Intellectual Property (copyright, model releases etc.)

[jugglervr]

Again - you're just talking about what should happen if the
photographer and his client forgot to agree ahead of time on who
gets the copyright. Which is, by the way, quite unprofessional.

and leads to confusion. I've had a few clients who just assumed that they get copyright just because they want it.

 

[iamphil]

For starters, you should stop using the term 'intellectual property' when you mean to refer to copyrights. If you mean copyrights, then say copyrights. The catch-all term 'IP' refers to several separate and distinct legal concepts.

The only reason people use this phrase rather than referencing the specific legal construct do so either out of ignorance or intent to muddy the waters during policy debates (usually for self-serving ends).

 

[jugglervr]

I sorta agree. IP can also mean patents, trade secrets, "secret recipes," etc etc etc

 

[dipics]

The big three here are Copyright, Trademark and Patents. All else isn't legally protected (but may be protected by things such as contractual agreements and non-disclosure clauses).

That being said. I think that we can safely assume that, for the purposes of this discussion unless otherwise stated, IP=Copyright.

DIPics

I sorta agree. IP can also mean patents, trade secrets, "secret
recipes," etc etc etc

 

[CBenson]

Bucks son wrote:
[snip]

I just don't see why someone who is commissioned to do something
should hold any rights once he successfully completes the
commission and is paid in full. Person 'A' has $100 in his hand.
Person 'B' has a product in his hand. When 'A' slips 'B' the
$100, 'B' should relinquish all rights to said product.

This is simply not the way society works. People do not expect to relinquish all their rights. It is unreasonable to expect B relinquish all his rights when selling a product. B will retain his right to keep A from bashing B over the head with the product. B will retain his right to keep A from telling others that the product was sold to him by C. Further, if the product is covered by copyright and B holds the copyright, B retains the exclusive right to copy the product. If I sell you a product, the right that I expect to give you is the right to keep others from using the product. Before the sale I had the right to tell anyone "you may not touch that portrait" after the sale you have that right. There, however, may be a multitude of restrictions on what either of us may do with the portrait.

[snip]

To me, it's a different situation if a photographer took photos of
a model whom he hired and then set about offering them for sale to
the public.

[snip]

But what if it is not a different situation to the photographer. How are we to create laws based on where you think the situation has changed. Isn't it alot easier to have the basic rule that copyright originally vests with the creator and that the copyright changes hands when there is an express argeement to do so?

--
Regards,
Carl

 

[CharlieDIY]

That being said. I think that we can safely assume that, for the
purposes of this discussion unless otherwise stated, IP=Copyright.

DIPics

I sorta agree. IP can also mean patents, trade secrets, "secret
recipes," etc etc etc

Under which would also come "secret recipes" if they're original.
--
Charlie Self
http://www.charlieselfonline.com

 

[dipics]

That being said. I think that we can safely assume that, for the
purposes of this discussion unless otherwise stated, IP=Copyright.

DIPics

I sorta agree. IP can also mean patents, trade secrets, "secret
recipes," etc etc etc

Under which would also come "secret recipes" if they're original.

Under which what? In other words, huh?

DIPics

 

[Bucks son]

I just don't see why someone who is commissioned to do something
should hold any rights once he successfully completes the
commission and is paid in full. Person 'A' has $100 in his hand.
Person 'B' has a product in his hand. When 'A' slips 'B' the
$100, 'B' should relinquish all rights to said product.

This is simply not the way society works. People do not expect to
relinquish all their rights. It is unreasonable to expect B
relinquish all his rights when selling a product. B will retain
his right to keep A from bashing B over the head with the product.
B will retain his right to keep A from telling others that the
product was sold to him by C. Further, if the product is covered
by copyright and B holds the copyright, B retains the exclusive
right to copy the product. If I sell you a product, the right that
I expect to give you is the right to keep others from using the
product. Before the sale I had the right to tell anyone "you may
not touch that portrait" after the sale you have that right.
There, however, may be a multitude of restrictions on what either
of us may do with the portrait.

[snip]

To me, it's a different situation if a photographer took photos of
a model whom he hired and then set about offering them for sale to
the public.

[snip]

But what if it is not a different situation to the photographer.
How are we to create laws based on where you think the situation
has changed.

