Clients want printable full size files of my digital reproduction of their art

[Malcolm Payne]

I haven't posted an update before now, as I had been leaving things for a few weeks to settle down in case the clients were brewing up anything further and unpleasant following their last communication. Having previously conveyed Jeremy's expert advice to them, I am happy to report that it has now been three weeks since their last contact, even though they still stated almost as a throw-away line in that letter that they were looking forward to receiving "their" images back on disc. Hopefully I can perhaps allow myself to be cautiously optimistic that this matter might now have reached a favourable conclusion.

I am extremely grateful to Jeremy for his freely-given advice on this situation; with the caveat that he wishes me to include that his primary expertise lies in another field, he has derived from first principles the conclusion that confirms my rights to the files. He was also kind enough to run the situation past another colleague in Chambers with more knowledge in this field, whose thoughts on the matter happily coincide exactly with his own.

Jeremy has given his permission for me to quote him directly, so I am now happy to post his comments below in the hope that these might assist anyone else who finds themselves in a similar position:

"There are two aspects. So far as copyright is concerned, he's in little doubt that while copyright in the artwork vests in the artist (and now in her estate), copyright in your images of her artwork vests in you. Her copyright may limit the extent to which you are able to use yours, of course, in that it would be at best unwise of you to produce and sell prints without her (administrator's / executor's) consent. On that basis, the family's demand for the "return" of the digital files is unreasonable and invalid: they have no rights to them.

The contractual position is a little more complex, depending on whether there can be said to have been separate contracts for each print or an overarching contract for the taking of the photographs and the provision of up to 100 prints. Logically, the latter is much more likely, particularly given the amount of work put in initially, before any prints were made. You probably have a case against the estate for breach of contract."

Once again, my most sincere thanks to everyone who has contributed to this thread for their support and advice through what has been a very difficult and stressful time.

[john beardsworth]

That's good - it was quite a cliffhanger that you'd left us on. Let's hope the whole problem just fades away.

Particularly amused that the lawyers also mentioned breach of contract!

John

[Malcolm Payne]

Yes, apologies to everyone for the protracted cliff-hanger but, as I said, they'd repeated their demand for the files in their last letter, albeit perhaps less aggressively than before, and I didn't want to post an early update saying everything was now OK then have to retract if something else nasty subsequently arrived in the post. I haven't responded in any form to that letter, so hopefully as you say the whole thing will now fade away.

The breach of contract issue is an interesting one too; I'm no more litigious than I absolutely have to be, but it's a useful shot to have in the locker should it prove necessary. I might also look up the will sometime, more out of curiosity than anything else as I'm inclined to believe the omission was probably more cock-up than conspiracy. Still, it was a nice thought at the time.

Anyway, hopefully the thread may be of value to anyone else who finds themselves caught in the same position and can profit from my unfortunate experience. If nothing else, there have been some amusing posts and suggestions along the way!

Malcolm

[Schewe]

Anyway, hopefully the thread may be of value to anyone else who finds themselves caught in the same position and can profit from my unfortunate experience. If nothing else, there have been some amusing posts and suggestions along the way!

I was reluctant to post in this thread because I was unsure of the impact of UK Copyright Law...but, in the USA there is a guiding principle of original copyright and derivative copyrights.

Clearly, the original copyright owner has control over the exploitation of their copyrighted works. But, when a "copy" is made (with the authorization of the original copyright owner) things change...an authorized copy of a copyrighted work can transcend the original copyrighted work with additions and changes that turn into a derivative copyright. What this means (at least in the US) is that a legitimate copy of an original work can have additions and enhancements that have, on their own, a separate and distinguishable copyright.

While a "derivative copyright" can not migrate "upstream" (which means making additions and enhancements don't propagate upstream to the original works), the work done on an original work can garner downstream copyrights on those changes and enhancements made AFTER the original copyright.

In the past, this has been a tricky subject...some digital artists have tried to strong-arm certain copyrights for post production. In the past though, it's been pretty well held that it's the original copyrighted work that prevails. However, the original copyrighted owner can not claim post production ownership that is downstream of the original work.

The bottom line in a case like this is that while the original owner can control the use of the original copyrighted work, they can NOT control the post processing work that was added to alter or enhance the original work.

So, at best the copyright owner can get the original scans minus any alterations or changes made after the original scan–which represents the original works.

