Tom deL wrote:
In perusing the profiles here it seems that models claiming either copyright or shared copyright (model/photographer) to images is fairly common.

I'm curious to know if people are creating the appropriate contracts for this or if it is just a verbal agreement.

Shared rights of usage or shared copyright?  I would think the model might of negotiated to have the right of usage to the image and less likely shared copyright.  Yes this should be in writing, which would spell out exactly what type of usage was permissible, i.e. self promotion.

TXPhotog wrote:
There is no such thing as a verbal agreement to share copyright.

Not to pick nits but surely there is such a thing.

TXPhotog wrote:
If it ain't in writing, it ain't so.

Exactly - the above agreement wouldn't be valid in many courts.

TXPhotog wrote:
My guess is that models don't understand copyright law and think they own it.  We see lots of examples of that on the forums.

That is what I wondered about.

Tom deL wrote:
Not to pick nits but surely there is such a thing.

If you can find it, I'd be obliged if you would point it out.  Title 17 is pretty explicit in requiring written agreements on these things.

Digiography wrote:
Shared rights of usage or shared copyright?  I would think the model might of negotiated to have the right of usage to the image and less likely shared copyright.  Yes this should be in writing, which would spell out exactly what type of usage was permissible, i.e. self promotion.

In the place provided for (presumably) the copyright owner - often I see either ModelName or ModelName/PhotographerName. It seems unlikely to me that many here would do this regularly and properly.

TXPhotog wrote:
If you can find it, I'd be obliged if you would point it out.  Title 17 is pretty explicit in requiring written agreements on these things.

For the same reason that these agreements are seldom enforceable it is not possible to point to one.

I'll leave my nits home next time {g}

Tom deL wrote:
In perusing the profiles here it seems that models claiming either copyright or shared copyright (model/photographer) to images is fairly common.

I'm curious to know if people are creating the appropriate contracts for this or if it is just a verbal agreement.

It's probably more likely the models doing it don't understand copyright law (then again, who does?).  I had a model do that once, but I contacted them to explain (very politely) that I am the sole owner and they fixed it.  Sometimes, that's all it takes.

Tom deL wrote:
Hi TX,

OK - I knew that I shouldn't have picked nits but what I meant was that there are probably lots of arrangements in which a 'photographer' and 'model' verbally agree to share copyright.

TXPhotog wrote:
If you can find it, I'd be obliged if you would point it out.  Title 17 is pretty explicit in requiring written agreements on these things.

Tom deL wrote:
For the same reason that these agreements are seldom enforceable it is not possible to point to one.

I'll leave my nits home next time {g}

I think what Tx is trying to tell you is you can tell a model all you want that you will share copyright, unless you do it in writing, there is no sharing.

Title 17 has a clause that says that copyright can only be transferred in writing.  Sharing a copyright is a form of transfer.  Since verbal agreements to transfer are not permitted, it is unlikely that you could even get a case into court.  If you filed an action to enforce a copyright that was orally transferred, a good attorney would just demur on the basis that there was no cause of action since there was no written transfer.

You can't share a copyright unless you put it in writing.

Alan from Aavian Prod wrote:
You can't share a copyright unless you put it in writing.

Yes, I think that this has pretty well been established. Please read my response that you quoted.

SLE Photography wrote:
I think you guys are off base about some of the models here.  I've run in to quite a few who DO understand the difference between copyright & useage and they want to share the copyright itself as well as having rights to use/sell the image commercially independent of the photographer.  And they can apparently find guys who'll agree to this.

Out of idle curiosity, have you run into any who actually do the paperwork to make this binding?

Tom deL wrote:
In perusing the profiles here it seems that models claiming either copyright or shared copyright (model/photographer) to images is fairly common.

I'm curious to know if people are creating the appropriate contracts for this or if it is just a verbal agreement.

What you are usually seeing is an understanding between two people who have no idea what they are talking about.

Alan from Aavian Prod wrote:
You can't share a copyright unless you put it in writing.

Tom deL wrote:
Yes, I think that this has pretty well been established. Please read my response that you quoted.

Actually, I did read your post and that is the reason I made my comment.  It wasn't to nit pick but to make the point absolutely clear.  In your post you wrote:

Tom deL wrote:
For the same reason that these agreements are seldom enforceable it is not possible to point to one.

The point is not that they are "seldom" enforceable, they are "unenforceable."  I'm sorry if you didn't understand and I think that is what Tx was trying to bring to light.

An oral agreement to share copyright never makes it to court.  So that is what I was clarifying, the word "seldom."

