Ownership of negatives vs goodwill

[blansky]

After seeing the responses to Robert's dilemma of his nude model wanting back her pictures I was not surprised. However had this been a professional forum (people that did photography for a living) the responses would have been 99-1 in favor of telling the people politely that they have no right to even ask.

I had been a member of different portrait associations over the years including Professional Photographers of America, Professional Photographers of Canada as well as a bunch of others. These associations and others pay lobbyists to monitor and fight for photographers rights as to copyright etc.

Quite a few people on this site are strickly scenic photographers and I'm wondering if they would feel the same way if they photographed say a farm building on a great vista (a la Moonrise over..) and were approached afterwards by the farmer and he demanded back the prints and negs. This is not too farfetched as if this farm building was identifyable as his, he has a case. But for the sake of argument would you be as willing to give away your work. Even if the work was not great, or not your best, would you cave in under this pressure. Would the fact that someone was angry that you took their farmhouse cause you to give them your work?

A number of people have cited goodwill or not worth the trouble, or being a nice guy etc as a determing factor. We as a community and profession have always been very self conscious about ourselves and so willing to give in to demands like this. I don't think any other profession is the same way. Do architects give away their blueprints, do jewellery designers give you the mold with the piece they designed?

I can remember when I used to shoot wedding and after they placed their order they asked can they have the negs. I said no, we retain the rights etc. and they asked a perfectly legitimate question. "what do you need then for?. Well the answer is I don't need them. But they are mine. In fact a lot of beginning photographers give away their negs afterwards, which makes the rest of us cringe.

I guess my point is, they are my property, I spent a lot of time learning to make them and they don't now, or ever, belong to the person that is in them. And would you feel the same way if someone demanded your work because they, or their property are in them.


Your comments?



Michael McBlane

 

[Cheryl Jacobs]

Michael, I hear what you're saying. And if the images were not nudes, I would agree 100%. You're absolutely right that, provided the images were covered by model release, there is no legal obligation whatsoever to return or destroy negs. There's not even a legal obligation to not use or display the images. Again, though -- it's the reputation that I want to protect, paticularly if my main work was nudes. You (the photog) can always say 'no.' Even if you have said 'yes' once or twice, you can always say 'no.' But if you use and / or retain very personal images against a model's will (even if she initially agreed to let you) it can be that much harder to get models / clients. Word travels.

Now, if these were regular not-so-personal portraits and they were covered by model release, I would handle it differently. I would not return the negs, and I would use the images anyway, unless there was a very compelling reason otherwise. (For example, if using them would somehow be dangerous to the model. I had a situation like that once.)

There are many different ways to handle the situation, though. Let each handle it in the way he/she feels is right.

 

[David A. Goldfarb]

I agree with Cheryl on this one. For better or for worse, figure studies are a special case. While I think the photographer needs to protect him or herself by not giving away negatives, I can imagine destroying negatives in rare cases.

If you don't want trouble, then the solution is to hire professional models who understand the legal issues and pay accordingly. If one relies on friends and acquaintances or inexperienced models willing to trade time for portfolio prints, then I think one has to acknowledge a certain degree of risk and the possibility of regrets down the line.

 

[photomc]

Good question Michael..remember a GAPW workshop I went to with John Shaw, he stated that a realease was needed for shot - Autumn, barn, somewhere in New England..turns out that this one place has ended up on so many calendars tha the owner requires a fee and release - so scenic work is changing too! I feel like you should NEVER give up your negatives - period. Now if you burn, spindle, shred, them that is fine. Even if a figure study of a friend, does not matter..in my mind they aren't much of a friend and secondly why the remorse...

Just my opinion and worth as much.

 

[noblebeast]

..remember a GAPW workshop I went to with John Shaw, he stated that a realease was needed for shot - Autumn, barn, somewhere in New England..turns out that this one place has ended up on so many calendars tha the owner requires a fee and release - so scenic work is changing too!

It doesn't suprise me after I read an article about a particular tree on the scenic drive in Monterey, Ca. that has been copyrighted. So basically one can still shoot a picture of the tree, but must get permission (and I assume pay some sort of licensing fee) if one wants to publish the picture. I am not sure who owns the copyright - the city?