It's very simple and I thought my examples spelled it out as such.

In the first example, if a person is commisssioned by another to make something, then there is no intellectual property rights granted to the one who is commissioned. That would be extremely easy to distinquish and enforce.

Intellectual property rights would apply in all other situations.

In my second example, the person was not commissioned.

Isn't it alot easier to have the basic rule that
copyright originally vests with the creator and that the copyright
changes hands when there is an express argeement to do so?

It's not any easier or less confusing, and it certainly is not logical. That is my main objection to granting intellectual property rights to someone who was merely commissioned to make something.

Commisssioning someone to produce something is little different than saying to someone "Take that horse and plow and plant me 50 rows of corn". After the corn matures, no one would expect the person who planted it to have "intellectual rights" as to how it's used.

 

[dipics]

I just don't see why someone who is commissioned to do something
should hold any rights once he successfully completes the
commission and is paid in full. Person 'A' has $100 in his hand.
Person 'B' has a product in his hand. When 'A' slips 'B' the
$100, 'B' should relinquish all rights to said product.

This is simply not the way society works. People do not expect to
relinquish all their rights. It is unreasonable to expect B
relinquish all his rights when selling a product. B will retain
his right to keep A from bashing B over the head with the product.
B will retain his right to keep A from telling others that the
product was sold to him by C. Further, if the product is covered
by copyright and B holds the copyright, B retains the exclusive
right to copy the product. If I sell you a product, the right that
I expect to give you is the right to keep others from using the
product. Before the sale I had the right to tell anyone "you may
not touch that portrait" after the sale you have that right.
There, however, may be a multitude of restrictions on what either
of us may do with the portrait.

[snip]

To me, it's a different situation if a photographer took photos of
a model whom he hired and then set about offering them for sale to
the public.

[snip]

But what if it is not a different situation to the photographer.
How are we to create laws based on where you think the situation
has changed.

It's very simple and I thought my examples spelled it out as such.

In the first example, if a person is commisssioned by another to
make something, then there is no intellectual property rights
granted to the one who is commissioned. That would be extremely
easy to distinquish and enforce.

Intellectual property rights would apply in all other situations.

In my second example, the person was not commissioned.

Isn't it alot easier to have the basic rule that
copyright originally vests with the creator and that the copyright
changes hands when there is an express argeement to do so?

It's not any easier or less confusing, and it certainly is not
logical. That is my main objection to granting intellectual
property rights to someone who was merely commissioned to make
something.

Commisssioning someone to produce something is little different
than saying to someone "Take that horse and plow and plant me 50
rows of corn". After the corn matures, no one would expect the
person who planted it to have "intellectual rights" as to how it's
used.

From this, I have to surmise that you have never taken a commission for any photography (or any other type of graphic art) job. I have done thousands. I have never done one where I had no creative input.

DIPics

 

[Bucks son]

I just don't see why someone who is commissioned to do something
should hold any rights once he successfully completes the
commission and is paid in full. Person 'A' has $100 in his hand.
Person 'B' has a product in his hand. When 'A' slips 'B' the
$100, 'B' should relinquish all rights to said product.

I honestly think much of this intellectual property thing is the
result of too many lawyers getting together and devising laws that
sweeten the pot for them via their clients. Clients who would
otherwise have been tickled pink to simply be paid one time for the
work they performed.

Now some sheister lawyer comes along and says "You know, me and my
colleagues are devising a law that gives you legal rights to the
use of that product you were just paid to produce for as long as
you live"..."Gee, that sounds swell".

Okay, you just changed gears. You're no longer arguing about what
the law is , but about what it should be .

Technically, no, since my position has simply been one where I don't understand the 'reasoning' behind why someone who is hired to produce something should have any rights to said product once he has been paid.

That's a totally different story.

But this is a very minor point. If you hire a photographer, and
want to own the copyright to his work, all you have to do is agree
on it ahead of time (and hopefully, put it in writing).

Not according to U.S. Copyright laws. Apparently there are exceptions to intellectual rights if someone is commissioned. The person who is commissioned has no intellectual rights to said product. The law states:

"(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 instructional 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 sentence, a “supplementary work” is a work prepared for publication as a secondary 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 illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities."

