Who Owns the Copyright??

[30D'er]

Quick question folks.

If i book a wedding and hire an assistant to shoot with me, working for me, using my memory cards but his own camera, who ultimately owns the Copyright to the images shot by the assistant?

[Bob_A]

Good question. I'm assuming that the assistant owns the copyright since that person is the artist.

I wouldn't be surprised if I'm wrong though ...

[alabama1980]

I'm sure to be followed with better info, but from what I have read here and elsewhere, the copyright would be yours since it's a work for hire situation.

Of course you would need paperwork verifying that the assistant was in fact your employee during that time.

[DDCSD]

Unless you have the assistant sign a contract stating that you own the copyright, the assistant owns the copyright to the photos. This is muddied a bit for the posed shots, where you do the posing and set up the shots. Shots where you set up strobes that the assistant used also muddies the water a bit.


The bottom line is, you need to have a contract with the assistant stating that you hold the copyright to any of their photos taken at the wedding. Then there is no question about who owns the copyright.

[FlyingPhotog]

^^^ That ^^^

Draw up a contract that spells out duties, responsiblities, rights, rate (if applicable) and who can do what with images.

[30D'er]

Isn't payment (the assistant fee) a contract?

[DDCSD]

Isn't payment (the assistant fee) a contract?

No.

[30D'er]

damn.

Is it the fact that he used his own camera?

[Bob_A]

Unless you have the assistant sign a contract stating that you own the copyright, the assistant owns the copyright to the photos. This is muddied a bit for the posed shots, where you do the posing and set up the shots. Shots where you set up strobes that the assistant used also muddies the water a bit.


The bottom line is, you need to have a contract with the assistant stating that you hold the copyright to any of their photos taken at the wedding. Then there is no question about who owns the copyright.


That's how i thought it should be. The artist owns the copyright unless it's passed on to someone else via a contract.

[c2thew]

EVERYTHING HAS TO BE SIGNED IN WRITING. (CYA = cover your arse)

[Bob_A]

damn.

Is it the fact that he used his own camera?

I don't think so. I believe it's because they captured the image.

[30D'er]

I wasnt really expecting this answer. Wow. I just realized I shot for someone else for 2 years without a thing to show for it and really should have had a full porfolio based on what i just learned.

[30D'er]

You live you learn

[DDCSD]

damn.

Is it the fact that he used his own camera?

No.

The bottom line is that it is very complicated. Whoever "designs" the shot technically holds the copyright. If the main photographer sets up a formal shot and all the assistant does is push the button, the main photographer likely holds the copyright to that shot.

Now let's say the assistant sees a nice moment from the flower girl and turns and snaps a quick shot. The assistant would likely hold the copyright to that shot.

Work for hire (what this mostly is) really muddies the water. You never know how a court will rule. They could say that you had some kind of verbal contract and rule that the main photog holds the copyrights or they could say that the assistant does.

It also matters how the assistant is defined. Are they an actual employee (salaried worker)? Are they only helping out on the occasional job (contractor)?


Here is what the US Copyright Office has to say about "Work made for hire".
http://www.copyright.gov/circs/circ09.pdf


The only way to avoid any confusion in a situation like this is to have a written contract spelling everything out.

[RDKirk]

Quick question folks.

If i book a wedding and hire an assistant to shoot with me, working for me, using my memory cards but his own camera, who ultimately owns the Copyright to the images shot by the assistant?

There was a situation a few years ago where a photography teacher provided cameras to kids, had them take pictures in the neighborhood at his direction, then processed the pictures himself and graded the kids for their work.

Later, he published the photographs and discovered unpleasantly that he did not own the copyrights, despite the fact that he had provided the cameras, the film, assignment, the direction, the context, and the processing. The kids owned the copyrights to the photographs.

If you do not have something positive in writing to the contrary, US courts will presume the person pressing the shutter release has copyright.

If you hired the person to take photographs, and the courts (and IRS) agree that person is a bona fide employee, that would be a "for hire" situation that gives you as the employer copyright. That is not, however, the normal "second shooter" situation--you'd darn well better be meeting IRS requirements as an employer.

I debate this issue frequently with my studio colleagues who tend to accuse me of being a traitor to the ranks. But the copyright law is pretty clear in this area. If you don't have something in writing specifically to the contrary, you will have an uphill court battle to prove the person who clicked the shutter release does not have the copyright.

[DDCSD]

I debate this issue frequently with my studio colleagues who tend to accuse me of being a traitor to the ranks. But the copyright law is pretty clear in this area. If you don't have something in writing specifically to the contrary, you will have an uphill court battle to prove the person who clicked the shutter release does not have the copyright.


