Of All People

[MattTX]

I don't post much. I apologize. I have followed the threads here and I took the time to download the app, you'd think I would at least take the time to be active. I intend to change that...I hope!

This is just a "venting" post because I'm really hacked off right now. Here's the deal:

An artist had some of her paintings on exhibit in a small local gallery with other artists as well. It was a "multi-exhibit" sort of thing. I am also a painter (mostly oils, and more sketching than painting actually), but I did not know about this exhibit. A friend of mine called me and told me this particular artist needed some photos of her paintings at the exhibit. I went to the exhibit one evening a couple of weeks ago and met her. She does what we call "decor art", which entails paintings with various patterns and colors that you see in doctor's offices, business offices, etc. She wanted photos of the paintings (total of six paintings) for use on a web site she is having designed. She wanted them done in the gallery for a few reasons. In any case, I told her I would get a quote to her, which I emailed the following day.

She called me back today. She decided the price was more than she could afford. Okay, no problem. I would wish her well in finding another photographer, which of course I'm sure she can. She paused as if surprised and said, "Oh, I thought maybe we could work something out." I said sure we could, and offered a few suggestions - decreasing the number of paintings she wanted photos of, the number she wanted, etc. She didn't want to do that. The gallery lighting wasn't conducive to the actual exhibit much less the ability to shoot under, and I would need to transport and set up much more gear than usual to do it. She didn't want to give on anything. Before I could tell her well, I'm sorry then, I just can't do it, she went on to something else, which is my reason for this venting.

She said she was bothered by my email in regard to the copyright portion of the contract. She said she wasn't comfortable at all with me retaining copyright to the photos. She said, quote, "I really need to keep my intellectual property, because there may be some t-shirts that come out of it." Pardon me???? So I broke it down for her and explained that my photos of her paintings were MY photos, not hers. Just as my photos of her paintings didn't magically make them MY paintings. We each have our own rights to our own creation. I repeated it and used the word "art" (we have rights to the art we each create) to try to connect it for her, but it didn't happen. She just couldn't understand why the photos would not be hers because the paintings were hers.

I told her that I would be willing to engage in a discussion about selling rights to the photos and transferring them to her, but she seemed downright offended when I told her approximately how much that would cost. I said, "Well, see, I would be losing revenue from all those shirts you're talking about selling with my photos on them," but again she went back to the "it's my intellectual property because they're my paintings" bit.

I was done with the conversation at that point. I said something like listen, at this point I'm wasting my time, so it's best we stop here and I wish you all the best in finding another photographer. Not only was this her first exhibit, I learned before she called me back that these were actually the first paintings she had ever done for sale as she is taking lessons. So I ended the conversation with, "I think as you gain more experience you'll come to understand these things better. The photographs that I create are my own works of art, just as your works are your own whether they be decor art or something of a more intermediate or advanced level. Have a great day and all the best with your web site." Click. I know, that was an unnecessary dig and I should have been more grown up about it, but I was just really irked.

I've dealt with other artists before, and I always find them to be the WORST to deal with. I just don't understand it! They of all people should understand these things! But no, it's been my experience that they still want you to do the work for next to nothing (in spite of their exorbitant fees for their work) and give away the farm while you're at it!

Sorry for such a long post given my inactivity until now, but I had to get this off my chest.

Mac

 

[orljustin]

You should be clear in the contract that while you retain the rights to your images, you will not be profiting or redistributing them other than to her. Her fear obviously lies in that her understanding of the wording says you have the right to do with the images what you want as you hold the rights, including selling them as if they were prints of her images. Or you could actually just raise the price and sell the rights. What use do you really have in the future of some unknown beginner's artwork? It isn't likely she'll become Warhol or anything.

 

[tirediron]

I'm not even sure that the OP could do anything with the photographs if he wanted to. This is sort of an intellectual property Mexican stand-off; he owns the image, but it's an image of her IP, so while she can't use his image without permission, he couldn't use them either (depending on where in the world you're located, laws vary of course).

 

[christian.rudman]

This is one of those points where I would just quote a flat rate for full rights disclosed. She is, like you said, a novice at this kind of business interaction, as such you might ought to bend her way a tad. I dont suggest you just bend over and take it, but how many shirts is she going to sell? While you do need to be reimbursed for your expenses for shooting, your "art" in this case is negotiable. I understand that you composed, lit, and clicked the shutter; these are the things you should be reimbursed for (at a reasonable rate). However, taking a photo of art rarely tends to lend to being art in itself, and there was a case recently that might clear this up a tad for you: Photographer Settles "Dance Steps" Copyright Case

Basically it comes down to this: a reproduction of an original work of art is not considered proprietary art in itself. She technically could pursue legal avenues if you ever used the photos for anything else than her uses. I would just throw in the towel on this one and make somebody's day. You do what you want, but I think you would gain more from giving her what she wants while settling on a price you both can agree on.

Just my two cents.

 

[bennielou]

I explain to clients that I retain the copyright of images. However I give them limited/unlimited print rights depending on the job. Full out copyrights costs a lot of money.

 

[The_Traveler]

Read this on work for hire before you get too artsy on her.

 

[KmH]

Unless it were to state so in the contract, work for hire would not apply. At least not here in the US.

The OP doesn't indicate where on plant Earth they are located.

While the OP would own the copyright to the photos, because the photos would be of copyrighted material owned by someone else, the Fair Use doctrine would limit what the OP could use the photos for.

No doubt, the OP is reasonable in having the expectation that any of the photos used for commercial purposes, like selling t-shirts or any other products, would require a use licensing fee be paid for the use of the OP's images.

 

[The_Traveler]

He hasn't yet taken the pictures.
The contractor should take the steps to make this a work for hire.
IMO, it is a little over-reaching of artistic pretension to make a huge issue over this; the photos can never be used for other purposes, except under fair use, and if the artist is indeed a friend just make it work for hire contract and hand over the images.

 

[MattTX]

I apologize, I should have been more clear. I am located in Texas.

My contract stipulates, especially in these types of shoots, that I will not use the photos for commercial purposes beyond advertising my own services without permission and a separate contract for such use. Likewise, I will not give away my copyright and allow my photos to be used for commercial purposes without a similar contract. The subject here would be both her intellectual and real property, and my own intellectual property with my photos makes things a little different. Not very much so as a standard contract would suffice with a few small caveats.

I mentioned that I also paint, and I think that makes me see these things a little differently. It is true that we set up, frame, click, etc. etc. And for a long time I'll admit I didn't view this as an "art" necessarily. But after I started painting, I also started to change my perspective on it. The tools and media are different, but the end result is the same. It takes just as much effort to frame a good photograph as it does to do an oil. Framing, lighting, composition, etc. - same principles. One could argue that the amount of time makes the difference, but I don't agree. I view photography as an art in its own right. But none of this is neither here nor there to the point at hand.

My work is mine, hers is hers, and if either of us wants to use the photos for cash then a contract is necessary. It's really basic stuff that I understand from both ends in this case and would expect any artist to grasp.

 

[christian.rudman]

I think the point of all this is that you can't work within the limitations that she is expecting, and it's time to get over it. I'm sure she has some friends with a decent DSLR that will probably do it for free (albeit her getting "free" quality images of her work) and in the end everyone is moderately happy with the situation.