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FORUMS Photography Talk by Genre General Photography Talk 
Thread started 27 Jan 2010 (Wednesday) 15:38
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Photograph Copyright

 
skydiver_8
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Jan 27, 2010 15:38 |  #1

I was browsing through a legal forum and noticed an interesting question posed to the panel of lawyers at the site.

The person asking the question was from Ontario, Canada ( I mention this because copyright laws may be different in other Countries) and they wanted to know who owned the copyright to a photograph which was taken of them, on their own camera.....but by another family member (the in-laws).

The question was posed because the in-law who took the photo, digitally signed it and then posted it as their own on their Facebook page.

I thought this was quite an interesting question since the person who was the photographer (and who we generally refer to as being the holder of the copyright) was not the person who owned the camera or digital negative (on the sd card).

So, according to the lawyer who answered....this was the answer " In Canada, the owner of the "film negative" or in the case of a digital camera of the "camera" or the "memory card" would be presumed to be the owner of the copyright. If a person pays the owner of the camera to take the photo then the payor will be deemed to be the owner but you must have paid the consideration.

The copyright owner has the right to publish the photograph or reproduce it and allow others to do so. This would allow them to publish it on Facebook. However, if the exercise of those rights infringes upon other civil rights such as the right or privacy or if it (or a comment or caption) is slanderous or defamatory, then they run the risk of a lawsuit for such matters.

In respect of your recourses, Facebook has terms and conditions of use and you may be able to get relief from them. If not, you may need to take a claim in the courts and even an injunction to stop the publication. These are costly procedures but if the infringement is causing you harm then it may be worth it. Depending on the damages the claim may be brought before a small claims court. "


If this has been posted in the wrong forum, please move it.


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asysin2leads
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Jan 27, 2010 16:53 |  #2

I would agree that the copyright belongs to the owner of the camera in this case. So, if I have someone take a picture of my wife and me on our P&S, that person owns the copyright to the image? I don't think so.


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Mark_Cohran
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Jan 27, 2010 18:50 |  #3

Actually, by US law the person that "creates" the image owns the copyright at the moment of creation, so yes, even if it were your camera and SD card, the person that took the picture would, by law, own the copyright. Now, how they could register that given it's your SD card, I don't know - but registration is only required to collect damages.

http://www.copyright.g​ov …q-definitions.html#autho​r (external link)

http://www.copyright.g​ov/fls/fl107.html (external link)


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asysin2leads
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Jan 27, 2010 19:47 |  #4

Mark_Cohran wrote in post #9485455 (external link)
Actually, by US law the person that "creates" the image owns the copyright at the moment of creation, so yes, even if it were your camera and SD card, the person that took the picture would, by law, own the copyright. Now, how they could register that given it's your SD card, I don't know - but registration is only required to collect damages.

http://www.copyright.g​ov …q-definitions.html#autho​r (external link)

http://www.copyright.g​ov/fls/fl107.html (external link)

Good point. Chances are the person taking the photo wouldn't know the difference. I stand corrected.


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itzcryptic
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Jan 27, 2010 19:58 |  #5

Mark_Cohran wrote in post #9485455 (external link)
Actually, by US law the person that "creates" the image owns the copyright at the moment of creation, so yes, even if it were your camera and SD card, the person that took the picture would, by law, own the copyright. Now, how they could register that given it's your SD card, I don't know - but registration is only required to collect damages.

http://www.copyright.g​ov …q-definitions.html#autho​r (external link)

http://www.copyright.g​ov/fls/fl107.html (external link)

If someone choses the scene and poses in it, the person that pressed the shutter may not be considered the "creator" IMO. If I hand you the camera and say take a picture of me in front of this waterfall, you are essentially just a remote shutter release.

At least, that would be my argument. The law does allow for someone that did not press the button to be the creator of the image, like the employer. Give them a quarter and they were your employee.




  
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yogestee
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Jan 27, 2010 20:25 as a reply to  @ itzcryptic's post |  #6

Here is how things work in Australia..

I worked for a newspaper for 17 years where the organisation suplied me with equipment for shooting (camera etc) and editing (laptop)..

Any images I shot the copyright would be split.. The newspaper owns the "material" copyright because they supplied the equipment to shoot the image and I'd own the "artistic" copyright because it was my skill as a photographer which got the image..

If for example the newspaper wanted to pass the image onto an opposing newspaper (or media group) my newspaper would negotiate with me.. I would have to give permission.. If the image was sold I'd get half the cost.. Also,,at the end of the year I would get a nice fat cheque just in case any images slipped through the net and were used illegally..

So back to the OPs question.. The camera owner would own half the copyright and the photographer would own the other half.. This is in the perfect world and between friends or family unrealistic..

BTW,, I have heard that Facebook owns any copyright to any images posted on their site.. If this is the case, Facebook should be boycotted..


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itzcryptic
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Jan 27, 2010 22:08 |  #7

yogestee wrote in post #9486145 (external link)
Here is how things work in Australia..

