Diego S wrote:
I have always done my own retouching, but since there are professionals out there that can probably do a better job than me I would like to give it a try.

Since I am not the most experienced tool in this shed I was considering if sending raw files can lead any copyright issue? Does that ever happen?

Thank you in advance for the advice!

In 99.99% of the cases I receive raw files from clients. (the 0.01% is when they send very old images from 15 years ago for which they didn't have raw files or were scanned film, tiff) A good professional would never share any client info without permission. Also remember that any format which is different from raw (even 16bpc TIFF) is not as good as raw and may even need more time to post process.

Diego S wrote:
I have always done my own retouching, but since there are professionals out there that can probably do a better job than me I would like to give it a try.

Since I am not the most experienced tool in this shed I was considering if sending raw files can lead any copyright issue? Does that ever happen?

Thank you in advance for the advice!

it would help if you clarified your questions and concerns.

Are you concerned that the retoucher would be able to claim copyright on the work he/she did for you?   

Are you concerned that you do not have a copyright on the RAW file and may not be permitted to edit it?

Some other specific issue?

Did you create the images?  Were you under someone else's authority to create them for another entity?

Most of the responses you will get to your questions are going to be from people not trained in the law (that does not mean intelligent people can't understand the law, but those trained will have different perspectives in many cases) and the people that respond will not know the laws of your country and the treaties that apply to your country.  I suspect some people will respond without noticing your country.  Copyright, in the United States, is something you want to understand.  The importance in Italy, I assume, is similar.  Though it is good to ask questions here, use the answers to guide your search and to develop questions to ask of qualified sources.

Good luck.

Hunter  GWPB wrote:
Are you concerned that the retoucher would be able to claim copyright on the work he/she did for you?

The first one was the correct assumption.

Let me clarify further with a different question: Is it possible to manipulate the raw file to the point that someone other than the photographer who took the image is able to claim copyright?

Diego S wrote:
The first one was the correct assumption.

Let me clarify further with a different question: Is it possible to manipulate the raw file to the point that someone other than the photographer who took the image is able to claim copyright?

U.S. law perspective only.  I am not interested in researching Italian or EU law.

Yes.  It is possible.  In the US, a derivative of a work is still under the copyright protection of the creator.  However, A transformative work can have a defendable copyright for the transforming creator.  Do some searches on Richard Prince.  The question is: when does a piece move past derivative to transformative.  That question is where the lawyers get rich.  Prince won some and lost some.  His most recent headlines were about him grabbing some instagram shots off everyday people, adding a text message, printing them as poor quality posters and selling them for big bucks.  But, he probably registered the images with the copyright office after the time period in which the original publishers should have registered them. Consequently, even if they tried to sue after Prince pirated their work, there was not going to be any money in it for the plaintiff and his/her attorneys but plenty of money for Prince.   I do not have a case to back this up, but I believe, logically the court would not care what medium the work was, so a RAW fie could be transformed.  But the copyright office would require a format compatible with it's record keeping, such as a photograph or printed version of the piece.  (A recent thread included a post from a well known MM legal mind.  His advice was to register an image in the US copyright office, in addition to and regardless of the country of origin.)

In US law, there is also a thing known as 'Work for Hire."  Im which case, a person who is engaged to create digital enhancements on an existing photo would not be able to secure a copyright, but said copyright would be retained or secured by the "employer."  A contract (in the US) could also be used to prevent any unauthorized use or modification or further release of the image defined by the RAW file and that any unauthorized use, etc., would still belong to the original copyright holder, along with significant penalties and legal fees for anyone who violates the contract.  Contracts can do amazing things.

Of course, you shouldn't take my word as a legal opinion, because it is not.  It is a lay opinion to provide a synopsis of complicated law and court cases.  Always seek a competent attorney in the proper jurisdiction for a legal opinion.

Diego S wrote:
Is it possible to manipulate the raw file to the point that someone other than the photographer who took the image is able to claim copyright?

Raw files can be manipulated just like any other bit of information which passes through your CPU. But just because you can copy an excerpt from a book doesn't make you its author. Remember that when you communicate with a retoucher, e.g. by email, there is a written proof that you have sent the particular files. Also a retoucher who wants to stay in biz has no interest to do anything stupid with anyone's files. He can make money from getting repeated work from you and others, not from a random mischief with photos which most likely won't have any value to him at all.

