Art and Copyright

[Bill Harrison]

Re: Mike Sab

When GM sh*t canned the electric car, they sold the rights to the elec battery to EXXON, I believe, that DID hurt the consumer, the country and further dev of an elec car. Were not just talking about a cute song and dance routine here....

 

[chriscrawfordphoto]

don't artists and writers benefit from something of a free exchange of ideas

but it has seemed the biggest gift of the internet has been to take creators property under the
scam that it is for common cause

the battle to steal work and ideas by microsoft, and everybody else, is rampant

if i want to share ideas, i can go over to schwab's and help him rake leaves;
call apug pals,
or go to a bar

but i'm not going to post my best images online

oh, and what Nicole said.

You're simply depriving yourself of the money you could make by selling your work to people who would find them online because of an irrational fear. I have my best work online, and have made money from it. I'd be a fool not to have my work online when 98% of my sales come from my website. Art dealers and galleries are parasites who take half the money my work earns and do little to try to market it. No thanks.

 

[Videbaek]

Speaking as someone who commissions photography regularly for marketing campaigns and such, the preceding has been interesting. I'm amazed to still find photographers who try to retain their copyright on work that I commission on behalf of the company I work for -- who try to sell, for example, rights for Europe-wide usage for a year. Well, I understand why, but that's a flat no-go. Copyright must be transferred to my company in the contract, there's no other basis of discussion. I can't believe that there are people out there who would commission photography on any other basis. Why? Because it's commissioned work, where I set up the entire context (either directly or through an agent) and the photographer takes the pictures. Of course it's skilled work, but in this scenario you have to do a lot more than take the pictures to earn copyright (my company is either doing that work or paying for it, we get copyright). It's different if I purchase usage of a picture -- I just need to use the picture for something, and I'm basically renting it. Fine. I'm afraid a lot of photographers, even big-name photographers with a lot of experience, don't understand the value of images to a company doing business in the world today. They're always complaining that they're not getting what their pictures are worth, that companies don't understand the value of the pictures they make. Au contraire. When it comes to marketing and sales, photographs are just a commodity, to be commissioned or bought at a balance of the highest possible quality and lowest possible price.

 

[MikeSeb]

Speaking as someone who commissions photography regularly for marketing campaigns and such, the preceding has been interesting. I'm amazed to still find photographers who try to retain their copyright on work that I commission on behalf of the company I work for -- who try to sell, for example, rights for Europe-wide usage for a year. Well, I understand why, but that's a flat no-go. Copyright must be transferred to my company in the contract, there's no other basis of discussion. I can't believe that there are people out there who would commission photography on any other basis. Why? Because it's commissioned work, where I set up the entire context (either directly or through an agent) and the photographer takes the pictures. Of course it's skilled work, but in this scenario you have to do a lot more than take the pictures to earn copyright (my company is either doing that work or paying for it, we get copyright). It's different if I purchase usage of a picture -- I just need to use the picture for something, and I'm basically renting it. Fine. I'm afraid a lot of photographers, even big-name photographers with a lot of experience, don't understand the value of images to a company doing business in the world today. They're always complaining that they're not getting what their pictures are worth, that companies don't understand the value of the pictures they make. Au contraire. When it comes to marketing and sales, photographs are just a commodity, to be commissioned or bought at a balance of the highest possible quality and lowest possible price.

Your self-serving interpretation of copyright law doesn't change the fact that the copyright, from the moment of the work's creation, belongs to the photographer; and is separate from whatever business arrangements precede or follow that creation. The photographer doesn't have to "earn" the copyright; that is his/hers by right. That's why it's called "Copy-RIGHT".

Copyright is the private property of the photographer; it is up to him to sell it as he sees fit; or for you to wrest it from him however you are able. I see you have figured out how to accomplish that efficiently. I suppose that, as a representative of your company, you have a duty to its owners to get the best possible deal for them, so I can't fault you there.

And I count myself lucky that, since photography is for me a secondary source of income, I am not forced to acquiesce to such terms to put food on the table.

At least your company's policy has the virtue of being plainly stated for all to see. If you still have photographers willing to work for you under these terms, they have only themselves to blame. I hope that they have the business sense to demand an appropriate level of compensation in return for such a broad giveaway of their ownership of the images.

 

[df cardwell]

Svend

With the greatest respect,
you have no idea how the real world works,
what international copyright agreements mean,
how you are shortchanging yourself...
and ANY photographer who accepted you absurd conditions would be a fool.

