[Help]
[help] Question regarding copyright
Apropos of this morning’s zen photo, I’ve been meaning to ask this for a while. I think I know the answer, but suspect my intuition is out of place.
What’s the copyright status of a photograph taken by someone else using my camera?
Example A:
I gave the camera to the_child and she took it on a field trip. Those are her photos, unambiguously. If I am going to reproduce them, I seek her permission.
Example B:
I am out with friends. I gave the camera to kenscholes to take a picture of me and bravado111 on my behalf. Generally I know who took the picture, and can secure a permission if needed. Say, because I have placed the photo in Locus or something.
Example C:
I am out with friends. I gave the camera to a waitperson to take a picture of the group of us on my behalf. I never get the photographer’s name or contact info. Do I have any right to reproduce that photo under copyright law? It can’t be work for hire, because I didn’t pay them for the photo. The implicit ownership of the photo is clear: it’s my equipment and the photo was taken at my request. But the copyright status is unclear to me.
Thoughts? Experiences?
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Posted: 7:24 am Sat January 08 2011 |
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It’s the same as the copyright status of a short story written at a writer’s conference by someone else using your pen when the writer’s pen gets confiscated by the TSA on the way to the conference. Under the 1976 Act, who owns the tools used to create original expression is irrelevant; it’s purely a matter of who creates the original expression.
Now the obvious caveat here is that if your camera is used to create a faithful reproduction of a two-dimensional third party’s work (e.g., a painting, or another photograph), that (probably) does not mean that the image created by your camera has any copyright at all. Although the image was “fixed” by your friend, your friend still had to provide “original expression”. This is still not entirely settled, but the courts seem to be edging toward saying that just a faithful reproduction — even if it requires skill at lighting, selecting the right lens/shutter speed/focal length/film/CCD sensitivity/other technical factor — isn’t original enough to trigger copyright protection.
Thank you. So the fact that the work was done at my request, for my purposes, doesn’t have bearing? Not that I think it should, necessarily. In effect, that third case is work-for-hire without the wage of the hire.
In the final analysis, yes, that you’re asking for the work to be done and then it is given to you does make a difference, especially compared to if someone asks to borrow your camera and take a picture.
Of course, this is all ignoring what is in the photo and if it really is copyrightable.
What follows comes from my understanding of the rules of the road as defined by The Graphic Artist Guild (who penned my industry’s standards of professionalism). IANAL, you should consult with one to be absolutely sure (and even then, this is a grey area).
But, if you commission a work, ask for it to be done, in most cases it is considered “work for hire” and all rights transfer to you when the business transaction ends (this is commonly when the bill is “paid in full”). Only when a contract specifies certain rights does the creator of the work retain any rights. So, asking the waiter to take the photo is an implied business agreement and the waiter is doing “work for hire,” even if no money transfers hands.
When there is a disagreement over the payment to artists for a work, in my case, that has been printed and delivered (or on the web, whatever… when the client has acted as if they have copyright) the case does not revolve around what rights the client had, but that those rights were not fully transfered because the business transaction had not been concluded (that is the artist still retains copyright until the transaction is completed).
This creates multiple problems including the fact that the client typically begins using and acting like they do own copyright before the transaction is completed (payable upon 60 days and the like). There’s also a problem of when the creator shows the work in their portfolio/book to gain more work (as technically, the creator no longer has the right to use the work). It becomes even more complex when that transaction is between a studio/company and the client, and then the individual creator uses the work in their own personal book to either get employed elsewhere or land freelance work.
There’s a lot of things that are “taken as practice” but could be trouble if anybody decided to enforce their copyright (which has happened).
If there’s no employer-employee relationship, then the creator has to put in writing that the work is a work for hire. Otherwise the creator owns the copyright. Check out
http://www.copyright.gov/circs/circ09.pdf
Matte, then is becomes a discussion of if a person asking another to take their picture falls under employer-employee in agency law. As the document says, it’s not just defined as most people commonly define employer-employee. Under the quick guide on page 2 of the PDF, I think it could be argued that the requestor of the photograph is the employer (paragraphs 1 and 2) and that paragraph 3 doesn’t apply (except that with wait staff, as compared to a friend, typically depends on tips as part of their “salary” and therefore the patron falls under employer under paragraph 3 – “provides employee with benefits”). A savvy lawyer would also argue that saying “Thank You” may constitute enough of a benefit to bring paragraph 3 into effect. While paragraph 2 might seem onerous to a friend, it would come down to the question of if the requestor would ask the friend to take a picture again or perform some other task (drive them to the airport, for example), would they do it? If yes, paragraph 2 applies. If no, IMHO, paragraph 2 may still apply in that the requestor is directing the work of taking the original photograph.
