Intellectual Property (copyright, model releases etc.)

[jugglervr]

Now we need to DRM our corn, too. great.

 

[CBenson]

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.

I agree that U.S. copyright has its illogical kinks. But leaving copyright with the commisioned creator doesn't seem to me to one of them. True, the definition of "work for hire" in the copyright law is not a model of clarity.

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.

But, if all you are really doing is renting the Hasselblad with the $40,000 digital back then enter into a rental contract and you have no issues with copyright. Copyright law (and I suspect most people here) thinks that being a photographer is more than having a Hasselblad and pushing a button.

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.

But why not? What is the advantage to giving the copyright to the buyer?
--
Regards,
Carl

 

[CBenson]

BorisK1 wrote:

[snip]

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.

Huh? The convoluted definition of a “work for hire” that you cite below does not keep someone who hires a photographer from agreeing ahead of time that the copyright will be transferred. It does seem that a client can request that he own the copyright of a commissioned photograph and the photographer can sell the copyright.

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."

But this requires that “the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.” The commissioned artist must understand and agree (in writing) that the author of the work shall be the person who commissioned the work. This also applies only to 1) a contribution to a collective work, 2) a part of a motion picture or other audiovisual work, 3) a translation, 4) a supplementary work, 5) a compilation, 6) an instructional text, 7) a test, 8) answer material for a test, or 9) an atlas. In each of these cases the commissioned work is part of a larger work. In other words, these are basically artists commissioned by artists. This is clearly different from me hiring a photographer to take my portrait.

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.

We don’t really pick and choose much. The copyright in all commissioned work belongs to creator unless there is an agreement to the contrary. That’s simple isn’t it? Unfortunately, the complication is that the form of the agreement makes a difference. Different things can happen depending on whether the artist assigns the copyright to the purchaser or makes an agreement that the work shall be considered a work made for hire.

I thought it seemed illogical and unfair to grant intellectual
rights to someone who was simply hired to produce something.

I don’t. It promotes creativity. As noted by Boris, if you hire someone to produce something and you want the copyright, then contract with the producer to assign the copyright to you. Not so difficult.

I think it is unfair to grant intellectual property to someone who simply hired me to produce something. If he hired me for a portrait he should be happy with getting a portrait. He should not get rights to the creativity that I put into the portrait, creativity I may want to use in other portraits for other customers.

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.

Well no. The basic rule now only requires one law. Did you create it? If the answer is “Yes” then you have the copyright (unless you agree that someone else gets it).

Second, the 100,000 would still have plenty to keep them busy.

What does commissioning mean? Say, I go to a county fair. I pay to have my photo taken with my face in a cutout of a milkmaid milking a cow. Did I commission the photo? Do I get the copyright? Do I get the exclusive rights to copies? Is the next picture taken in the cutout a copy? Is not exactly the same (different face) but pretty darn similar. Under your rule should the photographer make me agree that he gets the copyright when he takes my money?

--
Regards,
Carl

 

[CBenson]

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.

Should? Why?

If the default was that the commissioner gets the copyright, then the default price should be high to start with. Under your rule, if you wanted the price you would pay now, then you would need an agreement that the creator would get the copyright.
--
Regards,
Carl

 

[Jim Coffey]

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.

Not really, you are buying the right to use it for less then it would cost to own it. You are buying the photographic equivalent of a financial derivative - one part of a product that has separable value from the rest.

If you bought ownership you would pay more. As with finacial derivatives this gives you the ability to pay only for the value you need; not the whole thing.

 

[CBenson]

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.

But that’s not the end of the story. Copyright is not primarily about what the customer can do with the photo. Its about who can copy the creativity that the photographer put in the photo.

Say a company uses such a certified photographer to produce photo for their annual report. The photographer does a bang up job, the style of the photos really captures the company’s business and drive. As the company can do anything they like with the photos and they are so good, the company develops a TV advertising campaign around them. Everyone now recognizes the photos.

Now, a new customer comes to the photographer as says “Hey, I really liked your work I saw on TV. Would you do some photos like them for me?” Who has the copyright? Can the photographer make similar photos for someone else? Shouldn’t the company be able to purchase the copyright for a lot of money, so that their competitor’s can’t “copy” the photos for their ads. The company wants more protection than keeping the competitors from using a pixel for pixel copy. They need to keep others from using the recognizable style of the photos, the elements of photos that would cause someone to say “Hey those look like the picture in those ads I saw.”

I'd be happy with that. Sign me up for that program.

But would your clients?