Speaking as someone who commissions photography regularly for marketing campaigns and such, the preceding has been interesting. I'm amazed to still find photographers who try to retain their copyright on work that I commission on behalf of the company I work for -- who try to sell, for example, rights for Europe-wide usage for a year. Well, I understand why, but that's a flat no-go. Copyright must be transferred to my company in the contract, there's no other basis of discussion. I can't believe that there are people out there who would commission photography on any other basis. Why? Because it's commissioned work, where I set up the entire context (either directly or through an agent) and the photographer takes the pictures. Of course it's skilled work, but in this scenario you have to do a lot more than take the pictures to earn copyright (my company is either doing that work or paying for it, we get copyright). It's different if I purchase usage of a picture -- I just need to use the picture for something, and I'm basically renting it. Fine. I'm afraid a lot of photographers, even big-name photographers with a lot of experience, don't understand the value of images to a company doing business in the world today. They're always complaining that they're not getting what their pictures are worth, that companies don't understand the value of the pictures they make. Au contraire. When it comes to marketing and sales, photographs are just a commodity, to be commissioned or bought at a balance of the highest possible quality and lowest possible price.

 

[Craig]

Your self-serving interpretation of copyright law doesn't change the fact that the copyright, from the moment of the work's creation, belongs to the photographer;

No, that's not always true. Copyright laws vary by country, and in Canada if a work is commissioned, then the person (or company) that commissions the work owns the copyright.

Similarly, if you create something in the course of employment, the copyright is owned by the employer. For example if a newspaper hires a photographer, then copyright of the photos taken is owned by the paper.

Patents have similar provisions, if you invent something in the course of employment; the employer owns the rights to the invention. The reason is that people like engineers and scientists are hired to invent; that's their job. Exceptions exist for things invented that are not related to a person’s employment and didn't use the employer’s workshops or time.

Craig ( former patent agent)

 

[MikeSeb]

No, that's not always true. Copyright laws vary by country, and in Canada if a work is commissioned, then the person (or company) that commissions the work owns the copyright.

Good point. I was thinking of US copyright law only here. My bad.

Similarly, if you create something in the course of employment, the copyright is owned by the employer. For example if a newspaper hires a photographer, then copyright of the photos taken is owned by the paper.

Not automatically. The photographer has to agree as part of an employment contract to this turnover of copyright to his/her employer. It does not happen automatically by virtue of being employed. That's why employment contracts have such provisions; if it were automatic, there'd be no need for them.

Patents have similar provisions, if you invent something in the course of employment; the employer owns the rights to the invention.

Again, it's not automatic; it has to be written into the employment contract.

In both of your examples, it may be functionally automatic, depending on how badly you need the job. No agreement to assign copyright, no job.

I'm not a lawyer, but I play one in my bathroom....

 

[Craig]

Not automatically. The photographer has to agree as part of an employment contract to this turnover of copyright to his/her employer. It does not happen automatically by virtue of being employed. That's why employment contracts have such provisions; if it were automatic, there'd be no need for them.

Again, it's not automatic; it has to be written into the employment contract.

In both of your examples, it may be functionally automatic, depending on how badly you need the job. No agreement to assign copyright, no job.

In Canada, the law is that if you create a photo as part of your employment, your employer owns it unless there is an agreement to the contrary. The newspaper was a bad example, since there is an exemption for that. The statute is here: Dead Link Removed

Similarly, for patents the courts have determined that inventions made as a course of employment belong to the employer. I don't have case citations handy, but it's a well established principal here.

In order for the employee to have ownership in these cases there must be a specific agreement saying so, otherwise rights are automatically assigned to the employer. There is a clause in employment contracts saying you assign right etc etc, as part of the standard CYA boilerplate, as it makes things doubly clear.

In the US there is also the concept that if you use an employers resources (shop space, computers, time etc) to invent something the employer also can claim an interest, even if it is unrelated to the employers business.

 

[Videbaek]

Svend

<With the greatest respect,
you have no idea how the real world works,
what international copyright agreements mean,
how you are shortchanging yourself...
and ANY photographer who accepted you absurd conditions would be a fool. <

Ah, well, be that as it may... I was rather blunt in my last post, that was to be expected. The gap between the amateur and professional is huge. There are many different contexts for purchasing photography, I was just writing about commissioned photography -- something I've done a lot of. The law varies from country to country, but there are certain principles which are universal. I know that the question of the value of creative work is a difficult one. I was writing from the point of view of a marketing manager using photography to promote business. From my point of view as a maker of pictures, I have no illusions. A picture of mine is worth only what I could sell it for (and of course I would retain copyright). If I can't sell it, then it's worth nothing.

