Copyright & Pictures

[newalhobbyist]

The original post was an apparent attempt to provide a DMCA takedown notice regarding pictures posted to ECCIE. One link provided was to a particular showcase that had pictures labelled "BCD..." (I am not sure if it was BCD Studios or BCD Photography or what...). I think a second link did the same thing. The post claimed that the pictures were owned by BCD and threatened contact by a legal professional if the pictures were not removed. I still think a clear and simple overview of the ownership issues involved in getting photographs made might be beneficial to a number of members.

[Unique_Carpenter]

Originally Posted by newalhobbyist

The original post was an apparent attempt to provide a DMCA takedown notice regarding pictures posted to ECCIE. One link provided was to a particular showcase that had pictures labelled BCD...
... I still think a clear and simple overview of the ownership issues involved in getting photographs made might be beneficial to a number of members.

From my post at #2, the simple version:

Originally Posted by Unique_Carpenter

... In general, the photog, or the photog's firm, owns the image and copyright, unless transferred, or usage restricted by written agreement.

Anything more than this basic one sentence gets into numorous different types of agreements for this subject. Of which, several were discussed above, with their inherent issues. I note that Jon is correct that a verbal agreement could be valid.

For the situation you mention, without more details (the agreement) any comments would be speculation.
And most of the KC board folks are aware of BCD.

[newalhobbyist]

I still think an overview of the various options (not in regards to a specific situation) would be helpful. In addition, suggestions and advice on which options to choose to prevent confusion after-the-fact would also be helpful. Among these points might be 1) if you are signing a standard model release, the photographer owns the copyright and you are working for the photographer, paid or unpaid, whether you are given a copy of the photographs or not; 2) if you are paying for photographs, then you should insist on owning the copyrights, with the photographer working for you; 3) avoid any photographer that you pay for photographs AND you do not hold the copyright to the resultant work, including work product; 4) make sure there is a written contract so stating; etc. As you can tell, I am suggesting general advice NOT limited to the specifics of this one case BUT clearly and concisely covering the various applicable points and options. I regret that I did not make that clear earlier.

[Randall Creed]

Originally Posted by newalhobbyist

I still think an overview of the various options (not in regards to a specific situation) would be helpful. In addition, suggestions and advice on which options to choose to prevent confusion after-the-fact would also be helpful. Among these points might be 1) if you are signing a standard model release, the photographer owns the copyright and you are working for the photographer, paid or unpaid, whether you are given a copy of the photographs or not; 2) if you are paying for photographs, then you should insist on owning the copyrights, with the photographer working for you; 3) avoid any photographer that you pay for photographs AND you do not hold the copyright to the resultant work, including work product; 4) make sure there is a written contract so stating; etc. As you can tell, I am suggesting general advice NOT limited to the specifics of this one case BUT clearly and concisely covering the various applicable points and options. I regret that I did not make that clear earlier.

Interesting. My only question is, for people under assumed names and handles, why would there be a written contract? Would these fake names hold up in court? That and, why should a photographer give up the rights to his/her photos?? Should photographers charge extra to give up these rights?

I ask these questions in a civil manner, in an attempt to attain knowledge. I ask because a photographer's lifeblood is his/her ability to control his/her work (imagine a singer not having the ability to use their own songs).

[tandyscone]

Originally Posted by Randall Creed

(imagine a singer not having the ability to use their own songs).

Like Paul McCartney has not had the rights to the Beatles catalog for decades?

[Randall Creed]

Originally Posted by tandyscone

Like Paul McCartney has not had the rights to the Beatles catalog for decades?

Yeah, somewhere along those lines. Shit, he had to have Mike killed to get the rights back. [Joking, people. Don't get your panties in a bunch...unless he really...no? Ok. Cool]

All joking aside, I'd never hold pics over a provider's head in any kind of way. As far I'm concerned, she can use them for 100 years. Just give credit where it's due (me, the photographer). I'd expect the same courtesy from her, meaning I should be able to use them to promote myself as a photographer if she's going to use them to promote herself.

What I don't want to see, or hate seeing, is she gets all pissy after 3 months and decides 'you can't use my pics!' because...I don't know, because she hates the color green or because today is Wednesday and not Friday, or that the moon isn't full (I've actually had this happen, where she wanted to use them...the pics I took, of her, to promote herself, but I can't use them to promote myself).