--
Regards,
Carl

 

[BorisK1]

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.

Again, there are two notions: Owning a copy of an image, and owning copyright to an image.

You can pay a photographer for a copy , for copyright , or for both. (The price, quite likely, will be different).

When you pay, you and the photographer enter into agreement - a legally binding contract. That contract should specify what is it exactly that you're buying.

Now, if the contract doesn't spell it out, and there's a dispute, then you need to consult the laws.

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."

This is not a complete sentence. Is this a definition of the "work for hire"? If it is, I just read through it, and it doesn't seem to include me going to a studio and ordering a portrait. I'm not a lawyer, but let me take a shot at parsing it, and see if it applies to that portrait:

"(2) a work specially ordered or commissioned for use as a contribution to a collective work

• A portrait is not 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

• A portrait is none of these things.

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

• The studio contract does not state this

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."

• A portrait cannot be considered "supplementary work". It's not a supplement for publication or anything of the sort.

So, exactly, what point were you making with that quote?

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.

Some of this logic comes from film photography, where the photographer could either retain the negative, or pass it on to the client. Nowadays, when copying is so simple, it's a lot harder for a photographer to control what is happening to the image - so perhaps the laws will change. Give them fifty years or so

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.

Suppose, this was the law. Would it make it illegal for somebody to say "I can make your portrait for $100 and you can do anything you please with it, or I can do it for $50, but you promise to order all the copies from me, as you need them?"

I know!

Because doing so would eliminate the need for copyright lawyers.

Actually, I don't think it would make any difference whatsoever. Well, instead of copyright violations, people would sue for breach of contract.

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.

Unless explicitly stated by a contract, right?

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

This is pretty much the case now.

100,000 lawyers would immediately be out of employment.

I doubt it.

 

[Bucks son]

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.

But why not? What is the advantage to giving the copyright to the
buyer?

The advantage is twofold as I see it...

In the case of someone who is hired I think it would make it much simpler, for one. That would end any confusion that currently exists, since Intellectual rights currently do not extend in some cases of those who are hired and they do in others.

The other reason that the one who hires should hold all rights is because there would be no product if Person 'A' did not hire Person 'B' in the first place. Person 'B' would be sitting there twiddling his thumbs. Why should Person 'B' be able to control the use of a product that wouldn't even exist if Person 'A' did not hire Person 'B' in the first place?

It's an entirely different situation if Person 'B' stops twiddling his thumbs and decides to take a series of photos and assemble them into a coffee table style book and then set about to selling it. Person 'B' should then hold all rights.

Such will never happen though because as I mentioned previously, simplifying copyright laws would instantly put many, many lawyers out of business. They're not going to go down without a fight. Secondly, they have lots of people mentally conditioned to having their hand in the proverbial punch bowl. How many photographers, et al, would be willing to all of the sudden give up Intellecual Rights when they are hired?

 

[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.

Should? Why?

If the default was that the commissioner gets the copyright, then
the default price should be high to start with.

Not necessarily. The boy with no shoes didn't know he was poor until he saw a boy with shoes. Likewise, photographers, et al, who are hired didn't know they could squeeze extra money out of people until greedy lawyers entered the scene. Whatever happened to the concept that people simply get paid for doing a job? Oh, I know...lawyers saw $$$$ to be made. ; )

Under your rule, if you wanted the price you would pay now, then you would need an agreement that the creator would get the copyright.

I don't quite understand the point you are making. Could you word it differently?

 

[Bucks son]

I still don't grasp the reasoning behind that. Why should someone
who you pay, retain ownership of your property? If I hire a
builder to build me a house, he doesn't retain ownership or any
rights to it once he is paid. Why is a portrait any different?

Copyright and ownership are different.

You own the portrait , but not the right to make copies of that
portrait (except for personal use).

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".

Copyright and intellectual property, if the result of lawyers,
isn't a new result. It is old enough to be in our Constitution.

Could you cite where?

DIPics

 

[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.

Not really, you are buying the right to use it for less then it
would cost to own it. You are buying the photographic equivalent
of a financial derivative - one part of a product that has
separable value from the rest.

If you bought ownership you would pay more. As with finacial
derivatives this gives you the ability to pay only for the value
you need; not the whole thing.

Thanks for the clarification on the more finer points.

 

[Bucks son]

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?

Thanks for sharing this anecdote. My thinking is as follows: You wouldn't hire an electrician to put a new roof on your house. He's not geared up for the challenge, plus he most likely has little or no experience. Likewise, you wouldn't hire a roofer to do a photo shoot.