 

[archphoto]

Basicly there are 4 situations:

1) you work as a photographer for a compagny: > the compagny has the copyright
2) you are hired as a photographer to take shots from a set-up that has been set-up by a compagny > the compagny has the copyright
3) you are requested to take shots as a freelancer of something and how you make your shots is up to you > you have the copyright
4) stockphotography > you have the copyright.

What MikeSeb was talking about was (2): the compagny hired an advertizing agency, a stylist and so on. In that case the photographer has to come with its gear and press the button, nothing more.

I have been working for the past 30 years under (3) and (4) as an architectural photographer.
At times an architect would say: I designed the building, so the copyright of your photo's belong to me: WRONG.
The architect has his copyright on his design, I have my copyright on my photo's as they are an interpretation of his work.

Hopefully this clears up things a bit......

Peter

 

[Videbaek]

That's exactly right, archphoto. Clear summary.

 

[nemo999]

Basicly there are 4 situations:

1) you work as a photographer for a compagny: > the compagny has the copyright
2) you are hired as a photographer to take shots from a set-up that has been set-up by a compagny > the compagny has the copyright
3) you are requested to take shots as a freelancer of something and how you make your shots is up to you > you have the copyright
4) stockphotography > you have the copyright.

What MikeSeb was talking about was (2): the compagny hired an advertizing agency, a stylist and so on. In that case the photographer has to come with its gear and press the button, nothing more.

I have been working for the past 30 years under (3) and (4) as an architectural photographer.
At times an architect would say: I designed the building, so the copyright of your photo's belong to me: WRONG.
The architect has his copyright on his design, I have my copyright on my photo's as they are an interpretation of his work.

Hopefully this clears up things a bit......

Peter

The position in Britain as I understand is the same as above in cases 1), 3) and 4). In case 2), the theoretical position is that copyright rests with the photographer - in practice anyone (in the role of art director) who is such a control freak that they set everything up, including lighting and composition (for which a camera really needs to be present), is very apt to get the photographer to agree in writing to cede copyright to the client. This would hardly be unfair if the photographer had nil creative input and merely had the function of supplying a camera for the art director to look through and pressing the button on command.

 

[df cardwell]

I would hope that anybody who wants the straight truth on this topic,
do the research for their location, and be prepared to be surprised.

Some of us are amateurs, some 'fine art photographers',
and some are professionals with years of experience
dealing with copyright issues on a daily basis.

The opinions expressed here are as diverse as the APUG community.

If you want to KNOW where you stand, contact a copyright attorney (experienced with photographic issues) in your community.

For americans (and many others), for crying out loud, LEARN the REAL differences between
owning the right to your pictures and doing 'work for hire'. There is an up-to-date, 100% correct place to go, and that is :

http://www.asmp.org/


We all, each of us, have the right to benefit from our labor
and that right is always under assault
by those who believe that THEY have the right to benefit
from the work of others if they can get away with it.

International copyright conventions exist,
but nobody will protect you
if you don't know how to look after yourself.

.

 

[analogsnob]

The respect for copywrite is under fire from all angles. We do portrait photography where we wind up selling pictures we have printed on speculation. It is madening to watch people come in and try to snap pictures A of their friends being photographed in frount of our backgrounds and props and B snapping pictures on their cell phones of the pictures of themselves we are trying to sell them. When we try to tell them they are stealing our work most are indignant (its a picture of ME why can't I copy it?).

Ah for the old days when all we worried about was old ladies standing behind us doubling our wedding groups.

 

[archphoto]

Analogsnob: that's why a compagny like "Sooters Photography" (Canada ) back in the 70's printed their photo's on silk finish, in that way you could not copy their prints.....

 

[Videbaek]

<For americans (and many others), for crying out loud, LEARN the REAL differences between
owning the right to your pictures and doing 'work for hire'< We all, each of us, have the right to benefit from our labor
and that right is always under assault
by those who believe that THEY have the right to benefit
from the work of others if they can get away with it.

International copyright conventions exist,
but nobody will protect you
if you don't know how to look after yourself.<

All true enough. But I'm really puzzled by the note of hysteria that often shows up on APUG when discussion turns to copyright.
And other things.

I haven't detected this note in any of the professional photographers I've worked with over the years. They're pragmatic.
We discuss the job, agree on the deliverables and terms (including copyright) and happily do the work, often with results I'm personally proud of.
They like working with me. I like working with them. It's one of the best things about the work I do.

 

[Larry Bullis]

Analogsnob: that's why a compagny like "Sooters Photography" (Canada ) back in the 70's printed their photo's on silk finish, in that way you could not copy their prints.....

Unless you copied them under a liquid maybe? But who'd do that?