Now, why intellectual rights of ALL commissioned work don't belong to the one who did the commissioning, is beyond me. Makes absolutely no sense to pick and choose. Let's keep it simple. If you commission a work, then you own all rights to it.

I thought it seemed illogical and unfair to grant intellectual rights to someone who was simply hired to produce something. It's nice to see that I wasn't alone in my thinking. But what is just as illogical and unfair is why everything commissioned is not treated the same way.

I know!

Because doing so would eliminate the need for copyright lawyers. Logic requires but two laws to exist:

1. Were you commissioned by someone? If the answer is "Yes", then you have no intellectual property rights. All rights belong to the person who did the commissioning.

2. If you otherwise produced something on your own initiative, then you own ALL rights to said something.

100,000 lawyers would immediately be out of employment.

 

[Craig Gillette]

The laws don't preclude you from contracting (commissioning) the photographer to work for you and that you will have the rights to the images. It's a business decision for both parties to make.

 

[Bucks son]

I just don't see why someone who is commissioned to do something
should hold any rights once he successfully completes the
commission and is paid in full. Person 'A' has $100 in his hand.
Person 'B' has a product in his hand. When 'A' slips 'B' the
$100, 'B' should relinquish all rights to said product.

This is simply not the way society works. People do not expect to
relinquish all their rights. It is unreasonable to expect B
relinquish all his rights when selling a product. B will retain
his right to keep A from bashing B over the head with the product.
B will retain his right to keep A from telling others that the
product was sold to him by C. Further, if the product is covered
by copyright and B holds the copyright, B retains the exclusive
right to copy the product. If I sell you a product, the right that
I expect to give you is the right to keep others from using the
product. Before the sale I had the right to tell anyone "you may
not touch that portrait" after the sale you have that right.
There, however, may be a multitude of restrictions on what either
of us may do with the portrait.

[snip]

To me, it's a different situation if a photographer took photos of
a model whom he hired and then set about offering them for sale to
the public.

[snip]

But what if it is not a different situation to the photographer.
How are we to create laws based on where you think the situation
has changed.

It's very simple and I thought my examples spelled it out as such.

In the first example, if a person is commisssioned by another to
make something, then there is no intellectual property rights
granted to the one who is commissioned. That would be extremely
easy to distinquish and enforce.

Intellectual property rights would apply in all other situations.

In my second example, the person was not commissioned.

Isn't it alot easier to have the basic rule that
copyright originally vests with the creator and that the copyright
changes hands when there is an express argeement to do so?

It's not any easier or less confusing, and it certainly is not
logical. That is my main objection to granting intellectual
property rights to someone who was merely commissioned to make
something.

Commisssioning someone to produce something is little different
than saying to someone "Take that horse and plow and plant me 50
rows of corn". After the corn matures, no one would expect the
person who planted it to have "intellectual rights" as to how it's
used.

From this, I have to surmise that you have never taken a commission
for any photography (or any other type of graphic art) job. I have
done thousands. I have never done one where I had no creative
input.

I find the level of input of someone who has been hired to be irrelevant. The law makes no exception whatsoever to someone who is an employee. An employee's creative input could be 100%, yet he has no intellectual property rights whatsoever.

Why should someone who is contracted be any different? Employee Smith could be 10 times more creative and intelligent than subcontractor Jones.

 

[Bucks son]

The laws don't preclude you from contracting (commissioning) the
photographer to work for you and that you will have the rights to
the images. It's a business decision for both parties to make.

Yes, but typically I would have to shell out a lot more money to "buy" intellectual property rights which should already belong to me , the commissioner.

 

[dipics]

I find the level of input of someone who has been hired to be
irrelevant. The law makes no exception whatsoever to someone who
is an employee. An employee's creative input could be 100%, yet he
has no intellectual property rights whatsoever.

Why should someone who is contracted be any different? Employee
Smith could be 10 times more creative and intelligent than
subcontractor Jones.

Then I recommend you use employee Smith. But, you see, it doesn't matter what you find irrelevant. Different rules apply to employees as do to contractors. You seem to have a problem with copyright law as it is written. I recommend you write your congressman. Good luck with that.

