Luminous Landscape Forum
Equipment & Techniques => Pro Business Discussion => Topic started by: jferrari on April 17, 2015, 11:08:43 am
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Here's the situation. A client sends me a digital image file for printing. The image has a few objects in it that the client wants me to remove. I perform the edits, print the image and the client is happy. So, here's the question: Who owns the copyright on the EDITED image? - Jim
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The client.
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Simple answer I surmise is the photographer
Therefore one wrinkle not covered is whose image was it? The client may have the image but is he actually the copyright holder...............it is possible that the original author (i.e. it was never transferred or assigned to your client) is still the copyright holder and you should not have edited it without seeking permission of that person?
I was asked to help a mother of the groom edit an image in a like manner and print it. I instructed her on the niceties of copyright and that I would only do so with the explicit permission of the wedding photographer ~ this was produced but as it transpired the 'job' was never done as time was of the essence and she did not realise what was involved ;)
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The client.
So are you saying that creating a derivative work creates a new copyright status even if there was no permission or licencing (by the copyright holder) for the creation of a derivative image???
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I agree with this position. Whomever owned the copyright, still owes the copyright. You were contracted as a service provider rather than a creator.
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I agree with this position. Whomever owned the copyright, still owes the copyright. You were contracted as a service provider rather than a creator.
That about sums it up..............though I remain to be convinced that as a service provider you can take instruction without qualified authorisation from the copyright holder unless the client can prove he owns the copyright no action can be taken by the service provider because he would be complicit in an illegal act (whether civil or criminal would likely depend on the laws in the country in question?)
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unless the client can prove he owns the copyright no action can be taken by the service provider because he would be complicit in an illegal act (whether civil or criminal would likely depend on the laws in the country in question?)
Box, my man, you've strayed a bit too far. Let me reel you back in. In the situation I describe in my OP the client is the shooter. There is no question as to who owns the original copyright. The discussion should be focused (pun intended) on just the image AFTER I have preformed the edits. So far the consensus is that the copyright stays with the client. So, here is some more fodder: How much would I have to change/edit the image before I could claim it as my own? - Jim
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So, here is some more fodder: How much would I have to change/edit the image before I could claim it as my own?
You could morph it into another galaxy and it wouldn't change.
Bottom line is that you're providing a service. Unless there's a contractual transfer of copyright, nothing changes.
There are a multitude of service labs, all operate under similar terms and conditions and often perform 'photoshop services' similar to the one you're describing - for an hourly fee (more often than not). There's no transfer of copyright either legally or procedurally unless there's a specific, and probably written, agreement to the contrary.
The only potential exception, would be if you did it 'pro bono' with the written or implicit agreement that the (c) was now yours - the consideration being transfer of (c) - and even then I suspect you'd need a written agreement for it to stand up in court.
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Box, my man, you've strayed a bit too far. Let me reel you back in. In the situation I describe in my OP the client is the shooter. There is no question as to who owns the original copyright. The discussion should be focused (pun intended) on just the image AFTER I have preformed the edits. So far the consensus is that the copyright stays with the client. So, here is some more fodder: How much would I have to change/edit the image before I could claim it as my own? - Jim
Well thanks for the insight..................just goes to show that any question can only answered accurately when the fullest of info is provided in the first place. This a public forum where the uninitiated could be reading and get confused by the to'ing & fro'ing that can spiral out from a lack of detail ;)
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You could morph it into another galaxy and it wouldn't change.
Bottom line is that you're providing a service. Unless there's a contractual transfer of copyright, nothing changes.
There are a multitude of service labs, all operate under similar terms and conditions and often perform 'photoshop services' similar to the one you're describing - for an hourly fee (more often than not). There's no transfer of copyright either legally or procedurally unless there's a specific, and probably written, agreement to the contrary.
The only potential exception, would be if you did it 'pro bono' with the written or implicit agreement that the (c) was now yours - the consideration being transfer of (c) - and even then I suspect you'd need a written agreement for it to stand up in court.
