Posted by Doug Swinskey: 

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...

Huh?

The original question in the thread was "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?"

Since then the arguments have been over several issues, and in one of my earlier posts I directly addressed "in the absence of a written agreement." But how is that the issue in Scott's post and how can you tell me I missed any point, especially a specific one that wasn't part of the post being replied to, when my post evaporated before it ever made the board? For what it's worth, in the post know one saw I did in fact address every part of Scott's post, including what was written and what might have been meant since it was worded so vaugely. Maybe I'll get the energy up to rewrite it and then you can decide if I missed any points or not.... weird

Posted by Joe Tomasone: 

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. 

And how is her book Not copyrightable?
Images of Naomi, Copyright Naomi.

Please feel free to cite references. I love them.

Posted by Joe Tomasone: 

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?

My Point was that he made the statement it could not be done.
I am saying that it not only can be done, but is done all the time.

Posted by Austin Models & Talent Agency: 

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).

I am telling him, he is full of crap!
I can take his "Professional Photos" and get them reproduced at a photolab, without them calling him, UNLESS he has a mark on them.

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

So now we have a second person, After consulting with his attorney that says the same thing, albeit in different words.

And yet no one will accept it?

Would it make anyone feel better if I get my attorney to write it up on his letterhead and I scan a copy on here?


Let me explain something about law that my lawyer once told me, that will shed some light on this subject, I am paraphrasing...

For people without money, there is law as set by the people with money.

Just because you have a certain right, does not mean that you can enforce that right without going to court.

The RIAA is a good example.
The law is quite clear on home use of copying. You can record a cassette of music from a radio broadcast, A videotape of a movie on HBO, and even dub tape to tape, and it is all legal.
How is that any different than downloading MP3s?
From a legal stand point it is not, However, until someone with enough money challenges it in court, the RIAA will have their way. People will cave in because they do not have enough money to challenge such a big organization.



---

Now, The McFarlane case I cited was a perfect example of that. for something like 25 years, the omic industry has been walking on thin water over the copyright issue and ownership. It was not until McFarlane, where it was a clear cut case to be disputed, and the amount of money involved was substantial, that it ever got argued, and hence decided.

Just because it was always that way does not make it the law.

A case can be made in the circumstance above.
It would be up to the courts to decide if it holds or not.
Therefore, from a total standpoint, the mid line is both, from a legal standpoint, it may be hers, and from a "It is always this way" stand point, it may be his.

Posted by Ty Simone: 

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

So now we have a second person, After consulting with his attorney that says the same thing, albeit in different words.

And yet no one will accept it?

Would it make anyone feel better if I get my attorney to write it up on his letterhead and I scan a copy on here?

Sigh. There are tens of thousands of lawyers that have less understanding of copyright intricacies than do many well informed, well read on the subject, & experienced in the subject, photographers.

IP lawyers are probably one of the smallest groups of attorneys. Within IP law there are many areas of specialty. Dealing with copyright as applied to photography is a small subset. Within that subset there are good lawyers and bad, and there are lawyers with varying degrees of experience and expertise.

So no, it wouldn't make me feel any better at all to hear from some random unknown lawyer to pile on top of Scott's lawyer if he's going to be just as wrong.

If you really think physical ownership of a print that was given to you or sold to you without any other rights being specifically granted means you "can do anything you want" with the photos you are.... well, let's just say incredibly misinformed and leave it at that.

Posted by Ty Simone: 
I am telling him, he is full of crap!

All hail, who?

Posted by Ty Simone: 
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.

Um TY... I believe you are mistaken.
Copyright is owned soley by the photographer who took the picture, UNLESS as stated the work was created as a "Work for Hire" in which case the person hiring the photographer owns copyright. Still does not give either party exclusive rights to publish the work unless otherwise stated.

The ONLY circumstances under which a copyrighted or trademark may be used without written concent falls under fair use as in reporting information. i.e. Reviewing the new song by BLAH BLAH BLAH artist.

Co-Created work generally only applies to written works where more than one person had a physical hand in writing the work. i.e. Movie scripts.

But copyright in photos is owned and held by the one who created the formatted image.

