case makes it seem that such an issue would apply to the copyright, and therefore, In the case above, Hiring a photographer to produce images for your book, is a "Work for Hire" exception.

Posted by Ty Simone: 
Let's get real world.
Real world is NOT AUSTIN TEXAS.
Despite what you may think.

The bottom line is, you're full of quotes but lack simple experience to build true knowledge.

Posted by Ty Simone: 
Austin, You are wrong.

No Ty he is right....YOU are wrong.

Kinko's calls me every time a model tries to reproduce my image even though it is a headshot of the model.  My lab....calls me even though they know me.  They just say..."so & so is here is it okay to reproduce her headshots."  I tell them its cool that I referred her to them.  They thank me a lot.

If you don't get calls from anyone anytime someone is trying to reproduce your work that you did for the models...I would be VERY concerned.

Posted by michaelGIORDANO: 

Posted by Ty Simone: 
Austin, You are wrong.

No Ty he is right....YOU are wrong.

Kinko's calls me every time a model tries to reproduce my image even though it is a headshot of the model.  My lab....calls me even though they know me.  They just say..."so & so is here is is okay to reproduce her headshots."  I tell them its cool that I referred her to them.  They thank me a lot.

If you don't get calls from anyone anytime someone is trying to reproduce your work that you did for the models...I would be VERY concerned.

When you are actually in the business, you get calls like this quite often.  ABC Pictures, the big headshot litho place a lot of actors use, contacts me constantly when someone sends in a mass reproduction order.  Knowledge is gained through experience, not quotes.

Posted by Ty Simone: 
In the case above.
The Model hired the Photographer for his specialized skill to create an image that is commonplace but that SHE designed, i.e. Her headshot.
The image without her can not stand alone as copyrightable.
Her without the image Is Copyrightable.
Therefore, She does have claim under the 7th circuit court ruling.

What???? She can't claim copyright to herself, nor can anyone claim copyright to the "design" until it is in tangible form. Furthermore, the image CAN stand alone without Naomi in it.  A photographer can take a photograph of a blank wall and it's still copyrighted to the photographer.

I suppose she could *try* to make your argument, but it doesn't sound to me like it would be very successful. It would also be quite expensive and time consuming. It think getting the waiver like her agent recommended is the wise move.  Let's not turn this into a "legal" Rube Goldberg machine.

Posted by Austin Models & Talent Agency: 

Posted by Ty Simone: 
Let's get real world.
Real world is NOT AUSTIN TEXAS.
Despite what you may think.

The bottom line is, you're full of quotes but lack simple experience to build true knowledge.

More personal attacks there Austin.
I am sorry, I guess the fact you manage a grand total of TWO models makes you the expert on everything to do with modelling...
Let me stand corrected.
All hail the mighty Austin

You got laughed of one set of boards already Austin.
You got banned from another set.
There are agencies up here that call you a joke.
There are real professional photgraphers up here that say the same thing.

Yet you come here and claim to be the God of the industry.

MEET MY CHALLENGE
SEND ME 1 PHOTO Without your mark or seal on it.
I will get it reproduced.
I will bet $100 I can do it, In quantity.

Lack Experience....

Let's talk about my experience.
My DOCUMENTABLE EXPERIENCE!

I started in photography in 1986.
I had my first images published in 1986.
between 1986 and 1988 I had well over 200 images published.

I was a part owner in a licensed and bonded Agency in Eastern Penn.
You even called the State of N.J. to have it investigated.
Does that ring a bell as to who I am now?

Yeah, It was me.
They called.
I sent them the documents.
They left me alone.
I posted on the boards.
They laughed you off the boards.

REMEMBER NOW!

Austin, I will tell you now in front of everyone here.
You have no clue what the hell you are talking about.

You posted in one thread that I was wrong on model tips, then come right back in someone else and say that's right.

I know a ton of people on here that have messaged me to ask If you really are as dumb as you seem.
My response has been, Read for yourself.

Meanwhile, Now that I said my piece about you here.

Meet My challenge.

As for my ability, Let's see.
Of the 5 models I personally managed back when we last spoke.
1 of them is doing great on broadway,
1 of them went to Fashion Week in Paris this year,
and one of them is working on a record deal.

what have those 2 you managed done?

Let's compare....