Absolutely crystal clear ~ there are no "ifs" or "buts", if you have not been given the right to do so nothing copyright wise passes to you. This is as I understand why there are laws governing against derivative works. Though likely most such works are produced by those who misappropriate the original image :( or the delightful request to use an image as a reference to paint a picture.......to be sold once painted..........!
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I'm surprised how often I'm asked to make an enlargement of another photographer's print, even a print that's in a published book! Few knew that it was wrong to do so, or even that it was illegal. Such is the thinking in the Internet Age that is awash in billions of images so easy to copy. One individual told me that an employee of Kinkos turned down that copy job for that same reason so he thought he's see if I would do it. ??!! Maybe I'm too shifty looking.
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So, here's the question: Who owns the copyright on the EDITED image? - Jim
You do...it's a copyright based on a derivative image. The client owns the original image, you own the derivative. However, you can do NOTHING with that image without the original owner's permission.n Derivative copyrights are downhill only. Just realize you ONLY own the changes, not the original image.
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You do...it's a copyright based on a derivative image.
Not necessarily.
To be a derivative work subject to copyright, the 'd-work' must itself be a work of 'skill, labour and judgement' – such that the alterations represent, as a whole, an original work. Minor alterations that do not substantially alter the original would not qualify.
When modifications are executed as a 'service' and there is 'consideration' then, generally speaking, there is no new derivative work, but rather work that defines the original.
As an analogy, take an author who writes a book. The copy editor, proof reader, designer review the text, make alterations and corrections but there is no copyright. The copyright extends to the author and publisher (of the book as it is produced, including design and layout) only.
There may well be subtle differences from country to country.
Correct me if I'm mistaken.
US Copyright Office – pdf. (http://www.copyright.gov/circs/circ14.pdf)
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First crop is what the client sent me. Next is after edits. Does this constitute a derivative and do I need the client's permission to do anything with it?
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do I need the client's permission to do anything with it?
Of course you do.
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First crop is what the client sent me. Next is after edits. Does this constitute a derivative and do I need the client's permission to do anything with it?
https://en.wikipedia.org/wiki/Derivative_work (https://en.wikipedia.org/wiki/Derivative_work)
In general,
For copyright protection to attach to a later, allegedly derivative work, it must display some originality of its own. It cannot be a rote, uncreative variation on the earlier, underlying work. The latter work must contain sufficient new expression, over and above that embodied in the earlier work for the latter work to satisfy copyright law’s requirement of originality.
It's up to the law to declare whether it's "sufficient new expression", in your example I'd say no, but I'm no judge.
Cheers,
Bart
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I'm surprised how often I'm asked to make an enlargement of another photographer's print, even a print that's in a published book! Few knew that it was wrong to do so, or even that it was illegal. Such is the thinking in the Internet Age that is awash in billions of images so easy to copy. One individual told me that an employee of Kinkos turned down that copy job for that same reason so he thought he's see if I would do it. ??!! Maybe I'm too shifty looking.
Fair use. I own a book. I make a copy of a page for my own use on my copier at home, or I get a service provider to press the button but I take the original and copy home - fair use.
Edmund
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First crop is what the client sent me. Next is after edits. Does this constitute a derivative and do I need the client's permission to do anything with it?
Yes, it's a derivative copyright (at least in the USA) and yes, you'll need permission to do anything with the the resultant image. You own whatever you added and nothing more. You don't gain anything upstream from the starting point.
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You could morph it into another galaxy and it wouldn't change.
Bottom line is that you're providing a service. Unless there's a contractual transfer of copyright, nothing changes.
There are a multitude of service labs, all operate under similar terms and conditions and often perform 'photoshop services' similar to the one you're describing - for an hourly fee (more often than not). There's no transfer of copyright either legally or procedurally unless there's a specific, and probably written, agreement to the contrary.
The only potential exception, would be if you did it 'pro bono' with the written or implicit agreement that the (c) was now yours - the consideration being transfer of (c) - and even then I suspect you'd need a written agreement for it to stand up in court.
