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Photographer
The Signature Image
Posts: 12,055
Gorham, Maine, US


Please stop. If you shoot a wedding the bride/groom are assumed to own the copywright and the photos.

While I assume the bride and groom have no problem with you posting some pictures on your site, try and sell some of the images.

I have a family portrait session on Thursday. The images belong to them. That is common sense.

Please stop all this what if and what about nonsense. Someone pays you to shoot a wedding and there is some doubt as to who owns the images?

Please...
Nov 27 12 01:06 pm  Link  Quote 
Photographer
Michael Fryd
Posts: 3,436
Miami Beach, Florida, US


MC Photo wrote:
If, if, if.....

I'm talking about the client having the copyright and giving the photographer an unrestricted usage license.

It's not complicated to write, "the photos made on xx/xx/xx will be treated as a work-made-for-hire. The client _________ will be the sole owner of the copyright and the photographer will have no restrictions to their use of the photos."

...

Arguing for keeping the copyright in this context is like arguing that buying lottery tickets is a good investment.

Please don't misunderstand me.  I did not state a position either for or against transferring the copyright to the bride and groom. 

I was merely stating that there are differences between transferring copyright, and granting an unlimited license.  I believe that a photographer should be aware of the differences.

Even with your proposed wording, there are real world differences.  If the photographer retained copyright then he can license others to use the image.  The license you proposed limits the usage to only the photographer.

Suppose the photographer's son had done the retouching of the images.  If the photographer retained copyright, then he can allow his son to use the images as samples.  Under your proposed wording, the photographer would be allowed to make copies for himself, but not for the use of others (such as his son).

A similar situation exists with the cake maker, florist, venue, caterer and other vendors.  If the photographer retains copyright, he can license images of the cake, flowers, etc. to the respective vendors.  These images may not contain the bride, groom, or any guests, yet there may be a market for them.   If the client owns the copyright, this source of revenue is not available.


Yes, a more complicated agreement could be written which would allow this, but  it does make things more complicated.


Obviously, there are times when it is appropriate to transfer copyright, and times when it isn't.  My belief is that the photographer should have an understanding of the implications of each so that an informed decision can be made.

Nov 27 12 02:26 pm  Link  Quote 
Photographer
PDF IMAGES PHOTOGRAPHY
Posts: 4,585
Jacksonville, Florida, US


Kyle Burnell wrote:
They probably want printing/usage rights not copyright. You may want to check with them for clarification. If they want you to sign over copyright so that you have no rights to use the photos you can charge them whatever you feel is appropriate compensation.

Have you shot a wedding before?

sounds about right on 1st part, check their usage request !

Nov 27 12 02:36 pm  Link  Quote 
guide forum
Photographer
GPS Studio Services
Posts: 34,451
San Francisco, California, US


The Signature Image wrote:
Please stop. If you shoot a wedding the bride/groom are assumed to own the copywright and the photos.

Or perhaps you should stop giving incorrect information.  Unless there is a written agreement to the contrary (a "work made for hire" agreement), the copyright belongs to the photographer, not the bride/groom.  You may choose to give them a broad license to use the images, but the copyright is still the photographer's.

I have seen you write this same response before, but it is just legally incorrect.

Nov 27 12 03:51 pm  Link  Quote 
Photographer
TEW Photography
Posts: 151
Wynnewood, Pennsylvania, US


I only have a handful of wedding and e-sessions under my belt so I definitely understand the initial feelings of the first time.  Reading the OP's post tells me she may not be ready.  Not saying she shouldn't do it, but these questions and all the administrative details should be covered, educated, and learned BEFORE accepting a wedding.  I spent almost a year planning to shoot weddings and when I took my first gig (Craigslist- woot woot!) it was like I forgot everything (kidding- but it moves fast).  The shooting was the easiest.  It's the dotted i's and crossed t's that require the most study.

I would suggest taking a look at the Fred Miranda professional wedding photographer forums and spend the night reading every thread.  There's lots of good insight from the business side of things.   