Go back to your private boards already Austin. They even laugh there.

Posted by Ty Simone: 
As for my ability, Let's see.
Of the 5 models I personally managed back when we last spoke.
1 of them is doing great on broadway,
1 of them went to Fashion Week in Paris this year,
and one of them is working on a record deal.

Fantastic!  What was your license number, or were you operating illegally?  You are a pretty messed up person, mentally.  I'm imagining in your dream world, you would like to be someone... thus all the attacks and thumping of your chest.

Posted by theda: 
What???? She can't claim copyright to herself, nor can anyone claim copyright to the "design" until it is in tangible form. Furthermore, the image CAN stand alone without Naomi in it.  A photographer can take a photograph of a blank wall and it's still copyrighted to the photographer.

I suppose she could *try* to make your argument, but it doesn't sound to me like it would be very successful. It would also be quite expensive and time consuming. It think getting the waiver like her agent recommended is the wise move.  Let's not turn this into a "legal" Rube Goldberg machine.

Um, I hate to burst your bubble, But you can not claim copyright to an image of a blank wall.

The Same court cited something similar in that the concept has to be unique in order to be a copyrightable concept.

the IMAGE of a blank wall is copyrightable, but not enforceable because I can take that same picture and reproduce it, and they could not tell the difference.

it is all in the McFarlane case.

But, Even given that the image of the wall is copyrightable, At best it creates joint copyright then.

Can she copyright herself? No, Of course not.
However, Any image of her is a copyrightable item, and therefore stands up to the test.

It was the crux of the case we discussed earlier with Huffman.

I think I mentioned the fact that it is expensive to challenge before.

That is one of the reasons that it has not been an issue to date.

The first that addressed it was the McFarlane case.

It was a perfect example.
Even though he was not an employee, he was considcered work for hire because it was for a compilation.

And I am all for killing the lawyers and settling things the old fashion way.

Posted by Austin Models & Talent Agency: 

Posted by Ty Simone: 
As for my ability, Let's see.
Of the 5 models I personally managed back when we last spoke.
1 of them is doing great on broadway,
1 of them went to Fashion Week in Paris this year,
and one of them is working on a record deal.

Fantastic!  What was your license number, or were you operating illegally?  You are a pretty messed up person, mentally.  I'm imagining in your dream world, you would like to be someone... thus all the attacks and thumping of your chest.

You asked that last time.
I told you last time to look it up.

See.

Call them again.

State attorney for NJ.
Need the number.

They will clear me again! :-)

Oh, And I am someone.
I do not need to thump my chest.

I stated my case.
You can not refute it, Just like before.

So go ahead. Launch your attacks at me.
I can play that game too.

And while you are at it, Why are you not SAG?
Why are you not even a member of the BBB there?

"We at austin... give back to the community."

yeah right...

Posted by Ty Simone: 
In the case above.
The Model hired the Photographer for his specialized skill to create an image that is commonplace but that SHE designed, i.e. Her headshot.
The image without her can not stand alone as copyrightable.
Her without the image Is Copyrightable.
Therefore, She does have claim under the 7th circuit court ruling.

Ty, first thanks for bringing up this particular issue.

I'm not a lawyer, but I have read, written and been published on copyright law as it pertains to photography. That said, the idea of joint copyright is a new subject for me. I just read the ASMP article you have quoted extensively. I also just asked PPA for their input.

From my understanding of this one article, I don't see how a model can claim joint copyright for a simple headshot.

It is fundamental copyright law that only the expression of an idea, not the idea itself, is copyrightable.

The simple human form is not copyrightable. A headshot is simply the physical expression of that form. Thus since only the recorded image is copyrightable, there is no grounds for a claim to joint copyright.

If a models says, "Let me pose this way" .. is that pose a copyrightable expression? I think not.. but I could be wrong. If not, then there is again no grounds for a claim to joint copyright.

The other half of the original question that this model asked pertains to the use of her image. That model can either grant or withhold permission to use the image, but that has no bearing on the copyright of the image.

Now I can see instances where joint copyright must be considered... such as where a body painter and photographer agree to collaborate on creating images. The body painting is a creative work and is a copyrightable expression. Thus the resulting images would likely be an example of a joint copyright instance. However, a key element here is the prior agreement to collaborate. The model in this instance is the canvas and I don't think has a claim in that joint copyright.

