High school photog sues Playboy

JustMosing said:

Wayne Larmon said:

Chris Dubea said:

This suit is playing with fire. In most business, if you create
something while being paid by someone else to create it, you own
none of your creation.

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But not in the US. Regulations covering copyright ownership for
are clearly stated for "Work for Hire." In short, unless W-2s are
involved, or rights assignment is covered n a contract, the creator
of the work (photographer in this case) owns the copyright. There
is nothing ambigious about it.
http://en.wikipedia.org/wiki/Work_for_hire

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Perhaps you should read it. Here it is: "Under U.S. law, the owner
of a copyright in a work is the author. In most cases, this is the
individual or group of individuals that creates the work. However,
when a work is considered a work made for hire - more commonly
called a "work for hire", abbreviated as "WFH" - the author of the
work is no longer the individual creator or creators. Instead, the
author is considered to be the entity that hired the creator of the
work."

Clearly it implies that the photographer is NO LONGER CONSIDERED
THE AUTHOR.

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No it doesn't. It states WITH a "work fo rhire" agreement, such is the case.

JustMosing said:

This about this for a moment - under your reading, the photographer
from a photo studio would then have the right to go wherever they
please and sell their work to Playboy if they please without the
agreement from the subject. Brilliant. I can just see the jury that
will go along with that.

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Not the case at all, and not what anyone stated. That is commercial use and requires a model release.

JustMosing said:

And that is pretty much what is going on here. A couple of scumbags
see an opportunity to score off Playboy. If they win it, I wonder
if they start peddling the photos they ever took of anyone popular
to every magazine in sight.

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There's a good chance the "scumbags" will win because they are legally in the right. How much they'll win is another story, but it may put a crimp in Playboy's sails, force them to be a little more considerate of the little guy.

The young lady might not know the photo was copyrighted and not released. It is almost a dead certainty that Playboy did know that the school photo she handed them was copyrighted by the photographer who was never contacted.

It is the photographer peddling the photo, by the way. It is the young lady IN the photo. You really need to quit speed reading.

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

Robert 55 said:

But then the monetary value of this copyright for the photographer
is very low, because he can not use the shot either. The
hpotographer cannot use the shot as any use by a professional is of
course commercial [either direct by making money, or indirect by
advertising his business]

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Actually, it could be low, it could be high. It also could be, and is, irrelevant to who holds the copyright.

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

JustMosing said:

Wayne Larmon said:

"If the parties expressly agree in a written instrument signed by
them that the work shall be considered a work made for hire."
is probably the only clause that would apply. Presumably, this
written instrument never existed. Otherwise, it is doubtful that
the photographer would bring suit.

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Nah. I don't need an express written instrument if I walk into the
photo studio to have my picture taken. It is implied that it is a
work for hire.

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Where did you get your law degree?

JustMosing said:

And yes, owning a copyright does mean usage right - hence the word
"COPY RIGHT". If you own a copyright, you have the usage right,
unless you sell that specific right to someone else.

Again, I challenge you to find a single jury that will agree that
the photographer from some two-bit corner photo studio that took a
picture of his customer who paid to have that picture taken has the
right to go publish photos of his clients as he pleases. Show me
that jury, and I will shut up.

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That isn't the point. Nor is it what anyone has said. That publication requires a model release in addition to the copyright. The copyright, which the photogrpaher does hold, prevents others from making money off his work, though from the sounds of it, you don't approve of photogrpahers getting paid for their work.
--
Charlie Self
http://www.charlieselfonline.com

dipics said:

Grimstone said:

The case will quickly be dismissed. Its frivolous and it does not
matter who owns the copyright. Why? Well they are suing for the
profits produced by the infringement. Since every knows people buy
Playboy to read the articles, then the photograph can only be
filler and thus worthless to the sale of the magazine.

--
Christopher Bailey
Grimstone Inc.
http://www.grimstone-inc.com

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But, there WERE damages, and obvious ones. In the vein of the post
above, how many copies of playboy are printed? Well, how much
would the photographer have charged for that many copies of the
photo? Those are the damages.

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I don't think so. Damages might be for the amount Playboy would have paid for the use of a photo that size, plus some punitive award. I wouldn't think either would amount to hundreds of thousands, never mind millions. Figuring a quarter page use, that tops out about $600. Punitive? Who knows. Depends on how irritated the jury is at Playboy, which depends on how good the photographer's lawyer is.

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

dipics said:

The model in this case was perfectly within her rights to give away
or sell the copies of the photo that she purchased from the
photographer for any profit she can. This is well within the law.
What she (and Playboy) CANNOT do is make copies of it without the
photographers permission..