Regarding second shooting, it can be harder to find a second shooting gig than it is to book a wedding solo.  There a lot of wedding photographers who either hire other pro wedding shooters or require a portfolio of previous weddings.  So, it can be a catch-22 in many ways.  I'm using my wedding portfolio just to create a portfolio to second shoot for another wedding photographer. 

Equipment: 2 of everything.  Rent if you have to.

Insurance: if this is a one time only, take your chances but if this is something that is going to be regular, insurance is a great piece of mind.
Nov 27 12 03:54 pm  Link  Quote 
Photographer
Robert Jewett
Posts: 2,428
al-Marsā, Tunis, Tunisia


The Signature Image wrote:
Please stop. If you shoot a wedding the bride/groom are assumed to own the copywright and the photos.

While I assume the bride and groom have no problem with you posting some pictures on your site, try and sell some of the images.

I have a family portrait session on Thursday. The images belong to them. That is common sense.

Please stop all this what if and what about nonsense. Someone pays you to shoot a wedding and there is some doubt as to who owns the images?

Please...

This advice could not be more wrong.  OP, please disregard.

Nov 29 12 10:33 am  Link  Quote 
Photographer
Leighthenubian
Posts: 2,740
Toronto, Ontario, Canada


Deadlynightshade wrote:

Yeah this was a thought at the forefront of my mind...  it's more than just clicking images, and not sure I'm comfortable with the whole thing....

You shouldn't be shooting a wedding if you aren't 100% comfortable in your ability to deliver usable images to the client. Big no no!

Don't ruin it for real pros who do this for a living. Gives us a bad name and effects pricing and expectations in the short term.

You can be nervous/anxious but not unsure when money is involved.

That said, everyone has to jump in the water at some point. As this is the situation I would give these clients all of the images with the understanding that you have the right to use select files for your own portfolio/promotion efforts. Make sure they understand that you are inexperienced so that you manage their expectations.

Nov 29 12 10:50 am  Link  Quote 
Photographer
ME_
Posts: 3,131
Atlanta, Georgia, US


The Signature Image wrote:
Please stop. If you shoot a wedding the bride/groom are assumed to own the copywright and the photos.

While I assume the bride and groom have no problem with you posting some pictures on your site, try and sell some of the images.

I have a family portrait session on Thursday. The images belong to them. That is common sense.

Please stop all this what if and what about nonsense. Someone pays you to shoot a wedding and there is some doubt as to who owns the images?

Please...

Why do you keep posting the same thing over and over? You've been corrected before. Are you just ignoring it? If you choose to shoot someone and hand over ownership, that's your own business, but stop proclaiming it as though your way is factually and legally correct. At least preface your bogus information with "my opinion is ...."

Nov 29 12 11:05 am  Link  Quote 
Photographer
MC Photo
Posts: 4,144
New York, New York, US


Michael Fryd wrote:

Please don't misunderstand me.  I did not state a position either for or against transferring the copyright to the bride and groom. 

I was merely stating that there are differences between transferring copyright, and granting an unlimited license.  I believe that a photographer should be aware of the differences.

Even with your proposed wording, there are real world differences.  If the photographer retained copyright then he can license others to use the image.  The license you proposed limits the usage to only the photographer.

Suppose the photographer's son had done the retouching of the images.  If the photographer retained copyright, then he can allow his son to use the images as samples.  Under your proposed wording, the photographer would be allowed to make copies for himself, but not for the use of others (such as his son).

A similar situation exists with the cake maker, florist, venue, caterer and other vendors.  If the photographer retains copyright, he can license images of the cake, flowers, etc. to the respective vendors.  These images may not contain the bride, groom, or any guests, yet there may be a market for them.   If the client owns the copyright, this source of revenue is not available.


Yes, a more complicated agreement could be written which would allow this, but  it does make things more complicated.


Obviously, there are times when it is appropriate to transfer copyright, and times when it isn't.  My belief is that the photographer should have an understanding of the implications of each so that an informed decision can be made.

