Who owns the image?

[Brent J. Craig]

I think there are a lot of misconceptions here about who owns images. It would be advisable to speak to a lawyer.

Do you really think your case for owning an image would stand up in court if you were paid by someone to shoot the images and they paid for the camera, media, location, equipment and talent?

 

[Jeff Kilgroe]

Is there any one of us who has not been abused by the stills photographer, usually brought on at the last minute, after shoot schedules have been established and the budget locked in?

No. But I've had trouble finding stills photographers that were willing to work on my terms in order to keep the budget where it needed to be.

How many times have you heard from the client, "it's no problem; it will only take a second." Of course it does not take "just a second;" the stills guys milk it for all it's worth, test shot after test shot, moving our lighting set up around, only to discover that it was as it should be in the first place. I've had them break things on the set; I'm not kidding.

Gee; how did we get behind schedule?

Never been on a set where a stills shooter had that kind of power, can't comment...

Lastly, does it pull my chain that they own their precious images which I conceived, blocked, and lit? Yes it does. OK they framed it; major contribution. Grrrr...

Um... And you own all the images of the same that you shoot. Now if you were hired by a production that contractually obligated you to hand over the images and yet they did not make the same demands of the still photographer, then shame on them. If it was your own production, then you should have specified who owns what. Sorry, I don't mean any disrespect here, but that's just the way I see it.

OK, enough bile; I've got several friends who are stills shooters. They are without exception, completely professional and enormously talented. I just don't want them on the set!

Same here. One thing I can say when I compare the still shooters I know (including myself) to most cinematographers and videographers (especially videographers and HD shooters), is that the stills guys have a lot more outward presentation of self-worth. It's not that they take more pride in their work or think they are better. But they are a lot more consciously aware of the true value of what they create, often times over-valuing it. Many stills shooters simply will not even get out of bed to shoot something if they don't retain ownership. I see no reason why cinematographers can't be the same way, since all current copyright laws clearly state that they have the same rights. This is also a powerful position to be in as a cinematographer that very few ever really understand or try to capitalize on.

I am glad we are having this discussion. I believe that the reason the stills photographers ended up owning copyright was because they actually held the negative. By holding the neg, you own the intellectual property (possesion is 9/10ths of the law).

Very true. The law, as it is now, places ownership by default with the shooter. But traditionally, this is how true ownership was determine -- by who had the original camera negative. Otherwise, how was one to determine who actually took the picture?

With electronic and digital mediums, it becomes much more difficult to make clear-cut decisions like that. Sure, there are forms of digital watermarking and copy protection, but those break down quickly in a production chain with generational loss and derivative work. Throughout a production, many people will have access to the image data. In this regard, it is more important than ever to have plainly-worded contracts, agreements and licenses throughout the production chain. Not only to transfer ownership from a photographer/cinematographer to a studio or production, but to protect everyone Even just to protect a production from someone in the post or editing department leaking dailies out in a personal web blog or on YouTube.

I think there are a lot of misconceptions here about who owns images. It would be advisable to speak to a lawyer.

Definitely sound advice. Make sure you get a lawyer that is well-versed in copyrights and intellectual property.

Do you really think your case for owning an image would stand up in court if you were paid by someone to shoot the images and they paid for the camera, media, location, equipment and talent?

Yes. But there are various levels of ownership. That is why I mentioned having releases for locations, talent, etc.. While a shooter technically retains ownership rights of what they shoot unless otherwise specified, others can have valid claims to the imagery as well. Those who paid to produce it. Models who appear in the images, etc..

Talk to an attorney, read up on copyright laws, there are lots of publications available. Make sure any contracts you sign or agreements you enter into make sense and provide the right protections for you and everyone involved. If it doesn't seem right or doesn't make sense, consult an attorney. I also recommend consulting an attorney on any binding legal document that is anything more than a simple sale or lease. If nothing else, have an attorney read it and offer their advice or questions they may want you to ask about the contract.

 

[Dylan Macleod CSC]

I think there are a lot of misconceptions here about who owns images. It would be advisable to speak to a lawyer.

Do you really think your case for owning an image would stand up in court if you were paid by someone to shoot the images and they paid for the camera, media, location, equipment and talent?

Isn't that how it works for stills photographers?

Annie Leibovitz owns the images she was paid by Vogue - or whoever - to do. They are buying the right to use the image in their publication, no?

 

[ericyoung]

Yes they did, so did the client - not sure the photographer did though...

