legality/newspaper photos question

[jack]

uke-rig:

 

[metroshane]

I apologize, Jack. I didn't mean to come off like that. It's just that there is a preponderance of folks that are willing to come around giving incorrect...and often dangerous...legal advice without really having a clue (not that I'm describing you).

When you asked me to cite my legal interpretation without you first supporting your view...I thought you might be one of them. It's a common M.O. of the troll who quickly disappears after the cites are given.

So please accept my apology (and this is for everyone).

I've provided some links for everyone to enjoy and I hope we can start over. I'll leave my prior post intact as a scarlette letter of sorts. There is no ego here and I only hope to inform.

 

[Pantsy]

aha thanks greatly to you both, you've been most helpful.

there actually is a contract of sorts. i cant seem to find my copy, but it basically states what i've already told you.

i'm still not clear on who gets to sell what. ok so the paper can have my photos and do whatever they want with them, i dont suppose its that big of a deal. but can i still sell my photos independantly?
example, our ad guy says a restaurant wants a print of mine, can i not sell it to him because it technicaly belongs to the paper?

 

[jack]

uke-rig:

 

[Pantsy]

i hoped to have done something worse to earn my own 'gate'

 

[metroshane]

Actually, Jack....as hard to believe as it is...it's all true.

I'll try to not infringe on the "the Photographer's Market" here....

if vogue hires you AND hires the model, AND rents the room, AND by the biscuits - you do not own copyright of the material.

yes, you do. Even in a work for hire relationship, the author of the material is the owner of the copyright until those rights are negotiated away via a written contract. Might be hard to believe, but it's true.

why would vogue finance a shoot and the hire the subject and
then pay you for the rights to use their own production ?

Because they come out cheaper. If I'm going to come in and just give up my rights to the 16 rolls of film I just shot...then I'm going to charge $75,000/per shot. The magazine likes it because I can come in and shoot a bunch of rolls of film and they only pay for usage on the one or two pic they are actually going to use. They pay my day rate plus expenses and then buy the usage as they see fit. There is a bunch of types of usage they can purchase onetime, first rights, serial rights, exclusive rights, electronic, promotional, work for hire, and "all rights". Of course, a written contract can and sometimes does spell out different conditions of ownership...but the above is the default rights.

if, in pantsy's scenario, a newspaper publishes a cdrom of photographs
taken by pantsy, whose time and expenses was contracted (verbally) to
originate the content, pantsy cannot claim copyright of the photographs.

Yes Pantsy can. Unless he has a written contract stating that it is a work for hire situation. It's all in the copyright act.

how can the photographer be at liberty to publish the
photo "again", if the shoot was commissioned and its subject (a model)
facilitated by the the expense of a client purely for use in there in-house
publication.

They need to negotiate exclusive or "all rights" if they don't want to see the photograph published somewhere else.

the photographer in this scenario is merely a mechanic. they
do not own the copyright, in the same way as the VT editor employed by
the prodcution-house who produces "Friends" does not own the copyright
for that TV programme.

You can bet your arse that the VT editor must sign an agreement on condition of umployment that all work is work for hire...in which case the production company owns the copyright. Besides, there are special considerations in copyright law for group efforts. You can find more than you ever wanted to know about it here...

http://www.copyright.gov/title17/92chap1.html#101

And it's really not a debate...the copyright law spells it out explicitly...and I have read it all. (keep in mind this is american copyright law and those under the berne convention). YMMV.

I know it's hard to believe any magazine would want to go into business like that but it's true and set up that way to give the author as much leverage as possible.

 

[Dew]

im pretty sure the photographer must sign away the copyright :? ... i hope this is a learning experience to all ... do not work without clearly written and understood contracts

funny u should bring up the "buying the rolls of film" metroshane .. there was a band that was looking for promotional photos, they mentioned they will buy the film ... i told the hubby, "bull$hit, they think cause they buy film that they get to keep the roll and own it." ... i'll pay the $2.50 for the roll, thank u very much

i have yet to do a shoot without a model release, clearly written in the text, "the model may use the photographs for self promotion but may not sell the photograph itself ... i understand that the photographer holds the copyright as governed by federal and state statues" ... as of now i own everything that i've done ... i've allowed others to use my stuff, but have yet to relinquish copyright on my photos :shock: ... now if their paying me enough ... sure, i'll consider it

take this as a learning experience :?

 

[Dew]

just reading Photographer's Market 2004 .... page 22

* Work for hire: Under the Copyright Act of 1976, section 101, a "work for hire" is defined as: "(1) a work prepared by an employee within the scope of his or her employment: or (2) a work ... specially ordered or commissioned for use as a contribution to a collective, as part of a motion picture or audiovisiual work or as a supplementary work ... if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire."

the contract u signed probably signed the rights over to them, if they're smart ... and if u dont have your photographs registered with the copyright office, u cant sue them anyway ..not that u would .. but for argument's sake (can be registered up to 3 months of the infringment) ....

there are a few technicalities that i've noticed ... for one, they have to pay u for your work .. since they're paying u under the table, they cant prove that they've paid u .... and you're not an employee ... you're a freelancer (independant contractor)

just keep in mind .. im sure they have deeper pockets than u do

 

[GerryDavid]

before doing anything of the sort, one should consider a contract ... if they hired u as an agent .. it can look like the photos belong to the paper ... however, this understanding should have gotten out in the beginning

i would not gripe about this one .. u could loose your job with them ... minus the pay .. its good for references and experience .. i wouldnt cause an uproar

from here on out, i would get a contract together

all the photos that i've done paid or otherwise, the copyright belongs to me and my clients sign a release stating so

Just so im not misunderstanding anything here, if someone hires you to do thier portrait or wedding, you have to have a contract saying that you own the copyright, that they dont? Or does that go with out saying?