In any event, it wasn't a flame.

Tom deL wrote:
OK - I knew that I shouldn't have picked nits but what I meant was that there are probably lots of arrangements in which a 'photographer' and 'model' verbally agree to share copyright.

I think you are right.  There probably are lots of such agreements.  The problem is, they are worth the paper they aren't printed on.

There are many areas of life in which verbal contracts are valid and enforceable.  There are also many areas in which they are not.  Most states, for instance, have a "statute of frauds" which explicitly requires certain transactions to be in writing, or they are not valid.  Real estate sales almost always fall into that category, but there are many others.

Copyright law is similar.  At the moment of creation, the copyright belongs to the "author".  Except for a valid employer-employee relationship or a written work for hire agreement prior to the shoot, the author is the photographer.  For the copyright to later become "shared", it would have to be transferred.  Copyright law requires that any transfer be in writing.  If it isn't, it's not valid.  No matter what people say to each other orally, the copyright still belongs to the author.

I understand that lots of people don't know that, and incorrectly think that they have acquired sole or shared copyright because of some oral agreement.  But they are wrong.

SLE Photography wrote:
I think you guys are off base about some of the models here.  I've run in to quite a few who DO understand the difference between copyright & useage and they want to share the copyright itself as well as having rights to use/sell the image commercially independent of the photographer.  And they can apparently find guys who'll agree to this.

Tom deL wrote:
Out of idle curiosity, have you run into any who actually do the paperwork to make this binding?

Oh yeah.  I was contacted theu OMP by one out of south Florida whose manager insists on it for all his models & has an attorney-drafted document to back it up, and I've had 2 others who have shared-copyright agreement documents they've gotten various places send them to me to review before shoots.  I've never actually shot any of these people.    But they are out there.  I know of a dew other "managers" who insist on this for all their models as well.

SLE Photography wrote:

Oh yeah.  I was contacted theu OMP by one out of south Florida whose manager insists on it for all his models & has an attorney-drafted document to back it up, and I've had 2 others who have shared-copyright agreement documents they've gotten various places send them to me to review before shoots.  I've never actually shot any of these people.    But they are out there.  I know of a dew other "managers" who insist on this for all their models as well.

LOL You are kidding!!!!

You are not kidding?

SLE Photography wrote:
Oh yeah.  I was contacted theu OMP by one out of south Florida whose manager insists on it for all his models & has an attorney-drafted document to back it up, and I've had 2 others who have shared-copyright agreement documents they've gotten various places send them to me to review before shoots.  I've never actually shot any of these people.    But they are out there.  I know of a dew other "managers" who insist on this for all their models as well.

NewBoldPhoto wrote:
LOL You are kidding!!!!

You are not kidding?

No, I am not kidding.  I think some of the managers (ie SLUGGOS) are doing it to keep the girls in their stable & away from other photographers, but enough models have gotten the idea that they want/need/deserve shared copyright and then been told that it requires the photographer to release it that they're bringing forms (often of dubious legality) for it.  I had a VERY unpleasant argument with one model about it when I tried to explain that what she was asking for & how she was asking for it would be unworkable for me.  She said her manager & attorney had OKed it & I said "Fine, I'll speak to THEM."  Amazingly, I never did hear from them and said manager wouldn't return my calls or e-mails.  (this was on a set I shot where she turned around after & demanded "shared copyright" on threat of lawsuit based on her being under contract that I didn't know about at the time of the shoot...ugh).
The REALLY scary part is some of the models I've seen who're demanding pay, limited releases/useage for the photographer, AND shared copyright.  I hate to see how this craziness is spreading.

Alan from Aavian Prod wrote:
The point is not that they are "seldom" enforceable, they are "unenforceable."  I'm sorry if you didn't understand and I think that is what Tx was trying to bring to light.

An oral agreement to share copyright never makes it to court.  So that is what I was clarifying, the word "seldom."

In any event, it wasn't a flame.

Any lawyer worth her or his salt might argue that 'never'. Just yesterday I saw Gloria Allred on the tee-vee with a client who apparently hopes to have a usage agreement changed. While not a shared copyright agreement, it sounds as if she is not arguing that all of the paperwork wasn't there and signed- rather that the 'intent' was misrepresented.

Agreeing with the non-flame tenor of this thread, I respectfully submit that never is a long time in the legal world.

And to clarify what I mean: If an issue that would normally be assumed to be moot is raised or pressed by the right person (an F. Lee or Johnny or Gloria) there is always at least some possibility that it will be heard.