Funny thing that this came up. Because I am about to deal with a moron who himself feels that he has rights to MY images because they resided on his server. And even possibly copyrighted them with the copyright office. Boy is his ass going to be sore when my lawyers are done with him.

Posted by Ty Simone: 
The claimant must establish that the parties intend at the time of creation to be joint authors. 

Did you miss this part here? It must be ESTABLISHED that at the time of creation both parties were joint creators. You better get yourself better lawyers before you end up in deep shit one day.

The childress case is NOT the end all be all of the standard. It is the exception. And unless you know the full case that led to the decision in that case qouting a portion of it amounts to useless banter.

Alex. Actually when WE do a "work for hire" it isn't an employer - employee relationship. It's often a contractor situation in which case we would issue a 1099, and any work created under that pervue is still considered work for hire. =o) Though we do keep a couple staff photographers around. Gotta have SOMEONE to brow beat. LOL

Posted by Venus: 
Oh okay.  I thought he had the copyright to the images and could do whatever he wanted with them.  He sold some of them to his clients in China or something.  Is that legal?  I didn't give him a release and let him keep the money from his clients.

You would  win in court.  I've been involved in a few of these suits in the past. Without a model release he's screwed. You will have to prove he sold your images.  If you can get a hold of the images (in ads, boxes, websites etc) you need to do that because it is your job to prove they were sold.  Lawyers are not cheap, you need to have plenty of ammo before you hire one.  Don't just walk in with "I heard he sold my photos"  walk in with the proof. 


If this is the case and you do have clear evidence you need to get off the computer and get to a lawyer. You have a pay day coming.

Posted by Venus: 
Oh okay.  I thought he had the copyright to the images and could do whatever he wanted with them.  He sold some of them to his clients in China or something.  Is that legal?  I didn't give him a release and let him keep the money from his clients.

Venus what you are dealing with is called Misappropriation of likeness. Also sale of your image to a 3rd party is illegal without your concent. You can sue and will be awarded damages up to $250,000.00 per incident.

What he has done is blatantly illegal. Abercrombie and Fitch were sued not too long ago by a couple of surfers who appeared in the A&F catalog, purchased from a photographer who HAD a release, but not pubrights. And the surfers if memory serves were awarded several MILLIONS of dollars.

This in no way constitutes legal advice and is for informational purposes only. Please contact a lawyer in your area who specializes in these matters.

Posted by Venus: 
Okay.  I didn't take any action because I wasn't sure if it would be worth approaching or not.  That's why I asked for ideas.  I was aware that he was going to sell the images but I wasn't aware of which images and IF he was actually going to sell them or when he was going to sell them.  I was also promised money that was never given to me.  But I was never asked, "is it okay to take these images for my Chinese clients?".   

Sounds like you need to look your contract over carefully.  What is said verbally makes little difference, it's what you signed that matters and now it sounds like you may have signed a release. Do you have a copy of the paperwork you signed and if you do, what does it say...if you don't why not?

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

I certainly hope he doesn't practice copyright law.

Posted by Ty Simone: 
And how is her book Not copyrightable?
Images of Naomi, Copyright Naomi.

Simple: What did she originate and put into fixed form?  Nothing. 

It's a chicken-and-egg scenario: If she could copyright her portfolio, then she could argue for joint copyright for work commissioned to include in it, but since she can't argue joint copyright, she can't claim copyright for anything that's in it, therefore the entire work is not copyrightable.

To make this somewhat easier - if she commissioned the photos for inclusion in a book she's writing about her modeling career (which is copyrightable), AND she has a written agreement whereby both parties agree to that usage, THEN she can argue for joint copyright in the pictures, but, presumably, the agreement would stipulate that, so there'd be no need to argue. 

Posted by Ty Simone: 

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

So now we have a second person, After consulting with his attorney that says the same thing, albeit in different words.

And yet no one will accept it?

Would it make anyone feel better if I get my attorney to write it up on his letterhead and I scan a copy on here?


Let me explain something about law that my lawyer once told me, that will shed some light on this subject, I am paraphrasing...

For people without money, there is law as set by the people with money.

Just because you have a certain right, does not mean that you can enforce that right without going to court.