And Drew, could we see a sample of your release forms that you use? :0).

I have a model release for both under 18 and over 18, and a property release, im just not sure how good they are.

 

[GerryDavid]

i work for out small town newspaper. i'm not considered a 'regular' employee. i get paid under the table for my photography work. i get twenty dollors a week for gas/milage, plus five dollors per assignment, unless its one that takes more than a half hour, then its ten bucks an hour.

With this $5 an assignment, how many pictures do they usually get? Even though they are a small paper, it sounds like they are really short changing you for your time. I assume you use your own equipment, probably digital since you didnt mention film cost. And the digital cameras are not cheap. :0).

You said in an earlier post that you were going to argue your case, how did that go? :0).

 

[Dew]

everyone that i shoot ... for free or for pay, this includes weddings, portraits, model portfolios, musicians looking for promo shots ... whomever and everyone ... i took photos of my best friend and had her sign a model release, and i would do the same for my mother ..

reason is, lets say 20 yrs from now i get famous (ok, a girl can live a little ) and i want to publish them in a book, sell them or someone else wants to publish them .. its less bs and simply business ... the only person that doesnt sign their life away, i mean a model release is the hubby and i have papers on him (marriage contract )

anywho .. here's text from my contract ... some is left out like name, phone number, stuff like that:

In consideration of $_______ receipt is acknowledged,
I _________________________(the models name) do hereby give,
_________________________________________(photographer's name)
the irrevocable right to use my picture, portrait or photograph for composite representations, advertising, trade, or any lawful purposes in print or web based. The model is given permission by the photographer and may use the photographs for self-promotion in all forms of media, but cannot sell the photograph itself, nor transfer copyright. I understand the copyright stays with the photographer as governed by city, state and federal statue laws.
I am of full age*. I have read this release and is fully familiar with its contents.

 

[GerryDavid]

Thanks Dew for the release info. I think my biggest problem is my property release is an entire page, and the my model release is double sided, one side for over 18, the other for under 18, so thier not hte most convienent to keep on me at all times. So if im out and about taking pictures, I could get in a situatioin where I need it but dont have it, more so property wise. Hehe, I also modified one to a group model release so say I take a picture of a scene with 20 people, they could sign it, but im not sure how legal that one is, as in if it would stand up in court.

I like your release since it appears like it could be printed on 1/3 of a page.

When you go walking around the city taking pics, do you carry releases on you? This also touches something ive been thinking about. Arent you a bit concerned walkign around a city *that has been known to have muggers* with expensive looking cameras? Im not to sure Id want to walk around town at night with a cheaper camera.

Sorry if ive talked about this before, got a feeling like I have but my memory isnt all that great. What was I talking about again? :0). for some reason the name dori comes to mind, hehe.

 

[Dew]

i dont photograph many people on the street, but if i do, i dont worry about it too much ... there is debate about this, but im not too familiar with the legalities of it .... if they're in a public place (on the street) ... i dont worry

i dont worry about muggers taking my stuff ... im a city girl ... born and breed in the "ghetto" ... these wannabe muggers dont scare me .. i might show them a thing or two ... they try to take my cameras, it wont leave my neck without a scuffle . i used to be a body builder (still got most of it), so the biceps and "wings" (lats) makes them a little nervous ... criminals want someone they can control or think wont kick up a ruckus

 

[GerryDavid]

i dont photograph many people on the street, but if i do, i dont worry about it too much ... there is debate about this, but im not too familiar with the legalities of it .... if they're in a public place (on the street) ... i dont worry

i dont worry about muggers taking my stuff ... im a city girl ... born and breed in the "ghetto" ... these wannabe muggers dont scare me .. i might show them a thing or two ... they try to take my cameras, it wont leave my neck without a scuffle . i used to be a body builder (still got most of it), so the biceps and lats makes them a little nervous ... criminals want someone they can control or think wont kick up a ruckus

Hehe, im not sure howh Id look as a target then. Medium framed, not to muscular. :0) Guess id have to wear blades on my coat or something to scare them of, then again that wont do much good for trying to get natural people/street scenes. :0) That or get a couple 250 pound body builder photographer friends to go with me, hehe.

 

[metroshane]

What happened to Jack's desire to debate4 the subject?

I hope he didn't just disappear like the trolls I was describing. I'd like him to participate.

[self quote]It's a common M.O. of the troll who quickly disappears after the cites are given. [/quote]