This is akin to buying a book, scanning it into your computer,
printing copies of it and selling them. The original author (or
photographer) owned the copyright. Because of this, they have the
right to control copying and distribution among other things.

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Yes, but people today...I found a guy on eBay selling Dan Brown's best seller (DaVinci Code) as a PDF download for 79 cents. I queried him on it. He was absolutely certain he had the right to transfer the book to an electronic image and sell it. When I notified eBay, they didn't agree with him. His listing was gone within minutes.

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

Andrew dB said:

dipics said:

Andrew dB said:

The real question is why shouldn't they? I believe in free
markets, do you?

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I absolutely do believe in a free market economy! So, I assume
that you don't think that authors are entitled to be compensated
for anything past the first copy of a book, right? Just exactly
what is the motivation for writing in the first place then?

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So a Government enforced monopoly is a free market? Are authors or
indeed anyone else 'entitled' to anything? I thought we had to
EARN our pay or profits whether through hard work or a clever
business model.

How many failing businesses do you see every day? For the sake of
their owners and the staff employed there I would like them to
succeed but in no way are they ENTITLED to do so and I certainly
wouldn't support the government stepping in to prop up their
failing company.

I'm guessing that authors write books because they like writing in
the same way that most artists do things out of enjoyment.

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You are guessing wrong. Some writing is enjoyable, all writing to a pattern is work, some of it is blazingly hard work. Doing it for enjoyment does not mean I don't want to make money out of it. It didn't mean Shakespeare didn't want to make money at it, it doesn't mean most of us don't want to make money at it. Copyright laws help to make sure that we do make SOME money at it. It is not a well paid field for the most part, except for a very few best sellers.

A government enforced law that helps small businesses (most single proprietor) get a reasonable stab at making a living is NOT a monopoly in any way, shape or form. I certainly could have done something other than write and shoot photos for a living, but I've been doing this for a good many years now, and people like you now say I need to change my business model because YOU don't like some segment of the law that you don't even understand (regardless of your claims otherwise).

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

Looks like a good reason not to do business with a studio which thinks it can get their advertising content on the cheap. If this is standard practice, well we don't really need them anymore, do we?

dipics said:

And, if you signed an order form, it most likely contained a
model-release clause so they would likely even be covered there in
most situations (such as advertising for their studio etc.).

DIPics

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Robert 55 said:

The patents on drugs [all patents for that matter] are time
limited. For drugs ten years I think. This works reasonably well,
in that the big pharma companis are extremely innovation driven.

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20 years, IIRC. And copyright used to be, IIRC, 28 years renewable for 28 (might have been 26 and 26), when I wrote my first books ('72).

http://www.copyright.gov/ for further ACCURATE information.

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

Andrew dB said:

AlanG said:

Andrew dB said:

A right I'm not sure they need to have although I would say that if
it is to exist it should only apply to commercial distribution
which of course would protect the photographer in this case. There
shouldn't be any control over non-commercial uses and I believe the
law is fundamentally broken in this respect. Government imposed
scarcity and monopoly strikes me as being a severe hindrance to the
workings of the market and to the creation of new and challenging
art. You may well disagree with that but that's my position.

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There is a provision in copyright law called "Fair Use" that covers
non commercial usage of copyrighted materials in specific limited
ways such as for comentary, parody, or education. Whatever your
opinion is of what should or shouldn't be, it is clear that you
don't know much of what is. And your statement about market forces
is completly opposite reality. The idea that individuals and
companies can profit from their creativity is what drives the
market.

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True in American copyright law but the situation is different (and
worse) in many other countries including the UK.

I've got an idea though, you should create a derivative work
involving Mickey Mouse that parodies some of Disney's most famous
works. We can take bets on how long it takes you to be sued into
oblivion while you protest that it's fair use.

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Disney is nailing you for violating their trademark in most cases, not copyright.

Check out http://www.copyright.gov/ to find out what copyright is if you're willing to learn, and not insisting your biases should form the basis for international copyright law.

The situation for copyright is a bit different in other countries, but usually in respect to work for hire agreements being implied, as you insist they are here, and not needing to be explicitly stated. I thought that was what you were arguing in favor of.
--
Charlie Self
http://www.charlieselfonline.com

Scion said:

Does the Bee really mind? Maybe they're less emotional about it.

What about the photo? The Bee used 100% of it, but I bet they would
say it's fair use.

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Editorial use. A different category than standard fair use.

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

Andrew dB said:

AlanG (almost) wrote:

The idea that individuals and companies can profit..............is
what drives the market.

Creativity has nothing to do with it.

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You got that right. Creativity had zip to do with the forming of IBM, Google, Microsoft, General Motors (in the form of Olds, Reo, et al back in the early 20th century), and so on. Nothing creative in business at all, so it doesn't matter.

