"Techincal Copyright"?

[Burnt Toast]

I did a wedding a few months back as a favor for a friend (turned out to be hell). She is now saying that she and her business has a "technical copyright" to the photos that I took and that it is illegal for me to distribute them. Thing is, she never had me sign a single piece of paper. No contract was made. How can she have the copyright to them? Or is she just BSing me?

[Todd Lambert]

Tell her to pound sand. She cannot keep you from distributing your shots. If she had a contract in place that kept her as the only photographer at that event, she could only prevent you from shooting your photographs to begin with - and if she or the location did not prevent you from doing that, too bad. Once you've already captured your shots, they are yours and yours only - do what you wish with them.

[Burnt Toast]

Thought so. I've never had someone said they owned a "technical copyright", so it threw me off.

[Karl Johnston]

I have technical copyright of this forum, just so you all know.

(in other words: technical copyright is a word used in place of describing a completely meaningless statement).

[asysin2leads]

She's so full of crap her eyes are brown. The only way that she would retain copyrights is if you were "work for hire" and a contract was signed attesting to this. No contract....no WFH. Tell her to piss up a rope.

[freaking102]

I did a wedding a few months back as a favor for a friend (turned out to be hell). She is now saying that she and her business has a "technical copyright" to the photos that I took and that it is illegal for me to distribute them. Thing is, she never had me sign a single piece of paper. No contract was made. How can she have the copyright to them? Or is she just BSing me?

if you have no written contract, then your verbal agreement is your contract. what was the content of your verbal agreement?

[RDKirk]

I did a wedding a few months back as a favor for a friend (turned out to be hell). She is now saying that she and her business has a "technical copyright" to the photos that I took and that it is illegal for me to distribute them. Thing is, she never had me sign a single piece of paper. No contract was made. How can she have the copyright to them? Or is she just BSing me?

If you do not have a contract that very specifically transferred copyright to her, then the copyright belongs to you. "Work for hire" would not apply in this kind of situation, nor were you an employee. A court's initial interpretation of copyright law would give the person who pressed the shutter release the copyright unless someone had clear proof that you had contracted to transfer the copyright.

And a verbal contract needs bona fide witnesses.

If you have any copies of those images, I advise you to register your copyright immediately. It can be done online, up to 700 already-published images at one time for $35 (no limit to the number of unpublished images for a $35 submission).

[Burnt Toast]

if you have no written contract, then your verbal agreement is your contract. what was the content of your verbal agreement?

She just asked me to be a second shooter at a wedding (because of unprofessionalism on her part, I ended up being the only shooter, and first wedding too) and that she'd pay me for it (which was really cheap). The person who pulled this "technical copyright" is actually being threatened with a court case by the bride (I posted about what happened right after the wedding in this post---->http://photography-on-the.net/forum/showthread.php?t=745926). This is a bit of what I was told:

"My attorney wants to make sure that you are aware that you are not allowed to give out any pictures. Even if you took them, not only are they of interest to the case at hand but they are also technically copyrighted under (her business) name. Any distribution that isnt paid for or authorized by me is illegal and can come back to bite you in court if it gets that far."

This is about 2 months after the wedding.

[RDKirk]

"My attorney wants to make sure that you are aware that you are not allowed to give out any pictures. Even if you took them, not only are they of interest to the case at hand but they are also technically copyrighted under (her business) name. Any distribution that isnt paid for or authorized by me is illegal and can come back to bite you in court if it gets that far."

Here is where you might want to get the opinion of a lawyer, but it has nothing to do with copyright.

If she's being sued by the bride over photography of a wedding you shot and you haven't been named in the suit yet, you might well want to stay well away from anything having to do with it.

[Burnt Toast]

Here is where you might want to get the opinion of a lawyer, but it has nothing to do with copyright.

If she's being sued by the bride over photography of a wedding you shot and you haven't been named in the suit yet, you might well want to stay well away from anything having to do with it.

I haven't been mentioned in the suit, so I am trying to stay clear of everything.

[exile]

She just asked me to be a second shooter at a wedding (because of unprofessionalism on her part, I ended up being the only shooter, and first wedding too) and that she'd pay me for it (which was really cheap). The person who pulled this "technical copyright" is actually being threatened with a court case by the bride (I posted about what happened right after the wedding in this post---->http://photography-on-the.net/forum/showthread.php?t=745926). This is a bit of what I was told:

"My attorney wants to make sure that you are aware that you are not allowed to give out any pictures. Even if you took them, not only are they of interest to the case at hand but they are also technically copyrighted under (her business) name. Any distribution that isnt paid for or authorized by me is illegal and can come back to bite you in court if it gets that far."