We're in a 'no [real] names' business within the hobby, where verbal agreement has to have some strength. This is the meat of my point as I post here.

[newalhobbyist]

This is an arena where the contract holds sway so it is whatever the contract says. However, I do think that the contract should reflect the actual circumstances. If a person is a MODEL (paid or unpaid) then I can understand that the general assumption that the photographer will hold most of the rights to both the work product and the finished product. The standard model release would be a good fit for these circumstances. HOWEVER, if a person pays for the photoshoot, then I think the general assumption should be that they are the CUSTOMER and they should hold the rights to both the work product and the finished product and should insist on a contract that states that they do. As an example, if Ford pays a photographer to photograph some of their vehicles, they will make DARN sure that they own the rights to ALL the images that result, NOT the photographer, no matter whether the photographer is an artist or not. I dislike the assumption that the photographer should own the rights to all the pictures they take, under all circumstances, as they are artists. While I agree that that is the primae facie status under the current legal system, I think that the contract for paid work should state that the customer owns the rights to all of the product. In summary, if you pay for the work, I think it is smart to own the rights to the work product and to the finished product. Whether you decide to do this or not, be upfront and straight forward ahead of time regarding ownership of all the product and the ramifications of all the different options. If a singer is paid by a company to create and sing a jingle for an ad, that company will wisely own all rights to the product. A different circumstance is when a company uses an already-copyrighted song for their ad; then they pay the appropriate licensing fees. In this world, I think it is very important for a lady's security and protection of her brand for her to own all the rights to the photographs that are created in association with her business. Even with personal boudoir photographs that are paid for, I suggest the customer own all the rights to the photographs/product, for privacy and security reasons. Otherwise, the customer loses control of how, where, when, etc, the product is used.

[oldbutstillgoing]

From my experience with legit photographers, including me being one a long time ago, they have clients sign a contract giving both parties specific rights. Typically, the photographer retains all rights to the photos and give limited usage rights to the client. Such as using them in her portfolio, web site, etc. Most photographers are more concerned about several things
1. Reproduction rights such as making copies both digital and print
2. Use of their work for monetary purposes.
3. Usage such a way it has a negative impact on their reputation or business.
4. Use by the photographer as desired.

Of course, the content of such a contract can vary widely. I would expect like most contracts, they can be contested in court, but cost to do so could be prohibitive. In a practical sense, the holder of the contract has a decided advantage because of the cost of litigation.

After reading the thread, I do have a couple of questions Forgive me if I missed the answer earlier

In the absence of a contract:
1. Is payment for services, either to the photographer or the model, have any impact on legal rights to the photographs? Or do they effectively "co-own" the photographs?
2. If no payment occurs to either party, can one force the other to discontinue use? Other than specific uses that might be already prohibited by law?

[ShysterJon]

Originally Posted by OldButStillGoing

After reading the thread, I do have a couple of questions Forgive me if I missed the answer earlier

In the absence of a contract:
1. Is payment for services, either to the photographer or the model, have any impact on legal rights to the photographs? Or do they effectively "co-own" the photographs?
2. If no payment occurs to either party, can one force the other to discontinue use? Other than specific uses that might be already prohibited by law?

You write "in the absence of a contract," but then you give a hypothetical where one party pays the other. The payment creates a contract. I won't go off into a bunch of 'what-if's' about your hypothetical and I'll only say that if one party pays the other, that COULD vest some rights to the images in the payor. But, realistically, you'd expect that there would be more conduct involved than only a payment, such as oral statements, the model posing, and the photographer taking images. There are no bright-line rules. The rights of the parties to an oral contract or a contract based on performance only depend on the specific facts of the case. The same general analysis also applies to your 'no-payment' hypothetical.

[Unique_Carpenter]

Originally Posted by ShysterJon

... There are no bright-line rules. The rights of the parties to an oral contract or a contract based on performance only depend on the specific facts of the case ...

Jon has taken this entire thread and condensed it nicely into this statement.

