studio36uk wrote:
You can disagree if you like but that is what it says: [1] The creator has a right to attribution; [2] that right can be wavered; [3] but if it is not wavered it can be enforced. Interestingly, the creator's right ["moral rights"], here and in the US, can never be sold or transferred; so even if the copyright is sold the creator [original author] can continue to insist on their credit even though they no longer own the copyright.

This [photography] is a BUSINESS and I treat it as a BUSINESS = generation of revenue.

Studio36

I suspect we are both considerably over our head here. I repeat that I am not a lawyer, and that I can only give my interpretation of what I read as a simple photographer.

Here's where I think you are in error: Title 17, Chapter 1, Section 101 (Definitions) of the US Code says, and I quote:

"A 'work of visual art' is — (2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.

A work of visual art does not include —

(A)(i) any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication;

(ii) any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container;

(iii) any portion or part of any item described in clause (i) or (ii);"


Obviously, this definition EXCLUDES a large percentage of photography done FOR BUSINESS, doesn't it?

There's a pretty good discussion of VARA and its implications here: http://williampatry.blogspot.com/2006/0 … rophy.html .

Another article I read pointed out that there has not yet been a single case brought concerning attribution under VARA.

http://cyber.law.harvard.edu/property/l … rimer.html

Here, the lawyer points out that, "Under American Law, moral rights receive protection through judicial interpretation of several copyright, trademark, privacy, and defamation statues, and through 17 U.S.C. §106A, known as the Visual Artists Rights Act of 1990 (VARA). VARA applies exclusively to visual art. In Europe and elsewhere, moral rights are more broadly protected by ordinary copyright law. . . .Under VARA, moral rights automatically vest in the author of a "work of visual art." For the purposes of VARA, visual art includes paintings, drawings, prints, sculptures, and photographs, existing in a single copy or a limited edition of 200 signed and numbered copies or fewer. In order to be protected, a photograph must have been taken for exhibition purposes only."

http://www.copyright.gov/fedreg/1995/60fr27329.html

This Federal Register notice says it clearly:

"The scope of VARA is very narrow; it applies only to works of fine art which are identified as ``works of visual art.'' A ``work of visual art'' as defined in the Copyright Code includes any painting, drawing, print, sculpture, or still photographic image produced for exhibition purposes, produced in a single copy or an edition of 200 or fewer if signed and consecutively numbered by the artist. 17 U.S.C. 101 (1990).

VARA specifically excludes works for hire, motion pictures and other audiovisual works, and works of applied art.

It also explicitly excludes posters, maps, globes, charts, technical drawings, diagrams, models, books, magazines, newspapers, periodicals, data bases, electronic information services, electronic publications and similar publications, any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container, and any portion or part of any of these items. Works not entitled to copyright protection under title 17 are also excluded. 17 U.S.C. 101 (1990).

    If a work qualifies as a ``work of visual art'' the author of that work is granted two rights: the right of attribution and the right of integrity. The right of attribution gives the visual artist the right to be named as author of a work; the right to prevent use of his or her name as author of a work he or she did not create; and the right to prevent the use of his or her name if the work has been distorted, mutilated or modified in a manner that would be prejudicial to the artist's honor or reputation."

My layman's interpretation of this is that the attribution rights you claim apply to ALL photographs in fact apply to only a select group, which is mostly artistic, and non-commercial in nature.

British Association of Picture Libraries and Agencies
[among other things covered]

Unauthorised copying of a copyright image or photograph or failure to give credit are infringements of law and as such can be subject to criminal sanctions such as a fine or imprisonment or civil sanctions such as claims for damages, accounts, delivery up or injunctions precluding one's use of the images.

Studio36

studio36uk wrote:
Not over my head... not my opinion alone either... here's why:

http://www.bapla.org.uk/static/industry/copyright.php


Studio36

We are discussing US law, not UK law. They are VERY different, aren't they? Please read the citations I have included above which note that the US law is not as strict in this area as European law. Why are you citing UK copyright law in a practical discussion of a US situation? Are you arguing to inform, or just to pontificate?

I repeat -- there are many practical situations where it is unrealistic to demand that credit be given in the usage of photos. As a BUSINESS, I think it is unwise to automatically refuse work where credit is not guaranteed. But of course, if that's what you want to do, you're free to do so.

bang bang photo wrote:
We are discussing US law, not UK law. They are VERY different, aren't they? Please read the citations I have included above which note that the US law is not as strict in this area as European law. Why are you citing UK copyright law in a practical discussion of a US situation? Are you arguing to inform, or just to pontificate?

