Copyright Transfers

footballfan993 · Dec 12, 2015

Hi everyone,

so I thought of a great idea for a thing I'm doing. So I'm a nude model for my university's art drawing classes. On Monday I and a friend have decided that she would bring in her pet snake and I would model while holding the snake. I thought that it would be a cool idea to have someone take pictures of me as I model with the snake.

I would love to take the pictures myself, however, I am the model, so that would be pretty difficult to do. I have since reached out to a friend of mine that also does photography, and asked her to do it and she agreed to photograph my modeling session. As I was talking to her she said that she doesn't want anything to do with the photos afterwards, as she is engaged, and in general doesn't want them. However, she will be taking pictures of just the snake, and maybe the snake crawling on me, but not with any of my genitals showing in the photo. She will also be using her own camera but my memory card.

I was wondering how we should draft a contract stating that I will acquire exclusive and all rights to the photographs. And that she will have no claim to any rights to the photographs.

Now with her taking the photos, she automatically is the owner of copyright. Since she doesn't want them, and she is transferring them to me, I will have full copyright to edit, post, monetize, etc of these photographs. However, she did state that if she got some good ones, that she would like to possible use some of them. I am thinking, would it be best for her to transfer full copyright to me, and then for the photos that she does want that I then grant her limited rights?

Let me know if you have any questions or advice!

As always, thank you!!

480sparky · Dec 12, 2015

A simple, even handwritten contract can be signed. The photographer can name you specifically, reference the images and state that you will have full and complete rights to the images. Both of you sign and date it, and that's pretty much it.

footballfan993 · Dec 13, 2015

Thank you, I'm actually typing it so I guess I'll just have blank lines where we write in our names/ shoot/ date, etc.

TCampbell · Dec 13, 2015

If you have any friends who are lawyers, you might buy them a beer in exchange for some help on the key elements needed to convey ownership to you. I'm assuming you actually want do do something with these images for which copyright to the images would be important (since photographers shoot photos for clients all the time so the clients can use those images -- but don't need to own the copyrights to those images.)

I am not a lawyer -- so my legal advice is worth less than free cup of coffee. But here's what I have come to understand:

By default, a photographer "owns" the images that they take. If I walk out onto my sidewalk and take a photo of the fireplug, and nobody hired me to take that photo for them, then I took a photo without any assurance that I would be compensated for my work. By default, I "own" that work... and all rights associated with it. If I take the most amazing image of a fireplug that the world has ever seen before then perhaps I can sell it in a gallery in such high volume and dollar amount that I can finally retire!

But there is a special exception to the law. If a work is "commissioned" then it falls into a special category called a "work made for hire."

If you are a photographer hired by a newspaper or magazine (a contractor hired to shoot a subject or a full-time employee hired to take photos for news reporting, etc.) then it's the employer who owns the work... not the photographer. The photographer was being compensated for their time regardless of what work they may have produced during that time or the quality or usefulness of those images. What the photographer owns... is their paycheck. What the employer owns... is any work they produced during the time that the photographer was "on the clock".

If you are "commissioning" this work, then you might be the owner of the work by default. But this assumes that the work passes the legal test to be deemed a "work made for hire".

If you don't provide any reasonable compensation then it would be difficult to argue that it is a "work made for hire" - if your friend does the shoot to be a nice friend, then it's not really a "work made for hire" since you didn't really "hire" them... you asked them for a favor. I do notice that when I check photo law websites they do mention that occasionally both parties intend for something to be a work made for hire and owned by the client, but because they didn't do things properly, it ends up being owned by the photographer who took the photos (even though that's not what either of the parties agreed to or intended.)

So I think the safer thing is to make sure you document that it is a commissioned set of images and that all rights are assigned to you but your document also has to pass the legal tests in order to be considered a valid agreement or contract.

So while I am not a lawyer, it's been drilled into my head (through law classes) that a contract must contain something called "consideration" in order to be valid. Consideration is typically the bargain... e.g. "you give me X and I will give you Y". If the contract just indicates that you have to give me X and I don't have to give you anything, then that's not valid contract... that's just a favor in exchange for nothing at all and it doesn't hold the same legal weight. This is why things like model releases usually start with a phrase like "In exchange for valuable consideration received..." (where the valuable consideration might be that you paid them, gave them copies of the images, or something even if it's another action or even inaction -- as long as it is considered something "of value". But if the "valuable consideration" turns out to be nothing at all then it weakens the validity that there really was a contract even you've got a piece of paper with two signatures on it.) In other words I think you need more than just a note that says you own the images.

