Barry  M  Robinson wrote:

See Gifts and Income Tax 2012  - Are you an artist?. This refers to a physical painting; gifts of intellectual property are not addressed.

See also Gifts of services

Oops! OP is in Canada. I have no idea how taxes are paid in Canada.

Herman Surkis wrote:
...that the use of the Photographs will not infringe on the copyright or other proprietary right of any other part...

...
I hereby release and discharge NCC from any and all liability, claims, causes of action, or any other responsibility whatsoever from or relating to the use, editing, reproduction, publishing, exhibit, distribution or otherwise of the Photographs.

...

Suppose the NCC uses your images to promote an expensive event that ends up being held indoors.  Some of the attendees are upset, as the advertising led them to believe that your images were of the event location.  The courts may find that use of your image constituted false advertising. 

You are agreeing to relieve NCC from any liability arising from the use of your image.  Should the courts rule that use of the image was deceptive, and that money must be refunded, you would be responsible for refunding the money from your pocket.


Let's suppose a famous photographer has taken an image similar to yours.  He has copyrighted his image and makes money selling posters.  He sees your image, and believes it to be a copy of his work.  He sues the NCC.  Again you have promised the NCC that the image does not infringe on anyone else's rights.  You may very well end up paying to defend the image in a copyright suit.

Now, you may be a nice guy, and this may very well be what you intended.  Most people would be happy giving them the image "as-is" and letting them worry about the liability.

I am not an attorney, and you should never rely on legal advice from the web.  This is the sort of thing that requires an attorney familiar with local laws.

Perhaps, you could download an assignment of copyright form from your government's web site.  Fill that our, and then the image is theirs for them to worry about.


Edit:  These scenarios may seem far fetched, but they are what the agreement calls for.  If you think this sort of thing will never happen then you do not need to assume the liability.

Michael Pandolfo wrote:

And it sounds like you don't have a firm grasp of intellectual property. None of those items you mention are intellectual property, copyrighted by an owner (i.e. the photographer). They are simply physical objects. Once you give those items to someone, they become the owner and you give up all rights to them. That's not the case with intellectual property.

The rules of copyright don't change simply because it's a charity.

Of course I have a firm grasp of intellectual property. It's like any other form of property. The owner can choose to give it away, or sell it, loan it out, or do whatever he or she likes with it.
In the instance of the OP, he wants to loan his property, the charity would prefer outright ownership.
The problem is some of the people here are arrogant enough to believe that intellectual property is something special.

AG_Boston wrote:
Why bother donating or volunteering if you're going to have a problem with the organization? I do several volunteer photo projects here in Boston every year. Not because I want the financial gain, but because I care about the causes.

That was my reasoning.
I can only afford to donate so much out of pocket, but my work has a multiplier effect. I have had my stuff bring in far more money at a fund raiser, then I could afford to give.

ChristerArt wrote:
And as usual, there is always - in every thread - someone who takes a swig at someone  - or is less than polite..

Sad.

sorry pal your way off the mark..

using your analogy  ..  and as always there's someone that comes along selectively reporting

you are not taking into consideration the large amounts of help posted throughout my previous posts (in this thread and others..) all the help was given before handing out a dose of reality having read this thread, replies being handed out and researched the OP

over complicating things springs to mind as happens many times over! i would have allot more sympathy should this matter be over a mountain of cash

you protect yourself if there is a high risk of that person or company you are dealing with screwing you over!

Barry  M  Robinson wrote:

In some cases this doesn't matter. In the case of Aubry v. Éditions Vice-Versa inc., [1998] 1 SCR 591 a person in a photo successfully sued both the publisher and the photographer. The actions of the publisher are not under the control of the photographer but could result in the photographer having some liability.

Sorry but that case does not count. It deals with Quebec's laws (specifically Quebec's own charter).   The rest of Canada does not have the same laws to use.  the liability issue is incidental to the case.  Absent the absolute right to image, there is no liability to anyone.

WR Photographics wrote:

Of course I have a firm grasp of intellectual property. It's like any other form of property. The owner can choose to give it away, or sell it, loan it out, or do whatever he or she likes with it.
In the instance of the OP, he wants to loan his property, the charity would prefer outright ownership.
The problem is some of the people here are arrogant enough to believe that intellectual property is something special.

as already outlined by others you didn't have a firm grasp about regular property and donations so its a bit disingenuous of you to state that you have a firm grasp of IP.  The problem here is you have a bit of googleship instead of scholarship.  take an IP course. It will open your eyes. a bit. Real property is scarce. Intellectual property does not have to be.  You can't sell or loan multiple copies of your car. but you sure as fck can licence multiple actors to use an image (but you dont have to). Thats just a day one lecture point but it happens to be applicable here. 