[oldbutstillgoing]

Originally Posted by ShysterJon

You write "in the absence of a contract," but then you give a hypothetical where one party pays the other. The payment creates a contract. I won't go off into a bunch of 'what-if's' about your hypothetical and I'll only say that if one party pays the other, that COULD vest some rights to the images in the payor. But, realistically, you'd expect that there would be more conduct involved than only a payment, such as oral statements, the model posing, and the photographer taking images. There are no bright-line rules. The rights of the parties to an oral contract or a contract based on performance only depend on the specific facts of the case. The same general analysis also applies to your 'no-payment' hypothetical.

Sorry, should have said written contract. And thank you as always Jon. Always informative.

[Mr. GPop]

I am back into photography and do photo shoots for people on another site.
this is what I have discovered:

1) your modern DSLR has the ability to embed some data to identify type of camera, lens, owner of the camera, copyright info etc.. aka METADATA (and yes there are programs that can strip it but they leave marks showing that a metadata removal tool was used)

2) by default both the photographer and model have equal rights to the photos. The photographer has the right to watermark them then give the model a full copy of the un-edited photos. The model can then publish them with the watermark. They CANNOT remove it.

3) the photographer can publish any and or all of the photos as well.

4) usually some agreement is settled upon before the shoot. In my case I do not publish exposed crotch shots. I do let the model do that since it is her crotch and not mine. If I do a shoot for someone who does not want any photos published then I watermark them and get her a copy. I do not publish them.

But the basic right for both photographer and model is that both have equal rights to own a copy since the photos would not exist without the other person's participation.

It is what is agreed upon per actions with said photos (who gets to publish what and where etc) is where it gets a tad sticky....

I will say this, I will shoot over 500 photos in a session, but on my photo site I might post 12-20 photos tops.

[trekker]

If #s 2, 3, and 4 are not very expensive, the model isn't very attractive and her photos aren't worth a damn ;-)

[trekker]

Originally Posted by newalhobbyist

I still think an overview of the various options (not in regards to a specific situation) would be helpful. In addition, suggestions and advice on which options to choose to prevent confusion after-the-fact would also be helpful. Among these points might be 1) if you are signing a standard model release, the photographer owns the copyright and you are working for the photographer, paid or unpaid, whether you are given a copy of the photographs or not; 2) if you are paying for photographs, then you should insist on owning the copyrights, with the photographer working for you; 3) avoid any photographer that you pay for photographs AND you do not hold the copyright to the resultant work, including work product; 4) make sure there is a written contract so stating; etc. As you can tell, I am suggesting general advice NOT limited to the specifics of this one case BUT clearly and concisely covering the various applicable points and options. I regret that I did not make that clear earlier.

BTW, my comment above was in response to this one, not the one directly above mine.

[sketchball82]

My apologies for chiming in late. I haven't been on ECCIE really this year because I've been annoyed. Nevertheless, this is the space in which I practice (IP law). Yes, technically I'm a patent attorney, but I used to work in a firm that did a crap ton of copyright law, and IP law is lumped together in school and conferences, so I'm going to give a quick overview of copyright law. I do note that there is a shit ton (which apparently weights more than a real ton?) of misinformation here, so I'll address as appropriate.
---

Overview (Key Points):
- The photographer always owns the copyright, UNLESS...
- The model will only own the copyright if she hired the photographer OR if the photographer gives/sells her the copyright.
- If the photographer hires or otherwise pays the model, the photographer owns the photographs.
- If no money is exchanged, the photographer owns the photographs.
- If the model hires the photographer, the model owns the photographs.
- If the model pays the photographer but their agreement is vague as to if she "hired" the photographer, contract law principles must be invoked to determine if the model "hired" the photographer.
- The copyright is granted as soon as the photograph is "finished".
- That means that if a photograph is commissioned, absent an agreement to the contrary, the photographer has discretion on whether or not to include unwatermarked and/or un-touched-uped photographs.
- A copyright owner does not need to register the copyright with the Copyright Office to sue for infringement.
- A model release form has nothing to do with copyright ownership.
- A model release is to prevent the copyright owner from being sued for violating privacy statutes.
- Only the photographer is allowed to remove a watermark from a photograph, even if the copyright owner (that isn't the photographer) gives the ok.
- Under VARA, while the copyright owner is entitled to make derivative works and change the initial work, he cannot distort, mutilate, or modify the work in a way that would prejudice the author's honor or reputation.