You really do not have any idea what you're writing about, do you?
--
Charlie Self
http://www.charlieselfonline.com

Scion said:

If the offending article is "impossible to find" on the smartmoney
website, then how can it be so easily found?

http://www.smartmoney.com/top5/index.cfm?story=20061108

If parents take their own photos, then the PPA photog is happy? I
don't think so. I'd say most of their customers scan in shots, so
that's where there unfocused raged should be focused upon. It's
foolish of smartmoney to tell people to scan of course.

"2. The Class Photo

Parents' Gripe: Spending nearly $50 for a full package of
individual, class and sport team photos — multiple times per year!

Ever wonder why the school takes so many darned pictures? Turns out
those adorable snap shots are often yet another fundraiser. Only
this one pulls at the heart strings. We found one photo studio
based in California that advertises on its web site that it's
willing to pay schools a 10% commission on all orders.

Money-Saving Tips: Just buy the class picture. And don't even
consider placing an order during the spring session, when many
schools host a secondary picture day. If you just can't resist,
purchase the smallest package possible. At the Clark School in
Swampscott, Mass., parents can spend as little as $24 for a few
wallet-size photos and one of the class. The bill rises to more
than $50 if parents splurge for a package that includes a couple of
5-by-7s. Worried you won't have a spare to send to Grandma?
Consider scanning your copy or email a cute digital shot you took
yourself."

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Money saving tip: do what I did in high school. Don't go to the photo session.

I have a granddaughter who is making up for it. Her senior pictures--not school shots, AFAIK--cost upwards of $1,000, and she, and her parents (and her grandparents) are delighted with them. The photographer is superb, the settings are excellent, and he made a normally attractive 18 year old look great. Of course, that's his job, but he is the best "portrait" shooter I know of around here.

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

CharlieDIY said:

A government enforced law that helps small businesses (most single
proprietor) get a reasonable stab at making a living is NOT a
monopoly in any way, shape or form. I certainly could have done
something other than write and shoot photos for a living, but I've
been doing this for a good many years now, and people like you now
say I need to change my business model because YOU don't like some
segment of the law that you don't even understand (regardless of
your claims otherwise).

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Are you really this dense? Of course it's a monopoly - a monopoly of distribution that creates scarcity where otherwise it wouldn't exist. Before accusing other of not understanding the issues you should probably educate yourself.

When it comes to your business model, are you telling me that you are so devoid of creativity of thought that you would be unable to make money from photography without a copyright law to back you up?

I honestly don't recall any service contract that didn't have small print of one sort or another. Perhaps people should try reading it.

DIPics

Robert 55 said:

Robert 55 said:

And, if you signed an order form, it most likely contained a
model-release clause so they would likely even be covered there in
most situations (such as advertising for their studio etc.).

DIPics

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CharlieDIY said:

Andrew dB said:

AlanG (almost) wrote:

The idea that individuals and companies can profit..............is
what drives the market.

Creativity has nothing to do with it.

Click to expand...

You got that right. Creativity had zip to do with the forming of
IBM, Google, Microsoft, General Motors (in the form of Olds, Reo,
et al back in the early 20th century), and so on. Nothing creative
in business at all, so it doesn't matter.

You really do not have any idea what you're writing about, do you?

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Do you?

Business exists to make money - can you imagine a CEO of a major corporation standing up in front of their stockholders and saying "we lost a billion dollars this year but it's okay, we've all been really creative".

Making money can involve massive creativity as in the case of the companies you have listed or it can involve re-releasing the White Album for the nth time. Both are perfectly valid business practices but they don't all involve creativity. Perhaps the subtlety of my original point was lost.

Craig Gillette said:

What's age have to do with it?

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No offense intended there Craig, I'm sorry if you took any. The "age" statement was in response to your statement of

"Does this look like it isn't a "senior" picture? My "official" hs pictures weren't taken out in the grass."

Back when I was in High school, official photos weren't taken outside either. Now many schools will allow a lot of lattitude in the "official" senior photo. That is what I meant by you being older than the lady.

Craig Gillette said:

Having seen a number of good, bad
and execrable "senior" pictures, yearbook pictures, and the like,
I'm really, really familiar with the results of the artistic
collaborations between high school students and photographers. If
you had read my post, you'd have noted I didn't say it was a school
picture but that it appeared to be a senior picture. Senior
pictures are a private product but might be facilitated by the
school in fundraisng partnership with the photographer.

Which is why my cousin-in-law, the pro, will be shooting my
daughter's senior pictures, and not the package padder that poaches
off the yearbook picture contacts.

