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Author Topic: Copyright. Who has it now?  (Read 16277 times)

MarkM

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Re: Copyright. Who has it now?
« Reply #20 on: April 19, 2015, 06:20:48 pm »

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.)
And this:
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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.
« Last Edit: April 19, 2015, 11:19:54 pm by MarkM »
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Manoli

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Re: Copyright. Who has it now?
« Reply #21 on: April 20, 2015, 03:52:09 am »

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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MarkM

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Re: Copyright. Who has it now?
« Reply #22 on: April 20, 2015, 01:48:49 pm »

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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Manoli

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Re: Copyright. Who has it now?
« Reply #23 on: April 21, 2015, 08:59:31 am »

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 ?

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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'...


« Last Edit: April 21, 2015, 09:06:43 am by Manoli »
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MarkM

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Re: Copyright. Who has it now?
« Reply #24 on: April 21, 2015, 01:52:46 pm »

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:

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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.
« Last Edit: April 21, 2015, 01:58:20 pm by MarkM »
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Manoli

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Re: Copyright. Who has it now?
« Reply #25 on: April 21, 2015, 04:16:11 pm »

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

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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 and Amazon UK,  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 ?

« Last Edit: April 21, 2015, 04:19:44 pm by Manoli »
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David Eichler

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Re: Copyright. Who has it now?
« Reply #26 on: April 21, 2015, 04:52:23 pm »

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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Manoli

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Re: Copyright. Who has it now?
« Reply #27 on: April 21, 2015, 05:17:44 pm »

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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MarkM

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Re: Copyright. Who has it now?
« Reply #28 on: April 21, 2015, 05:37:50 pm »

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:

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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:
Quote
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.
« Last Edit: April 21, 2015, 05:40:12 pm by MarkM »
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jferrari

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Re: Copyright. Who has it now?
« Reply #29 on: April 21, 2015, 05:55:17 pm »

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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Manoli

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Re: Copyright. Who has it now?
« Reply #30 on: April 21, 2015, 08:03:28 pm »

There's only two questions: Do the modification constitute a derivative work, and if so who owns the rights to this new expression?
Agreed.

Quote
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.

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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.

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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


« Last Edit: April 22, 2015, 02:13:32 am by Manoli »
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MarkM

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Re: Copyright. Who has it now?
« Reply #31 on: April 21, 2015, 08:54:58 pm »

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):

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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.
« Last Edit: April 21, 2015, 09:07:15 pm by MarkM »
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Rainer SLP

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Re: Copyright. Who has it now?
« Reply #32 on: May 17, 2015, 01:14:37 pm »

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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jjj

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Re: Copyright. Who has it now?
« Reply #33 on: May 17, 2015, 05:17:35 pm »

Rainer, that analogy has nothing to do with copyright I'm afraid.
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Rainer SLP

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Re: Copyright. Who has it now?
« Reply #34 on: May 17, 2015, 08:16:19 pm »

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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MarkM

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Re: Copyright. Who has it now?
« Reply #35 on: May 17, 2015, 10:41:24 pm »

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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Colorado David

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Re: Copyright. Who has it now?
« Reply #36 on: May 17, 2015, 11:36:46 pm »

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.

MarkM

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Re: Copyright. Who has it now?
« Reply #37 on: May 18, 2015, 12:04:16 am »

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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Schewe

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Re: Copyright. Who has it now?
« Reply #38 on: May 19, 2015, 11:23:30 pm »

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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David Eichler

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Re: Copyright. Who has it now?
« Reply #39 on: May 21, 2015, 12:48:49 pm »

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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