I'll let you guys know what I hear from the PPA.

Posted by Norris Carden: 

Posted by Ty Simone: 
In the case above.
The Model hired the Photographer for his specialized skill to create an image that is commonplace but that SHE designed, i.e. Her headshot.
The image without her can not stand alone as copyrightable.
Her without the image Is Copyrightable.
Therefore, She does have claim under the 7th circuit court ruling.

Ty, first thanks for bringing up this particular issue.

I'm not a lawyer, but I have read, written and been published on copyright law as it pertains to photography. That said, the idea of joint copyright is a new subject for me. I just read the ASMP article you have quoted extensively. I also just asked PPA for their input.

From my understanding of this one article, I don't see how a model can claim joint copyright for a simple headshot.

It is fundamental copyright law that only the expression of an idea, not the idea itself, is copyrightable.

The simple human form is not copyrightable. A headshot is simply the physical expression of that form. Thus since only the recorded image is copyrightable, there is no grounds for a claim to joint copyright.

If a models says, "Let me pose this way" .. is that pose a copyrightable expression? I think not.. but I could be wrong. If not, then there is again no grounds for a claim to joint copyright.

The other half of the original question that this model asked pertains to the use of her image. That model can either grant or withhold permission to use the image, but that has no bearing on the copyright of the image.

Now I can see instances where joint copyright must be considered... such as where a body painter and photographer agree to collaborate on creating images. The body painting is a creative work and is a copyrightable expression. Thus the resulting images would likely be an example of a joint copyright instance. However, a key element here is the prior agreement to collaborate. The model in this instance is the canvas and I don't think has a claim in that joint copyright.

I'll let you guys know what I hear from the PPA.

Make sure you present the entire situation.
She approached and Paid the photographer to create the images for her book.

That makes it a difference.

As for the original statement on Joint copyright based on the Model being a necessity in the TFP (a definate not for hire situation) I am basing that on what my lawyers have told me is the best approach for my artwork stuff.

In my case, Unlike a headshot, My artwork is a vast majority of my expression, and very little of the models.

But, I have to ask this question.

If this was such a clear cut case, Why do we need copyright clauses in Model releases to begin with?

As a matter of fact, If I am the true copyright holder, as is the assertion, I would never need her permission to do anything with the photos.

I could literally sell the copyright to whomever, or license it to whomever, and she can not do a thing about it.

We have the release to cover these issues so the courts do not have to do it for us.

Posted by theda: 
We do NOT need copyright clauses in the release itself. As I said above, its superfluous. You need a models permission because of privacy issues, which are immaterial to copyright. And that's right, you can sell/assign the copyrights and the model can't do a thing about it.

As for the McFarlane case, it's still underway. Let's not count our chickens' coyrights.

Theda, I stand corrected.
In the State of New York, you are 100% correct.
The State of New York has a much stricter set of copyright protection than the federal laws.

From what I understand, Use of image in the state of New York is not fair game.
Meaning If I take a picture of Theda walking down the street, and sell it, I have to pay her.

That is NOT true in every state.

Also, under New York Common law, there are vast differences that protect the creator much much more.

My mistake for not searching there as well.

I apologize and stand corrected on those points.

Meanwhile, The MacFarlane case is not under appeal to the Supreme Court from what I understand. therefore, at least in the 7th district, it is now set in stone until someone objects.

Posted by Ty Simone: 
If this was such a clear cut case, Why do we need copyright clauses in Model releases to begin with?

Alas, but you left out the usage the model has granted you.  Unless she let you buy all rights from using her face/body you cannot use it, much less sell the image unless she granted you that right with the proper compensation...ESPECIALLY if she is represented by an agency or agent.  You will owe royalties.

Posted by michaelGIORDANO: 

Posted by Ty Simone: 
If this was such a clear cut case, Why do we need copyright clauses in Model releases to begin with?

Alas, but you left out the usage the model has granted you.  Unless she let you buy all rights from using her face/body you cannot use it, much less sell the image unless she granted you that right with the proper compensation...ESPECIALLY if she is represented by an agency or agent.  You will owe royalties.

Yeah, I did. i also left out the ability to manipulate the image, since some places disallow it without consent.

