Gary Davis wrote:
The models job is to be a prop that the photographer uses to create the image.

I couldn't disagree more.  In what I do the model's input is vital.  They bring the vital spark that gives life to my ideas.  Without them, my images would just be daydreams.

Melvin Moten Jr wrote:

I couldn't disagree more.  In what I do the model's input is vital.  They bring the vital spark that gives life to my ideas.  Without them, my images would just be daydreams.

You didn't continue reading the following paragraphs did you

Alan from Aavian Prod wrote:
Gary, I agree to some extent, but sorry, I have a problem with the terminology.

The model is not a prop, she is the subject of the image....

Ah yes, I agree, prop was a poor choice of words.  I was actually just sitting here thinking about what I wrote and decided that a lot of the terminology could have been better.  Probably rushed more than I should have but just don't have the patience to think it through.  Maybe it would have been better if I just kept my mouth shut (so to speak).

Now that I think about it, much of what you're saying might be what Melvin was getting at.  That is exactly what I was thinking in my head but just didn't get it across well.


Meh, more thinking:  What if the model isn't the subject of the photo, but an element additional to a seperate subject?  Oh, never mind, that's too far off the topic.

theda wrote:
What Alan said.  Somewhere between "prop" and "collaborator" falls "employee" or "colleague."

Damn...I can see that too.  Everyone always talks about professionalism, this puts things in perspective.

theda wrote:
What Alan said.  Somewhere between "prop" and "collaborator" falls "employee" or "colleague."

And in the world of photography - one might refer to a model as the "subject" - still NOT quite an "employee" or "colleague" but also far, far short of "collaborator"

You probably KNOW, from other posts, my position on the use of certain terms even in casual conversation but especially where something that is said could be construed as an oral agreement.

In my universe, and working under UK copyright law, - "creative team"; "collaborator"; "creative input"; and several other terms are never mentioned. There is a hazard in creating by a slip of the tongue a DEFAULT situation where there could arise a quite possible and serious challenge to copyright ownership. There is also a hazard here [in the UK] of saying nothing at all but letting the illusion of a "collaboraton" exist, even unsaid.

I expect, from several US copyright cases I have read where similar arguments were advanced, that something like that could also be argued in US law... IF there is any inference [oral or in writing] at the onset, or during the creation of it, that a work was jointly created by the claimed author and a "collaborator" - though something more is needed in the US context than mere silence.

The issue is very well known in the music and writing industries, both in the US and UK.... but just as widely it seems to be unknown in the photographic industry.

As long as the model doesn't have, and isn't given, any illusions about "creative input"; about being a "collaborator"; or part of a  "creative team" I don't care what they are called. "Warm prop" is, however, a term known in the film and TV industry and that has some meaning to those inside it.

Studio36

Gary Davis wrote:
Are you saying that using the term "collaborator" has a legal interpretation that can imply sharing copyright?  I wasn't aware of that, I may have to be more carefull.

It does in the UK by default. IF two or more persons contribute to the creation of a work; and on completion the individual contributions can not be separated; then a joint authorship exists BY DEFAULT. Note, especially, the use of the word "collaboration" in the actual text of the [UK] law under the section title "Authorship and ownership of copyright"

http://www.opsi.gov.uk/acts/acts1988/Uk … .htm#mdiv9

Works of joint authorship. 10.—(1) In this Part a "work of joint authorship" means a work produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author or authors.

My release contains this wording EXACTLY because of that:

"...The photographer reserves, in every instance, the right to be identified as the sole maker of the work, and I, the undersigned, further agree that the photographs mentioned herein, by mutual agreement, are not the result of a collaborative work...."

A very similar situation can arise in US law if there is an expression of intent to create a work of joint authorship. That expression need NOT be in writing. But, unlike the UK, there needs to be something more than silence.

I would argue that by writing, say an e-mail or a letter, to a model inviting them to a shoot and using wording such as "collaborate" COULD work such a deed if some intent to create a joint work could be drawn from the wording and the actions that follow. That e-mail or letter could very well sink the photographer in a fight over copyright, and indeed profits, in the rare and remote event that the image had some significant future value - OR - if, for example, the model wanted to prevent or limit it's use... especially commercially.

Studio36

studio36uk wrote:
A very similar situation can arise in US law if there is an expression of intent to create a work of joint authorship. That expression need NOT be in writing. But, unlike the UK, there needs to be something more than silence.

I understand your point and I suppose there is a remote chance of that occurring, but I did a Westlaw search and found no cases supporting such a position.  That doesn't mean a bright attorney couldn't make such an argument.

I think the language of U.S. copyright law is more intended for business partnerships that are in the creative industry.  I think the risk would be greater if, for example, a photographer and a model entered into a partnership to create a website and have joint ownership of it.  It might be possible to argue that the copyright innures to the partnership rather than the photographer since the photographer was shooting on behalf of the partnership.