I could go on and on and on with differences but that would amount to teaching a course in copyright.  You do realize that there are courses in law school about it? People pay money and  spend time in lecture halls learning about stuff you want to claim doesnt exist....all those differences.   And yes this applies in Canada as well.

Herman Surkis wrote:
I hereby irrevocably transfer and assign to NCC all my right, title and interest in and to the Photographs, including all copyright and grant to The Nature Conservancy of Canada (“NCC”) irrevocable permission to, at its sole discretion, use, edit, reproduce, publish, exhibit, distribute, create derivative works of, and otherwise exploit all or part of the Photographs in Canada or throughout the world for promotions, recruiting, brochures, advertising, or any other reason whatsoever, and in any medium whatsoever now known or hereinafter developed, including without limitation, print, web based, video, social networking and all electronic media. I agree that I am granting this consent in perpetuity.

There is a loophole here, if you would like to use it. It says, "I hereby irrevocably transfer and assign to NCC all of my right...." but it doesn't say what rights you have and it doesn't ask that you guarantee you have all rights. So, sell your mother "all rights except a not-for-profit using it for marketing purposes". Then assign all of your rights. Then buy back the rest of your rights from Mom.

That way you are only giving away a small set of rights.

Of course, consult your attorney first.

ArtisticPhotography wrote:

There is a loophole here, if you would like to use it. It says, "I hereby irrevocably transfer and assign to NCC all of my right...." but it doesn't say what rights you have and it doesn't ask that you guarantee you have all rights. So, sell your mother "all rights except a not-for-profit using it for marketing purposes". Then assign all of your rights. Then buy back the rest of your rights from Mom.

That way you are only giving away a small set of rights.

Of course, consult your attorney first.

He is guaranteeing that they can use the images without infringing on anyone else's rights.

They can use the image however they want, if they didn't have the rights, he's still liable.

Michael Fryd wrote:
This is definitely a question for an attorney.

I look at the agreement, and I see that your are transferring all your valuable assets to the image, but are retaining any liabilities.

Sign this agreement, and they get complete control over the image, but you retain the responsibility for any errors they may make.


Suppose the NCC uses your images to promote an expensive event that ends up being held indoors.  Some of the attendees are upset, as the advertising led them to believe that your images were of the event location.  The courts may find that use of your image constituted false advertising. 

You are agreeing to relieve NCC from any liability arising from the use of your image.  Should the courts rule that use of the image was deceptive, and that money must be refunded, you would be responsible for refunding the money from your pocket.

That's what it sounds like in regular language, but it's not what it means in the context of a legal agreement.

It's only liability between the photographer and charity.

WR Photographics wrote:

Of course I have a firm grasp of intellectual property. It's like any other form of property. The owner can choose to give it away, or sell it, loan it out, or do whatever he or she likes with it.
In the instance of the OP, he wants to loan his property, the charity would prefer outright ownership.
The problem is some of the people here are arrogant enough to believe that intellectual property is something special.

It's not the same, you're missing one key detail. IP can be duplicated. He's not loaning, he's giving away a duplicate.

There's the "tangible" aspect the ones and zeroes. That's easy to define "image  XXXX.jpg" but the rights can be duplicated too. Or not, or partially.

AVD AlphaDuctions wrote:

as already outlined by others you didn't have a firm grasp about regular property and donations so its a bit disingenuous of you to state that you have a firm grasp of IP.  The problem here is you have a bit of googleship instead of scholarship.  take an IP course. It will open your eyes. a bit. Real property is scarce. Intellectual property does not have to be.  You can't sell or loan multiple copies of your car. but you sure as fck can licence multiple actors to use an image (but you dont have to). Thats just a day one lecture point but it happens to be applicable here. 

I could go on and on and on with differences but that would amount to teaching a course in copyright.  You do realize that there are courses in law school about it? People pay money and  spend time in lecture halls learning about stuff you want to claim doesnt exist....all those differences.   And yes this applies in Canada as well.

Exactly.

ArtisticPhotography wrote:

There is a loophole here, if you would like to use it. It says, "I hereby irrevocably transfer and assign to NCC all of my right...." but it doesn't say what rights you have and it doesn't ask that you guarantee you have all rights. So, sell your mother "all rights except a not-for-profit using it for marketing purposes". Then assign all of your rights. Then buy back the rest of your rights from Mom.

That way you are only giving away a small set of rights.

Of course, consult your attorney first.

I've thought a lot about that approach. You could also have a work-for-hire agreement with your corporation, that gives you back certain rights, but not the right to give up the entire set of rights.