Hunter  GWPB wrote:
In US law, there is also a thing known as 'Work for Hire."  Im which case, a person who is engaged to create digital enhancements on an existing photo would not be able to secure a copyright, but said copyright would be retained or secured by the "employer."

Under US law, a retoucher's work would generally not be eligible to be classified as a "work for hire".

Section 101 of the Copyright Act (title 17 of the U.S. Code) defines a “work made for hire” in two parts:

a) A work prepared by an employee within the scope of his or her employment
or
b) a work specially ordered or commissioned for use
    1) as a contribution to a collective work,
    2) as a part of a motion picture or other audiovisual work,
    3) as a translation,
    4) as a supplementary work,
    5) as a compilation,
    6) as an instructional text,
    7) as a test,
    8) as answer material for a test, or
    9) 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.


Unless the retoucher is your regular employee, or the work falls into one of the above 9 categories, it cannot be a work for hire under US copyright law.

See https://www.copyright.gov/circs/circ09.pdf for more details.

Michael Fryd wrote:
Under US law, a retoucher's work would generally not be eligible to be classified as a "work for hire".

Section 101 of the Copyright Act (title 17 of the U.S. Code) defines a “work made for hire” in two parts:

a) A work prepared by an employee within the scope of his or her employment
or
b) a work specially ordered or commissioned for use
    1) as a contribution to a collective work,
    2) as a part of a motion picture or other audiovisual work,
    3) as a translation,
    4) as a supplementary work,
    5) as a compilation,
    6) as an instructional text,
    7) as a test,
    8) as answer material for a test, or
    9) 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.


Unless the retoucher is your regular employee, or the work falls into one of the above 9 categories, it cannot be a work for hire under US copyright law.

See https://www.copyright.gov/circs/circ09.pdf for more details.

That is interesting.  Thank you.  It is unfortunate that the treatise that accompanies the copy of the law (in your link) explores only the employee relationship and not the contractor relationship.  However, if the Supreme Court paid attention to the terms of the law that defines an employee, all others must be contractors.

I took interest in the line that succeeds item number 9, which allows that a work for hire can be arranged by contract even if its is outside of the 9 items that were listed.  I do not read this statement to indicate that the contract must be within the confines of the 9 items. 

Without the ability to contract a specific "work for hire" arrangement, one would not be able to contract with a contractor to preform the duties of a second shooter at a wedding, or any of the other duties that an employee would perform, such as post processing.  This would relegate all photographers to be one person businesses unless they can subscribe to the difficult task of keeping an employee as defined by the precepts described in the treatise.

Rather than depend on my own opinion, I will provide the following link and again remind the OP and anyone else reading this, that good advice from a qualified attorney is much better than what may be had in the forums.  Copyright is a complicated issue and this discussion is nothing more than a place to develop questions to ask a qualified attorney.

(emphases added)

http://www.americanbar.org/publications … _hire.html

Although the agreement and course of dealings between a business and an independent contractor may give rise to an implied license for the business to use the works created by the contractor, it is highly preferable to avoid relying on an implied license. Any business that engages a non-employee to create a work and intends to own the copyright to such work should have a written agreement with the author expressly stating that the work is made for hire (if it falls within one of the eligible categories). If the work is not eligible to be a work made for hire, and for good measure even if it is, the written agreement should include a provision assigning the copyrights to the business. An example of such a provision is: “To the extent that the Work Product is not recognized as a ‘work made for hire’ as a matter of law, the Contractor hereby assigns to the Company any and all copyrights in and to the Work Product.” By including such a copyright assignment clause, a business will be able to obtain the copyrights it expects, even if the work does not qualify as a “work made for hire.”

So, the best option is to cover your butt with a properly prepared contract.

Hunter  GWPB wrote:
I will remind the OP and anyone else reading this, that good advice from a qualified attorney is much better than what may be had in the forums.  Copyright is a complicated issue and this discussion is nothing more than a place to develop questions to ask a qualified attorney.

and this

Hunter  GWPB wrote:
the best option is to cover your butt with a properly prepared contract.

I would also like to thank everyone else who gave their input. Despite the fact that different countries may have different laws, it was all very helpful.