If you're saying that the proper way to word the agreement is more thorough than two sentences, we're in agreement. But if you think that an unrestricted license is not assignable without wording that restricts that, I believe you're wrong.

The point is there is wording that can give the photographer the same rights as if they held the copyright when they don't.

Unless you're suggesting that the photographer should write their own contract, there's no extra complication because the lawyer who writes it will not find it complicated to add in the language that ensures that's what the contract is saying.

If you can not reassign licenses, then your license has restrictions. An unrestricted license is the same as owning the copyright except for the ability to go after infringers and even that can be addressed with an administration assignment.


My guess is that if someone actually followed through with having the contract written, the B&G would have a lawyer review it and that lawyer would say "Why are you bothering with all of this nonsense? Let the photographer keep the copyright and you take the unrestricted license."

The difference is that they're getting someone they trust to convince them of that, rather than the person they're negotiating with.

You keep that contract and use it every time you end up in the same position. And if things don't go the way I predicted it won't matter because you have all the rights you actually need.

With another 50,000 photos uploaded in the time it took to read this post, the odds of someone stealing one of the wedding photos that you shot keeps getting lower and lower.

Nov 29 12 12:42 pm  Link  Quote 
Photographer
MC Photo
Posts: 4,144
New York, New York, US


The Signature Image wrote:
Please stop. If you shoot a wedding the bride/groom are assumed to own the copywright and the photos.

While I assume the bride and groom have no problem with you posting some pictures on your site, try and sell some of the images.

I have a family portrait session on Thursday. The images belong to them. That is common sense.

Please stop all this what if and what about nonsense. Someone pays you to shoot a wedding and there is some doubt as to who owns the images?

Please...

You know, with the specific wording you used, you're probably correct. I bet most brides and grooms assume they own the copyright and the photos. But like it so frequently happens when someone assumes, they are wrong.

What the law says is that the author of the creative work owns the copyright. The only way to change that is to put something in writing that has specific wording to change that.

Nov 29 12 12:45 pm  Link  Quote 
Photographer
Leighthenubian
Posts: 2,740
Toronto, Ontario, Canada


ei Total Productions wrote:

Or perhaps you should stop giving incorrect information.  Unless there is a written agreement to the contrary (a "work made for hire" agreement), the copyright belongs to the photographer, not the bride/groom.  You may choose to give them a broad license to use the images, but the copyright is still the photographer's.

I have seen you write this same response before, but it is just legally incorrect.

He isn't completely wrong. People here should take a step back and breathe...

Ask most clients at your initial consultation and they will quickly answer that the images (all of them) belong to them. It's just a natural view that if you paid for a service and product it belongs to you.

It's at that moment that you tell them that although they own the usage rights to the images  you have provided, the copyright remains with you unless otherwise agreed to.

That's why a meeting of the minds (a CONTRACT) is key.

I know several photographers who do turn over all images and copyright to their clients with the understanding that select images can be used to promote their work.

Nov 29 12 01:21 pm  Link  Quote 
Photographer
Michael Fryd
Posts: 3,436
Miami Beach, Florida, US


MC Photo wrote:
If you're saying that the proper way to word the agreement is more thorough than two sentences, we're in agreement. But if you think that an unrestricted license is not assignable without wording that restricts that, I believe you're wrong.

The point is there is wording that can give the photographer the same rights as if they held the copyright when they don't.

Unless you're suggesting that the photographer should write their own contract, there's no extra complication because the lawyer who writes it will not find it complicated to add in the language that ensures that's what the contract is saying.

If you can not reassign licenses, then your license has restrictions. An unrestricted license is the same as owning the copyright except for the ability to go after infringers and even that can be addressed with an administration assignment.


My guess is that if someone actually followed through with having the contract written, the B&G would have a lawyer review it and that lawyer would say "Why are you bothering with all of this nonsense? Let the photographer keep the copyright and you take the unrestricted license."