Most agreements will be written in a way to prevent that, and people have done things like that with taxes and they either close the loop holes or write something that decides what to happen if you figure out something first.

My guess is that there's a legal principle of "deceitful practices"  or some such that addresses that type of behavior.

Michael Fryd wrote:

He is guaranteeing that they can use the images without infringing on anyone else's rights.

They can use the image however they want, if they didn't have the rights, he's still liable.

That's what the agreement says but ArtisticPhotography is pointing out that he's not warranting that there are no encumbrances to his ownership rights from a previously existing agreement.

Herman Surkis wrote:
I tried to get the release amended to something more reasonable, to allow them a usage, and this is what they came back with.
NCC is Nature Conservancy of Canada. Unless I am mistaken instead of disallowing 3'rd party sales, they now take full ownership, and I would have to ask them for permission to use my own photographs.

Photograph Release Form
I, _________________________, the undersigned photographer, for value received, (the receipt and sufficiency of which are hereby acknowledged), represent and warrant that the photographs I have provided to NCC (hereinafter referred to as the “Photographs”) are my original works and are not copied from any other material, that the use of the Photographs will not infringe on the copyright or other proprietary right of any other party, that I am the sole author and creator of these photographs, that I am at least eighteen (18) years of age and that I have the right to execute this Photo Release without the consent or knowledge of any other person.

I hereby irrevocably transfer and assign to NCC all my right, title and interest in and to the Photographs, including all copyright and grant to The Nature Conservancy of Canada (“NCC”) irrevocable permission to, at its sole discretion, use, edit, reproduce, publish, exhibit, distribute, create derivative works of, and otherwise exploit all or part of the Photographs in Canada or throughout the world for promotions, recruiting, brochures, advertising, or any other reason whatsoever, and in any medium whatsoever now known or hereinafter developed, including without limitation, print, web based, video, social networking and all electronic media. I agree that I am granting this consent in perpetuity.
NCC agrees to credit all Photographs used in publications intended for external use with the following credit:
“Photo by [Name] ___________________________”.
I hereby release and discharge NCC from any and all liability, claims, causes of action, or any other responsibility whatsoever from or relating to the use, editing, reproduction, publishing, exhibit, distribution or otherwise of the Photographs.

I acknowledge and agree that I shall not receive, or be entitled to receive, any fee or proceeds whatsoever from such use. NCC agrees that they will not sell any of these donated images.
I have read this consent and I understand its contents.
Name of Photographer:
Address:
Signature of Photographer: Date:
Name of Witness:
Signature of Witness: Date:
Name of NCC representative
Signature of NCC representative Date:

There are two questions that simplify this whole thing.

1. Are you ok with the idea of them leveraging your donation by reselling or licensing the images you give them?

2. Do you want to be able to license or sell the images to someone else?


If the answers are yes and no respectively, then there's really nothing to worry about. They're not going to come after you for showing the photos in your portfolio.

MC Grain wrote:

That's what the agreement says but ArtisticPhotography is pointing out that he's not warranting that there are no encumbrances to his ownership rights from a previously existing agreement.

Depends on how you read it.  The agreement transfers all his rights, and then enumerates that "all copyright" is included.  He also agrees that the NCC's use of the images wont infringe on anyone else's copyrights.


If he has already granted non-exclusinve licenses to the image, then he cannot transfer "all copyright".

Kaouthia wrote:
Would it not be a whole lot easier to just sell them a license as you would any other client, have them pay a bill, then donate the proceeds from that bill back to the charity?

Too simple of a solution. Far, far too simple!

Studio36

Michael Fryd wrote:

He is guaranteeing that they can use the images without infringing on anyone else's rights.

They can use the image however they want, if they didn't have the rights, he's still liable.

True, but that does not guarantee exclusivity. They can use them for their purposes and have agreed not to sell them. The limited-rights donor would still control other uses. And if your rights were limited to not-for-profit uses, and that's what you donated, then there's no real conflict.

Arznix wrote:
To the person that suggested that the non-profit pay a licensing fee and that the person donate the fee back, keep in mind the photographer still has to pay taxes on the fee as it is considered income to the business.

So donate back the amount minus tax.

And it does address it.  You offer them the same perpetual license you would offer anybody else.  Either they accept it, great, or they don't, and you forget the whole thing and move on.

Kaouthia wrote:

So donate back the amount minus tax.

And it does address it.  You offer them the same perpetual license you would offer anybody else.  Either they accept it, great, or they don't, and you forget the whole thing and move on.

So now the non-profit is out of pocket for something they were originally going to get for free?