Arguing to inform. Any right, term or condition one wishes to assert... even if it goes beyond the terms set in law... can be asserted by contract. That is what is accomplished by a delivery memorandum... or incorporated in a license... if not by the law itself.

bang bang photo wrote:
I repeat -- there are many practical situations where it is unrealistic to demand that credit be given in the usage of photos. As a BUSINESS, I think it is unwise to automatically refuse work where credit is not guaranteed. But of course, if that's what you want to do, you're free to do so.

That is a mixed bag... subject to negotiation... and to the realised compensation. It IS impractical, for example, to insist on a credit for [creation of] a TV advertisement... but that doesn't mean that the fact of not receiving credit is also not reflected in the price charged to the client.

That is the whole point.

Studio36

studio36uk wrote:

Arguing to inform. Any right, term or condition one wishes to assert... even if it goes beyond the terms set in law... can be asserted by contract. That is what is accomplished by a delivery memorandum... or incorporated in a license... if not by the law itself.

That is a mixed bag... subject to negotiation... and to the realised compensation. It IS impractical, for example, to insist on a credit for [creation of] a TV advertisement... but that doesn't mean that the fact of not receiving credit is also not reflected in the price charged to the client.

That is the whole point.

Studio36

You're changing your "whole point" rather dramatically -- to the point of deleting earlier assertions you made about what the law offers and requires -- assertions which you now know to be incorrect.

Just a suggestion -- when arguing about the law -- which you were doing, up until now -- is a tricky business for us non-lawyers. I try, whenever possible to remain humble and non-didactic and non-absolute in tone -- I think this is the best approach when discussing these complex and arcane matters.

As far as what to include in contracts -- it's all about proportionality. If you are working on a large expensive project which will make up a significant portion of your annual income, it is reasonable and necessary to devote a lot of time to contract negotiations. If, as the original poster was, you are doing a simple and relatively straight-forward job for a small amount of money, it is bad business to waste hours attempting to craft an agreement. Either live with a simple agreement, or don't do the job. It never makes sense to spend more effort on the negotiations than the job merits.

And with that, I'm going back to work.

Paul

Package notice: WARNING
By opening this package you are agreeing to be bound by the Terms and Conditions below, so please read them carefully.  If you do not agree to them, promptly return this package unopened to  at the address below.

[in part]
TERMS AND CONDITIONS

B. Payment: FULL PAYMENT MUST BE RECEIVED BY PHOTOGRAPHER PRIOR TO PUBLICATION.  ANY USE PRIOR TO PAYMENT SHALL BE CONSIDERED AN UNAUTHORIZED USE. Client agrees that reasonable and stipulated amount which shall be paid by Client to photographer for use prior to receipt of payment by Photographer shall be three (3) times Photographer's customary fee for such usage. [break in text]

G. Copyright Protection/Credit Line: For Editorial use, credit line in the form Copyright "©   in type no smaller than that of related text must appear adjacent to or within the photograph(s) or fee is tripled; Client acknowledges that such a triple fee is fair and reasonable for photographer's loss of recognition and lack of copyright protection resulting from lack of, or improper, copyright notice/credit line.  For Non-Editorial use, Client will provide copyright protection by placing proper copyright notice on any use. Proper notice may be either "© Client Name, Year-date of first publication", or "©  " adjacent to or within the photograph(s). [break in text]

I. Loss or Damage: [in part] ...In the event that Client infringes on Photographer's copyright in and to the works delivered herewith, then Photographer shall be entitled to obtain immediate injunctive relief to prevent further infringement and that Photographer shall not be required to post a bond to obtain injunctive relief, or if a bond is not waiveable, such bond shall not exceed $100.00. Photographer shall be entitled to recover the greater of Photographer's actual damages, or statutory damages in a sum not to exceed $20,000.00, in cases of non-willful infringement. In each instance, Photographer shall be entitled to recover reasonable attorneys' fees incurred and related costs in enforcing Photographer's rights under the United States Copyright Act, and under each federal or ancillary state law under which Photographer is awarded or granted damages.

Also a good read is this:
http://www.editorialphoto.com/outreachep/wap2.asp

WAR ON PHOTOGRAPHY II
Presented at PhotoPlus Expo - Jacob Javits Convention Center - October 22, 2004

[On the subject of clients and others]

...You guys in this business are viewed by the clients, by reps, by the stock agencies, by the lawyers who work for your clients - as naive, passive to a fault as "artistes" in the most pejorative sense. That you lack business acumen, that you never read anything - and I know from personal experience and Erica can tell you from personal experience, we know that half of you don't read the letters that we send you, even though you're paying us. We know they're not read. They perceive you as being unable to write English sentences. They perceive you as being unable to put a paragraph together. They perceive you as being easily fooled and very desperate.