All this stuff about 'service provides', 'hourly fees', and 'pro bono' work are irrelevant (at least in the US). Copyright law doesn't care about any of that — it protects original, creative works. Full stop.
An examples from a different media might be easier to understand: If I write a novel and I hire someone to turn that novel into a screenplay for a movie, the screenplay is its own creative, derivative work and establishes a copyright owned by the screenwriter. As the novelist, I can't take that screenplay and turn it into a movie without a license from the screenwriter. The screenwriter also needs a license from me because the right to create derivative works of the novel in the first place is owned by me (baring fair use arguments involving transformative work). Here's almost everything you need to know about derivative works: http://copyright.gov/circs/circ14.pdf. You will find no mention services, or hourly fees.
Additionally, as Bart and Schewe point out, a work needs to meet a threshold of originality to qualify for copyright protection. That's the test, not whether someone is a service provider but whether the derivative work is sufficiently original and the difference between it an the original work are more than trivial. Copyright protects original expression, not effort or expense exerted. If, as the creator of a derivative work, you haven't added anything creative to the original, regardless of how much work you did, you don't establish a new copyright for yourself. This is why a press operator doesn't create a new copyright when running a printing press.
A good example of how the courts deal with this is available in Ets-Hokin v. Skyy Spirits Inc. Ets-Hokin, a photographer, created product shots of Skyy's vodka bottle and there was a disagreement about whether the photographs established their own copyright or were unoriginal copies of a bottle. The case had some interesting twists and turns and illustrates how difficult this question can be to answer. The district court found that the photos where not original works, and on appeal the court found the bottle couldn't be copyrighted in the first place because you can't copyright utilitarian objects. ( https://www.law.cornell.edu/copyright/cases/225_f3d_1068.htm )
So the question you need to ask about the retouched photos is: does the retouching add sufficiently new original ideas and is the retouched photo more than trivially different from the original. If the answer to those questions is yes, then you have a new derivative work to which you own the copyright. But it doesn't transfer any rights of the original owner's creative work over to you, so it may be of limited use other than preventing others from exploiting your creativity.
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All this stuff about 'service provides', 'hourly fees', and 'pro bono' work are irrelevant (at least in the US). Copyright law doesn't care about any of that — it protects original, creative works [...] Here's almost everything you need to know about derivative works: http://copyright.gov/circs/circ14.pdf.
The link you point to is the one I referenced in post #15.
The statutory definition of 'derivative work' is explicit in Title 17 of the US Code, #101 - Definitions http://copyright.gov/title17/circ92.pdf
A “derivative work” is a work [...] consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.
The majority of your post was preceded by my post #15.
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Manoli, your post #15 is a mix a US and non-US ideas about copyright. The test of "skill, labour and judgement" is a concept called 'sweat of the brow' which in the US is not consider for copyright purposes. The information in a phone book, for example, is original work of "skill, labour and judgement" but as far as US copyright law is concerned is simply a collection of facts, not a work of creative originality, and therefor cannot be copyrighted — no matter how much labour or skill went into it. (A good case to review is: Feist_Publications, Inc. v. Rural Telephone Service Co. (http://en.wikipedia.org/wiki/Feist_Publications,_Inc.,_v._Rural_Telephone_Service_Co.))
And this:
When modifications are executed as a 'service' and there is 'consideration' then, generally speaking, there is no new derivative work, but rather work that defines the original.
I have no idea where you got this idea. Again, whether something is a service, or there is or is not consideration, is not relevant — at least not in the US. Many things that are services DO create new derivative work copyrights. The test is whether the contribution is original creative work.
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Mark,
If you're going to quote part of my post, then kindly quote it in context. What I wrote was :
' … must itself be a work of 'skill, labour and judgement' – such that the alterations represent, as a whole, an original work.'
That, to me, reads much as the the US definition quoted above does.
In the UK, admittedly,
(a) the individual who authored the work will exclusively own the work.
(b) However, if a work is produced as part of employment then the first owner will normally be the company that is the employer of the individual who created the work.