In any event, all of these issues should be resolved by a well written release signed by the model and a proper license (if any) executed by the photographer.

Any vagueness from the use of the word "collaboration" would be eliminated by proper paperwork.

Dreams To Keep wrote:
If an idea is that nailed down so that further brain work is not needed then model is prop, photographer is button pusher.

I don't think I agree with this, it sounds too extreme.  No matter how much an idea is nailed down, it still takes more than a model "prop" and a button pusher to execute it.    The art director isn't going to be bothered with things like the technical details of how to setup lighting, exposure, etc. of a scene to create the desired effect and they can't manually fix every muscle in a models body.  These ideas still have to be communicated to, interpreted and executed by the model and photographer to make them into a real image (I was going to say reality but that didn't sound quite right).

If the job is nailed down to the point of prop and button pusher, then the model and photographer have already performed a large part of their jobs and this point only lasts for the brief moment it takes to actually release the shutter.

Angelus wrote:
Gary, I honestly cannot express anything toward your opinion. Why? Because, is obvious where this resides. Your SOLE opinion.

Word to the subject.
If you sum up what a model is to simply being a prop. Then, you as a photographer are nothing more than a point-and-shoot instrument.
THAT IS TO SUM IT UP TO THE EXACT SAME DEGREE AS WHAT YOU'VE JUST DONE.

You've obviously missunderstood what I wrote.  I admit I didn't communicate my ideas as well as I could have, but the fact you keep harping on the "prop" thing demonstrates that you simply didn't read the thread carefully because I've already stated that that was a poor choice of words, edited the original post to indicate such, and in the ensuing discussion stated that I don't think of the model that way and agreed with the others expressing the view that the model does contribute more than being just a prop.

studio36uk wrote:
A very similar situation can arise in US law if there is an expression of intent to create a work of joint authorship. That expression need NOT be in writing. But, unlike the UK, there needs to be something more than silence.

Alan from Aavian Prod wrote:
I understand your point and I suppose there is a remote chance of that occurring, but I did a Westlaw search and found no cases supporting such a position.  That doesn't mean a bright attorney couldn't make such an argument.

At least one bright spark of a lawyer has done it...

Have a read of these two pages - then tell me you shouldn't plan for the worst:

http://www.publaw.com/joint.html
Prepared by:
Publishing Law Center
Denver, CO 80206

Copyright Ownership: The Joint Authorship Doctrine
© Copyright 1995 Lloyd L. Rich

----------

BUT here is a more definitive US case involving PHOTOGRAPHS specifically and UNINTENTIONAL joint authorship

http://www.legallanguage.com/lawarticle … da012.html

[article]
Joint Authorship for Photographs - A Step Backward
by Robert W. Clarida, December 2000

the case is
Brod v. General Publishing Group, Inc., No. CV 98-9520 (DUP)

Studio36

P.S. There are other cases like Brod that involve writing, and other creative endeavours, ect, but not photography specifically in so direct a way as Brod. I used to have some saved but can't find them at the moment.

Gary Davis wrote:
You've obviously missunderstood what I wrote.  I admit I didn't communicate my ideas as well as I could have, but the fact you keep harping on the "prop" thing demonstrates that you simply didn't read the thread carefully because I've already stated that that was a poor choice of words, edited the original post to indicate such, and in the ensuing discussion stated that I don't think of the model that way and agreed with the others expressing the view that the model does contribute more than being just a prop.

Not that I misunderstood. I highly disageed with the term. I wasn't dispute of some of the things you were saying, I was playing Devil's Advocate and showing what one term in an ntire argument provokes. I understand you don't view them as that. Which is why I wentvback and changed it. But, my point wasn't to really get defensive. It more to show an example of an extreme that could be taken by someone from one word which would force them to disallow ahything you said after that. A person can take the term in a very horrible way. After all, it IS a deogatory/belittling term.
So, I really just wanted to point that out.

But, because I didn't read your follow-up post...My apolgies.
Apologies, for the bluntness of certain phrases as well just in caes they were too strong. I can be a little too vocal at times.

Gary Davis wrote:
Alright, I'm going to try and put this the best I can.  I'm afraid this is likely going to bruise some egos and be missunderstood to some extent but I think it's an interesting topic and I think many serious photographers agree and many models don't understand what I'm about to say, and I'd like to here others opinions.  I hope we can keep this civil, I don't mean this as another "us against them" thread.

I'm just going to do the best I can and hope that people understand I'm not trying to put down or degrade anyone.  Enough of the wordy build up

Sort of a tangent from another thread about models editing images.