This is the way that they talk about you behind your back. They don't tell you that when their having drinks after a shoot and they don't volunteer this information, but it's what they tell us when we have them under oath. It's what they tell us when their in negotiations. These are people who can, and will, tap you on the back with one hand and pick your pocket with the other. And it can happen to you...

Studio36

ADG Photography wrote:
In retrospect, I wish the band and I had negotiated further. In all likelyhood, I would have re-done the copyright statement issue. There is even room on all my contracts that I build in for "write in" changes that, when accepted and signed off on by both parties, overide other provisisions.  I mean, how much more room for negotiation can there be?

One of the more important reasons professional photographers do or should employ agents/reps is the agony involved in the negociation process. You as the artist need to distance yourself as much as possible from the economics of the project. When an art director walks into your studio, you do not want them thinking of the arguement they jusy had with you over dollars. If you can deflect onto your rep any disagreeable transactions that take place your relationship with the creative department will be better. If you do as I do and act as if you are working for your rep it's even better. This helps when the AD asks for something additional in the project. You have to get approval from the rep who usually has to talk price with the art buyer. Both you and the AD are removed from the process and it becomes a matter of waiting for a yes or no from a detached party.

Bob Randall Photography wrote:
One of the more important reasons professional photographers do or should employ agents/reps is the agony involved in the negociation process. You as the artist need to distance yourself as much as possible from the economics of the project. When an art director walks into your studio, you do not want them thinking of the arguement they jusy had with you over dollars. If you can deflect onto your rep any disagreeable transactions that take place your relationship with the creative department will be better. If you do as I do and act as if you are working for your rep it's even better. This helps when the AD asks for something additional in the project. You have to get approval from the rep who usually has to talk price with the art buyer. Both you and the AD are removed from the process and it becomes a matter of waiting for a yes or no from a detached party.

Bob,

I completely agree with everything you say. But let's keep this in perspective, we are talking about a "little guy" photographer dealing with a "little guy" client. As I'm sure you well know, the original poster couldn't get an agent to represent him to save his life at this point in his career. This shoot has no agents, no creative department, no AD, no art buyer. It's a little tiny job, being done at the other end of the career spectrum that you are talking about.

It's very easy to just dismiss my point and say, "well, if you can't behave professionally, you shouldn't be in business." But it is not realistic to ignore the fact that there are different strata of business represented here, and before you get to the world of agents and representation, you're going to have to kiss some frogs. What is "professional" at one level of business is not necessarily even available at the other end -- and if you hold to the higest professional standards of negotiation, contracts and compensation, you may find yourself tremendously well-educated, but totally lacking in clients and income.

Wouldn't it be cool if every professional photographer had a rep? Any idea what percentage of us don't? 

I think one of the most interesting challenges in professional photography is -- how do you get from the point where you are a total amateur newcomer to the business, to the point where you are a successful, established professional? I have to say, I rarely see this question addressed with the care and honesty that it deserves. . .

Regards,
Paul

bang bang photo wrote:

I disagree with your interpretation of this law. When I read it, my sense of it is that no one can stop an artist from claiming that they are the author of their own work -- and no one can claim to be author of a work they did not create. This is a far different thing from publishers being REQUIRED by law to give credit. There are many, many places where photography is used that do not give credit. Again, as I've said from the beginning of this thread, it is preferable to receive credit if possible, but to suggest that you should turn away work where no credit is guaranteed is going to be extremely career-limiting in my humble opinion.

I am not a lawyer, and I don't even play one on TV, so this isn't legal advice, and I could be completely wrong. But I believe you are confusing the RIGHT of the artist to claim authorship, with the OBLIGATION of another party to always identify the author of a work when publishing it. Two VERY different things, to me. It seems to me that if an obligation were the intention of the law, it would spell out exactly how that obligation must me met, but it is completely silent on that subject.

[Edit] I've done a little more reading on this subject -- it appears to me that the wording has purposely been kept a little hazy in US law -- there are areas of US Copyright law where some suggest that the US is not in full compliance with the Berne convention. It appears to me that this is an area where the US is not as progressive as European countries in enforcing moral rights of an artist.

In addition, the definition of "Visual Work" is very key here. Go up and read it in the definition sections of the code. You will find that "Visual Work" is very strictly defined as a piece of artistic work, not general commercial photography.

Paul

Well...LOL..I didn't actually write the quote showing up in the blue box in your post, but for some reason it was attributed to me.   But I will say that it does not surprise me in the least that the U.S. is not as progressive on this as Europe. But talking about that will get us into another hard fought political thread. LOL