It's a fine line, but clearly a line in the sand. My only concern is how this sort of derivative works might be handled outside of the USA.

[Jeremy Roussak]

I was reluctant to post in this thread because I was unsure of the impact of UK Copyright Law...but, in the USA there is a guiding principle of original copyright and derivative copyrights.

That's very interesting, Jeff. It's perfectly possible that there are similar principles in English copyright law (I'm wary of writing "UK" in this context, rather than English, as Scottish law is in some areas very different from that in England and Wales).

Certainly there could be an analogy with property rights in human bodies: a body or part thereof is not capable of constituting property (that is, no-one can "own" it) unless it has been treated in some way with expertise and skill, thus imbuing it with characteristics of property.

As I told Malcolm, my expertise in law lies elsewhere and anyone wanting to become embroiled in legal arguments would be well advised to talk to a lawyer who fully understands these issues.

Jeremy

[Malcolm Payne]

Just a quick note which I hope will finally wrap this up for good now, as it has now been over four weeks since I last heard from the client, so hopefully that's an end of it all. Jeremy's main expertise in law may well lie elsewhere as he says, but it seems his very helpful and considered advice was sufficient to persuade the client not to continue with their claims in this instance.

I also found Jeremy's 'human body' analogy very interesting and logical!

Thank you also Jeff, for your further detailed explanation of the copyright situation in the USA. That all seems perfectly clear, the only potential grey area in the case of art reproduction being where the first generation photograph or scan of the original artwork has had significant professional expertise and skill applied to enhance that but with the intention of producing as accurate a reproduction of the original in print as possible. One for the lawyers to chew on, I think (though hopefully not mine!).

[Deardorff]

You are photographing THEIR art. You may own copyright to the images but it is nothing you can really enforce if it ends up in court.

Charge enough to make your COPY WORK pay and forget the prints.

All you are doing is copying the original work of someone else. Check the copyright registration information and you might see things a bit differently. They are creators, you are a copier.

[Bart_van_der_Wolf]

You are photographing THEIR art. You may own copyright to the images but it is nothing you can really enforce if it ends up in court.

Sorry, but you are missing the (legal) point. I suggest you read up on your local version of the Copyright law, especially the sections that pertain to making copies of existing art in commision. In short, the Copyright (the right to produce copies) of the original work of art remains with the author, unless the right was transferred. They can commission someone else to create a copy, and that party would then not violate their copyright by doing so at their request.

The original author commissioned the OP to make a (paper) reproduction, which still leaves the copyright with the original author. The OP was only paid for his service (which allowed him to own/hire/use equipment, materials, and use his skills to efficiently make multiple outputs as ordered, for a reasonable cost).

All materials used by the OP in the process to make that (paper) copy for the client remain property of the OP, including his studio lighting, his camera, his colorchecker, his intermediate file, his computer, his printer. In fact, the reproduction process used, could itself be protected by copyright as well (think about the recent Amazon patent on photographing against a seamless white background).

They are creators, you are a copier.

Exactly. They are and remain owners of the right to produce copies, the OP was allowed to produce such copy to their specifications and was reimbursed for his service. Period.

They can commission him again to make more copies should they wish to, and the OP would be able to do that efficiently because he still owns the materials/equipment/skill to do so, but they could also commission someone else (which would create other consequences for them, e.g. a breach of a verbal contract which was part of the cost calculation per copy).

Cheers,
Bart

[Jeremy Roussak]

You are photographing THEIR art. You may own copyright to the images but it is nothing you can really enforce if it ends up in court.

Charge enough to make your COPY WORK pay and forget the prints.

All you are doing is copying the original work of someone else. Check the copyright registration information and you might see things a bit differently. They are creators, you are a copier.

If you had taken the trouble to read the whole thread before posting, old chap, and to have given some thought to the issues Malcolm raised, you might - just might - have avoided making a post that contributed nothing save to disclose your ignorance.

Jeremy

[melchiorpavone]

It's not certain from your description that you would actually own a copyright to the photos. Copyright protects originality — not hard work, not great equipment, not technical skill — originality. If you are reproducing art you are, by definition, minimizing your creative input and making a reproduction, not a new original work. The results is what is known as a slavish copy, which courts have found don't meet the minimum standard of creativity for copyright protection. You would not own the copyright any more than a service bureau would own a copyright to scans they made of your images or Kinkos would own a copyright to your xeroxs.

