OT: A Personal Case of Copyright Infringement

Discussion in '35mm Cameras' started by Eric Miller, Jun 9, 2005.

  1. Eric Miller

    Skip M Guest

    Unless the organizers had a signed copyright release, he didn't give up any
    rights. Since they had his permission to use the image, they can, but he
    still has the right to prevent anyone else besides the organizers from using
    it. It certainly hasn't passed into the public domain, which it would have
    to for the newspaper to use it.
     
    Skip M, Jun 11, 2005
    #41
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  2. Eric Miller

    Skip M Guest

    Not sure how it is over there, but in the US, one must be an employee, not a
    contractor, for the recipeint of the images to own the copyright.
     
    Skip M, Jun 11, 2005
    #42
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  3. Eric Miller

    Jerry L Guest

    ....and you do have a signed release in hand from the he/she running in
    your photo that the newspaper ran in the advertisement?
    = = =
     
    Jerry L, Jun 11, 2005
    #43
  4. That depends on the kind of instructions. If I commission a portrait, it is
    not the case that I suddenly become the artist because I selected the person
    to appear in the portrait.

    The concept that is sometimes used is that a copyrighted work has to show
    some unique aspects or style of the artist. If you setup a scene, determine
    the lighting, the framing, the point of view, etc. and then have somebody you
    hired just press the shutter release button, then you can claim the copyright.

    However, in most cases it is the wedding photographer who determines
    lighting, point of view, framing, and decides when to release the shutter.
    That is enough creative input that the photographer gets at least part of
    the rights to the images. And part of the rights is sufficient to prevent the
    client from selling the image without permission.

    If the photographer is not an employee, then basically you have to claim
    (and demonstrate) that the photographer provided negligible creative input,
    which will be tricky unless the photographer was hired just for his
    equipment and didn't do anything other then to press the shutter release
    when asked to do so.

    (disclaimer: IANAL)
     
    Philip Homburg, Jun 11, 2005
    #44
  5. Eric Miller

    Mxsmanic Guest

    But only if they gave the newspaper permission to use the photo, which
    they apparently did not.
     
    Mxsmanic, Jun 11, 2005
    #45
  6. Eric Miller

    Mxsmanic Guest

    False. There has to be a written agreement in order for work-for-hire
    to apply (in the U.S.). No written agreement, no assignment of
    copyright to the organizers.

    But the organizers don't seem to be the guilty party here, anyway.
    In the U.S., you always own the copyright on any image you shoot unless
    you're an employee of a company and you shoot pictures for them as a
    part of your normal job duties ("employee" means that they pay you a
    salary, withhold FICA, provide health insurance, dictate working hours
    and conditions, etc.). In any other case, without a written agreement
    to the contrary, you own the copyright.
    You still own the copyright, unless you've agreed otherwise in writing.
    False. You own the copyright on all the photos.
    False, in the U.S. It's the other way around.
    It happens all the time.
    No such contract is required, unless the photographer is a bona fide
    employee taking pictures as part of his job duties.

    All of this applies in the U.S. The situation in other countries may be
    different.
     
    Mxsmanic, Jun 11, 2005
    #46
  7. Eric Miller

    Mxsmanic Guest

    Yes. In all other cases, the photographer owns the copyright, unless he
    specifically relinquishes it in a written work-for-hire agreement
    concluded in advance.
     
    Mxsmanic, Jun 11, 2005
    #47
  8. Eric Miller

    Mxsmanic Guest

    Yes, if the design of the stand incorporates creative decisions made by
    the fabricator. If it does not, no copryight arises. This is routinely
    the case for ordered items that incorporate creative works, such as
    buildings (distinctive architectural styles), clothing, etc.