I worked for a newspaper for 17 years where the organisation suplied me with equipment for shooting (camera etc) and editing (laptop)..

Any images I shot the copyright would be split.. The newspaper owns the "material" copyright because they supplied the equipment to shoot the image and I'd own the "artistic" copyright because it was my skill as a photographer which got the image..

If for example the newspaper wanted to pass the image onto an opposing newspaper (or media group) my newspaper would negotiate with me.. I would have to give permission.. If the image was sold I'd get half the cost.. Also,,at the end of the year I would get a nice fat cheque just in case any images slipped through the net and were used illegally..

So back to the OPs question.. The camera owner would own half the copyright and the photographer would own the other half.. This is in the perfect world and between friends or family unrealistic..

BTW,, I have heard that Facebook owns any copyright to any images posted on their site.. If this is the case, Facebook should be boycotted..

I think they changed it, but I think the policy bsically said that by uploading it, they can do whatever they want with it. Which is not true if the uploader doesn't own the photo in the first place.




  
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neilwood32
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Jan 28, 2010 07:14 |  #8

I think that, imho, the image copyright does in effect belong to the person that creates the shot, but that by the action of handing the camera back to the owner, he is , by his actions, handing over the rights to the image.

A lot of law comes down to implied agreements, whereby the action constitutes an acceptance.

For example party A ask party B to take a photo with party A's camera. B does this and hands the camera back. Party B has the copyright but effectively transfers it when handing the camera back. Otherwise it would be virtually unenforceable as he does not have possession of the image nor any agreement that he would get the image.

If however B asks to retain copyright as a condition of the shot, he is entitled to the copyright and A would have to make arrangements for transfer of image to B.

That is my opinion but as with all free advice, its worth what you paid for it!


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TheFloridaShooter
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Jan 28, 2010 07:16 |  #9

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Jan 28, 2010 07:40 |  #10

I really doubt Canadian law is much different then any other copyright law around the world. And pretty much everywhere else, copyright owner is the one who took photo. Sure sometimes your employer owns your work, but just to extend they can sell it/use it. Moral owner of photo is still photographer.
Let's twist this a bit... I got some equipment to loan (for free) from Canon. Does photos I took with this equipment belong to Canon or to me? I guess answer is simple and clear ;) Owning camera doesn't make you owner of photos taken with that camera. Taking photo, with no matter whos gear, does make you owner of that particular photo.


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exile
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Jan 28, 2010 07:52 |  #11

This is one of those interesting grey areas!

If I borrowed your pen and wrote a novel with it on paper that you owned, who would own the copyright?

You might own that particular copy of the novel, but in no way would you own the rights to copy it.


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Brikwall
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Jan 28, 2010 11:28 |  #12

Section 13 of the Canadian Act, the Section titled "Ownership of Copyright" begins by stating in sub-section 13 (1) that the author of a work shall be the first owner.

However, Subsection 10 (2) "Author of photograph" states:

(2) The person who
(a) was the owner of the initial negative or other plate at the time when that negative or other plate was made, or
(b) was the owner of the initial photograph at the time when that photograph was made, where there was no negative or other plate,
is deemed to be the author of the photograph...

This changes when the author is a corporation or when the photographs were made in the course of employment. However, neither is the case here.

So, it would seem that the person who owned the camera/memory card would be the owner of copyright.

I believe this has also been upheld in some recent court decisions where one group claimed copyright of the images (prints) but a second group, those in possession of the original negatives, was awarded ownership.


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skydiver_8
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Jan 28, 2010 14:18 as a reply to  @ Brikwall's post |  #13

Thanks Briakwall for taking the time to look up the exact wording of the law.....that pretty much sums it up and closes the door on the in-laws' mentioned in the original post.


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krb
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Jan 28, 2010 14:31 |  #14

exile wrote in post #9489053 (external link)
This is one of those interesting grey areas!

If I borrowed your pen and wrote a novel with it on paper that you owned, who would own the copyright?

You might own that particular copy of the novel, but in no way would you own the rights to copy it.

Sticking with your analogy: if I loan you paper and pencil and you write a novel then you own the novel. If I hand you a pencil and paper then dictate a novel to you, then I own the novel because it was my creative work.

Same thing with a camera. If you borrow my camera and flash card to take shots then you own those shots. If I hand you my camera and flash card then dictate the location, posing, lighting, camera settings, etc. then I own the shots because I'm the person doing the creative work.


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stsva
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Jan 28, 2010 14:51 |  #15

krb wrote in post #9491570 (external link)
Sticking with your analogy: if I loan you paper and pencil and you write a novel then you own the novel. If I hand you a pencil and paper then dictate a novel to you, then I own the novel because it was my creative work.

Same thing with a camera. If you borrow my camera and flash card to take shots then you own those shots. If I hand you my camera and flash card then dictate the location, posing, lighting, camera settings, etc. then I own the shots because I'm the person doing the creative work.

There's a good discussion here of how that can apply in a professional setting:
http://www.artlaws.com …ndPhotograoherA​rticle.htm (external link)


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