The photographer in the above example is putting himself out for hire just the same as the electrician and the roofer. The only difference between the three is that his area of expertise is in photography. He should do the job, get paid, go home, end of story.

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.

Glad to see someone else who feels similar to me. As for a program to certify photographers...there are organizations they can belong to that have minimum standards. A photographer's portfolio should be enough "certification" as far as I'm concerned, since any test of his technical skills/knowledge doesn't mean he has an 'eye'. No need for more regulation and government fees and such.

 

[Bucks son]

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.

But that’s not the end of the story. Copyright is not primarily
about what the customer can do with the photo. Its about who can
copy the creativity that the photographer put in the photo.

Say a company uses such a certified photographer to produce photo
for their annual report. The photographer does a bang up job, the
style of the photos really captures the company’s business and
drive. As the company can do anything they like with the photos
and they are so good, the company develops a TV advertising
campaign around them. Everyone now recognizes the photos.

Now, a new customer comes to the photographer as says “Hey, I
really liked your work I saw on TV. Would you do some photos like
them for me?” Who has the copyright? Can the photographer make
similar photos for someone else? Shouldn’t the company be able to
purchase the copyright for a lot of money, so that their
competitor’s can’t “copy” the photos for their ads. The company
wants more protection than keeping the competitors from using a
pixel for pixel copy. They need to keep others from using the
recognizable style of the photos, the elements of photos that would
cause someone to say “Hey those look like the picture in those ads
I saw.”

Your example is not valid. You cannot copyright an idea or a concept.

I'd be happy with that. Sign me up for that program.

But would your clients?

--
Regards,
Carl

 

[Jim Coffey]

Copyright and intellectual property, if the result of lawyers,
isn't a new result. It is old enough to be in our Constitution.

Could you cite where?

Art 1, Sec 8:

Congress has the power:

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

 

[Bucks son]

BorisK1 wrote:

[snip]

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.

Huh? The convoluted definition of a “work for hire” that you cite
below does not keep someone who hires a photographer from agreeing
ahead of time that the copyright will be transferred.

I didn't say it does.

It does seem that a client can request that he own the copyright of a commissioned photograph and the photographer can sell the copyright.

Yes. I was making the point that current copyright laws prevent the one who was hired from having any intellectual property rights in some situations.

(snip)

I thought it seemed illogical and unfair to grant intellectual
rights to someone who was simply hired to produce something.

I don’t. It promotes creativity. As noted by Boris, if you hire
someone to produce something and you want the copyright, then
contract with the producer to assign the copyright to you. Not so
difficult.

I think it is unfair to grant intellectual property to someone who
simply hired me to produce something. If he hired me for a
portrait he should be happy with getting a portrait.

You seem to have things reversed. It is you who should be happy that he hired you.

He should not get rights to the creativity that I put into the portrait,

I think he should get all rights to the image. It's a photographer's job to take pictures. It's a lawyer's job to go to court and argue cases. A lawyer may use some very creative tactics to win a case. That doesn't mean he can copyright those tactics. Furthermore, person's degree of creativity may vary widely. It may range from zero input to 100%. How can a percentage be put on how much "creativity" is involved? Look at school photographers. It's an assemby line. Where's the creativity? It's a formula: Main flash; fill flash; adjust height of seat.

You would be sitting there twiddling your thumbs if he did not hire you to take his portrait. Why should you have control over whether the resulting image can be copied simply because you were hired to do your job?

creativity I may want to use in other portraits for other customers.

You cannot copyright ideas, concepts, creativity, etc.

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.

Well no. The basic rule now only requires one law. Did you
create it? If the answer is “Yes” then you have the copyright
(unless you agree that someone else gets it).

Second, the 100,000 would still have plenty to keep them busy.

What does commissioning mean? Say, I go to a county fair. I pay
to have my photo taken with my face in a cutout of a milkmaid
milking a cow. Did I commission the photo?

Yes.

Do I get the copyright?

You should, IMO.

Do I get the exclusive rights to copies?

You should, IMO.

Is the next picture taken in the cutout a copy?

Why should it be?

Is not exactly the same (different face) but pretty darn similar.

There's your answer.

Under your rule should the photographer make me agree that he gets the copyright when he takes my money?

Under my rule, you would own all rights to the image, not he. He gets the money and you get the image and all rights to said image. It's fair and logical.

 

[Lunatic59]

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.

But why not? What is the advantage to giving the copyright to the
buyer?