Exactly.



In short. Use a contract. Makes everything crystal clear. ;)

[amfoto1]

The best thing to do is get it in writing, either way.

It's a pretty standard arrangement with wedding shoots, in particular, that the second photographer does not retain copyright... But something must be in writing and signed by both parties acknowledging that to be the case. This is perhaps one of the most classic situations where "work for hire" might be applied.

The other variables might come into play. In some cases, when working under someone else's specific directions and/or using their equipment, the copyright might pass to them. Although the laws define these situations fairly narrowly... It's still best to get it in writing.

When "regularly employed" by someone, with photography as a part of your regular duties, normally the employer will own the copyright. This isn't "work for hire". It's a regular job with a regular paycheck and other standard benefits. Think of a staff photographer at a newspaper or magazine. A friend of mine travelled the world shooting for the Associated Press wire service for 10 years... He was a full time staff photographer and AP owns all the images he took during that time. In case you don't know, AP provides stories and photos to newspapers and other publications worldwide. The publications subscribe to the service. AP has a global staff of writers, editors and photographers, all of whom essentially give up their copyrights to any work created in the course of their employment when they take the job.

I hire second shooters to work with me from time to time, and I normally specify in the agreement we sign that they retain the copyright. I merely have usage for three years to market their images in limited ways and under specific payment terms.

But, my work is not typically weddings, where residual sales might be 5 years or longer and - old school - the photographer tries to form a lifelong relationship with the customer. In that case, it makes some sense for the primary photographer to retain the copyrights. Often there is specific terminology in the second shooter agreement that allows the second shooter to display their images in portfolios, etc.

In all situations, it's simply best to get it in writing, spell out the terms, and have every one read and sign it.

Another very common place that people lose copyright is with various photo contests. Read the fine print. In many cases by entering the contest you give up your copyright or give them unlimited usage of your images. Some photo contest have been more or less a ruses to gather photos, often for resale in royalty free collections either on disks or online.

[DonW]

Even being married to an IP lawyer I always get the same answer when asking these sort of questions." Are you going to open up your check book even if their is a violation?" My answer is alway no especially knowing a case would cost me at least 5 grand just for the initial retainer and I'd never see a dime.
Write a contract stating reasonable damages for a violation up front that you can fight in small claims yourself (ie $100 per picture/print). Even if your second is working for free pay him something even if its only 20 bucks so that there is not a consideration arguement. Use a different contract based on the value of the work. Obviously you would want to make the photos worth big bucks if you were shooting Tiger Woods for Nike. But a basic wedding isnt worth fighting over if you have a general contract that is going to take lot of money to uphold.

Don

[DDCSD]

The best thing to do is get it in writing, either way.

It's a pretty standard arrangement with wedding shoots, in particular, that the second photographer does not retain copyright... But something must be in writing and signed by both parties acknowledging that to be the case. This is perhaps one of the most classic situations where "work for hire" might be applied.

The other variables might come into play. In some cases, when working under someone else's specific directions and/or using their equipment, the copyright might pass to them. Although the laws define these situations fairly narrowly... It's still best to get it in writing.

When "regularly employed" by someone, with photography as a part of your regular duties, normally the employer will own the copyright. This isn't "work for hire". It's a regular job with a regular paycheck and other standard benefits. Think of a staff photographer at a newspaper or magazine. A friend of mine travelled the world shooting for the Associated Press wire service for 10 years... He was a full time staff photographer and AP owns all the images he took during that time. In case you don't know, AP provides stories and photos to newspapers and other publications worldwide. The publications subscribe to the service. AP has a global staff of writers, editors and photographers, all of whom essentially give up their copyrights to any work created in the course of their employment when they take the job.

I hire second shooters to work with me from time to time, and I normally specify in the agreement we sign that they retain the copyright. I merely have usage for three years to market their images in limited ways and under specific payment terms.

But, my work is not typically weddings, where residual sales might be 5 years or longer and - old school - the photographer tries to form a lifelong relationship with the customer. In that case, it makes some sense for the primary photographer to retain the copyrights. Often there is specific terminology in the second shooter agreement that allows the second shooter to display their images in portfolios, etc.

In all situations, it's simply best to get it in writing, spell out the terms, and have every one read and sign it.

Another very common place that people lose copyright is with various photo contests. Read the fine print. In many cases by entering the contest you give up your copyright or give them unlimited usage of your images. Some photo contest have been more or less a ruses to gather photos, often for resale in royalty free collections either on disks or online.




Your definition of "Work Made for Hire" and the US Copyright Office's definition are completely opposite.

http://www.copyright.gov/circs/circ09.pdf