 

[SuzanneR]

When I started this thread, I was less interested in the copyright issues surrounding commercial photography, and more interested in that work which has little commercial value, and its relationship to copyright. And how long should those copyrights last.

I have been, for some time now, engaged in making some very personal work. I don't expect to make much money at it, I expect to hold the copyright, and hope my children can, too. But I think after that, it's good for a healthy society to enjoy a free exchange of ideas... for some art to be in the public domain. My work is a gift to my children, and perhaps in the long run... they are offered as a gift to all.

I mentioned in the OP, Lewis Hyde, and since starting this thread have read his book called The Gift. He writes extensively of what he calls a "gift economy", and the struggle for art to find support in commodity based economies and societies. It's a very interesting book, I can highly recommend it.

 

[nemo999]

When I started this thread, I was less interested in the copyright issues surrounding commercial photography, and more interested in that work which has little commercial value, and its relationship to copyright. And how long should those copyrights last.

I have been, for some time now, engaged in making some very personal work. I don't expect to make much money at it, I expect to hold the copyright, and hope my children can, too. But I think after that, it's good for a healthy society to enjoy a free exchange of ideas... for some art to be in the public domain. My work is a gift to my children, and perhaps in the long run... they are offered as a gift to all.

I mentioned in the OP, Lewis Hyde, and since starting this thread have read his book called The Gift. He writes extensively of what he calls a "gift economy", and the struggle for art to find support in commodity based economies and societies. It's a very interesting book, I can highly recommend it.

Absolutely nothing which has been said in this thread would preclude you from placing your work in the public domain, either immediately after its creation or at any subsequent time of your choosing. The operative word is "choosing" - in the case of highly personal work with what you feel is little commercial potential, you might be inclined to present it to the world and not pursue copyright infringements, at the same time I am sure you would like to
have the possibility of preventing the use of your work for what you feel are inappropriate purposes.

 

[analogsnob]

Unless you copied them under a liquid maybe? But who'd do that?

You'd be surprized. I have a good friend who does composits for his schools and looses sales to those that walk up to the composit on the wall and shoot through the glass with their cell phone the less than 2x3 image of themselves and their friends so they can print it on their home computers.

Quality and copywrite seem not to matter if you can do it yourself for free.

 

[Cinevision]

copyright & royalties

When I started this thread, I was less interested in the copyright issues surrounding commercial photography...

I'm sure this has been discussed here before, if so - point me in the right direction?
Is there definitive law on the right to sell prints - as artwork, of performers in public performance?

 

[SuzanneR]

I'm sure this has been discussed here before, if so - point me in the right direction?
Is there definitive law on the right to sell prints - as artwork, of performers in public performance?

A bit off topic, but I think it really depends on the use. If you publish a photograph from a concert in, say a newspaper, essentially reporting on an event, then I you are good to go. If, for example, you want to sell the picture to Coca-Cola or some such place... you (or the company buying the photograph) would need to secure a model release for that use. In fact, for just about any commercial use... you (or the company doing the advert) should get a release of any easily identified person in the picture, famous or not.

It does get far trickier with famous faces because they can control how there image is used in the market place.

I would say they have somewhat less control over editorial or fine art use. I mean... I doubt Andy Warhol had a release for M.M., Jackie, or Elvis when he made those silk screens. And Philip Lorca di Corcia won a lawsuit when he showed a picture at a gallery made on a public street in NYC of, I believe, and orthodox Jewish man.

Of course, ultimately, this gets back the free exchange of ideas... Warhol was exploring the idea of fame after all...

 

[John Koehrer]

No Warhol didn't bother with releases. I recall the photographer has/is suing Warhols estate for using some of his pictures. I doubt anything will come of it because if the image used is "reused" for art it's fair game for the second artist. Similar to the Marlboro man picture that netted over $1M with the original photographer receiving nothing from the sale of the artwork.
The whole business of copyright is a minefield & you should check with a lawyer to determine your specific rights.

 

[Cinevision]

The whole business of copyright is a minefield & you should check with a lawyer to determine your specific rights.

But surely, especially with the level of communication we have today, SOMEONE has documented some precedents?
For instance; If I want to sell art prints of a deceased performer, where is the line drawn between art and image? ie. my work and their face..?

 

[SuzanneR]

But surely, especially with the level of communication we have today, SOMEONE has documented some precedents?
For instance; If I want to sell art prints of a deceased performer, where is the line drawn between art and image? ie. my work and their face..?

Depends on how famous the face is... and how much control the heirs retain. If you are selling prints of your own copyrighted work for hanging on the wall, I would say you are probably within your rights. Licensing the image for commercial use is another matter.