Anyway, one of the earliest lessons I ever learned in photography is never give away or even sell the negative. A pretty inventive contradiction to that rule is observed by someone I'm taking a portrait class from presently - he also does weddings and it is his policy, once five years from the date of the ceremony have passed, to send the negatives to the couple. This accomplishes two things: 1-It frees up his storage and, 2-If the couple are still together they probably have a kid or two by then, and this seeming act of unselfish goodwill usually results in a booking for a family and individual portraits.

Robert, all that doesn't help with your quandary, and as there doesn't seem to be anything to add to all the terrific thoughts everyone else has shared, I just hope you are able to resolve the situation soon and in a way you can feel good about.

 

[Thomassauerwein]

As a commercial photographer I sell the rights to the images I've created for a client. Whether it's negs or transparencies is a request by the client and though I retain the right to use the images at my descretion they are bought and paid for by the client . I have no problem turning them over.

As a Fine Art photographer I NEVER give the negs to any one.

The distinction for me is simple, Commercial work I care about bringing the projects to the satisfaction of the client . They can do what ever they want with the images to create more sales for themselves and in turn hire me again so that I make more money on new projects. Advertising photographs have a very short life, needing to be replaced constantally.So for this I care about the money. As far as Fine art I care about the images. Even the portraiture for the entertainment world falls here. They have never even asked for the negs knowing that the negs are part of my creative process. nobody is going to create from that neg what I know about the image.

Roberts situation comes from an over controlling husband and a model who does not understand why she did what she didn in the first place. If she did she would have the strength to tell her husband to get over it.

As far as property releases are concerned, It's an imperfect system. Some situations the release is a matter of funtion. I shot a 727 for a air transport company one time on the tarmack at sunset. The release procedure what a pain in the ass. took 3 months But very necessary. I shot one of the U.S. olympic training centers last week. They gave me some rules to follow but no release required. So if in dought ask, If you can get away with it go for it! but be prepared to either pay or leave.

 

[Aggie]

..

 

[Robert Kennedy]

See, for me the friendship issue is a moot one now. She busted that up when she asked about this during my rehearsal dinner, and slunk around town trying to track me down the day after my wedding! I mean it is all pretty sleazy. So after that, after not even having TIME to consider what I should do, I count the friendship thing moot. I have a low tolerance for what amounted to a shakedown.

Now, some have said "it is beginner work", which is odd because nobody has seen the image...but anyway, yeah, I have done better, and I WILL do better.

Does that mean one should not value their work?

Why are some people so ready to devalue photography to the point of nothingness? I did two shoots which she was very pleased with. She got several prints out of it, including a pretty good 11x14. So why should that work be considered worth nothing?

Add to that the fact that I revisit images so I can see how I have improved, and we have a definate value to these items.

Let me put it this way....

If you can't go back and see what you have done wrong, how can you improve? It would be like taking pictures with no film in the camera! At a certain point you have no concept of how you are doing without a history to look back on.

Which is why I feel we should never "devalue" our work. It is ours and it has value. Be it good, bad, or ugly.

 

[Ed Sukach]

I wish I had more time at the moment ... I'd start a thread about copyrights - what they mean and the protection they afford.

Generally, a copyright protects an artistic concept. Every class I've taken stresses that the work is protected from its conception - that is, from the idea itself. One could conceive of a work of art - creating the copyright - describe it to someone else, who then proceeds to *DO* it - and the original artist can recover damages from an infringement of the copyright. The problem would be in proving who had the original concept.

Property and Model Releases are not the same thing... they are contracts permitting the use of an "item" in a very broad sense - like one's body - by another for monetary gain. A simple parallel - I've used your lawnmower to cut my neighbors grass - and I made money from that use. The owner of the lawnmower has the legal right to expect a fair portion of the profit.

There are other laws applicable to photographers - the most notable being those dealing with libel (A famous case had to do with a photograph of a prominent politician taken at an airport. The photographer managed to frame the scene so that it LOOKED like the politician was at the airport with a *stunning* woman - who was not his wife. Actually there was no relation between politician and "stunning" - his wife WAS there and much closer to him than the other girl. So far no libel - but the sleazy rag that printed the photograph libelled by writing a false report stating that the politician WAS there with the girl - arggh!! this has to be an all-time record digression..), and Invasion of Privacy, and a whole bunch of others.

In the case of the "popular barn" the owner of the building could not prevent its being photographed - It is in a public place and there is no reasonable expectation of privacy. The photographer would own the copyright - from its conception.- no matter what He would not be free to make money from the image with no consideration of the owner ... he did use the guy's "lawnmower".