The photographer is the image creator.  The models job is to be a prop that the photographer uses to create the image. [edit: as mentioned below, this was a poor choice of words.  Would "instrument through which the photographer creates the image" be better?]  Not saying that the models job isn't important, but that is it's purpose, nothing more.  If you have a problem with this, you shouldn't be a model.  Sorry to be so blunt, but sometimes I think that's the clearest way to get the idea across.

Now, that doesn't mean the model can't make additional contributions, but then they are expanding their job and taking on other roles to some degree, perhaps art direction, styling, makeup, editing, etc.  There is certainly nothing wrong with this, but I think it's the exception and not the rule.  If a model wants to become more involved this way as a condition to working with a particular photographer, it should be discussed and agreed upon up front.

Personally, I'm very open to collaboration if I like the idea.  I have allowed models to use images they edited themselves when they asked first and indicated it in the credits.  I like the energy that comes from a model that is as excited about an idea as I am so I like to work with them to find out what they like.  But in the end, unless I've been commissioned to create someone elses vision, I have the final say on the image to be created.

Obviously in the case of TFP, there has to be at least a small amount of collaboration between model and photographer as both should get images they can use.   But for the most part, a model should select photographers to work with who's images are what she needs and trust the photographer.  If the model expects more out of that, ask and make it clear up front what you want.

My moto is: "just ask!"  I'm open to most ideas if presented up front, but go behind my back and I get pretty mad.

Gary to be honest you made enough qualifications to your statements that I'm not entirely convinced you are convinced of what you say.  In my artistic work, the collaboration and inputs of ideas is vital for me to do good work.  Doesn't mean that I don't have good ideas etc, but I would rather quantify the resultant work by saying it is a "we" process not an "I" ptocess.

That's not the case in all that I do but it is when I am working with somebody in a collaborative sense.  Using the term "prop" to identify a model is not something I am comfortable with... that really puts your ego out in front of everything and I just don't think that's a good idea in most situations... but if it works for you and the models...

studio36uk wrote:
----------

BUT here is a more definitive US case involving PHOTOGRAPHS specifically and UNINTENTIONAL joint authorship

http://www.legallanguage.com/lawarticle … da012.html

[article]
Joint Authorship for Photographs - A Step Backward
by Robert W. Clarida, December 2000

the case is
Brod v. General Publishing Group, Inc., No. CV 98-9520 (DUP)

Studio36

P.S. There are other cases like Brod that involve writing, and other creative endeavours, ect, but not photography specifically in so direct a way as Brod. I used to have some saved but can't find them at the moment.

The appellate decision is posted here:

http://www.entlawdigest.com/story.cfm?storyID=2697

Sorry, I'm broke right now ($20 an article--$495 a year--ouch!), but if anyone's got a membership and would like to at least copy and paste some excerpts, I'd be really interested in reading the outcome.  8}

It sounds to me like this was a case of 'I'll tell you what to shoot, you just push the button,' though.  In this instance the subject was an inanimate object.  I would think a model trying to use this as a basis for a claim would have a serious uphill battle.  Namely because it would be really difficult for the model to dictate the perspective on the other side of the lense.  I would think an art director would be able to go farther with this than a model.  Just my $ .10.

tim

studio36uk wrote:
BUT here is a more definitive US case involving PHOTOGRAPHS specifically and UNINTENTIONAL joint authorship

http://www.legallanguage.com/lawarticle … da012.html

You need to read the cases very carefully.  Here is the definition applied:

"The elements of joint authorship in the Ninth Circuit, as in the Second Circuit, are that each joint author must make a copyrightable contribution to the joint work, and that each must intend his or her contribution to be merged into a "unitary whole."

That situation doesn't come with a model because a model doesn't contribute something that is separately copyrightable.

I understand your concern, but I am unconvinced that simply referring to the participation of the model under U.S. copyright law would create a shared copyright.  the other article seems off target to me as well.

But they are both good things to be cognizant about because, as I said, lawyers always come up with new theories.

When a model believes that making good photos is her or his job, (as opposed to just looking good in photos) the photos will usually be better.  A good model is part of the creative team.  . A poor one is a prop. - Brian Diaz

Alan from Aavian Prod wrote:
That situation doesn't come with a model because a model doesn't contribute something that is separately copyrightable.

One would think this to be the case, but (and maybe I'm misunderstanding this, I'd really like to read the appellate decision) it didn't seem that the court took the book (which would seem the rational 'separate work' in my mind, not that it should have an impact on the copyright of the photographs) into consideration when making the determination as to whether or Collins made a copyrightable contribution.  It appears as though they focused primarily on how much input he provided in creating the images, and whether he or the photog made the major decisions in the process.

Tim Hammond wrote:
The quote below was posted in a thread several weeks ago.  For some reason it struck me enough to hang on to it.

Interesting, although to me that's the difference in brands of paint, not whether or not the paint distributor should share in copyright.