This is about 2 months after the wedding.

OK, lets separate this out into 2 different issues:
1. Who owns the copyright.
2. What you can do with the images.

1. Who owns the copyright:
You were paid $100 for the work you did for the other "photographer", but you had no written contract. This is important! Under UK law images can be licensed with a verbal agreement, but copyright can only be transferred via a written agreement. Check what the law in the US says about this.

2. What you can do with the images:
This is more difficult to answer with an on-going court case. However, after your experience with the unprofessionalism of the other "tog" I'd be inclined to make sure that your involvement with the case ends here. How much crap do you think might get flung in your direction? Protect yourself by checking your own legal position and registering your copyright if appropriate.

Good luck.

[amfoto1]

The same is true in the US, I am pretty certain... Check the law posted at the copyright office's .gov website if you wish.

Ownership of copyright can only be transfered in writing.

That being the case, since nothing is in writing, there has been no transfer of copyright.

Another clue, normally an attorney would not tell their client to tell another involved party anything. The attorney would contact you directly and in writing.

It's a load-o-crapolla....

However, I strongly agree, there are a lot of ugly things happening and you would do well to protect yourself. Yes, one would be to register your copyright immediately (info on the website how to do that). And, you might want to consult an attorney yourself. If money is an issue, there are "attorneys for the arts" organizations that offer low cost or free initial consultations, various places around the US.

I read your other post and think this is going to get even uglier. Does the other photog still have your photos up online somewhere? With her business name watermarking them or otherwise representing them as her own? Have you gotten your images back (whatever that means... I sincerely hope you didn't turn over the originals and not keep copies of the files)?

If she's displaying your stuff and representing it as her own, you quite likely should be sending her a "cease and desist" order for violating your copyright. However, you should check with an attorney about this, and likely they should write and send the letter.

She is a "controller"... a "hyper controller" actually, and a lazy one at that. She probably thinks the B&G are going to contact you directly and try to buy images from you. Even if they do, I would just politely tell them it will have to wait until after their suit is settled, before you can discuss it.

You might be called to testify as a witness... Your earlier post might be entered as evidence.

Hey, I ain't no lawyer, this is just advice from another photographer here... do as already suggested and look to protect yourself... and never take another gig with this photographer!

And, by the way....
It's my understanding that using images of someone or persons in a portfolio would constitute the intent to market or advertise ones self for the purpose of promoting business for personal or financial gain. For this I believe a model release or contractual agreement allowing use of the images needs to be in hand.
...is largely incorrect. (This was part of a response to your earlier post.)

An artist's portfolio display of an image - whether online or in print - is considered "editorial" usage (not "commercial") and a model release is not commonly required. It might be advisable as a precaution and a good practice to always get one, but it's not mandatory for a portfolio display. Some notable exceptions where you would be most wise to get a release before including an image in your portfolio would be nudes, any image that might be considered derogatory, etc. In these cases you had best take the extra steps to protect yourself. Again, check with an attorney about this, but usually the worst that can happen with simple display of an innocuous image is that someone might send you a "cease and desist", you simply take the image down, and the issue is ended. No harm, no foul.

In this particular situation, I wouldn't use the images in my portfolio until after the suit were settled between the other photog and the B&G. At that point, I might contact the B&G and do them the courtesy of letting them know I will be putting a few images I made at their event into my portfolio. If it just so happens that they then become informed that there is another source of images from their special day, well so be it.

Oh, and yes, a verbal contract is valid (except for transfer of copyright).... it's just damned hard for anyone to prove. In the real estate business we used to say a verbal contract was worth a little less than the paper it was written on. ;)

(p.s. I'd really love to look at that photog's website, if she has one! But you shouldn't post it publicly.)


Cheers!

[jgrussell]

Under US law, a second shooter hired specifically for that purpose may very well be regarded as having produced a "work for hire" in which case she DOES own the copyright.

[WMS]

After reading your other post on the out of the wedding went I can see several things that the bride and groom might be very unhappy about and that they are seeking an attorney to guide the mom on a civil suit. Noting that you will would wisely choose to be left out of such a suit I would suggest you talk to a local attorney as to who owns the copyright of the photographs without a written agreement it would be very difficult for her to argue that she has the rights to the copyright and supposed to you who actually took the photographs.