Forgive brevity and typos -

 

[Aggie]

..

 

[David A. Goldfarb]

As I understand it, a property release can only apply to commercial uses, say in advertising or a brochure, but not to editorial or fine art uses. Someone can demand a fee for a property release if you wanted to sell photographs of the property to a stock agency, but not so if you are documenting the property for a magazine article or are using the property as part of an artistic composition that is an end in itself, rather than for the purpose of selling something else. The photographer who photographed the R&R Hall of Fame could sell posters or fine prints, for instance, but I doubt that he could sell the image to a record company for use in advertising without risking some liability.

 

[Aggie]

..

 

[dr bob]

I realize the complexity of law in these matters. I have been embroiled in a case of photographing private land from public throughofare. Since then I have always tried to ascertain the appropriate person and contact them prior to exposing film.

However, all my negatives are mine and I will do with them as I like. I will give them away if I please, sorry.

 

[Jorge]

Michael, I think you are talking about two different things. As a photographer for hire, if you establish that the negatives are your property then you have the right to refuse surrendering them. Commercial photographers usually bill for the film and surrender the film at the end of the job, but these situations are confined to those people who were hired and paid for a specific purpose with all the restrictions agreed upon before the job starts.

In Robert's case it is a model who was a friend and now has second thoughts because of her new relationship. I dont see the harm in trying to meet them half way, if anything just so that Robert can maintain a good reputation, even though he has done nothing wrong.

OTOH I think your farmer example is a bit misleading, personally I always ask permission to photograph a private structure, even if I am in a public road and have every right to do so, this courtesy towards the owners has netted me more great pics than if I had not done so, recently I had a similar situation, since I asked permission, the owner actually left one of his sons with me to help me and opened up the place specially for me which resulted in two great shots, and better yet, I was invited to come back any time!

So good manners usually pay off, and to tell you the truth if I took a pic and the owner objected, I would gladly give him the neg and print.

In Robert's case I think the fiancée has just pissed him off and has become a no win situation. They were wrong to harass him and his bride at the wedding and the following days and now he has dug his heels (which is very understandable).

In the end, safeguarding my reputation and maintaining a good relationship with the locals is more important than any "masterpiece" I might have created, I figure if I can do it once, I can do it again. No picture is worth the hassle and anxiety that Robert is going through.

 

[lee]

Jorge,
Ah, the voice of Mexican reason. I agree.

lee\c

 

[happysnapper]

Robert, you can keep the proofs and prints to "revisit" now and then, and to remind you of a bad situation that got testosteronely out of control. It might be the most professional thing to do to shred the negatives and the prints, send them as a wedding gift in fact, and be done with it. Sometimes the artwork created can be internal.

Ray

*sections of this post have been moderated -admin*

 

[blansky]

I didn't really want this thread to deal with legal issues. We covered that once before, and some of the stuff may have to go all the way to the Supreme Court it is so complicated.

What I wanted your opinions on was, since Robert's case was a person, a nude, I wondered what all the landscape/scenic people felt if the same thing were to happen to them. I noticed that a lot of you said live and learn etc, give them back or destroy them.

I'm wondering if say, YOU, had taken a great shot of some landscape thing and had permission but later the owner wants the negs and prints. Would you be so accomadating. Live and learn, good will and all that, or would you fight for your work.

Is the fact that this is a nude, is that the determing factor, or that someone is whining, and to shut them up you give in. Is it because they are badmouthing you in public or you are afraid they might. Is it because you fell that you may get future business with them that you give in.

Could it be that you didn't, in the pre-shoot consulation tell them that the negs are yours forever. The gift that keeps on giving, twenty years later when you are running for president. Is it that you feel you exploited them in the first place and they are being victimized by your ownership of their naked form. Is it that you yourself are self conscious about nudity. Is that it bunky? Sorry.


When is our work worth fighting for. As has been ascertained in previous forums, WE ARE ARTISTS. When does our art become worth fighting for. Or as soon as someone raises their voice do we throw everything at them and run away.


Just asking


Michael MCBlane

 

[Jorge]

Michael, what you are asking is rather a personal question, legalities aside these are decisions which are done in a case by case basis and have more to do with emotional concepts than with the issue at hand.