The law here is slippery in it’s definitions under agency law, and I believe why the GAG defines “work for hire” they way they do.
“Employee” is pretty strictly defined, and it’s not a casual request to do a task. Check out http://www.irs.gov/businesses/small/article/0,,id=99921,00.html
There are unscrupulous employers who would like to have it both ways. They would like to hire people as independent contractors so they don’t pay Social Security, Medicare & unemployment taxes, etc. etc. But they also want automatic ownership the works produced, by claiming they are works for hire.
The independent contracting system has been abused a lot lately and there have been some legal crackdowns. Even when employers have the upper hand, artists should know what their legal rights are.
[...] This post was mentioned on Twitter by torforgeauthors and Night Shade Books. Night Shade Books said: Jay Lake: [help] Question regarding copyright: Apropos of this morning’s zen photo, I’ve been meaning to ask thi… http://bit.ly/ehFb4D [...]
Actually, look up “Work done for hire”. In the first case (giving the camera to a friend and saying “Have fun!”, the pix belong to the friend.
In the second and third cases, you have a stated contract “Here, take my picture”. This implies that the pix were taken _at your behest_ and as such fall under the work done for hire clause of copyright.
In short, per copyright, those are your pictures, not the agent who took the picture.
but then, IANAL.
When you ask someone else to take a picture with your camera, you’re essentially using them as an organic version of a tripod and timer. You’re choosing the subject of the photo and (roughly) the composition of the photo. So I think it should be pretty clear that the copyright still belongs to you.
I think there might also be a matter of money in here as well. Copyright is different if you’re going to share the image for fun vs. using it to promote a business vs. using it to make cards and sell them.
Also, I seem to remember that asking someone to take a photo for/of you and them essentially saying yes is some kind of verbal agreement. They are taking the photo FOR YOU. Thus, it is, essentially, yours to with as you will.
It’s been a while since I worked in a photo department, though, so I’m probably a little fuzzy.
I think Bruce hit the nail on the head. I think this can get over-complicated in the analysis. I would have thought that the handing over the camera in the scenarios you painted, Jay, represents the equivalent of a non-written understanding that you own copyright, but would stand up in court (if the unbelievable scenario occurred). It is the equivalent of a self-evident, verbal contract.
Even in a litigious society like US (or Australia for that matter), any claim the contrary would get thrown out with annoyance from the judge, and ridicule by the press.
I think technically if you ask someone to take a picture of you, they own the copyright because the photographer is the owner of the “work.”
http://www.copyright.gov/help/faq/faq-fairuse.html
However, you are the owner of the digital file in your camera because you own the camera. And you can use the photo for fair use purposes. Also, the photographer may not be able to use the photograph without your permission (model release).
Practically speaking, the issue doesn’t come up because someone who is kind enough to take a photo of you isn’t going to be so obnoxious to demand copyright.
… but if you really want to be obsessive about it, then ask the waiter for the copyright to the photo they’re about to take. They will agree of course, but may look at you funny next time you show up at the restaurant.
The work-for-hire doctrine is entirely irrelevant here.
(1) None of the hypothetical instances posit an employer-employee relationship… and even then, it would need to be within the scope of that employee’s duties. (That’s why Jay’s employer does not, and cannot, own copyright in his fiction… unless his job description gets revised to include writing fiction for the company.)
(2) Just “a contract” has nothing to do with work for hire under the Copyright Act. A WFH must fulfill all of:
* specially commissioned,
* through a written agreement, and
* falling within one of several relatively narrow categories of works
to be properly treated as a work for hire. The only one of these three requirements that anything dealing with that camera might conceivably fulfill is the “specially commissioned,” although whether the directions provided constitute a “commission” is a question for lawyers to get rich arguing over. There’s clearly no written agreement; and a mere still photograph does not fall within one of the eligible categories established within § 101 of the Act. (Neither, for that matter, does a book-length work of fiction… so publishing industry treatment of media tie-in novels as WFH fails.)