Regardless it sound like the non-profit has already rejected the OP's offer of a usage license, so the solution of offering to take a fee and donate it back is not going to work either.

Arznix wrote:
So now the non-profit is out of pocket for something they were originally going to get for free?

As I said earlier, "non-profit" doesn't mean "no expenses".

ArtisticPhotography wrote:

True, but that does not guarantee exclusivity. They can use them for their purposes and have agreed not to sell them. The limited-rights donor would still control other uses. And if your rights were limited to not-for-profit uses, and that's what you donated, then there's no real conflict.

I would suggest that the term "all copyright" means that he is transferring all rights related to the copyright.  He cannot do so if he has already licensed some of those rights to others.

The suggested agreement is fairly clear.  He is transferring all image rights to the NCC.  He is guaranteeing that they are getting all the rights, and he is assuming the responsibility should this not be true.

These would be reasonable things if he was receiving money for the image (although he might want to limit his liability to the amount he received).


The bottom line is that there are many ways to donate the image to the charity.  I am not an attorney, but this doesn't look to me like the best paperwork for doing so.

The easy paperwork would be a simple image license, or an assignment of copyright.

Of course, please don't take my word for it.  For reliable legal advice check with an attorney.

Kaouthia wrote:
So donate back the amount minus tax.

And it does address it.  You offer them the same perpetual license you would offer anybody else.  Either they accept it, great, or they don't, and you forget the whole thing and move on.

Donate back all of it. The donation can be written off on your business taxes as a charitable donation. You can take that 15%-ish tax from the extra income for the license and use it to purchase something business expense related and your taxable income decreases.

In the end, you get a charitable donation and a lens filter for your trouble. Consider it part of the cost of your donation in your budget. It's a lot better than not getting any deduction at all because you just turned over digital files and signed a somewhat questionable piece of paper.

Sand Angel Photography wrote:

Donate back all of it. The donation can be written off on your business taxes as a charitable donation. You can take that 15%-ish tax from the extra income for the license and use it to purchase something business expense related and your taxable income decreases.

In the end, you get a charitable donation and a lens filter for your trouble. Consider it part of the cost of your donation in your budget. It's a lot better than not getting any deduction at all because you just turned over digital files and signed a somewhat questionable piece of paper.

Be careful giving tax advice.  The OP is not in the US. 

Even in the US, many people would encounter an increase of taxes by charging a license fee and donating the fee back to the charity.  Generally, you would be better off licensing it to them for free.

Imagine the license fee was $100.

When it comes time to pay your taxes, you must declare that $100 as income.  If you are not rich, and take the standard deduction, than a $100 charitable contribution doesn't save you anything on your taxes.  You end up paying income tax on the $100, and get no deduction.

If you make a lot of money, you must declare that $100 as income, and your charitable deductions get phased out (or you get hit by AMT).  You still end up paying additional tax.

If you don't make too much money, and you itemize deductions, then it may be a wash, and you end up not owing additional tax.

Of course, if you are in a state that taxes license fees, then someone needs to pay the sales tax on that $100.

The above are generalities.  There are situations where the outcome would be very different.  For accurate tax advice speak to a local tax accountant.


Keep it simple.  If you want them to have the image for free, don't charge them anything.

Michael Fryd wrote:

Depends on how you read it.  The agreement transfers all his rights, and then enumerates that "all copyright" is included.  He also agrees that the NCC's use of the images wont infringe on anyone else's copyrights.


If he has already granted non-exclusinve licenses to the image, then he cannot transfer "all copyright".

Of course he can. Copyright is the right to make/authorize copies. Previous licensing deals have nothing to do with that.

If he's granted exclusive licenses then he can't.

Kaouthia wrote:
Would it not be a whole lot easier to just sell them a license as you would any other client, have them pay a bill, then donate the proceeds from that bill back to the charity?

No. That creates two steps. You still have the same issues negotiating the paid licensees you do with the gratis license.


When you give money to a charity, you determine how much you're giving. You also write the check yourself. The chartist doesn't write a check for you to sign.

The simple solution is for the OP to write the terms that he wants, sign it and send it in. Then they take it or leave it.


The charity probably has a lawyer who doesn't do IP and is looking at this from a risk management point of view. That's really where the problem lies.

Kaouthia wrote:
Would it not be a whole lot easier to just sell them a license as you would any other client, have them pay a bill, then donate the proceeds from that bill back to the charity?

No. That creates two steps. You still have the same issues negotiating the paid licensees you do with the gratis license.


When you give money to a charity, you determine how much you're giving. You also write the check yourself. The chartist doesn't write a check for you to sign.

The simple solution is for the OP to write the terms that he wants, sign it and send it in. Then they take it or leave it.