The difference is that they're getting someone they trust to convince them of that, rather than the person they're negotiating with.

You keep that contract and use it every time you end up in the same position. And if things don't go the way I predicted it won't matter because you have all the rights you actually need.

With another 50,000 photos uploaded in the time it took to read this post, the odds of someone stealing one of the wedding photos that you shot keeps getting lower and lower.

It might be possible to write an agreement that would transfer copyright to the clients, yet allow the photographer to retain all the rights and privileges as if he owned the copyright.  I don't think such an agreement is easy nor straightforward.

Why bother?  Why make things more complicated then they need to be.  If your intention is to have the photographer have all the rights of copyright ownership, why transfer it to the client?

Your choices are a short and simple non-commercial, non-assignable usage license, or a work for hire agreement combined with a complicated exclusive licensing agreement, assigning rights and privileges or copyright, back to the photographer.

If I shoot a wedding, there are issues with commercial use of images taken of the bride, groom or guests.  When I shoot, I also get images that are valuable, and marketable that don't include people, and don't invade the privacy of my clients.  I am always keeping an eye open for useful shots that may not be related to the project at hand.

If there are beautiful clouds in the sky or a gorgeous sunset, I may capture those images on spec.  If a later need comes up, I already have the images I can license.  I recently did a shoot for a magazine ad.  The art director wanted the products hanging from a clothesline with certain types of clouds in the background.  We shot the products and clothesline in the studio, and dropped in some clouds I had in my library from a previous shoot.  This gave me bonus income form the previous job.  Had the previous job been a work-for-hire, I would not have had this opportunity.



In my opinion, granting the client a license for the photos they receive has significant advantages over doing the wedding as a work-for-hire, and executing a legally complicated licensing agreement.  When all is said and done. If I want to sell an image of the sky that I took at a wedding, I don't want to involve the bride/groom in that transaction.


Again, I am not saying that a photographer should never do work for hire.  I am saying that there are significant differences between a usage license and a work for hire.  The photographer should be aware of the differences and make an informed decision.  Pay me enough money, and I am happy to shoot on a work-for-hire basis.

Nov 29 12 01:29 pm  Link  Quote 
guide forum
Photographer
GPS Studio Services
Posts: 34,451
San Francisco, California, US


ei Total Productions wrote:
Or perhaps you should stop giving incorrect information.  Unless there is a written agreement to the contrary (a "work made for hire" agreement), the copyright belongs to the photographer, not the bride/groom.  You may choose to give them a broad license to use the images, but the copyright is still the photographer's.

I have seen you write this same response before, but it is just legally incorrect.
Illuminate wrote:
He isn't completely wrong. People here should take a step back and breathe...

Ask most clients at your initial consultation and they will quickly answer that the images (all of them) belong to them. It's just a natural view that if you paid for a service and product it belongs to you.

It's at that moment that you tell them that although they own the usage rights to the images  you have provided, the copyright remains with you unless otherwise agreed to.

That's why a meeting of the minds (a CONTRACT) is key.

I know several photographers who do turn over all images and copyright to their clients with the understanding that select images can be used to promote their work.

Actually, he is completely wrong.  You are in Canada, and until just a few days ago, the rules in Canada were different than the rules in the U.S.  In Canada, until very recently, if someone hired you to take photos, then they, not you, owned the copyright, unless there was a written agreement to the contrary.  That was just changed.

In the U.S., the photographer always owns the copyright, unless he/she agrees, in writing to give it to the client.  For most photography, a client is rarely granted full rights to the images.  Some photographers may give them a CD and tell them they can make their own prints, use them on Facebook, etc.  They would almost never tell them they could re-license them, to magazines or advertisements, for example.  If they had full rights, those are things they would be allowed to do.

No, I am sorry, he is wrong.  To suggest that the clients owns the copyright is off-base in the U.S. and is now off-base in Canada as well.