    The stand you describe might well be so utilitarian in aspect that it
    doesn't embody a copyright. But you'd have to go to court to find out
    for sure. Typically, such things are not considered to be copyrighted
    works because they incorporate so little creative content.
    You don't have to be an "artist," whatever that is (Mark Twain said it's
    the only thing that nobody can prove you aren't). You _do_ have to have
    some creative input to the design process. It must be original and
    creative. If these criteria are met, copyright applies to those
    aspects.
    No, this is not how it works in the U.S. There is no "servant/master"
    relationship. You are a commissioned artist. Your client has right to
    take possession of the finished work in whatever embodiment you've
    previously agreed to provide, but he does not own the copyright--you do.
    It has worked that way for quite some time in the U.S., including some
    jurisprudence (and now statutory law) that has formalized this.
    That's how it works in the U.S., and some other countries (such as
    France).
    I suppose the U.S. and other countries have a higher opinion of people
    who create intellectual property. Certain the U.S. isn't much into a
    "master/slave" relationship these days.
    Perhaps, but it's the most common embodiment of copyright law.

    I agree that allowing someone to ask for money over and over for work
    done just one time, for his entire life and for a century thereafter,
    seems very excessive. But the original copyright concept was much more
    reasonable, and essential to allow creators of IP to support themselves.
    Microsoft is mostly a creator of IP, and so copyright is important to
    their business model.
     
    Mxsmanic, Jun 11, 2005
    #48
  9. Eric Miller

    Mxsmanic Guest

    No, it's the opposite in the U.S., under current law (and longstanding
    copyright law and jurisprudence). Only employees implicitly relinquish
    their copyrights. In some countries (e.g., France), even employees
    retain "moral rights" that cannot be assigned to anyone else.
     
    Mxsmanic, Jun 11, 2005
    #49
  10. Eric Miller

    Mxsmanic Guest

    He still doesn't expect to get money for their original, authorized use.
    He did not authorize the use in the newspaper.
     
    Mxsmanic, Jun 11, 2005
    #50
  11. Eric Miller

    Mxsmanic Guest

    That's the responsibility of the newspaper, not the photographer,
    although it's best for the photographer to explicitly disclaim
    responsibility for obtaining releases in his contract.

    In the U.S., a release is not required for editorial and certain other
    uses, but it is definitely required for advertising use.
     
    Mxsmanic, Jun 11, 2005
    #51
  12. If you hire somebody to create a copyrighted work for you, you can
    negotiate the rights you get. Certainly when it comes to photography,
    there is always an amateur who willing to give an unlimited license for a
    small amount of money.

    In my opinion it is stupid from society as a whole make copyright last
    as long as it does. But that is mostly a separate problem.
    (the problem is of course that most people ignore copyright issues, so it
    is not on the political agenda. This allows the organizations with a
    big interest in keeping copyright to extent the period at regular intervals
    to make it last for ever.)
     
    Philip Homburg, Jun 11, 2005
    #52
  13. Eric Miller

    Gordon Moat Guest

    There is a clear legal difference in the definition of intellectual property.
    That is defined at length by Copyright Law. Whether something is utilitarian
    does not necessarily limit a particular legal definition. Consider the example
    of furniture, in that an item can be a work of art, and be a functional object
    that will get used (as opposed to just viewed). I don't think it is easy to
    simplify this by picking and choosing an example.

    I should also mention that I have been through three Copyright challenges in
    nine years. I was successful in defending my rights in each case, though the
    experience was not pleasant. In fact, after one case went to arbitration, and I
    still kept the rights that Copyright Law allowed to me, that client apologized,
    and I still do work for them.
    In the United States, the IRS (Internal Revenue Service) defines guidelines for
    employer and employee relations. The situation you describe is exactly that in
    the US, and probably a few other countries. The IRS also has a listing of nine
    criteria for meeting the definition of employee. That definition is in fact
    used in some Copyright legal proceedings, since it is a test of what you
    describe.