DIPics

 

[Bucks son]

Suppose that I design and make the blueprints for my house. All I
need the builder for is to build the house. I therefore hold the
intellectual rights to everything regarding my house.

Because you designed and made the blueprints, without an
architect's help. You did everything. BTW, you don't own the IP
to everything - fixtures, appliances, etc can all have their own
separate IP, trademarks and trade dress that you don't own.

Likewise, suppose I use my office for the setting for my portrait
shoot, and also spec out every last detail to the photographer.
All he needs to do is show up, place his camera where I tell him;
place his lights where I tell him, and then simply focus and push a
button. He's in and out in 10 minutes. All he did was use his
tools to make a picture.

If you simply focused and pushed the button then you would own
everything; but unless you stipulate you own the copyright the
second the photographer presses the button they own the copyright

• that is the way the law works.

Yes, I understand that's how the law works. My point is 'why'? Itellectual Property rights are illogical when someone is commissioned. In fact, U.S. law states that commissioned people don't have Intellectual Property rights in several specific situations. Why not in all then?

I'm simply pointing out how illogical the law is, not that I don't realize it exists.

If all it takers is 10 minutes and focusing and shooting then you
don't need a photographer, do you?

Sure, I do. He has the Hasselblad with the $40,000 digital back. But that's why I hired him. He's already compensated.

Why should that simple act of focusing and pushing a button grant
him intellectual rights to the use of the negatives? Don't get me
wrong, I'm not against the concept of intellectual rights. I
firmly believe they have their rightful place. I just don't see
legally why someone who is paid to do a job should hold any sort of
rights once they are paid.

Because all you bought was the product, not the IP. You got
exactly what you paid for. You want the IP you pay more and get it.
They are separate transactions.

My point is that they shouldn't be separate transactions. Someone who is hired should have no Intellectual Property rights to sell...IMHO.

 

[Bucks son]

I find the level of input of someone who has been hired to be
irrelevant. The law makes no exception whatsoever to someone who
is an employee. An employee's creative input could be 100%, yet he
has no intellectual property rights whatsoever.

Why should someone who is contracted be any different? Employee
Smith could be 10 times more creative and intelligent than
subcontractor Jones.

Then I recommend you use employee Smith. But, you see, it doesn't
matter what you find irrelevant. Different rules apply to
employees as do to contractors. You seem to have a problem with
copyright law as it is written.

Well, I do. It's illogical. As I said in another reply, it's the work of lawyers who sought job security. Well, they have succeeded. As said by another - "We wouldn't need lawyers if there weren't lawyers".

I recommend you write your
congressman. Good luck with that.

Doesn't bother me that much. Just contributing to the thread.

DIPics

 

[CBenson]

Bucks son wrote:
[snip]

But what if it is not a different situation to the photographer.
How are we to create laws based on where you think the situation
has changed.

It's very simple and I thought my examples spelled it out as such.

In the first example, if a person is commisssioned by another to
make something, then there is no intellectual property rights
granted to the one who is commissioned. That would be extremely
easy to distinquish and enforce.

Intellectual property rights would apply in all other situations.

In my second example, the person was not commissioned.

Okay now I get it. Yes I agree your proposal would be just as easy to administrate. If you commission an artist to create a work before its creation, you get the copyright (presuming you keep up your end of the agreement, that is make the payment).

Isn't it alot easier to have the basic rule that
copyright originally vests with the creator and that the copyright
changes hands when there is an express argeement to do so?

It's not any easier or less confusing, and it certainly is not
logical.

Ok, I agree not any easier or less confusing, but I think either way is equally logical. I also think the copyright law was badly written and the courts could have gone either way. However, it is now established that a commissioned work is not a work made for hire.

That is my main objection to granting intellectual
property rights to someone who was merely commissioned to make
something.

"Merely commissioned?" Doesn't an artist put in the same effort, use the same talent and need the same creativity whether working on commission or making a work intended to be sold later. What's merely about it?

Commisssioning someone to produce something is little different
than saying to someone "Take that horse and plow and plant me 50
rows of corn".

Well I would say commissioning someone to produce something is little different than saying someone "I will buy 50 bushels of corn if you grow it" (plus maybe "and here's a down payment"). Why should you get something different if the transaction occurs before the creation rather than after?