It also would probably be in your best interest to determine what the civil suit is going to be about if it has already been filed. This would probably also be best handled through your attorney. Unfortunately the attorney fees will probably cost you even more than the meager $100 that you made for taking of photographs but if they can keep you from becoming involved in a civil suit against the other photographer you're probably going to be ahead by spending the money.

One advantage of having her claim to be your employer and that the photographs would be a work for hire is that it also would seem to insulate you from the civil suit or the pending civil suit as the case may be. I would not agree to assigning her the copyright to your photographs (retroactively) because the bride and groom may want to purchase additional photographs after all is said and done to get a better quality wedding album. It should also be noted the JGR could be very correct in that your work could be construed as a "work for hire" and that you do not have a claim to a copyright for your photographs. Unless there is a significant amount to gain your wisest course of action might be to write this one off as a learning experience.

Yes I know my opinion on this mater does go several ways at once, I just don't have all of the available information to decide for you.

Wayne

[RDKirk]

Under US law, a second shooter hired specifically for that purpose may very well be regarded as having produced a "work for hire" in which case she DOES own the copyright.

Not unless the "second shooter" is a bona fide employee--which had better be provable by tax records. The only case in which "work for hire" applies to a non-employee is for group projects such as commercial motion pictures--and if you check the details of what that means, a wedding "second shooter" definitely does not apply.

The "work for hire" provision in the US was deliberately written to favor the creator, not the employer--it is virtually impossible to be accidently working for hire unless one just didn't read his contract (which is "stupid," not "accidental").

[turaund1]

wow what friend

[RDKirk]

An artist's portfolio display of an image - whether online or in print - is considered "editorial" usage (not "commercial") and a model release is not commonly required. It might be advisable as a precaution and a good practice to always get one, but it's not mandatory for a portfolio display.

That is also my reading of the statute and the information on the copyright.gov site.

However, I've been told in correspondence with an experienced IP attorney specializing in photography with lots of web experience as well (and who is also a part-time professonal photographer), that a number of court cases and settlement details are pointing toward a legal frame of mind that putting images on a website that promotes a photographer's business is likely to be ruled a commercial use if it comes before a court.

Use in a hardcopy portfolio seems to be safe, considered a "private showing" even if you're mailing it to a dozen art directors. Also, use in a secured website appears to be safe, also considered to be a "private showing."

[WMS]

the question as to whether or not the original poster was an employee, could also be addressed by noting whether or not FICA and other federal withholding taxes were taken out of the pay and remitted to the U.S. Treasury. If they were not this would indicate that the other photographer was hiring the original poster as an independent contractor in which case no work for hire provision would apply unless stated in a contract as such.

Wayne

[Shootfilm]

Ive been in this sort of situation. I shoot B&W film as a second of sorts only. I work for a number of all digital guys and gals. I take what they tell me to take, usually formalsand B&G. Recently one of the gals decided I didnt need to be paid. Upsetting to say the least but I withheld the photo's in hopes to be paid. I was sued and I lost. It really boiled down to one question the judge asked. "Would you have shot the photos if you were not asked to take them by the plantif?" Of course my answer was no and I did have to give up the film. We did counter and was awarded fees and contracted amount. I handed everything over and she handed me with her bankruptcy lawyers card.
The only good to come of this was that her lab trashed the film and she didnt make a dime. I reshot the B&G on my own for free and they purchased enough nice fiber prints to pay for my loss with exception of the legal fees.

Shootfilm

[WMS]

Did the bankruptcy court to dismiss the previous courts award?

Wayne

[Shootfilm]

Did the bankruptcy court to dismiss the previous courts award?

Wayne

Im not sure dismiss is the right word but no we were not able to collect on the judgement. We also had to release the lien placed on her home. I dont see it as a negative we all have the right to file if need be. Im sure there were more reasons for the bankruptcy than my piddly judgement. Hopefully ill never need it but if I did its a right im sure I would be thankful for.


Shootfilm

[WMS]

I was under the impression that court awards were not something that could be dismissed by the bankruptcy court however, I could be very wrong on this.

Wayne

[Shootfilm]

I was under the impression that court awards were not something that could be dismissed by the bankruptcy court however, I could be very wrong on this.

Wayne

Very wrong, student loans and taxes are the only ones I know of.


Shootfilm

[RDKirk]

Ive been in this sort of situation. I shoot B&W film as a second of sorts only. I work for a number of all digital guys and gals. I take what they tell me to take, usually formalsand B&G. Recently one of the gals decided I didnt need to be paid. Upsetting to say the least but I withheld the photo's in hopes to be paid. I was sued and I lost. It really boiled down to one question the judge asked. "Would you have shot the photos if you were not asked to take them by the plantif?" Of course my answer was no and I did have to give up the film. We did counter and was awarded fees and contracted amount. I handed everything over and she handed me with her bankruptcy lawyers card.