    One of my Copyright legal challenges was a claimed "work-for-hire" by the
    company that hired me. They did not meet even one of the nine criteria that the
    IRS defines. In fact, the judge berated the former client for even suggesting
    that what they did was legal, especially without a written agreement. My
    paperwork helped me a great deal in that case.
    Okay, so the laws are different there. I guess that is something I need to
    remember if I do work in those countries. So far, I have only dealt with
    companies in Western Europe and the Unites States, areas that fall under Berne
    Convention protections.
    In other words, at the end of someone "hiring" me to do photography, I could
    claim unemployment compensation, if I were considered an employee. This is how
    the IRS definitions, most state laws, and even US law would cover that
    situation. Furthermore, I would not need liability insurance, since the
    "client" would be considered and "employer", meaning that if I got injured, or
    hurt anyone else during the course of my photography for that "client", then
    the legal responsibility would be to the person who "hired" me.

    It might seem strange, but there are many cases like this each year. One reason
    to look in PDN, or similar photo industry publications, is that they cover many
    of the major issues with Copyrights. The "all right" and "work for hire"
    agreements in many US companies are often found not to be valid, and too often
    used to take advantage of independent contractors. Those sorts of issues also
    fall under US and many states labour laws.
    About the only US law that I do like, due to the protections afforded by it, is
    the Copyright Law. While there have been recent changes, there is still a great
    deal of protection. Since I am also a foreign national (German), I also fall
    under Berne Convention protection within the US. Sure, there are some things
    not to like, but one still needs to know how to work within a system.
    I am fairly certain that the UK is a signatory of the Berne Convention, and
    Madrid Protocol. Maybe I should double check to be sure. China is an example of
    a country that is not a signer, and some current pressure is being put towards
    them to improve their intellectual property laws.
    Okay, just to be clear, I let every client know exactly what they are getting
    up front. They also know that I transfer some rights, and retain some others.
    If a client wants exclusive rights, or all rights, then I negotiate an
    appropriate fee for those. Obviously, a recognizable property, person, or
    product in an image requires an appropriate release and could further restrict
    usage of an image, either for me, or for my client. If you are curious what a
    sample contract looks like, you can see one of mine here:

    <http://www.allgstudio.com/support_files/> file called "AGinv2004.pdf". The
    other part that would go to a client prior to this document is a proposal, in
    which all aspects of a mandate are described. There are no surprises for my
    clients, and I am very fair on my prices, and what I give them.
    Sure, people often complain about Copyright Laws when they see large
    corporations abusing those rights, often to the detriment of the average
    person. The other time we find we don't like these things is when we here about
    some musician that signed a bad contract, and then the record company abuses
    them.

    When this works well is when someone randomly finds an image, and then uses it
    without asking. Some people complain that if they like something, and image or
    a song, then they should just be able to use it, even if they make money from
    using it. This is often termed a "free and open" society idea. In this age of
    technology and information sharing, it is even easier to get things without
    asking. Even large companies take images and then use them without asking, and
    make a profit. These things happen all the time, and often the originator of
    the image never knows. Just because something can be done does not make it
    right, or legal.

    People also complain that Copyright Laws allow some companies to make too much
    money. I don't like Micro$oft anymore than the next guy, but I would never
    claim that it is okay to take from them because "they make too much money".
    There are other laws that can be used against companies to prevent what some
    consider to be unfair business practices, as seen recently by the fines the EU
    handed down against Microsoft.
     
    Gordon Moat, Jun 11, 2005
    #53
  14. Eric Miller

    Gordon Moat Guest

    The "employee" part is often the legal basis for any challenge. One aspect is
    often if the equipment was provided in full to the photographer, something that
    can be argued if the photographer rented that gear, and then the client paid for
    the rental. Of course, there are other tests of an "employee to employer"
    relationship. The idea is to avoid having abuses of independent contractor laws.