The advantage is twofold as I see it...

In the case of someone who is hired I think it would make it much
simpler, for one. That would end any confusion that currently
exists, since Intellectual rights currently do not extend in some
cases of those who are hired and they do in others.

The other reason that the one who hires should hold all rights is
because there would be no product if Person 'A' did not hire
Person 'B' in the first place. Person 'B' would be sitting there
twiddling his thumbs. Why should Person 'B' be able to control the
use of a product that wouldn't even exist if Person 'A' did not
hire Person 'B' in the first place?

It's an entirely different situation if Person 'B' stops twiddling
his thumbs and decides to take a series of photos and assemble them
into a coffee table style book and then set about to selling it.
Person 'B' should then hold all rights.

Such will never happen though because as I mentioned previously,
simplifying copyright laws would instantly put many, many lawyers
out of business. They're not going to go down without a fight.
Secondly, they have lots of people mentally conditioned to having
their hand in the proverbial punch bowl. How many photographers,
et al, would be willing to all of the sudden give up Intellecual
Rights when they are hired?

Simpler for whom? Copyright law while convoluted and sometimes seemingly inequitable is not that hard to understand. The problem comes in when people argue who actually was the "creator" of the thing protected. In a case published in a Graphics Art journal some years back [I forget exactly which one] they demonstrated the problem by a lawsuit that had actually made it to litigation. A jeweler hired an Ad agency to produce an advertisement for a local publication. The photographer was hired by and directed by the agency, with the approval of the jeweler. The project was completed and everyone was paid. Shortly after, the jeweler contracted the same agency to create a catalog. The agency used the photo from the ad in the catalog, i believe on the cover, without the permission of the photographer. The photographer sued both the agency and the jeweler when his request for additional compensation was rejected. As I understand it, without a specific statement of copyright ownership in a contract, the copyright always reverts to the "artist". In this case there were two issues. One, that they [the defendants] argued that even though the contract clearly stated that the use was for an ad for the client, it did not limit it solely to that specific single use. Since it was the same client, the original use license should be in force. Secondly, that since the agency's art director was contributory to the "creativity" of the final photograph, they were, at least in part, co-creators and held copyright as well. The ruling went against the photographer in that the agency as not required to pay an additional fee for the use and that the jeweler did not have to stop using the catalog.

The problem with your simplified approach to copyright is twofold. First, those hiring creative individuals such as photographers, could easily say that the project was a small budget local project, pay them a small fee for services and then use it prominently nationally as well as sell it for use by others without any subsequent income for the photographer. All of a sudden, every project become small and underfunded. Once the shot is in the hands of the buyer, thay can do as they please in perpetuity.

As a result of that scenario, photographers would raise thier prices to cover the possibility of such an inequitable deal. Then, even the samlles job could command a premium price.

--
The following is not an advertisement, editorial or political commentary.

http://cmgd.net

 

[Bucks son]

Copyright and intellectual property, if the result of lawyers,
isn't a new result. It is old enough to be in our Constitution.

Could you cite where?

Art 1, Sec 8:

Congress has the power:

"To promote the Progress of Science and useful Arts, by securing
for limited Times to Authors and Inventors the exclusive Right to
their respective Writings and Discoveries."

Thanks. But you have to admit it's more than a stretch to include a photographic portrait that was commissioned, as a "Writing" or a "Discovery". It's the end result of a job, just like any other job.

Granted, photography wasn't invented yet, but painting and sculptures were. It clearly limited copyright to writings and inventions for good reason. Slick lawyers with a gleam in their eye are the ones who extended the meaning and intent.

Although Intellectual Property Rights may now be legal in many instances, my sense of fairness would not allow me to charge two, three, four times (and more) for a job I did once.

 

[Bucks son]

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.

But why not? What is the advantage to giving the copyright to the
buyer?

The advantage is twofold as I see it...

In the case of someone who is hired I think it would make it much
simpler, for one. That would end any confusion that currently
exists, since Intellectual rights currently do not extend in some
cases of those who are hired and they do in others.

The other reason that the one who hires should hold all rights is
because there would be no product if Person 'A' did not hire
Person 'B' in the first place. Person 'B' would be sitting there
twiddling his thumbs. Why should Person 'B' be able to control the
use of a product that wouldn't even exist if Person 'A' did not
hire Person 'B' in the first place?

It's an entirely different situation if Person 'B' stops twiddling
his thumbs and decides to take a series of photos and assemble them
into a coffee table style book and then set about to selling it.
Person 'B' should then hold all rights.