(c) Freelance or commissioned work will usually belong to the author of the work, unless there is an agreement to the contrary, (I.e. a contract for service).
I made an analogy previously,
“ … , take an author who writes a book. The copy editor, proof reader, designer review the text, make alterations and corrections but there is no copyright. The copyright extends to the author (text) and publisher (of the book as it is produced, including design and layout) only. “
Is there something you disagree with ?
And again, there may well be subtle differences from country to country (not least of which the difference between the UK rule based approach v the US based standards one) but the gist is similar. Either way, we're well beyond the original scope of this thread.
https://www.gov.uk/government/publications/copyright-acts-and-related-laws
http://copyright.gov/title17/circ92.pdf
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Manoli,
My primary concern was the language about 'service providers' which you seem to have backed away from in your last post.
Please understand that I'm coming from a position of 16 years of full time shooting where I have to constantly fight the idea that people who hire a photographer (who they consider a service provider) feel they own the copyright to the work because they paid for the shoot. Part of the reason this is problem is because there is a lot of misinformation and half-truths on the internet and people are very good at searching out opinions that confirm their own beliefs. So when I see something that suggests that 'consideration' or whether or not something is 'pro-bono' is even remotely related to copyright ownership, I'm quick to clarify and correct.
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My primary concern was the language about 'service providers' which you seem to have backed away from in your last post.
Mark,
Nowhere have I used the term 'service provider' and this is the second time you're putting a 'spin' on my words, which I find irritating in the extreme (to put it politely). So may I suggest that before presuming to correct another, you more accurately interpret the purport of the previously written word. And, no - I have not 'backed away' as you put it but explicitly re-stated it in #24 (c) above.
What I said in #15, and you re-quoted above, was : ' When modifications are executed as a 'service' and there is 'consideration' then, generally speaking, there is no new derivative work, but rather work that defines the original. ' For clarification I'd replace 'defines' with 'contributes to'. The 'consideration' testifies to a contractual relationship between two parties. I also said 'modifications' not 'original work' .
I gave you an analogy above, here's another:
In so far as 'joe' photographer is concerned, taking a file to a service lab for photoshop services ('services'), the lab performs the work, receives payment ( 'consideration'), 'joe' photographer receives his composited, altered (derivative) image. That effectively constitutes a contract. Does it fall under (a) contribution to an original authorship or (c) commissioned work ? If it is indeed a commissioned work (c), then does the lab retain a copyright for a derivative work ? - apart from whether or not it is an 'original work' it will also depend on the T&C on which the lab and photographer tendered and accepted to undertake the work.
Rather than cite case law (from Wikipedia) that pertains almost exclusively to infringements of copyright law between two parties without a contractual foundation, can you cite a recent case where a court has ruled that a bureau having performed 'photoshop services' on a still image - services that resulted in an 'original work' – retained a copyright on the derivative irrespective of the parties contractual tie-up ?
Please understand that I'm coming from a position of 16 years of full time shooting where I have to constantly fight the idea that people who hire a photographer (who they consider a service provider) feel they own the copyright to the work because they paid for the shoot.
I do empathise, but that issue is distinct from the topic of this thread which concerned 'edits'. Again this falls under (c) and is something that many photographers encounter but in practical terms is more a contractual negotiation rather than a point of law and has given rise to what are colloquially referred to as 'buyouts' or 'surrenders'...
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Manoli,
You're right, it was sloppy of me to put service provider in quotes when you never used that term. I apologize for 'irritation in the extreme' that was caused by using the phrase "service provider" when you where in fact talking about one who is "providing a service."
Now, on to my inaccurate interpretation. Let's take a closer look, just to be sure:
When modifications are executed as a 'service' and there is 'consideration' then, generally speaking, there is no new derivative work, but rather work that defines the original.
Now I've only been speaking English for a few decades so I may be unclear on the meaning of the word "when," but I've always taken it in this context to denote a condition. In this case a condition with two parts: "modifications are executed as a 'service' " & "there is 'consideration' "
Further, when these conditions are met, "there is no new derivative work."