P.S. This is exactly the conversation I had hoped to start: I didn't think that many (if any) of the models claiming ownership or co-ownership actually have it. These claims are so common here that bringing this issue to the surface might help someone in their negotiations.

Tom deL wrote:
Any lawyer worth her or his salt might argue that 'never'. Just yesterday I saw Gloria Allred on the tee-vee with a client who apparently hopes to have a usage agreement changed. While not a shared copyright agreement, it sounds as if she is not arguing that all of the paperwork wasn't there and signed- rather that the 'intent' was misrepresented.

I really do understand what you are saying but there is a difference.  If there is an agreement and it is ambiguous, for example, most states will allow parol evidence (testimony) to explain what the parties meant.

Because of the language of Title 17, unless you could plead that there was a written agreement transferring copyright (or creating a share), you would simply be estopped from pleading the claim.  For their to be a cause of action, you would have to allege that a written agreement exists.

If you wanted to stretch the point and argue that a written agreement existed but was lost or destroyed, you might then get the matter to court.  The question of fact that would have to be determined if there was ever actually a written agreement.  A court might find, for exam;ple, that it existed and was destroyed in a fire.

Absent an allegation that there was a written agreement though, any claim for ownership of copyright based on transfer would have to fail as a matter of law.

I do understand what you are trying to say though.

NewBoldPhoto wrote:
LOL You are kidding!!!!

You are not kidding?

In fact I was solicited recently by a 'model' here on MM. When I looked at her profile she not only said 'Paid work only' but that she would provide a release (?) that the photographer must sign.

No problem honey, we probably won't even have to clear it with the client either.

Part of the problem is the photographers who are as clueless as these models. If they will pay a non-model for becoming nekkid in their presence ... they will probably also sign anything. Those rights might not be worth much but it sure puts the bite on someone who thinks that this is how is is or should be done.

And before the flames start flying: I ***do*** think that models should be properly compensated. So should photographers.

Tom deL wrote:
So are you an IP lawyer or do you play one on the telly? LOL

Seriously, I am not nor do I hope to be. I am however currently seeking someone who has a track record in this field.

If anyone has experience or knows someone who does, I would greatly appreciate a PM, then I'll have one of my (non-IP) attorney clients look at their records.

Again TIA

There are plenty of very good IP attorneys throughout the country, certainly in your area. Hire one - they're worth the money.

Christopher Ambler wrote:
There are plenty of very good IP attorneys throughout the country, certainly in your area. Hire one - they're worth the money.

Thanks for the lead.

The reason that I am asking here is that the three I have spoken with in my (general) area have no experience in this field. People with trademark and patent experience seem abundant but I hope to find someone who has been down this particular road before making an investment. Past experience has shown me that a wrong choice can really foul future prospects.

TXPhotog wrote:
There is no such thing as a verbal agreement to share copyright.  If it ain't in writing, it ain't so.

Absolutely!

But I do not mind if somebody feels like going over it verbally. It makes me feel better that there are great guys out there !

Scott Aitken wrote:
Registering a copyright increases your protection, but is not required.

You might ALSO add here that MARKING an image is not required either but does not affect the copyright ownership if it is NOT marked. Again another mis-perception on the part of those who possess, copy, post, publish or otherwise try to make use of images outside of the hands, direction or control of, or license from, the actual legal copyright owner. Usually they are claiming that merely because it is not marked / on the internet it is in the "public domain".

Studio36

Tom deL wrote:
Out of idle curiosity, have you run into any who actually do the paperwork to make this binding?

Give it a little time on this thread or use the search facility [search "releases"]... you will find a number of photographers here [NOT the pros or those that produce high value images even if they are not full time photographers... but that is no surprise] that willingly admit that they do so and in writing.... and just as many of the same ones who use the phrase "it's only fair" but without a thought to the legal implications. The minute they do that their problems are only starting though the impact of that, if it ever does, may not bite them on the ass for years, until a time when they may then have a need to use the images commercially... or when their estate is in probate and the ownership and value of the © in the images they shot, over a lifetime, could very well become clouded by the share they gave away and do not own.

Studio36

SLE Photography wrote:
The REALLY scary part is some of the models I've seen who're demanding pay, limited releases/useage for the photographer, AND shared copyright.  I hate to see how this craziness is spreading.

Don't forget that "release" document from Project Eve that we have seen here as well. It is very unusual, bizarre in fact, because the language tries to establish TWO SEPARATE AND DISTINCT copyrights in the SAME work. That, as anyone with two brain cells and even the most cursory knowledge of copyright law KNOWS, is a legal impossibility.

Studio36