I like the idea of a buyout for stills as Dylan mentions, I might try that out on a couple of clients and see how it floats.

Definitely at least get a buyout. By undervaluing the stills photographer, you may have inadvertently undervalued yourself by doing the stills for too little. Not to mention cutting someone out of a legitimate job.

From the point of view of the production company, they need to have stills for publicity and marketing. They were willing to pay a stills photographer a higher rate than you got for being DOP! Apart from the day rate for his kit and services, a lot of that fee was for high resolution stills with no motion blur, to be used for all purposes, in all territories, in all media, for ever. Each of those criteria potentially ups the cost for use of the stills from the stills photographer. By placing zero value on that, you have undervalued yourself and your talents, as well as the photographer!

 

[Fran Kuhn]

Is there any one of us who has not been abused by the stills photographer, usually brought on at the last minute, after shoot schedules have been established and the budget locked in?

Hi Leo,

I'd argue you have been abused by your client, not the still photographer. It's the clients who decide to add stills after the schedule has been set.

I can't tell you how many times I've had the opposite happen, where a video crew was brought in to shoot my stills setup. It is annoying, but I don't blame the video guys.

-Fran

www.frankuhn.com

 

[Fran Kuhn]

My agent is suggesting a "buy out" on the still images when we are asked to take stills on a job we are already the DP. I think this is a good middle ground.

Hi Dylan,

I've always been told it's not a good idea to do a full "buy out" because, in doing so, you actually relinquish your copyright. Most times it's better to work out usage--even unlimited usage--so you at least retain some control. Not a bad idea in this age of "repurposing" media.

One of my better clients was sending my images to the company's Canadian and Australian importers for years without my knowledge. They were used to produce product brochures without any compensation at all. I only found out when an art director I worked with on one of the shoots send me a copy. I never in a million years would have expected them to do something like that to me, but unfortunately it happened.

-Fran

www.frankuhn.com

 

[Marc Berger]

Great thread!
I think we can´t really discuss "Copyright" in photography (or film) without regarding who didn´t sell photos anymore including all usage rights: Magnum photo agency was founded (Henri Cartier Bresson, Robert Capa, David Seymour, George Rodger) with the idea to leave the copyright in the hands of the photographer to keep a maximum of creative freedom. Until then a publisher got all the material, and did what ever he liked to do with it.

BTW about copyright -once again- just with other words then Jeff Kilgroe said above:
You can never sell or give away your copyright. If you shoot with your camera as a photo- or cinematographer, you always own the copyright.
What you can sell or give away is the right of usage (rights of usufruct).
If you sold once your copyright you should study if it was not a "agreement contra bonos mores."
Marc

 

[Jeff Coatney]

I think there are a lot of misconceptions here about who owns images. It would be advisable to speak to a lawyer.

Do you really think your case for owning an image would stand up in court if you were paid by someone to shoot the images and they paid for the camera, media, location, equipment and talent?

This is true. If you are paid to take photos or shoot moving images, you are working under an implied "work for hire" arrangement and the person or entity that is funding the enterprise is the owner of all rights to the imagery. If you have NOT BEEN PAID: you own the images.

(Pay attention low budget filmmakers)

If I hire you to shoot stills on my movie, I own those images, because I am paying you to perform the services of a photographer or cinematographer. In order to retain rights to those images under this arrangement, you must provide a contract that explicitly assigns the copyright and the producer must agree in writing to that effect.

Olan Mills Portraits requires the subject to release their rights to their own image, even though the subject has "hired" Olan Mills. If there was no expressed assignment of rights, in a contract or agreement, then the people who have their picture taken by Olan Mills would retain the copyright to those images. This is an example of how Olan Mills has overcome the "Work for Hire" clause in copyright law.

So, if you have shot a movie for someone and they did not pay you AND you did not pre-emptively assign the rights to that work to them, you can go before a judge and argue that you own that work or at least have a fiduciary stake in the film.

If its YOUR film, you shot it on your own initiative and did not infringe on the copyright of others in doing so, you own the rights to that footage / imagery. If you were paid by someone to shoot it, they own it.

Feel free to consult an attorney to confirm this, but unless you expressly retain the rights to imagery you have made under a work for hire arrangement, the person or company hiring you owns it. Stills or Motion or drawing or chisel on rock, if somebody else foots the bill, they own the rights. Unless they don't pay you or the check bounces.

 

[Marc Berger]

Hi Dylan,

I've always been told it's not a good idea to do a full "buy out" because, in doing so, you actually relinquish your copyright. Most times it's better to work out usage--even unlimited usage--so you at least retain some control. Not a bad idea in this age of "repurposing" media.