This plainly false — there are conditions for determining if a work is a derivative work, and these ain't them. You've offered no support or explanation about where this idea comes from. Please show us where these conditions have been used to determine the status of a derivative works and this whole argument goes away.
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Mark,
Thank you for you response, and may I say that far from viewing this exchange as an argument, I consider it more a healthy debate - to which I have no copyright on being correct. [/light-hearted quip]
To answer your query
Now I've only been speaking English for a few decades so I may be unclear on the meaning of the word "when," but I've always taken it in this context to denote a condition. In this case a condition with two parts: "modifications are executed as a 'service' " & "there is 'consideration' "
Further, when these conditions are met, "there is no new derivative work."
You've done it again, omitted the part '… but rather work that contributes to the original'.
Continuing ..
'Consideration' is evidence of a contractual relationship. (I think on that we agree). In the US the first test is indeed as you say - whether or not the work is 'an original work'. Whether or not that confers a copyright though, is also governed by the contractual agreement between the two parties. Where there is no stipulation, (unlikely in our modern age) and were there to be a dispute, the decision could be referred to judicial interpretation.
In my first analogy, that of an author, I'm told, under advice, that it would be reasonable to consider these contributions (effected under a contractual arrangement and barring any specific concessions as to copyright) as 'contributions to an original work of authorship' #24(a) – not an original work in and of itself. The seminal point here is whether or not a contract or T&C existed or could be inferred.
Were the work in itself to be freelance or commissioned - #24(c) , then the opposite would apply. The copyright, barring any specific concessions, would belong to the author of the work.
Your assertion, as I understand it, is that all that matters is whether or not the work is an original work. I'm saying yes, but not necessarily, when a contract can and often does clearly stipulate the basis on which the work is undertaken.
In practical terms, Heather Thomas – author of several exceptional books, published by Pavilion and sold by Amazon US (http://www.amazon.com/Quick-Easy-Low-Calorie-Cookbook/dp/190981590X) and Amazon UK (http://www.amazon.co.uk/Quick-Easy-Low-Calorie-Cookbook/dp/190981590X), Barnes & Noble, Harper Collins-(Aus), Waterstones, The Guardian amongst others ( Schewe, if you're reading this in copy – check them out , this 'gal knows her stuff and it'll do your health no end of good) recently published her latest work.
Contributors to 'an original work of authorship' were home economists, stylists, photographers, editors, proof readers, designers, art directors and a repro house. None of them hold a copyright – derivative or otherwise. The copyright is exclusive to Heather Thomas (the text) and Pavilion ( the design layout, photographs and cover art). I'll repeat that , Pavilion hold the copyright to the photography both in the UK, EU … and in the USA! … and no, they didn't take the photographs.
So, I put it to you again, can you cite a recent case where a court has ruled that a bureau having performed 'photoshop services' on a still image - services that resulted in an 'original work' – retained a copyright on the derivative irrespective of the parties contractual tie-up ?
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I believe Schewe is correct regarding derivative works in the US. However, a number of commenters have made the assumption that the client owns the original copyright, when there is no evidence from the OP to support this. Furthermore, if the client is not the owner of the copyright, we don't even know if the client has the right to use the photos or make any alterations to the photo. It is not uncommon for photographers to only permit basic alterations to their photos in their usage terms (such as cropping and modest overall modifications to color balance, brightness and contrast), with any further alterations requiring the specific approval of the photographer.
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However, a number of commenters have made the assumption that the client owns the original copyright, when there is no evidence from the OP to support this.
You've just highlighted what, IMO is a far more relevant topic. Continuing the theme, I'd point out that most 'labs' T&C stipulate that the client indemnifies them for any liability due to breach of copyright. I'd be more concerned with potential liability than I would about the debatable value of derivative copyrights.
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This is a messy bird's nest of ideas, Manoli, that is conflating a bunch of different ideas and only confusing the issue.