What is the photographer friend getting out of this? Anything? Make sure they get something in exchange for their work (even if you pay a small fee to at least compensate them for their time spent.)

The words on the document aren't images themselves so it might be hard to know which images you own if you don't add a few things to help define what you own... e.g. something that indicates that you are talking about the images shot by that particular photographer at that particular location on that particular date for which you are the subject the images.

Your document needs to mention the parties... photographer and client/model.
It needs to indicate that photographer assigns all ownership rights and copyrights for the images to the model... in exchange for "valuable consideration received" and that the collection of images is a "work made for hire" by the photographer for the client/model.
It should indicate which images are included in the agreement ... e.g. all images shot by (photographer) on (date) at (location) in which (client/model) appears in the images (in whole or in part - there may be images which do not include your face and thus create confusion as to whether or not you are the model. But I think if you are the only model appearing in any photo then the fact that your face appears in at least some of the images would establish that you are the model appearing in all images.)
Both photographer and model need to sign and date it.

In short... I think that just a note that says you own everything is probably not sufficient for legal purposes since it has to pass the legal test to be considered a valid "contract" and convey ownership rights to you.

Again... photographers shoot photos of clients all the time and those clients come away being able to use the images -- without actually needing to "own" the image. But typically that use of the image isn't commercial in nature (the client is using the images for personal use and not "selling" the images to make money from its use.) If you want to "own" the image rights, then I'm imagining you have some reason beyond just personal use and want to avoid confusion of ownership to make sure there are no restrictions on what you can do with the images. Let's say you do have a use for these images and you will be paid for the use of the images -- enough for the photographer to say "hey wait... I took those images!" Then you want to make sure that the contract conveying ownership to you is able to withstand a challenge... and to do that... you really should talk to someone who actually is a lawyer and not just take the advice of non-lawyers on a photography forum.

john.margetts · Dec 13, 2015

Not wishing to denigrate any of the advice above, you need to be sure the advice comes from the same country as you live in. People on the Interweb are very good at saying "The law says . . . " without thinking about jurisdiction.

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480sparky · Dec 13, 2015

Well, the OP is in Wisconsin. And has received opines from Iowa and Michigan. So far, those two opinions refer to US law. Last time I checked a map or listened to the news, all three states are still in the US.

KmH · Dec 13, 2015

To be Work For Hire requires a lot more than just 'commissioning' the shoot.

Here is the US Copyright office's Work Made For Hire circular:
http://copyright.gov/circs/circ09.pdf

petrochemist · Dec 13, 2015

I can't see any need to strip her of copyright.
All that is needed is for her to grant you the legal rights to do as you wish with the images. She currently has no interest in the images, having copyright on images doesn't force you to do anything with them.
If things change & she does want to make use of them why should you have to grant her the rights, instead of just both having the rights all the time?

480sparky · Dec 13, 2015

As the author, you still will always have the rights to the images, unless you create a contract with someone else that would prevent you from using the images. As long as such a clause isn't part of the agreement, then she would be free to do what she wants with them regardless of what you do with them.

I've sold the digital rights to a few of my images with the understanding that I will never sell or print the image at any time in the future. With such an agreement, I can't ever sell the image again. It's basically off the market. Of course, the price reflects that. The only thing I insist on keeping in these cases is the right to use the image for marketing purposes.

john.margetts · Dec 14, 2015

480sparky said:
Well, the OP is in Wisconsin. And has received opines from Iowa and Michigan. So far, those two opinions refer to US law. Last time I checked a map or listened to the news, all three states are still in the US.

But not everyone reading the responses will be. I was making a general point about differing global jurisdictions.

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vintagesnaps · Dec 14, 2015

I'm not sure about this one. Typically you would be the client in this type situation, and she as the photographer would contract with you to take photos and provide them to you; if you wanted the rights along with the photos usually a photographer charges a large chunk o' change for that.

I suppose you could do something in trade, if she just wanted some photos for her portfolio and you wanted the photos for your purposes, although I don't think rights to photos are usually included in trade (not that I've heard of). I noticed you said she thinks she may want some of the photos. And no, I don't think either that this sounds like work for hire.

You may need to look into this further to figure out how to do this. Try American Society of Media Photographers or PPA.