Who owns the image?

[Pawel Achtel]

the one with the deepest pockets and nastiest lawyers owns the image

 

[Larry Gebhardt]

No Truer words have ever been spoken.

THAT is the reality of it ALL.

 

[Russ Fill]

Time Lapse or animation or compositing. I do a lot of time lapse and compositing for my clients. I have always wondered if because I use a DSLR or my RED to grab stills and all the pic's are single pics would this fall under the stills side of the fence where I would have some ownership or rights to those picture's, but because they were turned in to movies or the stills were used in an open it some how makes it all fall back on the cinematographer side of the fence.
I think Im going to talk to a lawyer to see if there is some contract that could help me retain some of those rights and not just say here you go have a great day and use these pictures anyway and as many times as you would like.

 

[Richard Foster]

It is a question of legal boilerplate. In the early 80s I was the president of the Chicago chapter of APA, Advertising Photographers of America. We fought long and hard with lawyers to rewrite the contracts between photographers and ad agencies to specify purchasing usage of image rather than work for hire. This is the key - the written and agreed upon contract.

 

[MikeHedge]

anyone have any samples of contracts they use?

 

[Richard Foster]

This page may be a starting point.

http://apanational.com/files/public/manual/Work_for_Hire.pdf

 

[Alessandro Giovannetti]

My two cents . . .
The merger of what used to be two distinct skill sets is causing a clash of business models. As a member of these two distinct communities, photography and cinematography, I prefer the still business model because it benefits the intellectual creator with both recognition and long term financial compensation. The history and professional roles behind each industry clearly outline how the mentality and legal foundations evolved to what they are today. Ultimately, what will shape the future outcome will be determined by what is allowed by both communities. If an agreement between photographers and cinematographers is not met, the motion business model will win solely on the basis of supply and demand. For obvious reasons, I am against this outcome. If Red has taught us anything it’s that we can shape our own fates with a bit of ingenuity and enough courage to go against the grain.
I suggest both cinematographers and photographers coincide on a new, merged professional role and establish a new business model that will benefit the right people – the intellectual creators. I say this with the stipulation that this would apply to all business outside of the big studio movie industry, due to their corporate business model that more than likely will not change. Playing devil’s advocate, this will require motion professionals to hold their ground on intellectual property used outside of the original scope and still professionals will have to tone down the amount of “nickel and diming” and micro-managed protection of their intellection property. Without saying, many more details need to be worked out and executed by the entire community. Hopefully the byproduct of competition will not deter a beneficial outcome for the members of both communities.

 

[Tom De Roeck]

It seems I'm not the only one with few posts giving my comments on this topic, but here goes: Here in Austria, since recently, artists have gotten more rights. This leads to artists owning all material they produce, no matter if it is for a customer or not. (however, artists usually give out unlimited use of the material they produced)

As I'm aware artists is a very broad term, I think that it at the moment only applies to people that are "officially" artists (as in, are officially deemed artists by some kind of cultural instance), and certain derivations such as illustrators, concept artists, graphic artists, etc etc.

And as my personal illustrator just told me (my girlfriend), apparently even in the movie industry, everything you "shoot", you own. Forever. (in austria, of course)

I've got some experience being a cutter/postpro person, but I've only ever produced and directed one movie. Although strangely enough, that was a movie made entirely of photos, so that would mean that the photographer "owns" the pictures, even though he followed my instructions to the letter? strange. But somehow, I like it.

It's a system. As soon as you know the details, you can play with it.

 

[Jeff Kilgroe]

Thought I'd chime back in here... Been talking to my attorney yesterday and today, setting up a contract for a new project that has both still and motion elements. Anyway, her advice is that anyone looking for clarification should talk with a media or intellectual property lawyer. Definitely consult with someone familiar with the laws in their area. As for here in the USA, consultation is still wise.. However, as specified elsewhere in the thread, the artist, photographer, cinematographer, etc.. owns the image by default. However, if a dispute arises, ownership is still open for interpretation based on circumstances that led to the images being captured. For example, if someone was hired to take images (still or video) and was directed to do so by an employer or client that hired them, as in told what to photograph or take a video of or how, etc.. then that client has a vested interest and can claim it was a work-for-hire situation which would constitute ownership in the eyes of most people or any court that may have to decide.

There is a big misconception out there right now, and has actually been around for many years. And that is by default stills photography defaults ownership to the photographer, where videography defaults ownership to a producer, production company, etc.. This should never be assumed and is not necessarily the case. The law, in the USA, is rather ambiguous and places the ownership of all imagery created or captured, still or motion, by default with the person who created or captured that imagery.

Work for hire, is the key term here and most people enter into a work for hire arrangement more often than they may realize. For example, if you're a photographer, and someone hands you $20 and says "take a picture of me standing next to my new car." And you do so with no other contract other than accepting money for that picture being taken, you have accepted being hired for that act. As a photographer, you would be inclined to believe that you own that image you just took. However, you would be foolish to believe so, as you were hired to acquire that specific image and paid for that service. So if you wish to retain rights to that image, and the ability to charge for subsequent impressions, prints, etc.. of that image, you had better spell it out in a contract. Likewise, if you are standing in a public place, and photograph some random individual standing next to their car, of your own accord, then you own that image.

So her point further was that any time someone wants to clearly retain rights to anything they create, while being paid or contracted by someone to create it, they would do best to seek professional legal assistance in drafting a contract to that effect. So, based on her thoughts here, it seems some of what I posted earlier to this thread was incorrect and some was correct. Where I was off base seems to be the work for hire aspect. And it's safe to assume that anytime someone hires you, even if no specific contract or agreement is involved, that it is a work for hire arrangement.