The RIAA is a good example.
The law is quite clear on home use of copying. You can record a cassette of music from a radio broadcast, A videotape of a movie on HBO, and even dub tape to tape, and it is all legal.
How is that any different than downloading MP3s?
From a legal stand point it is not, However, until someone with enough money challenges it in court, the RIAA will have their way. People will cave in because they do not have enough money to challenge such a big organization.



---

Now, The McFarlane case I cited was a perfect example of that. for something like 25 years, the omic industry has been walking on thin water over the copyright issue and ownership. It was not until McFarlane, where it was a clear cut case to be disputed, and the amount of money involved was substantial, that it ever got argued, and hence decided.

Just because it was always that way does not make it the law.

A case can be made in the circumstance above.
It would be up to the courts to decide if it holds or not.
Therefore, from a total standpoint, the mid line is both, from a legal standpoint, it may be hers, and from a "It is always this way" stand point, it may be his.

 

Posted by DJ Foothill: 
Alex. Actually when WE do a "work for hire" it isn't an employer - employee relationship. It's often a contractor situation in which case we would issue a 1099, and any work created under that pervue is still considered work for hire.

Depending on what you're doing, you may be quite wrong.  There are only 9 categories of work that can be done by a non-employee and still be considered a "work for hire". 

Read http://www.copyright.gov/circs/circ9.html#employer

Posted by Sweetmodel: 
JEff what the hell is that photo..lol
if a photographer gave me that..do I have to pay for that crap?

Ty Simone.  MAYHEM!  Click on the thumbnails... the quality is FUNNY!

Posted by Naomi Jay: 
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?

Whatever it says on the release.  Sometimes models share copyrights with photographers.  Most of the time photographers will own full copyrights.  Hardly ever will a model buy full copyrights, unless it's for a paid website or something.

Posted by Joe Tomasone: 

Posted by DJ Foothill: 
Alex. Actually when WE do a "work for hire" it isn't an employer - employee relationship. It's often a contractor situation in which case we would issue a 1099, and any work created under that pervue is still considered work for hire.

Depending on what you're doing, you may be quite wrong.  There are only 9 categories of work that can be done by a non-employee and still be considered a "work for hire". 

Read http://www.copyright.gov/circs/circ9.html#employer

Trust me Joe I am VERY well versed in the law, as are the several lawyers we keep around to tell our best lawyer jokes to. And indeed If I hire you to come shoot one of my models for me to use for whatever I own the copyright to that. And it is a work for hire. Or else you would not have shot that model or that particular photo otherwise.

The simple breakdown as one fucktard had to learn the hardway is that if I hire you. You work for me. And ANYTHING you create under that banner is mine. Hell did you know that if you work for Microsoft as a secretary and design the next evolution in media streaming Microsoft COULD and very possibly WOULD end up owning the patent to YOUR work?

Posted by DJ Foothill: 
The simple breakdown as one fucktard had to learn the hardway is that if I hire you. You work for me. And ANYTHING you create under that banner is mine.

...For certain definitions of "hiring".  I am not your employee (under the general common law of agency), and therefore an independent contractor.  Therefore, for it to be a work for hire, the work must be:

a work specially ordered or commissioned for use
as a contribution to a collective work:
as a part of a motion picture
as a part of 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.


So, eliminating those that (normally) have nothing to do with photography, we are down to:

as a contribution to a collective work:
as a part of other audiovisual work,
as a supplementary work,
as a compilation,
as an instructional text.


A supplementary work would cover photo illustrations of a larger work, and intructional text includes photo illustrations as well.

Further, the parties must agree in writing that the above is a work for hire, which, presumably, is not an issue in your case.


So therefore, what the photos will be used for is crucial to deciding if, indeed, the work is done for hire, and therefore whether you own the copyright to them.

Posted by DJ Foothill: 
And indeed If I hire you to come shoot one of my models for me to use for whatever I own the copyright to that.

And for the reasons I just cited, this is a dangerous statement to make. "For whatever" doesn't cut it legally.

Here's another good page to read that summarizes the copyright.gov page but adds a little case law on who, exactly, is an employee: http://www.keytlaw.com/Copyrights/wfhire.htm


  - Joe