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Author Topic: Copyright. Who has it now?  (Read 16192 times)

jferrari

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Copyright. Who has it now?
« on: April 17, 2015, 11:08:43 am »

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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elliot_n

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Re: Copyright. Who has it now?
« Reply #1 on: April 17, 2015, 11:44:15 am »

The client.
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Box Brownie

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Re: Copyright. Who has it now?
« Reply #2 on: April 17, 2015, 12:21:03 pm »

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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Box Brownie

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Re: Copyright. Who has it now?
« Reply #3 on: April 17, 2015, 01:08:53 pm »

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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Colorado David

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Re: Copyright. Who has it now?
« Reply #4 on: April 17, 2015, 02:25:53 pm »

I agree with this position.  Whomever owned the copyright, still owes the copyright.  You were contracted as a service provider rather than a creator.

Box Brownie

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Re: Copyright. Who has it now?
« Reply #5 on: April 17, 2015, 02:48:05 pm »

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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jferrari

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Re: Copyright. Who has it now?
« Reply #6 on: April 17, 2015, 03:10:37 pm »

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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Manoli

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Re: Copyright. Who has it now?
« Reply #7 on: April 17, 2015, 03:32:16 pm »

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 Brownie

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Re: Copyright. Who has it now?
« Reply #8 on: April 17, 2015, 04:49:59 pm »

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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Box Brownie

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Re: Copyright. Who has it now?
« Reply #9 on: April 17, 2015, 04:54:11 pm »

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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louoates

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Re: Copyright. Who has it now?
« Reply #10 on: April 17, 2015, 10:02:37 pm »

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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Schewe

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Re: Copyright. Who has it now?
« Reply #11 on: April 18, 2015, 02:18:55 am »

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.
« Last Edit: April 18, 2015, 02:20:51 am by Schewe »
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Manoli

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Re: Copyright. Who has it now?
« Reply #12 on: April 18, 2015, 07:34:10 am »

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.



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jferrari

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Re: Copyright. Who has it now?
« Reply #13 on: April 18, 2015, 11:31:20 am »

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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elliot_n

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Re: Copyright. Who has it now?
« Reply #14 on: April 18, 2015, 12:28:42 pm »

do I need the client's permission to do anything with it?

Of course you do.
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Bart_van_der_Wolf

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Re: Copyright. Who has it now?
« Reply #15 on: April 18, 2015, 05:30:37 pm »

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

In general,
Quote
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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eronald

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Re: Copyright. Who has it now?
« Reply #16 on: April 18, 2015, 11:33:41 pm »

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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Schewe

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Re: Copyright. Who has it now?
« Reply #17 on: April 18, 2015, 11:36:20 pm »

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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MarkM

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Re: Copyright. Who has it now?
« Reply #18 on: April 19, 2015, 03:11:42 pm »

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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Manoli

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Re: Copyright. Who has it now?
« Reply #19 on: April 19, 2015, 06:04:53 pm »

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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