The exception to this default work for hire situation is often studio photography, because that would be considered by default a professional service rather than work for hire. If you have an established place of business as a photographer (your studio) and someone walks through your front door to have a portrait taken, and if that is a standard service you offer, then it is not a work for hire arrangement, they are contracting for an established service. Two different things, but the lines between them can be very blurry and often open to interpretation. For example. At what point does it become work for hire for this portrait photographer if he has a client that wishes him to attend a family reunion and take portraits of everyone as they arrive? So yes, it's best to have well-written contracts from which to work from.

 

[MikeHedge]

Jeff, awesome ideas/points. Do you know of a good work for hire contract?

 

[Gregory Leno]

I think the answer is no Mike, at least not one people are wanting to share.

You may be getting a couple types of contracts mixed up here.

A Work for Hire contract is specifically designed for a situation where someone other than the creator will own the rights.

On the other hand a Contractual agreement between a creator and whoever is hiring them can be, and typically is, a different thing altogether. Those type of contracts usually spell out rights, usage, and fees; with the copyright of the images remaining with the creator.

Which brings me to a point that I think is being missed here.

If a person is just recording to disk someone else's creative decision making, then I can see the work for hire argument.
But if the resulting imagery, be it motion or still, is the result of creative decisions and directions given by the cinematographer or photographer then it is very much a creation of that individual and they should retain the rights to license it in anyway the market will bear.

 

[MikeHedge]

hm.... I actually think that a work for hire contract is what we are talking about, and in your example, the producer would use a work for hire contract with that DP or photographer, as a way of stating that that DP does not own the rights to the work done under that work for hire contract.


right?

 

[Dylan Macleod CSC]

hm.... I actually think that a work for hire contract is what we are talking about, and in your example, the producer would use a work for hire contract with that DP or photographer, as a way of stating that that DP does not own the rights to the work done under that work for hire contract.


right?

Hey Mike
Check out this wording in a contract for an upcoming gig I've got.
I replaced the company name with "".

Ownership Rights, Use of Name, Likeness: Supply Company and Individual acknowledge
and agree that all motion and still images and sound recordings gathered under this contract
are the property of "" to make use of in any way and that the Supply Company
and the Individual will not have or acquire any copyright or other intellectual property rights
in anything in respect of which services are provided hereunder, and all such intellectual
property rights shall vest in "" absolutely. "" shall be the sole owner
of all of the results and proceeds of the Supply Companyʼs and Individualʼs services
hereunder, which shall include all ideas, concepts, inventions, designs, copyrightable
materials and other works of authorship that Supply Company or Individual may create
within the scope of the engagement hereunder, together with all rights of every kind and
character therein and in the Film (all results, proceeds, materials, property, Film and rights,
hereinafter referred to as the “Works”). Supply Company and Individual further agree that
the Works have been specifically ordered and commissioned by "" as
contributions to an audio-visual work and constitute “works made for hire” within the
meaning of the Copyright Act. Without limiting any of the foregoing, Supply Company and
Individual hereby irrevocably and unconditionally assign and transfer to "", its
designees, successors, assigns and licensees from their inception and without limitation or
condition, all rights of any kind and character (including any copyrights), in and to the Works.
Supply Company and Individual hereby waive any and all moral rights or any similar right
with respect to the Works for all purposes for which the Works may be used to the fullest
extent now or hereafter permitted by applicable law. Supply Company and Individual hereby
irrevocably and unconditionally assign and license the perpetual but non-exclusive right to
use (and to license others to use) the Individualʼs name, voice, photograph, image, likeness
and biographical material in connection with any advertising, promotion, or exploitation of or
publicity for the Film in any media (including without limitation, in exhibition over the
Internet). Supply Company and Individual hereby release "" from any and all
claims, liability and demands whatsoever which it/he or its/his administrators, heirs,
successors or assigns might otherwise have in copyright, libel, slander, trespass, breach of
confidence, privacy, nuisance, negligence, or for any cause, matter or thing whatsoever,
howsoever caused, arising in connection with Individualʼs name, appearance, likeness and
voice in connection with the production and distribution of any program or production made
by "". Supply Company will give "", at no cost, access to any
negatives, transparencies, photographs, etc., taken whilst the Individual is engaged by or is
present on the set of "", and "" has the right to utilize these
materials, including the right to make duplicates, prints, etc., in any manner whatsoever at
no extra cost.

 

[Gregory Leno]

hm.... I actually think that a work for hire contract is what we are talking about, and in your example, the producer would use a work for hire contract with that DP or photographer, as a way of stating that that DP does not own the rights to the work done under that work for hire contract.


right?

Yes that's correct. Work for hire is used to circumvent the the existing copyright law when a hiring entity wants to own the rights to a creation.

 

[MikeHedge]

does anyone have a standard work for hire contract they give people who work on their projects?

 

[Jeff Kilgroe]

Mike, do a google search, there's some generic ones out there. Other than that, have an attorney draft one up that fits your needs and the needs of the markets you work in. It typically doesn't cost that much to do it. You will find that most people who have them are not likely to share for a couple reasons. One is they themselves have time/money invested in having them written up. And because if someone provides you with one and it fails to protect you, it opens up the door of liability. If my attorney drafts such a document and it fails, I have someone to yell at and those high hourly fees she charges me do help cover insurance on her end for such situations, which would of course, not extend to anyone that she does not deal with directly.

 

[MikeHedge]

ok thanks Jeff. I have found a bunch online. The point of asking if a reduser has one, is that it will be written for film projects.

If someone has spent the time to create one, then why would someone want to respend that time?

anyways, thanks.

cheers
Mike