If you want to prevent your clients from using these photos you would be better off entering into a contractual agreement with them whereby you stipulate precisely how they may use the images. Whether or not you can do this, or course, depends on your market and competition. Honestly, if I were an artist looking to reproduce my work, I would find somebody who thinks of the job more as a service and would just hand me the files. I would be willing to pay more up front.

Yes, and some kind of profit-sharing would be in order.

[JohnAONeill]

Malcolm

I have quite a bit of experience with this as I run a dedicated fine art print studio as well as a professional photography business. I have given this a lot  of thought over the last year. As I have run in to issues in the past. I have now decided to differentiate between the digital capture (for example the image with absolutely no post production work whatsoever) and the finished print file, which I class as a master print file. The master print file is proprietary as this is my skilled work to create a high quality print. This is never offered for sale to the client. This remains my property and will only be used if the client uses my print service. If the client requests a high resolution file to make prints elsewhere then I charge an agreed sum for supplying the file but they will only receive an unedited conversion of the original raw file. This way they are free to use any cheap print service they like but they will not benefit from the highly skilled work that I do in producing a fine art print. Usually when they realize that the prints are not very good from cheaper printers they most often come back to me to produce high quality prints in the future ;-) I think this business model now serves me well and protects my business interests without getting in to arguments with artists over copyright! Perhaps this is an approach that might suit your business going forward.

Best regards
John

[Malcolm Payne]

John,

Thank you for taking the time to add your considered thoughts, which pretty much accord with my own, I think. I do have a couple of questions about the specificities of your approach:

1) Do you advertise the 'digital capture' fee as effectively a traditional setup charge, and is that sufficient to cover the necessary post-production work to arrive at your master print file? If not, how do you recoup that additional time?

2) Do your clients clearly understand that any file they purchase for printing elsewhere is simply an unedited, basic conversion of the original RAW file, or do they equate this with the finished product (the print-ready master file)? How do you explain the difference?

Unfortunately, all too many clients, at least those uneducated in the reproduction process, take the view that anything they pay in terms of a 'setup' charge entitles them to ownership of the finished file to do with as they wish. It doesn't help when other businesses, such as the husband and wife team that recently emailed one of my clients aggressively pushing their 'giclée print service' (and annoyed him considerably in so doing), and who are running this in tandem with another dozen or so only very loosely-related services, advertise ludicrously and unsustainably low 'digital mastering' charges and specifically include the master file at no additional cost.

I would also be grateful for any further thoughts you may have on the subject.

There is a further footnote to the original issue, in that last week I happened to be in the town where my former client lived, and out of curiosity popped into the local bookshop that used to sell her prints. Sure enough, the remaining original stock of my prints was still on sale, along with several new images that were recognisably hers but that I hadn't seen before. On the back of these was a CoA identifying a local print shop that had for years been trying unsuccessfully to take over my client's work, and whom I strongly suspected at the time were behind her daughter's demand for my master files. It appears that, when I refused to hand them over, she had given them some previously-unpublished originals to photograph and print instead. A couple of the new ones were superficially acceptable, though I didn't have chance to examine them in detail and I haven't seen the originals to know how accurate the reproduction might be, but the others were of very poor technical quality. It seems her daughter cares more about keeping me out of the loop than she does about diluting the brand, which is a real shame after all the effort I put into achieving absolutely the best possible reproduction. It does however wholly vindicate my determination to retain control of my master files, if any further reason were needed.

Coincidentally, I have just been independently recommended by two of my existing clients to an artist who has recently had some giclée prints done that she wasn't happy with. I was amused to discover that she had used the same printer that my deceased client's daughter is now using ... Thankfully, some artists at least are savvy enough to know the difference. The difficulty lies in educating those others who have never seen a really good print, or who simply don't care.

Kind regards,

Malcolm

[Plateau Light]

A large part of my printshop business is fine art reproductions and have encountered the "fine Art America" phenomenon as well.
I have been careful to stress that it was a setup fee and we operated under the portrait session model.
Clients could always purchase the files for an additional fee which echoes the traditional portrait session model.

It was simpler in the film (4x5) era as that was a significant fee and the drum scan/ proof was separate and equally expensive.