One of my better clients was sending my images to the company's Canadian and Australian importers for years without my knowledge. They were used to produce product brochures without any compensation at all. I only found out when an art director I worked with on one of the shoots send me a copy. I never in a million years would have expected them to do something like that to me, but unfortunately it happened.

-Fran

www.frankuhn.com

Hi Fran,
Sorry to hear that (I know this feeling).
That´s why a full "buy out" means: worldwide, for all medias, unlimited... and this should normally cost 15-20x your daily rate.
But still, your example above included "third party". Which should never be in a "buy out" contract.
Cheers,
Marc

 

[Jeff Coatney]

Magnum photo agency was founded (Henri Cartier Bresson, Robert Capa, David Seymour, George Rodger) with the idea to leave the copyright in the hands of the photographer to keep a maximum of creative freedom. Until then a publisher got all the material, and did what ever he liked to do with it.
Marc

Magnum functions as an Agency: they retain copyright by licensing the images to their clients. A licensing agreement is a "Rights Assignment" document. The ownership is defined. Also, Magnum may accept a retainer or advance against the licensing fee to fund the shoot or get the Photog to the location (war zone, etc.) and this differs from a "work for hire" simply because it is defined in writing. But usually, this type of Agency carries the costs of getting or creating the photo and the User pays a fee for usage.

You can never sell or give away your copyright. If you shoot with your camera as a photo- or cinematographer, you always own the copyright.
What you can sell or give away is the right of usage (rights of usufruct).
If you sold once your copyright you should study if it was not a "agreement contra bonos mores."
Marc

This is not accurate in American law. You can sell or giveaway your copyright and it happens all the time. First you can define the terms in writing in an explicit contract or you can accept payment from the person hiring you (implied contract) or "work-for-hire". Typically a work-for-hire is assumed by law unless one of the parties fails to complete the transaction (they didn't pay or the check bounced).

There is no intrinsic copyright protection that extends to the material method or tool used to capture imagery. Simply because its Your camera doesn't mean that every image it takes you own. The camera cannot "Author" a work, "Authoring" requires "intent" and only people can "intend to author".

 

[Jeff Coatney]

Hi Dylan,

I've always been told it's not a good idea to do a full "buy out" because, in doing so, you actually relinquish your copyright. Most times it's better to work out usage--even unlimited usage--so you at least retain some control. Not a bad idea in this age of "repurposing" media.

One of my better clients was sending my images to the company's Canadian and Australian importers for years without my knowledge. They were used to produce product brochures without any compensation at all. I only found out when an art director I worked with on one of the shoots send me a copy. I never in a million years would have expected them to do something like that to me, but unfortunately it happened.

-Fran

www.frankuhn.com

If you have the market power to enforce your rights, you can refuse to work unless your terms are met. There is no legal apparatus that I'm aware of that can protect your rights in one country against infringement in another. Treaties are unenforceable and a legal claim must be made in the courts of the country in which the infringement occurs.

We're all at the mercy of the market. If your reputation and market leverage will allow you to retain your rights, you can get whatever terms you want. But if you try to enforce your position, you may be damaging your relationship with your client-- you carry the risk for that.

 

[Jeff Coatney]

If you sold once your copyright you should study if it was not a "agreement contra bonos mores."
Marc

This clause applies on a class basis, as far as I know, and typically isn't used in individual contracts. I've heard this referenced as "Against the common good" (Actual Latin translation: "Contrary to Good Morals") in that allowing a contract to stand sets a precedent that undermines all other contracts that have similar clauses or parts. If the photographer received payment, then you have to prove the transaction was counter to the common good. I think this would be impossible in a courtroom to assert. There is no retroactive remedy to being screwed on your price, once you have agreed to that price and actually received the money. Contracts assume all parties are on equal footing with regard to intellect and business acumen. You can't "unsign" a contract. The time to change it is before you sign it.

 

[Fran Kuhn]

Hi Fran,
Sorry to hear that (I know this feeling).
That´s why a full "buy out" means: worldwide, for all medias, unlimited... and this should normally cost 15-20x your daily rate.
But still, your example above included "third party". Which should never be in a "buy out" contract.
Cheers,
Marc

Hi Marc,

The usage in my invoice specified two years, unlimited use for the American subsidiary. The client had no rights to use the images outside of those bounds, including a sale or gift to a third party. It was standard APA invoice language, all fairly airtight.