I'm not really sure what you are getting at with the bit about Heather Thomas. I don't know the contractual agreements between Pavilion and the photographers who worked on this book. Do you? It sounds like you are saying Pavillion owns the copyright to the photographs because they own the copyright to the collective work. Pavilion may have a work-for-hire agreement with the contributors, but that would need an explicit agreement, it doesn't just happen when someone contributes to a collective work. The copyright of a compilation does not imply any right in the preexisting material that went into the compilation. But all this is beside the point because a collective work is not the same thing as a derivative work. And derivative works are what we were talking about.
It's really much simpler than you are making it. There's only two questions: Do the modification constitute a derivative work, and if so who owns the rights to this new expression?
Here's how Title 17 defines derivative work:
A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.
"Editorial revisions, annotations, elaborations, or other modifications" to me sounds like something that could happen in a photo lab. I think it's clear that a derivative work can exist here.
You say:
Whether or not that confers a copyright though, is also governed by the contractual agreement between the two parties.
This isn't precisely true. If a derivative work exists, there IS a copyright regardless of the existence or lack thereof of a contract. Who owns it can be a matter of contract or course, and maybe that's what you meant, but I don't think we know anything about a contract between the photograph and the lab here.
So assuming there's a derivative work and hence a copyright to be owned, who's is it?
The default is the creator, but your argument, I think, is that consideration has created an implicit contract that changes the ownership. Copyright transfer through an implied contract created by consideration is not something I've ever encountered and this would be a very dangerous idea for freelancers. Work for hire comes close, but explicit written agreement is required for work for hire unless we're talking about an employee.
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a number of commenters have made the assumption that the client owns the original copyright, when there is no evidence from the OP to support this.
David, please refer to Post #8 in which I say: "In the situation I describe in my OP the client is the shooter. There is no question as to who owns the original copyright. The discussion should be focused (pun intended) on just the image AFTER I have preformed the edits."
Thanks. - Jim
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There's only two questions: Do the modification constitute a derivative work, and if so who owns the rights to this new expression?
Agreed.
This isn't precisely true. If a derivative work exists, there IS a copyright regardless of the existence or lack thereof of a contract. Who owns it can be a matter of contract or course, and maybe that's what you meant ...
It is indeed. I expressed it poorly, your version is correct.
So assuming there's a derivative work and hence a copyright to be owned, who's is it?
The default is the creator, but your argument, I think, is that consideration has created an implicit contract that changes the ownership. Copyright transfer through an implied contract created by consideration is not something I've ever encountered and this would be a very dangerous idea for freelancers. Work for hire comes close, but explicit written agreement is required for work for hire unless we're talking about an employee.
I prefaced this whole discussion in my reply to Jeff Schewe in #15 with 'Not necessarily'
Evidence of a contractual relationship may change ownership, if not clearly stipulated. I didn't say it does, I said it can.
It is certainly 'dangerous for freelancers' which is why copyright and assignment thereof should be very clearly stipulated, not taken for granted.
I'm not really sure what you are getting at with the bit about Heather Thomas. I don't know the contractual agreements between Pavilion and the photographers who worked on this book. Do you?
Yes I do, and not just the photographers. I've just given you an example, one that I am more than simply familiar with, where the legal negotiations were overseen by an American law firm, albeit one with an international bent, and I've told you clearly who participated in the project and who holds copyright (derivative or otherwise). It has zilch to do with a collective work, it's an original work of authorship.
Mark,
The moral of this discussion, IMO, is simply that if copyright, derivative or otherwise, matters to you state it clearly and unambiguously. Don't rely on assumption which may or may not agree with your 'understanding'. Judicial process and interpretation is best relied on only as a last resort when there is a contractual dispute. It's not a substitute for a contract. If you don't have a contract, think twice.
I'll be following this discussion, if it continues, from a distance - I've got a heavy workload over the next days so I won't be able to post as frequently as I'd like. I've appreciated not only your input but also your courteous manner.
All best,
Manoli
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I think we all agree that a contract avoids a lot of misunderstandings.