---
Response to specific fact patterns, questions, and comments:

Question: "When does the model own the copyright?"
Answer: Only if she hires the photographer or he gives/sells her the copyrights (see 17 U.S.C. §201(b)). Note selling copies of the photograph is different than selling the copyright. See 17 U.S.C. §202.

Question: "When does the photographer own the copyright?"
Answer: Whenever any work is created that is not under commission (17 U.S.C. §201(a)).

Comment: "Posting an image doesn't create a right to ownership or a copyright."
Response: Yup. I would go further and note that if the poster does not have an agreement with the author of the work, they are infringing the copyright.

Comments:
"In that most professional photogs are aware if the rules, they usually endevor to post the pic somewhere/anywhere to establish the copyright for themsevles."
"If appropriately labeled it does. And that's straight from the US Copyright office."
Response: No no no no. This is just stupid.

Comment: "This may be splitting hairs, but the copyright exists from the moment the work is created."
Response: Bingo. And this is not splitting hairs but is quite critical.

Comment: "If the right to ownership of an image was not part of the agreement between the model and photographer, and either of them obtains a copyright of the image, the presumption is that the party with the copyright owns the image."
Response: This is not correct. It is either or, and the test is not who registered the mark. Absent an agreement to the contrary, the test is did the model hire the photographer? Note that copyright is conferred upon creation, not upon registration with the Copyright Office (which is what I assume you mean by 'the party with the copyright'). The registration at the Copyright Office is not an examined procedure. For the purposes of this thread, the registration simply establishes a date of possession in the event two parties both claim to have created the work and proceed to litigation. Unlike patents and trademarks, you don't even have to register the mark to use the copyright symbol.

Comments:
"Registering the copyright establishes the owner of the copyright and is necessary in order to take legal action against anyone infringing on the copyright."
"Yes needed to litigate, "
Response: Wrong. You can sue someone for copyright infringement without registering it. Note the language of 17 U.S.C. §501(b), which deals with infringement: "The court may require such owner to serve written notice of the action with a copy of the complaint upon any person shown, by the records of the Copyright Office OR OTHERWISE, ..."

Comment: "A basic model release usually gives no rights whatsoever to the gal, and would enhance the photogs position."
Response: There is no position to discuss. The photographer owns the copyright. Period. The purpose of releases has nothing to do with who owns the copyright. Releases are to prevent infringing privacy protection statutes.

Question: "1. Is payment for services, either to the photographer or the model, have any impact on legal rights to the photographs? Or do they effectively "co-own" the photographs?"
Answer: It depends on the details contract, but in general YES. If you have "hired" the photographer, then YOU own the copyright. If you are merely purchasing prints though, the photographer owns them. If he pays you, then obviously he owns them.

Question: "2. If no payment occurs to either party, can one force the other to discontinue use? Other than specific uses that might be already prohibited by law?"
Answer: The copyright owner (photographer) can force the other party to stop using the work (17 U.S.C. §502 deals with injunctions). Depending on privacy statutes in your state, the model may or may not be able to get an injunction to stop a photographer from distributing the work IF no model release was signed. So yes it is feasible that both can get injunctions against each other and neither can distribute the work publicly, although the copyright owner can always display the work privately, whereas technically the model would be infringing if she had a copy of the photograph privately.

Comment: "2) by default both the photographer and model have equal rights to the photos."
Response: Wrong. See above.

Comment: "The photographer has the right to watermark them then give the model a full copy of the un-edited photos. The model can then publish them with the watermark. They CANNOT remove it."
Response: Under VARA, the part about the photographer being entitled to the watermark is true. Its actionable to remove the watermark without the author's consent. Also, the model is not entitled to publish the photos even with the watermark without the consent of the copyright owner, even in her private portfolio.

Comment: "3) the photographer can publish any and or all of the photos as well."
Response: If he is the copyright owner. And he has a release, lives in a state with lax privacy laws, or doesn't mind being named in a court action for violating privacy statutes.

Comment: "There are no bright-line rules."
Response: Actually the rules are quite clear. The only time it would be confused is if the contract is vague and the model paid the photographer. In that circumstance, basic contract law would have to be invoked to arrive at an answer whether the model "hired" the photographer. But in pretty much every other circumstance, it is very clear.