After the corn matures, no one would expect the
person who planted it to have "intellectual rights" as to how it's
used.

Well you might. Let’s say you commission me to grow some corn. I’m a creative person (for the sake of argument) so have the ability to develop corn that is somehow better. But if I give you my improved corn, you will be able to copy it (grow more). This is what the patent system is designed to address. Without intellectual property there is little incentive for me to make the better corn. However, if I get the exclusive rights to make the better corn, then I have incentive. You get better corn (but can’t use it to create more) and I can profit from making better corn for others too.

Same thing for the commissioned artist. I don’t think you give the artist enough credit. Sure if you commission a portrait from someone that has no talent then you get a portrait that anyone could have done. In such a case, who cares who has the copyright. The picture is probally so generic that theres really nothing new to copy.

But say the photographer is a great artist. He takes your commission. He now has to decide should he make a portrait that is great, one in which his unique creative style really comes through or should snap the picture without much effort. If he can protect the style, his creativity, by having the exclusive right to copy his work then he has incentive to produce the great portrait. If you get the copyright and can possibly keep him from creating other portraits in the same style, why bother.

It’s not about who gets the use of the portrait. It’s about who gets to profit from the creativity. The difference between growing corn and photography is it’s a lot more likely that there is creativity in the photograph than in the corn. But if the farmer is creative, the patent system is there to encourage him too.
--
Regards,
Carl

 

[CBenson]

[snip]

From this, I have to surmise that you have never taken a commission
for any photography (or any other type of graphic art) job. I have
done thousands. I have never done one where I had no creative
input.

I find the level of input of someone who has been hired to be
irrelevant. The law makes no exception whatsoever to someone who
is an employee. An employee's creative input could be 100%, yet he
has no intellectual property rights whatsoever.

Why should someone who is contracted be any different? Employee
Smith could be 10 times more creative and intelligent than
subcontractor Jones.

Because subcontractor Jones in going to go work for some else next. Employee Smith is not. It is in the intrest of the employer to keep encouraging the creativity of Smith. It not in the interest for the person who commissioned subcontracor Jones to encourge more creativity. In fact, he may be better of if subcontractor Jones never creates anything else. (Especially if the work he got was good.)

--
Regards,
Carl

 

[CharlieDIY]

I find the level of input of someone who has been hired to be

irrelevant. The law makes no exception whatsoever to someone who
is an employee. An employee's creative input could be 100%, yet he
has no intellectual property rights whatsoever.

Why should someone who is contracted be any different? Employee
Smith could be 10 times more creative and intelligent than
subcontractor Jones.

If the employee is 10 times more creative, then that employee should be used for the job. If not, work out a contract that gives you the rights to the photos, at a price you like. Somewhere, somehow, you'll find a photographer who will meet your demands, at a price you find acceptable, particularly since you say the creative input is irrelevant or unimportant.

--
Charlie Self
http://www.charlieselfonline.com

 

[jugglervr]

I agree in part. I took a Careers in Photography class, and one of the meetings was at a small studio where a photog ran us through what's involved in quoting for a big job.

He gave us a rundown: a fictitious client contacted him with a budget of $10,000 and said "give us a quote for shots that look like these... here are the specifics on the print run..."

On one hand, the client is specifically asking for a product, and the photographer would not be paid if the client hadn't come to him/her with this need.

On the other hand, the photographer footed the bill and took responsibility for getting everything organized; he was effectively the producer as well as the cinematographer and cameraman on this production, so shouldn't he retain rights, since this was effectively his production from the beginning?

I personally found it odd when I got more into the biz and fellow photogs started pressuring me to retain rights when I shoot. I figured, I got paid, so why should I retain copyright? It seems rather odd to me to hold out for more money in the long run, and EVERY client i've ever had has balked when this issue has come up.

I think a better solution would be to have a certification program for photographers, much the same as the programs for other tradesmen. You don't hire a bricklayer who's not a journeyman... There should be a similar deal for photographers. You tell a photographer what a shoot should look like, they build you an image, you pay them commensurate with their level of certification, you an use the image for anything you like, they can use it in their portfolio, end of story.
I'd be happy with that. Sign me up for that program.