But I still don't understand how anything you've written relates to or clarifies this (which is what sucked me into this in the first place):
When modifications are executed as a 'service' and there is 'consideration' then, generally speaking, there is no new derivative work, but rather work that defines the original.
If anyone else thinks I'm just being dense and don't understand the point of the above quote, please feel free to clear it up.
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I own a house.
I contract a bricklayer for adding into a wall an additional window.
Is now the bricklayer the owner of that part of the house ?
¿?
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Rainer, that analogy has nothing to do with copyright I'm afraid.
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Rainer, that analogy has nothing to do with copyright I'm afraid.
Why not ?
I made an image and I am not able to take off the parts I do not like, so I pay somebody to do it ...
Does that mean that because he is able to do it and I paid him, he does get the right to a certain ownership ? No, he does not from my point of view ...
Copyright for me is the same as owning ...
I took the image so the image is mine and nobody elses
If I sell the usage of the image for something depending on the contract I make with the other party, things become different depending what is stipulated in teh contract.
The same is that if I own a house and rent it. The one who rents it ha the right to use it but that does not mean that he owns part of it ...
If the one who rents it changes something in the house that does not mean that he gets the owner of that changed part of the house ... It still remains my ownership when the one who rednted it moves out of the house. I can makr two things, tell the person who rendted to change it back to how it was or I just take it over ...
It is interesting how the Human always tends to overcomplicate things ...
NO wonder that the World is F.... d up
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Why not ?
Because it mixes up physical property rights with intellectual property rights. They are not the same thing. Any time you try to use one to form an analogy about the other you will likely have a poor analogy.
A better example:
Instead of hiring someone to install a window in your wall, you hire someone to paint an original mural on your wall. You still own the house, wall, and the mural itself, but are you free to reproduce and sell copies of this mural? No, you are not (baring some contractual agreement). The ownership of the physical wall and the ownership of the copyright to the art on the wall are two different things.
If the one who rents it changes something in the house that does not mean that he gets the owner of that changed part of the house ... It still remains my ownership when the one who rednted it moves out of the house.
As in the previous example, if your tenant paints an original mural in this rental property, they certainly do own the copyright of that work. You can't legally reproduce that mural (outside of the normal fair use exemptions).
It is interesting how the Human always tends to overcomplicate things ...
I don't think this is very complicated. It's a simple, and well-understood, distinction between physical property rights and intellectual property rights.
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If you have someone do some work for you, whether it's photoshop or painting a mural on your house, be sure they're covered by a Work for Hire contract. Then there can be no ambiguity.
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If you have someone do some work for you, whether it's photoshop or painting a mural on your house, be sure they're covered by a Work for Hire contract. Then there can be no ambiguity.
Alternatively you can decide that you don't need the copyright to that mural, that owning the original is enough (and probably all you paid for), and that it's better to leave the copyright in the hands of the artist who might be able to scrape off a little more to feed his/her family. That's not any less ambiguous.
The case of a photo lab or a digital compositor is a little more interesting because it's often accepted that when you hire someone to manipulate an image it's with the intent of reproducing the final result as your own work. But it's not clear that the law supports that intention. I've never heard of anyone asking a lab to sign a work-for-hire agreement; but then I've never heard of a lab suing a photographer for a copyright infringement based on their contribution to a derivative work, either. Until that happens it's an interesting, but purely theoretical exercise.
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If you have someone do some work for you, whether it's photoshop or painting a mural on your house, be sure they're covered by a Work for Hire contract. Then there can be no ambiguity.
Yeah, well, I don't do Work-for-hire, did once (for Playboy) but never again. One can always say NO and I have, a lot!
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Yeah, well, I don't do Work-for-hire, did once (for Playboy) but never again. One can always say NO and I have, a lot!
Seriously? Not for many times your normal usage rates? Then again, when was the last time you had a client who was willing to pay a reasonable usage rate for transfer of copyright, much less for work made for hire? :-)
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Yeah, well, I don't do Work-for-hire, did once (for Playboy) but never again...