Obviously you feel strongly you would not give the negatives, me I rather choose the battles I want to fight, in some cases I might surrender the negative, in some I might not. Regardless of my reputation I would weight what is the greater benefit for me in the long run, if this place I shot belongs to someone who is well known in the local community and returning the print and an unusable negative will generate good will towards me and allow me to continue visiting the place in peace I would definitely do so, if I am in Timbuktu, take a pic and a year later I get a letter demanding the neg and the print, most likely my response would be different. It is all relative.

In Robert's case, since this is a person in his same community, which for purely selfish reasons can damage his emerging reputation, I would certainly try to meet them half way. I think he needs to look a few years down the road and how the opinion of this one woman can affect him. Unfortunately this kind of things have a way to come back and bite you in the ass. I can just see him asking another woman down the road to pose for him and her saying, "aren't you the guy who photographed xxxx and then refused to help her and ruined her relationship?"

However right we think Robert is, I am sure this is not the same story that these other two people are saying. IMO, taking a hard line in this situation has the potential to damage him more than the benefit he might obtain from keeping the negatives.

 

[David A. Goldfarb]

I don't think we can ignore the fact that whatever we personally may think about nudity, there are stigmas surrounding it in society that might affect an inexperienced model in ways that they may come to regret, and I'm willing to respect that.

This does not apply to photographing property or landscapes, where the only substantive issue is that of commercial use. There is generally no shame associated with having someone's barn publicized, but alas, some people may come to feel ashamed of having their body publicized.

Should one give in in every case? No, I don't think so, but I can imagine cases where it would not be an unreasonable courtesy.

 

[David A. Goldfarb]

---edited post that was just a response to a deleted thread---d.g.

 

[Robert Kennedy]

To get back on topic....

A couple of salient points that I think were missed here...

1 - They want EVERYTHING. Not just the nudes, and they want all prints, CDs, etc. Told you it was creepy. I mean this is a WEIRD request. Again, if this guy was in the Taliban, I might expect this....

2- She moved last year to another community 100 miles away. She can bitch all she wants, nobody will hear her here.

 

[blansky]

OK. Let's take it to the next level.

Almost everyone here said that, after extensive argument, that they were "artists". Dammit we're artists. We all know that we suffer for our art. But would we stand up for it. Do we have what it takes to say " I made this. It was not there before. I created it. It belongs to me, and nobody is telling me what I can or cannot legally do with it. Do we have what it takes to do that?

What if it was the best landscape we ever took. The moon was perfect. The rainbow over the monastery was perfect. I doubt that I could ever duplicate it. It's the best nude I ever took, the expression was the most pure I've ever seen.

What if it was just mediocre.

Would I stand up for it.

If I was a politician and someone offered me money to vote for something. I was going to vote for anyways. Would I take it.

I'm a reporter working on a minor story. My source is tied to a bigger story then a bigger story. Would I give up my source or risk going to jail. I"ve got 2 kids.

Would I call an old friend who can help my son get into a high ranking college.

Would I, as the curator of the Cincinatti / Cleveland? Museum risk my job over a Robert Mappelthorpe exhibit.

I'm in front of the Un- American Activites hearing, do I name names. If I don't I may never work at my chosen field again.


Is this the same thing. Can we rationalize and say it's my negative and I can give it away or destroy it if I want to. But the question is, if you weren't planning on doing that until the outcry from someone, why are you doing it now.

Is saying goodwill is more important than my integrity as an artist. Are we selling out.

I know, your saying, it just isn't that important. But are you sure. Someone is dictating to you and you are giving in.

Is it question of character. Is it a question of integrity. Is my stuff sacrosanct or not.



Just asking



Michael MCBlane

 

[Donald Miller]

Michael,

You pose an interesting hypothesis. I used to take myself that seriously but I guess my advancing age and a smidgen of maturity have given me some degree of latitude that I was unwilling to accept before.

I guess that when I determine that the fragrance of a rose is a product of that rose and that particular rose has the right to decide who and what gets to partake of the fragrance then I will have the right to form those all encompassing attachments to my "art".

 

[Thomassauerwein]

Don, Call me a blond or an artist, but WHAT DID THAT MEAN?

 

[Donald Miller]

Thomas,

It addresses an examination of an egotistical attachment to our production of "art". Am "I" somehow different from all living things? Do other living things form attachments in the ways that humans do? Can "I" learn something from what "I" observe? Do "I" actually create art or am "I" a means by which creativity is made manifest? It seems to me that attachments whether they be to "art", to an idea, to an opinion, or to an object are the source of all suffering.

I recognize that I have a more global view then many embrace.