A. You didn't register your copyright.

B. Copyright wasn't the issue or you would not have been in that court. Copyright cases are exclusively in the jurisdiction of federal courts.

If you had registered your copyright, then in response to their state tort suit, your lawyer could have raised the ante and handed them a federal copyright violation lawsuit.

I've mentioned before in this or some other recent thread that I've had a number of impassioned discussions with my own colleagues--friends I consider them--who strongly believe the studio should own the copyright of the work of shooters they contract on a per job bases even without a contract, but that's just not the law, and even when our IP legal beagles chime into the conversation with, "Copyright transfer had better be explicit in your contract," they fuss and fume about it.

[T2000]

"the question as to whether or not the original poster was an employee, could also be addressed by noting whether or not FICA and other federal withholding taxes were taken out of the pay and remitted to the U.S. Treasury."

"Not unless the "second shooter" is a bona fide employee--which had better be provable by tax records."

The relevant law that courts look at for determining whether someone is an employee for purposes of the definition of "work made for hire" is the common law of agency. The tax treatment is one factor that would be looked at but it is not determinative.

[RDKirk]

To clarify what the US government says about work for hire:

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

Section 101 of the copyright law defines a “work made for hire” as:
1 a work prepared by an employee within the scope of his or her employment;
or
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 a 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

http://www.copyright.gov/circs/circ1.pdf

In the case of works made for hire, the employer and not
the employee is considered to be the author. Section 101 of
the copyright law defines a “work made for hire” as:
1 a work prepared by an employee within the scope of his or
her employment; or
2 a work specially ordered or commissioned for use as:
• a contribution to a collective work
• a part of a motion picture or other audiovisual work
• a translation
• a supplementary work
• a compilation
• an instructional text
• a test
• answer material for a test
• 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.

The authors of a joint work are co-owners of the copyright
in the work, unless there is an agreement to the contrary.
Copyright in each separate contribution to a periodical
or other collective work is distinct from copyright in the collective
work as a whole and vests initially with the author of
the contribution.

Notice with regard to supplementary work: "...if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. "

BTW, government documents are not copyrighted.

[exile]

To clarify what the US government says about work for hire:

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


http://www.copyright.gov/circs/circ1.pdf


Notice with regard to supplementary work: "...if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. "

BTW, government documents are not copyrighted.

Seems pretty clear! Nice find.

[Burnt Toast]

I'm not an employee of hers and when she contacted after the wedding asking me if I wanted to be a contracted employee, I declined immediately. Fool me once...

Another clue, normally an attorney would not tell their client to tell another involved party anything. The attorney would contact you directly and in writing.

I thought that was pretty fishy, too. I haven't received anything from any attorney, so I'm not sure what she's doing. I have a feeling that things are going to get ugly between the bride and other photographer.

She probably thinks the B&G are going to contact you directly and try to buy images from you. Even if they do, I would just politely tell them it will have to wait until after their suit is settled, before you can discuss it.

The B&G DID contact me, saying that the other photog was refusing to hand over the photos for a breach of contract (she was supposed to be the sole photographer, and she said that the guests were taking photographs, which violated the contract). They had seen that I was pretty much the only one working and was asking what I could do. So I gave them what I had, no charge at all (I felt terrible for the bride. I could tell that she was very unhappy). This was BEFORE I was contacted about a potential suit, though.

Does the other photog still have your photos up online somewhere? With her business name watermarking them or otherwise representing them as her own? Have you gotten your images back (whatever that means... I sincerely hope you didn't turn over the originals and not keep copies of the files)?

The other photog doesn't have my photos displayed anywhere, so far as I know. I have gotten some of my images back, but many of them are missing and the disk which I received had quite a few of her photographs. I also received photos of mine that were edited by her, and I'm not fond of how she did them. :/ Alas, I had to turn over my originals to her. She persistently insisted I upload the photos then and there at the wedding, and at that point I was tired and sore and just wanted the night to be over. She has most of my RAWs, though when she saw them she was very puzzled and asked what RAW was.

(p.s. I'd really love to look at that photog's website, if she has one! But you shouldn't post it publicly.)

I don't think at this point it'd be a shock if I told you she had only a myspace page for her business.

[WMS]

IF you still have the memory cards in an unused state you might be able to recover the images with recovery software. However I suspect that this is not going to be the case.

Wayne