    We had a recent case of a local computer company. The woman that owned the
    company told all here employees that they were independent contractors, and were
    also temporary. She worked most of them 20 to 40 hours a week, sometimes for up
    to one month at a time. She provided the office, and all the equipment. Much of
    the work was producing web sites, so she also told the "employees" that they had
    no rights to anything they worked on. She never paid unemployment insurance, nor
    did any tax withholding from any of them. When one former employee filed to get
    unemployment, and happened to list a prior job with that woman, the state of
    California found out what she was doing. They fined her heavily, and made her pay
    back taxes and unemployment insurance for everyone that had worked there since
    she was in business.

    While there are legal temporary agencies, and getting workers from those would
    have avoided the above situation, many business owners just run on a "seat of the
    pants" concept of laws. A photographer working one day could either be an
    independent contractor, or an employee. The care in which the person hiring the
    photographer takes to determine that status could have legal implications. We
    don't have to like these things, they are laws.
     
    Gordon Moat, Jun 11, 2005
    #54
  15. Eric Miller

    Gordon Moat Guest

    Thanks, that is good to know. It seems I would need different contracts if I
    ever do work in Canada or Australia. Of course, a similar situation applies to
    China.
     
    Gordon Moat, Jun 11, 2005
    #55
  16. One of the issues as far as the Dutch law is concerned is whether an
    independent contractor has multiple clients. If a person enters an agreement
    like this with about three or more different companies each year, then it is
    possible for both parties to claim that the work is done by a contractor.

    Another requirement is that a contractor should receive just high level
    instructions about the tasks to be performed and no detailed supervision.

    What you described is not at odds with those requirements.

    However, both the the employer and the employee would have to conspire to
    fake a position as an independent contractor. I doubt that the employer can
    do that convicingly on its own.
    Funny, employees don't get the right to what they work on. Contractors retain
    copyright unless there is a contract that says otherwise.
    In .nl, the issue is usually that both the employer and the employee want to
    see the relationship as one where a contractor is hired, but the office that
    collects unemployment insurance sees it as an employment relationship.
    I think that in .nl, a company that wants to employ a photographer (and obtain
    copyright through the employment relationship) for a relatively short period
    of time (say less then 6 months) should make sure that the photographer
    signs an employment contract.

    An independent photographer probably wants to get the client to sign
    a contract.

    Without written contracts, when the client pays an invoice or when the
    photographer receives a salary payment, the situation is probably fixed.

    (disclaimer: IANAL)
     
    Philip Homburg, Jun 11, 2005
    #56
  17. Clearly, If the US laws are as you say, they would outlaw my contracts which
    are legally binding in Australia Indonesia, theUK and New Zealand. I too got
    involved in copyright litigation but unlike you, the court decided I had
    worked under client instructions and the client therefore was the owner of
    everything I produced.

    Lawyer's fees: $4900
    Court costs: $1800
    Plaintiff's: awarded costs $5800
    Proceeds from shoot: $3800

    Me out of pocket: $8700

    The job? Shoot the wedding of a well known barrister's daughter.
    The dispute?
    Client: "Send us over the negatives of the wedding, will you? I want to get
    some prints made". Me: "Tell me which ones and I'll print them for you".
    Client: "Oh No you don't. I'm not paying your outragious fees just for a few
    photographs".
    Me: "I own the copyright to the images."
    Client: "We'll see about that".

    My lawyer's advice when the summons arrived: "Give the prick what he wants,
    he's got a reputation for this sort of behaviour".
    Me: "Well, do I have a chance of winning?"
    Lawyer: "maybe".
    The greatest understatement ever made! After the settlement I discovered the
    barrister was a declared bankrupt (by the Australian Tax Office) and even if
    I had won, I couldn't have recovered any of my costs. Who would have thought
    a lawyer could remain in business after being decalerd bankrupt? Australian
    law permitted this until quite recently.

    I spent another $1600 on contracts and legal opinions after that. I now have
    a clearer grasp of Australian and British law. No one gets a shutter click
    from one of my cameras without signing a 10 page contract now.