Such will never happen though because as I mentioned previously,
simplifying copyright laws would instantly put many, many lawyers
out of business. They're not going to go down without a fight.
Secondly, they have lots of people mentally conditioned to having
their hand in the proverbial punch bowl. How many photographers,
et al, would be willing to all of the sudden give up Intellecual
Rights when they are hired?

Simpler for whom? Copyright law while convoluted and sometimes
seemingly inequitable is not that hard to understand. The problem
comes in when people argue who actually was the "creator" of the
thing protected. In a case published in a Graphics Art journal some
years back [I forget exactly which one] they demonstrated the
problem by a lawsuit that had actually made it to litigation. A
jeweler hired an Ad agency to produce an advertisement for a local
publication. The photographer was hired by and directed by the
agency, with the approval of the jeweler. The project was completed
and everyone was paid. Shortly after, the jeweler contracted the
same agency to create a catalog. The agency used the photo from the
ad in the catalog, i believe on the cover, without the permission
of the photographer. The photographer sued both the agency and the
jeweler when his request for additional compensation was rejected.
As I understand it, without a specific statement of copyright
ownership in a contract, the copyright always reverts to the
"artist". In this case there were two issues. One, that they [the
defendants] argued that even though the contract clearly stated
that the use was for an ad for the client, it did not limit it
solely to that specific single use. Since it was the same client,
the original use license should be in force. Secondly, that since
the agency's art director was contributory to the "creativity" of
the final photograph, they were, at least in part, co-creators and
held copyright as well. The ruling went against the photographer in
that the agency as not required to pay an additional fee for the
use and that the jeweler did not have to stop using the catalog.

Thanks for relating the anecdote. While the courts did find in favor of the one who did the hiring, all could have been prevented if the law simply gave all rights to the use of a product to the one who does the hiring. It only makes sense and is the only really fair thing to do.

The problem with your simplified approach to copyright is twofold.
First, those hiring creative individuals such as photographers,
could easily say that the project was a small budget local project,
pay them a small fee for services and then use it prominently
nationally as well as sell it for use by others without any
subsequent income for the photographer. All of a sudden, every
project become small and underfunded. Once the shot is in the hands
of the buyer, thay can do as they please in perpetuity.

Why should it matter to a photographer how his product is used? His skill should determine (and does) how much he charges, not the use of his product. Case in point...

All photographers start somewhere. Someone just starting out might charge $200 a day for his time. As his portfolio and reputaion grows, so does his day rate. He will know when his rates exceed his talent, because his workload will begin to decline.

Similarly, an ad agency hires photographers who they know can get the job done. They know that John Doe charges $10,000 a day and if the project calls for someone with his caliber of work, then he will get the job. No amount of telling John Doe "But it's only for a small ad we're running in Topeka" will get him to lower his price. They want his skills, they pay. John Doe doesn't care if it's going to run in Topeka or nationwide. He got his $10,000.

As a result of that scenario, photographers would raise thier
prices to cover the possibility of such an inequitable deal. Then,
even the samlles job could command a premium price.

As pointed out, when a photographer's rates exceed his skills, he will know it and lower his prices. Let him demand what he wants if he can get it. It's called capitalism and a free market enterprise.

 

[Bucks son]

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.

You're missing the intention of why Intellectual Property Rights were established originally: To encourage scientific exploration (Writings) and development (Inventions). Granting rights for a "limited time" to people for their creations and inventions provides motivation to put on the thinking caps.

I feel that that original intent has been bastardized by self-serving lawyers who managed to successfully stretch the original intent to include work that is done by someone who is hired to take a picture.

Nevertheless, no matter how creative (or uncreative) a photographer is, his ideas, concepts, and style cannot be copyrighted. Only the product of his ideas, concepts, and style can be. Only the actual image and nothing that led to its creation can be copyrighted.

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.

My obtaining the rights to an image cannot prevent you or anyone from producing a similar image. If that were the case, if you used a brown backdrop, then no one else could ever use a brown backdrop.

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

 

[jugglervr]

Eh. A good portfolio doesn't guarantee any special technical competence. I've pulled one good photo out of a whole memory card of crapp. a client wouldn't be happy with that. A minimum certification program would ensure at least technical competence and some training in aesthetic forms (i bet lots of paid photogs haven't heard of the rule of thirds)

I'd even go so far as to suggest specialization fields in the program. as in, "I'm basic certified and I have a specialization in editorial portraiture, commercial portrature, and event photography"