Hunter  GWPB wrote:
That is interesting.  Thank you.  It is unfortunate that the treatise that accompanies the copy of the law (in your link) explores only the employee relationship and not the contractor relationship.  However, if the Supreme Court paid attention to the terms of the law that defines an employee, all others must be contractors.

I took interest in the line that succeeds item number 9, which allows that a work for hire can be arranged by contract even if its is outside of the 9 items that were listed.  I do not read this statement to indicate that the contract must be within the confines of the 9 items. 

Without the ability to contract a specific "work for hire" arrangement, one would not be able to contract with a contractor to preform the duties of a second shooter at a wedding, or any of the other duties that an employee would perform, such as post processing.  This would relegate all photographers to be one person businesses unless they can subscribe to the difficult task of keeping an employee as defined by the precepts described in the treatise.

Rather than depend on my own opinion, I will provide the following link and again remind the OP and anyone else reading this, that good advice from a qualified attorney is much better than what may be had in the forums.  Copyright is a complicated issue and this discussion is nothing more than a place to develop questions to ask a qualified attorney.
...

According to the US Copyright office's publication (https://www.copyright.gov/circs/circ09.pdf):

A work created by an independent contractor can be a work made for hire only if (a) it falls within one of the nine categories of works listed in part 2 above and (b) there is a written agreement between parties specifying that the work is a work made for hire.

This seems pretty straightforward.

Hunter  GWPB wrote:
So, the best option is to cover your butt with a properly prepared contract.

Yes, the best option is to cover your butt.  A document that tries to make it a work for hire, but falls back on a transfer of copyright should the work-for-hire clause fail.

While it seems like it shouldn't make a difference, there are differences between a work made for hire, and a work where the copyright was transferred to you.  In particular, the term of the copyright may differ between the two.

Michael Fryd wrote:
Yes, the best option is to cover your butt.  A document that tries to make it a work for hire, but falls back on a transfer of copyright should the work-for-hire clause fail.

While it seems like it shouldn't make a difference, there are differences between a work made for hire, and a work where the copyright was transferred to you.  In particular, the term of the copyright may differ between the two.

Hunter  GWPB wrote:
Okay Michael.  I get what you are saying and I believe I understand where you are coming from.  The word "and" in the text, though it doesn't appear in the statute, could be interpreted to mean both criteria had to be covered: one of the nine categories had to apply AND the agreement had to be in writing.  Since the document that you referenced is a US Copyright Office document, that adds an incredible amount of weight to the interpretation.  However, when I read the text in the US Supreme Court decision, the ruling indicates that it was not a work for hire: "Nor was the sculpture a "work made for hire" under the second subsection of § 101 (hereinafter § 101(2)): sculpture is not one of the nine categories of works enumerated in that subsection, and the parties had not agreed in writing that the sculpture would be a work for hire. Ibid. The court suggested that the sculpture nevertheless may have been jointly authored by CCNV and Reid, id. at 36, 846 F.2d at 1495, and remanded for a determination whether the sculpture is indeed a joint work under the Act, id. at 39-40, 846 F.2d at 1498-1499."  When I read this, it still implies to me that the ruing required one or the other, and of course, both could have been an option.  The article that I linked before was a Bar Association discussion of the same case.  I believe that the Bar Association interpreted the court decision as I did.  Had they interpreted as you have, then there would have been no need to state, "and for good measure even if it is" and they would have instead indicated that it is required absolutely along with one of the nine.

https://supreme.justia.com/cases/federa … /case.html

At this point, I will neither declare my interpretation to be correct or concede to your interpretation.  I will however, discuss it with an IP attorney at my earliest convenience.  This is important to me because your interpretation would mean that if I am commissioned to do a piece other than a copy, the copyright will be mine regardless of the wishes of the client, because I am not their employee.

I do fully agree with your sentiments below:

All this added complexity is more proof that you should do your own post work unless you need an image for commercial purposes. Besides a retouchers will not finish the work in your style, just their own.

Risen Phoenix Photo wrote:
All this added complexity is more proof that you should do your own post work unless you need an image for commercial purposes. Besides a retouchers will not finish the work in your style, just their own.

There is complexity only when you work with the wrong people. Outsourcing the retouching is definitely not only for commercial purposes. I don't know what retouchers you have worked with but one who really deserves this title should be able to reproduce your style and should not add their own.