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I totally agree. In quite a few areas now, the school doesn't even bother with "official" photos for seniors. They just ask that the local studios send them one for the yearbook. But, anyone below seniors, they still push that package.

DIPics

I don't know. I heard that Playboy wanted to use it. That must mean it is worth something.

DIPics

Robert 55 said:

dipics said:

Robert 55 said:

Suppose the photographer holds the copyright.
Is he allowed to publish [or sell for publication] the shot without
the explicit consent of the portrayed person?

IOW: what is the use of holding the copyright in this case

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He is not, at least for commercial purposes. The use of holding
copyright in this case is that nobody else can without your
permission either. So, if the subject of the portrait tries to
publish it in Playboy, then they would be violating the copyright
of the photographer even if the photographer doesn't have a model
release.

DIPics

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AlanG said:

Blame those artists for stealing from society.

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All art 'steals' from society and other artists - I'd prefer not to use that term though because I don't see it as a bad thing.

AlanG said:

So intellectual property isn't real? Much of what is valuable to
society is intellectual property.

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I never said it had no value, rather it's a type of 'property' that cannot exist without government intervention and isn't 'real' in the way that physical property is real. How would you protect something you had published in the way that you can protect your land or your car if the government hadn't defined your creative output as property and provided you with legal support?

AlanG said:

Your remarks are so off the wall, I'm out of here.

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Perhaps you misunderstood the arguments but thank you anyway for your contribution.

Robert 55 said:

The patents on drugs [all patents for that matter] are time
limited. For drugs ten years I think. This works reasonably well,
in that the big pharma companis are extremely innovation driven.

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With the exception of countried involved in the Doha Declaration, it is 20 years.

Robert 55 said:

A trademark is a different thing all together: it makes it possible
for instance to recognize the tat you just ate as being really from
MacD
But even those get out of hand sometimes: Adidas claimes anything
with three stripes.

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I know what a trademark is.

Robert 55 said:

Robert 55 said:

Robert 55 said:

dipics wrote:

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I have to disagree. Intellectual property covers much more than
copyright. For example what incentive would a drug company have to
invest billions of dollars in developing a new drug if, as soon as
it were developed, anyone could make it and sell it for whatever
price they like?

Or, a trademark. Do you think it is a good idea to allow other
people to use the mark that identifies you as a business? Would
make it hard to avoid the "real" McDonalds then, wouldn't it?

Or, copyright. How about making movies for example. What is the
incentive to make a movie if, as soon as you make it, you lose any
ability to make any money from it because there is nothing stopping
anyone from making a copy and showing or selling it for next to
nothing?

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Music: at one time Michael Jackson owned the copyright from some of
the Beates songs. This was about the period he himself entered his
period of extreme creative drought, but hey who cares the money
still comes in.

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I think he might still own them as part owner of the Sony catalog. And, the Beatles sold the rights for a pretty fair sum originally. Are you saying that this kind of property shouldn't be sold?

DIPics

Yes, indeed technology and social norm change and service and alike need to change with them, that's why I always advocate PROs to consider alternative pricing praktise other than the old print based or pure case by case copyright managed way of doing things. There is however , I sense, a strong reisitance , among the PRO photographers and studio against that.

On the other hand, this said case is something else altogether. That photo were taken long ago and obviusly go under the Copyright law ... while people might not like the law and they are free to voice that or even ask for a change; the fact remain that when a person buy a product ( in this case the print ) and instead steal the intellegual property for financial / commercial gain then they are breaking the law. The young lady might be doing that out of ignorence or misunderstanding of her right towards the image, but certainly not Playboy the publication. They should know well enough about that; they are in that business themselves.

We all know about not to pirate software nor Music , a photo by a photographer is equally the same kind of intelletual property that need to be protected similar Fashion.

Thouth what current state of market and technology really transpire is issues with Assignment / Commissioned work . Just as any high school portrait or Family portrait / wedding photographer do. I knoe it does not ring true with many of fellow PRO in state or in UK, but in many part of the world, either by norm of business praktise, or sometime even by law ... these are considered Service rendered, ( or work for hire in the state, I believe that's the term used ). The client who commission the work had full royalty free usage of the image while the photographer retain credit and copyright ( for his / her own commercial usage if contract allows or just portfolio if contract is for exclusiveness ). I was reading a lot of resistance in the PRO forum voicing against such work, but for real, if I am the client, I would certainly want to be able to offer choice in how I can purchase my need ( in this case images ). I am not saying that this kind of praktise is better, just that the market change simply demand such kind of service and frequently today clients ( and especially personal client ) was not going to like to have their own image held hostage in the photographer's grasp. PROs of today need to weight the issue and come up with their own decision.

--

• Franka -