One of the cases referenced in the MacFarlane Case was cited in reference to it. I was going to post it because it had to do directly with the models editting images thing, but figured if I did, I might be accused of sidetracking the issue.



OK EVERYONE, WHAT HAVE WE LEARNED TODAY?

ALWAYS HAVE IT SPELLED OUT IN WRITING!!! :-)

Posted by Naomi Jay: 
(covers face and feels bad for starting such controversy.."and I wasn't even naked!!!")

Not a controversy really.

Was a nice healthy discussion for the most part.

Discussion is good.

I have a working understanding it seems with some here to always disagree...

Other than some heated comments, which I will apologize to the general public for mine, I am sorry you had to see that diatribe, It is interesting to discuss these things.

Posted by Ty Simone: 
If I take a picture of Theda walking down the street, and sell it, I have to pay her.

You would not be able to sell the image for use in advertising. But you do have the right to sell the image for editorial use. As a TV newsroom manager, I had to be up on this part of the law.

First Theda was on public property. Second editorial use is governed by what's known as "fair use."

I shoot concerts and hope the artists or management will license the images for their own use. I can't sell posters of the band to the general public. But I can license them to the local paper, Rolling Stone, MTV.com or any other media outlet for editorial use.

Your shot of Theda walking down the street could be sold without her permission to The Daily News as an example of how gorgeous women in the City turn heads wherever they go. This is how celebrity photographers make a living.

Posted by Ty Simone: 
FACT - She HIRED a photgrapher to take shots.

Fact, Since it is a work for hire, and since she is the person that hired, SHE HAS THE COPYRIGHT!

Only problem is that it is NOT a work for hire. 

http://www.copyright.gov/circs/circ9.html


Your situation passes none of the statuatory or case law tests.



   - Joe

Posted by Ty Simone: 
Since they are headshots, for her Book, and she commissioned the shots, She has a claim for rights under that provision.

IF she was (and could) copyright her book, she might have an arguement.  A contributory work must be to a copyrightable work.   Don't make me cite references, or I'll hae theda bust that cap in your ass. 

Posted by Ty Simone: 
And I will issue my challenge to both of you.

Send me a photo you took, (without a mark on it) And I will get it reproduced out here, without them calling you.

Send me a photo you took, and I'll sell it to a bunch of web sites who will gladly post it and charge people to see it.  If it's got T&A, that'll help.

They won't check either.


Your point?

Posted by theda: 
Yeah, Naomi, see what a mess you made? Don't you feel guilty... Wait....I'm sorry: we're Jewish.

It's more like:

Oh, it's not such a bad mess. Don't worry. I'll clean it up. No no... I WANT to clean it up. I enjoy cleaning it up. It's nothing really... fi I get fired for spending too much time dealing with this thread, it's okay. Don't worry. I'll be fine.

Have I told you lately that I love you my Heb Soul Sista?
OK, on that note
THREAD OVER!

Posted by Naomi Jay: 

Posted by theda: 
Yeah, Naomi, see what a mess you made? Don't you feel guilty... Wait....I'm sorry: we're Jewish.

It's more like:

Oh, it's not such a bad mess. Don't worry. I'll clean it up. No no... I WANT to clean it up. I enjoy cleaning it up. It's nothing really... fi I get fired for spending too much time dealing with this thread, it's okay. Don't worry. I'll be fine.

Have I told you lately that I love you my Heb Soul Sista?
OK, on that note
THREAD OVER!

OMG you didnt lock the thread did ya?...oh wait..i guess you didn't

Posted by SML photography: 
Well this was written by my attorney friend who writes all my releases.

the photographer owns the film and the model has the right to control her own image for commercial purposes (and modeling is considered a commercial purpose).  so, neither one of them has the right to sell the pictures without the other's consent.

if the photographer voluntarily gives the model his/her pictures, the model can do whatever s/he wants with them.  once the photographer gives the photos to the model, whether it's a gift, it's in exchange for the model
signing a release for the photographer to use his/her photos for any reason (a mutual release), or because the model paid money, the model can do whatever she wants with them.

hope that helps.
cheers
scott

i think you missed the whole point...the argument was:
"in the absense of a written agreement"

there is no issue who owns copyright ever..
its the photographer...
unless while he is in the employ of another and it is his job to take the picture...