Centrefold ? ;D
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Seriously? Not for many times your normal usage rates?
Nope...I have done copyright transfers but always retain certain rights such as for self promotion and portfolio use and print shows. With work-for-hire, you don't have those rights since with WFH you never owned the copyright.
I can understand WFH being needed for full time employees (with benefits), but WFH was not intended to be forced down freelancers throats.
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Centrefold ? ;D
Nope, a product shot of brandy for an article illustration. Also note that I didn't actually sign a WFH release, it was stamped on the back of the check that by endorsing the check I agreed to WFH. I was young and needed the money and endorsed the check and said that was the last time I would agree to work-for-hire...
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Why not ?
For another example to add to what MarkM said. I can sell an image to ten different people at the same time and in various formats, sizes etc. I can only rent a single room to one person. Very different scenarios. So not comparable in many ways.
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Nope, a product shot of brandy for an article illustration. Also note that I didn't actually sign a WFH release, it was stamped on the back of the check that by endorsing the check I agreed to WFH. I was young and needed the money and endorsed the check and said that was the last time I would agree to work-for-hire...
I wonder how legally binding that is. Putting terms on the check to be cashed that is. Any contract lawyers in the house?
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Nope...I have done copyright transfers but always retain certain rights such as for self promotion and portfolio use and print shows. With work-for-hire, you don't have those rights since with WFH you never owned the copyright.
I can understand WFH being needed for full time employees (with benefits), but WFH was not intended to be forced down freelancers throats.
You can make usage of the photos for self promotion and exhibitions, and other rights as well, a condition of the work-made-for-hire agreement. Best to write the agreement yourself if you are going to do it, but you can also modify something the client provides.
I can see a very limited number of clients needing to own the copyright from the inception of the assignment (perhaps something like a major international ad campaign for a major manufacturer or service provider), in order to exert strict control over the usage and distribution of the photos. However, there should be a very substantial budget in place for the photography that is commensurate with that need.
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I can see a very limited number of clients needing to own the copyright from the inception of the assignment (perhaps something like a major international ad campaign for a major manufacturer or service provider), in order to exert strict control over the usage and distribution of the photos. However, there should be a very substantial budget in place for the photography that is commensurate with that need.
Some work is valueless outside of what it is commissioned for, advertising work or pack shots for example. Handy for showing what you can do but no one else is likely to buy it. But that sort of work does tend to pay the best rates anyway.
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Centrefold ? ;D
lol
Jeff, I think he's suggesting perchance you were the subject.
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Jeff, I think he's suggesting perchance you were the subject.
Well no, I wasn't. That would border on the personal and I don't 'do' personal.
It was a quick quip along the lines of 'Jeff, the Maestro retoucher going to work on the centrefold ... ' [/anglo-saxon humour]
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Well no, I wasn't. That would border on the personal and I don't 'do' personal.
It was a quick quip along the lines of 'Jeff, the Maestro retoucher going to work on the centrefold ... ' [/anglo-saxon humour]
Sorry to misrepresent you then.
I'm having a hard time letting go of my interpretation though...
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If you pull the pics off Instagram, you stand a good chance of getting away clean.
http://www.brobible.com/life/article/stealing-instagram-photos-selling/
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Good discussion.
As a photographer that makes money by selling images, I would be quite angry if I hired someone to do specific editing on the image and found they made any commercial use of the image. Even posting the finished work on their website without permission would be a concern. Ethically, I think its completely inappropriate regardless of whether there is any legal gray area.
Assuming I had properly copyrighted the image, the edited version - or multiple versions - would normally be covered under the original copyright application regardless of who did the editing. In the case here, the subject is unchanged and the image looks quite similar.
Copyright protection has two different types of derivative works. One covers versions of the same work by the copyright holder (such as a copyright for an image in a book and the image individually), and the other involves creating substantially different artwork that uses another's work for inspiration or as a component of a larger work.
I could see a case for claiming a a Peter Max style representation of the work is truly different - especially if painting software is used. But cloning is so normal that it does not create a materially different work of art.