Reign Studios wrote:
Provacative....

Someone tell me if I'm wrong, or it might have already been discussed and I just missed it. But this issue of collabing to me only seems to be a problem if it tfp/cd...

Because if you are paying your model any contributions he/she makes, wouldn't  that be considered "work for hire"??? And in copyright law (like I said, correct me if I'm wrong) "work for hire" copyright falls to the employer.

Not exactly.

Mostly "work for hire" is only enforceable on full time employees.  Freelancers and people who are hired for a limited time are not usually included in this classification.

In either case a model is not subject to obtaining copyright in the US definition of copyright unless the photographer gives it to them.

Tim Downin wrote:
One would think this to be the case, but (and maybe I'm misunderstanding this, I'd really like to read the appellate decision) it didn't seem that the court took the book (which would seem the rational 'separate work' in my mind, not that it should have an impact on the copyright of the photographs) into consideration when making the determination as to whether or Collins made a copyrightable contribution.  It appears as though they focused primarily on how much input he provided in creating the images, and whether he or the photog made the major decisions in the process.

There are too important things to understand.  First, this is a lower court decision and therefore is not precedent.  You are right, it will be nice to find out what the nineth ultimately decides.

But second, this is an application of the principle of co-authorship.  This case is about two people who had been publishing books together.  Now I agree that the decision of the Court is bizarre, and perhaps scary.  But there is a great deal more involvement between the two parties in this case than a photographer simply using the word "collaborate" with a model.  We are jumping from the participation as a subject (who might make some suggestions) to a pair of individuals who had created works before and had been collaborating on a future work.

Whether or not we agree or disagree with the decision of the court, it did apply the rule as it saw it and found something far more compelling than just a casual connection.

It is important to remember that the law is never simple and judges often weigh varieties of conflicting and confusing statutes and decisions before rendering a judgement.  I just don't want us to get to the point where we are afraid of working with models because we think they suddenly own our work.

There has not been any case, even remotely on point, where the simple use of the word "collaborate" in a discussion has caused a photographer to subjugate a part of his copyright ownership.

That is my point.

christina_show wrote:
There has not been any case, even remotely on point, where the simple use of the word "collaborate" in a discussion has caused a photographer to subjugate a part of his copyright ownership.

That is my point.

Perhaps not in photography specifically but there is law and there are cases, and case law, in other creative fields - in particular in music and writing, but also in movie making.

In movies, for example, copyright law quiets the [copyright] title to such works by awarding the copyright to the producer and or director by statute - regardless of any creative contribution by anyone else participating in a movie's creation.

In large orchestras, though the musicians may not be factual employees of a single entity, performances are done under forms of work-for-hire agreements. Performance and recording rights are vested by statute - usually, AIUI, in the producer.

Unfortunately copyright law, in US practice, does no such thing for other creative endeavours... which always leaves open certain questions. One common thread is that of "intent" and to state that something is created out of a "collaboration" strongly implies a level, SOME level, of intent. Strike one! Then, for the other party, if they are able to successfully assert both a contribution and one of independent copyrightability - that will be strike 2 and 3. For the photographer, as in baseball, 3 strikes and you're out.

As another poster noted above - just because it hasn't happened - doesn't mean it can't happen. One of the ways to keep it from happening... and the real essence of this thread... is to eliminate any appearance, or even any hint, of "intent" to create a  work of joint authorship. To that end NOT referring to a model [or anyone else involved] as a "collaborator" is a step that can only be in the right direction. Think preventative medicine.

Studio36

In movies, for example, copyright law quiets the [copyright] title to such works by awarding the copyright to the producer and or director by statute - regardless of any creative contribution by anyone else participating in a movie's creation.

I treat models as creative human resources, profile for commercial or other concepts, and am set up to pass through a percentage of net profit; however, in that I decide what's going to happen in front of the camera, where it's going to happen, and how it's going to look, I am author/director (could do a lot better at both too, but that's another subject) and while I don't share rights, I do license work to models to use for self promotion and without reservation in that regard.

C R Photography wrote:
I totally agree with you 120%.

Your point is perfect and on track.

And on rare occasions, I'll even let the model talk during the shoot…... hey, I said Rare

I tried to talk during a shoot once, the photographer slapped me.  I swore I'd never do it again.  I can't speak in compleate sentences anyway...  Unedjumacated, don't you know!

...Stacy wrote:
I tried to talk during a shoot once, the photographer slapped me.  I swore I'd never do it again.  I can't speak in compleate sentences anyway...  Unedjumacated, don't you know!

Literally struck you?! You should have beat the snot out of him! Or at least left the shoot and charged him with assult.

The only excetion to this is a scene (still or movie) where this is part of the scene and everyone is ready for it.