    Douglas
     
    [email protected], Jun 13, 2005
    #57
  18. In Australia no person has a right *NOT* to have their photo taken. Of
    course what you do with the photo could land you in a wrangle by just the
    act of taking a person's photo does not require a release. The concept that
    you have to get a release from anyone in a picture intended for publication
    carries with it the suggestion, you should never photograph a crowd!

    Douglas
     
    [email protected], Jun 13, 2005
    #58
  19. Eric Miller

    Gordon Moat Guest

    It seems that both of us could improve on things a bit by changing our
    contracts for specific areas. Someone else mentioned Canada. Since I have done
    previous design work in Canada, it seems that I will start with that area to
    see how my current paperwork fits in.

    If you really do want to do some creative work in the US, then knowing what you
    can about US laws would help. The legal system in the US (mostly the court
    system) really sucks sometimes, and can run into a spending war instead of true
    justice.

    There was a recent case reported in PDN about Mattel suing a photographic
    artist over his unusual images using Barbie dolls. Since he barely made any
    money from his art, a legal defence group took up his case pro bono. The
    lawyers prevailed over Mattel, though it took over four years for a conclusion.
    Then Mattel appealed, though they lost the appeal. The appeals judge was so
    incensed by the actions Mattel took in this case that it turned out that Mattel
    was fined for a "frivolous lawsuit".

    While Mattel did ultimately loose in that case, there are some important issues
    around it. One was that the artist they tried to sue was using the Barbie dolls
    in unusual scenes as a form of satire. Under US Copyright Laws, satire is one
    of the "fair use" provisions allowed. The other aspect is that this artist had
    no money to defend himself against a large company. If that group did not offer
    to fight for him (I should point out that they made lots of money from Mattel
    in legal fees awarded to them by the court), then he would never have
    challenged Mattel.

    One really bad reality in the US, is that if another group has more money to
    spend on lawyers than you do, they might just prevent you from challenging them
    in court. Even if there would be a reasonable chance you might win, you might
    not be able to spend enough to prove it. Sad situation, though that is one
    barrier we deal might face.
    There is an unfortunate reality is that unexpected crap can happen. I helped my
    mom fight for six years in a civil suit prior to her getting payments to meet
    the debt owed her. The payments have dragged out for six years already, with
    another few to go. If she had demanded all of it, or not settled the case in
    this manner, then that lawyer might have declared bankruptcy, and she would see
    little to nothing.

    Reminds me of that joke about why sharks don't eat lawyers . . . . . . .
    professional courtesy. Of course there is that other joke about the difference
    between a lawyer and a bucket of . . . . . . . . well, you probably heard that
    one already.
    It is unfortunate when it gets to that point, but better safe than sorry. I
    almost quit entirely after my first copyright challenge. Despite that we
    settled after arbitration (basically I won), the effort left me feeling angry
    and bitter. The only thing that keeps me in a creative profession is that I
    really do enjoy what I do for a living. I guess both of us have learned
    something.
     
    Gordon Moat, Jun 13, 2005
    #59
  20. Eric Miller

    Mxsmanic Guest

    In the realm of intellectual property, every case is a roll of the dice,
    and sometimes completely contrary decisions are handed down.
    The mistake? Shooting the wedding of a well-known _barrister's_
    daughter.
    I don't have this problem since I usually give the images (including the
    negatives) to the client, along with a very generous license to
    reproduce them. I retain the copyright, in writing, but since they are
    free to do with they wish, no conflict arises.

    One thing clients like about me is precisely that I do not insist on
    making prints for them and charging outrageous prices for them.
    Like I said, every case is a roll of the dice.
    If one is bankrupt, how can one stay afloat without being allowed to
    practice one's profession? He made more than $10,000 in his case
    against you.
    Ten pages seems excessive.
     
    Mxsmanic, Jun 13, 2005
    #60
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