The charity probably has a lawyer who doesn't do IP and is looking at this from a risk management point of view. That's really where the problem lies.

Kaouthia wrote:
Would it not be a whole lot easier to just sell them a license as you would any other client, have them pay a bill, then donate the proceeds from that bill back to the charity?

No. That creates two steps. You still have the same issues negotiating the paid licensees you do with the gratis license.


When you give money to a charity, you determine how much you're giving. You also write the check yourself. The chartist doesn't write a check for you to sign.

The simple solution is for the OP to write the terms that he wants, sign it and send it in. Then they take it or leave it.


The charity probably has a lawyer who doesn't do IP and is looking at this from a risk management point of view. That's really where the problem lies.

Kaouthia wrote:
Would it not be a whole lot easier to just sell them a license as you would any other client, have them pay a bill, then donate the proceeds from that bill back to the charity?

No. That creates two steps. You still have the same issues negotiating the paid licensees you do with the gratis license.


When you give money to a charity, you determine how much you're giving. You also write the check yourself. The chartist doesn't write a check for you to sign.

The simple solution is for the OP to write the terms that he wants, sign it and send it in. Then they take it or leave it.


The charity probably has a lawyer who doesn't do IP and is looking at this from a risk management point of view. That's really where the problem lies.

Kaouthia wrote:

So donate back the amount minus tax.

And it does address it.  You offer them the same perpetual license you would offer anybody else.  Either they accept it, great, or they don't, and you forget the whole thing and move on.

Exactly. But you write "gratis" instead of a dollar amount and you don't bother with invoicing and writing two checks.

Kaouthia wrote:

So donate back the amount minus tax.

And it does address it.  You offer them the same perpetual license you would offer anybody else.  Either they accept it, great, or they don't, and you forget the whole thing and move on.

Exactly. But you write "gratis" instead of a dollar amount and you don't bother with invoicing and writing two checks.

Kaouthia wrote:

So donate back the amount minus tax.

And it does address it.  You offer them the same perpetual license you would offer anybody else.  Either they accept it, great, or they don't, and you forget the whole thing and move on.

Exactly. But you write "gratis" instead of a dollar amount and you don't bother with invoicing and writing two checks.

Michael Fryd wrote:
Be careful giving tax advice.  The OP is not in the US.

Valid point. I run my photography as a C-Corp in the US. So what I described works in my instance. If you are not an LLC or a corp, then the process changes. As an individual, you can't write off business expenses like a business can.

But either way, getting paid and donating back might give you more of a tax advantage than not since just donating an image isn't deductible.

And it is possible that the license income and expense of the deduction just cancels each other out. In that case, it just helps with the accounting if you want to track everything officially.

As always, check your local tax laws and consult with experts if unsure.

The simplest thing is just to be generous without looking for a way to sneak around the government. lol.

Michael Fryd wrote:

I would suggest that the term "all copyright" means that he is transferring all rights related to the copyright.  He cannot do so if he has already licensed some of those rights to others.

The suggested agreement is fairly clear.  He is transferring all image rights to the NCC.  He is guaranteeing that they are getting all the rights, and he is assuming the responsibility should this not be true.

These would be reasonable things if he was receiving money for the image (although he might want to limit his liability to the amount he received).


The bottom line is that there are many ways to donate the image to the charity.  I am not an attorney, but this doesn't look to me like the best paperwork for doing so.

The easy paperwork would be a simple image license, or an assignment of copyright.

Of course, please don't take my word for it.  For reliable legal advice check with an attorney.

If you're thinking that there's a connection between "all rights" and existing usage agreements you're wrong. If you're talking about assigning portions of administrative rights, the. What you've said is correct.

His point is that he's not seeing wording in the agreement where the OP is guaranteeing that he hasn't already done that.

Sand Angel Photography wrote:
Donate back all of it. The donation can be written off on your business taxes as a charitable donation. You can take that 15%-ish tax from the extra income for the license and use it to purchase something business expense related and your taxable income decreases.

In the end, you get a charitable donation and a lens filter for your trouble. Consider it part of the cost of your donation in your budget. It's a lot better than not getting any deduction at all because you just turned over digital files and signed a somewhat questionable piece of paper.

But you're out the money for the lens filter.

You may be doing your math as if he's getting a tax credit, not a tax deduction.


If he gets paid $100 and gives back $100 and that's fully deductible it's a wash. But if it's only 50% deductible, he still owes tax on $50. It the tax rate is 20%, he owes $10.

If he then spends $10 on a filter that is a tax deduction, he'll owe $8 in taxes which is 20% of $40.

A deduction is taken off of your income, not your tax bill.