The client never argued that sending these to another distributor was outside the terms of usage. They simply asked if we could determine a usage for these other entities in the future. Since they are a good client, we worked it out.

I used to roll my eyes when I'd hear all those old-timers at the APA meetings say you should NEVER give away usage. Now I know why. Unfortunately, with the proliferation of cheap-and-good video and stills cameras, there is a growing army of newcomers who are of that same frame of mind I was in 25 years ago. With the exception of the big-name "Rock Star" photographers and maybe the wedding guys, I'm afraid the days of career photography are quickly coming to an end.

I tell my wife that photography went from being an expensive hobby, to being a good way to make a living, and now it's back to being an expensive hobby.

-Fran

 

[Jeff Coatney]

Unfortunately, with the proliferation of cheap-and-good video and stills cameras, there is a growing army of newcomers who are of that same frame of mind I was in 25 years ago. With the exception of the big-name "Rock Star" photographers and maybe the wedding guys, I'm afraid the days of career photography are quickly coming to an end.

That is a very accurate assessment of the market with regards to copyright law, I'm afraid.

I would encourage anyone with questions about intellectual property rights to consult an IP attorney.

Or http://www.calawyersforthearts.org/

 

[Fran Kuhn]

This is true. If you are paid to take photos or shoot moving images, you are working under an implied "work for hire" arrangement and the person or entity that is funding the enterprise is the owner of all rights to the imagery. If you have NOT BEEN PAID: you own the images.

Hi Jeff,

Can you provide a link to this information?

I'm not an attorney, but I believe you have it exactly backwards. You must sign a work-for-hire agreement beforehand, otherwise you retain the copyright to your images. There is no such thing as an implied work-for-hire contract.

-Fran

 

[Fran Kuhn]

Do you really think your case for owning an image would stand up in court if you were paid by someone to shoot the images and they paid for the camera, media, location, equipment and talent?

Hi Brent,

Actually, it will hold up in court. You own the copyright regardless of who paid for the camera, media, location and equipment, unless you have signed a contract stating otherwise.

The photographer is paid for their skill in acquiring an image for the client. Jeff Gordon or Danica Patrick don't pay for their own car or to rent the track the race is held on. They are paid for their skills as a driver.

-Fran

www.frankuhn.com

 

[Jeff Coatney]

Hi Jeff,

Can you provide a link to this information?

I'm not an attorney, but I believe you have it exactly backwards. You must sign a work-for-hire agreement beforehand, otherwise you retain the copyright to your images. There is no such thing as an implied work-for-hire contract.

-Fran

Sure, Fran...

QUOTE:

Statutory Definition:

Section 101 of the copyright law defines a “work made for hire” 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 work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instruc- tional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sen- tence, a “supplementary work” is a work prepared for a publication as a sec- ondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illus- trations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes; and an “instruc- tional text” is a literary, pictorial, or graphic work prepared for publication and intended to be used in systematic instructional activities.

END QUOTE.

The implied contract here is the payment instrument. "Were you on payroll?" etc. I'm not a Lawyer either, but I've fought this battle before.

 

[MikeHedge]

you guys all rock! love this discussion!

do you have a sample link to a good "Work For Hire" contract?

and also a differed pay contract?

that would be super helpful.

 

[Fran Kuhn]

Sure, Fran...



2 ". . . if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire."





Thanks, Jeff. I just wanted to make that clear: You simply can't imply a work-for-hire and/or relinquishing of your copyright.

I pulled the part of that paragraph you attached where it says that you must agree IN A WRITTEN INSTRUMENT. Otherwise, it is not a work-for-hire.

I have a real-life example: I was a magazine editor for almost 10 years and I shot photos of editorial subjects I'd been assigned to write about. The copyright for those images remains with my ex-employer because I agreed to do the photography as part of my terms of employment.

As a freelancer and contract photographer (and cinematographer), unless I sign a WRITTEN contract stating otherwise, I own the copyright.

As I've always understood it, there can be no implied work-for-hire. If there is, I'm putting my Canons and Aaton on eBay tonght, LOL!

Best,

-Fran

 

[Jeff Coatney]

This is where the waters muddy against the artist:

From Wikipedia:
In the Supreme Court case affirming that the common law of agency should be used to distinguish employers from independent contractors in the work for hire context, CCNV v. Reid[4], the Court listed some of these factors:

"In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party. See Restatement § 220(2) (setting forth a non-exhaustive list of factors relevant to determining whether a hired party is an employee)."