Nov 29 12 03:03 pm  Link  Quote 
Photographer
Leighthenubian
Posts: 2,740
Toronto, Ontario, Canada


ei Total Productions wrote:

ei Total Productions wrote:
Or perhaps you should stop giving incorrect information.  Unless there is a written agreement to the contrary (a "work made for hire" agreement), the copyright belongs to the photographer, not the bride/groom.  You may choose to give them a broad license to use the images, but the copyright is still the photographer's.

I have seen you write this same response before, but it is just legally incorrect.

Actually, he is completely wrong.  You are in Canada, and until just a few days ago, the rules in Canada were different than the rules in the U.S.  In Canada, until very recently, if someone hired you to take photos, then they, not you, owned the copyright, unless there was a written agreement to the contrary.  That was just changed.

In the U.S., the photographer always owns the copyright, unless he/she agrees, in writing to give it to the client.  For most photography, a client is rarely granted full rights to the images.  Some photographers may give them a CD and tell them they can make their own prints, use them on Facebook, etc.  They would almost never tell them they could re-license them, to magazines or advertisements, for example.  If they had full rights, those are things they would be allowed to do.

No, I am sorry, he is wrong.  To suggest that the clients owns the copyright is off-base in the U.S. and is now off-base in Canada as well.

I'm in Canada at present but I also own a home in GA...I'm American and know contract law very well. I'm aware of Copyright Law particularly in the USA. Clients do not and it's important to discuss all these issues ahead of time was my point.

Nov 29 12 03:29 pm  Link  Quote 
guide forum
Photographer
GPS Studio Services
Posts: 34,451
San Francisco, California, US


Illuminate wrote:
I'm in Canada at present but I also own a home in GA...I'm American and know contract law very well. I'm aware of Copyright Law particularly in the USA. Clients do not and it's important to discuss all these issues ahead of time was my point.

That is all well and good.  It is one thing to say that you should discuss these things with the client.  That I agree with.  For him to announce to all of us that the client owns the copyright is another. 

Your point on informing the client is well taken, his was just wrong.

Nov 29 12 03:35 pm  Link  Quote 
Photographer
ME_
Posts: 3,131
Atlanta, Georgia, US


Illuminate wrote:
He isn't completely wrong.

Yes, he is completely wrong. What people assume and what is in fact true are two different things. He's just wrong and it's not the first time on the site that he's claimed his version of things is right. Well they're not.

Nov 30 12 05:50 am  Link  Quote 
Photographer
LightBrushedImages
Posts: 217
Columbia, Maryland, US


Troll much?

The Signature Image wrote:
Someone pays you to shoot a wedding and there is some doubt as to who owns the images?

Nope, no doubt at all.  The photographer.

Nov 30 12 06:06 am  Link  Quote 
Photographer
AVD AlphaDuctions
Posts: 10,522
Gatineau, Quebec, Canada


LightBrushedImages wrote:
http://lh5.googleusercontent.com/-iw5TaUpM1OI/AAAAAAAAAAI/AAAAAAAAABg/oWjr6XtVW8o/s120-c/photo.jpg much?

Nope, no doubt at all.  The photographer.

unless you post a "Berner Convention" notice on Facebook. Then you own everything!!!!!

Nov 30 12 08:54 am  Link  Quote 
Photographer
Michael Fryd
Posts: 3,436
Miami Beach, Florida, US


AVD AlphaDuctions wrote:
unless you post a "Berner Convention" notice on Facebook. Then you own everything!!!!!

The Berner Convention Facebook hoax is just another example of how little the general population understands about the laws that govern us.  Posting that notice on your facebook page has no legal impact at all. (see http://pogue.blogs.nytimes.com/2012/11/ … otice-now/)

Despite what many people think, as a general rule:

- The photographer owns the copyright to the photos
- There are many legal ways to publish a person's photo that don't require a llama release
- "Commercial Use" has little to do with whether money is involved
- Even though you bought the movie on DVD, you don't have the legal right to play it for your child's kindergarten class
- Shopping malls are not "public property"

A majority of people believe something, doesn't make it true.

Nov 30 12 09:20 am  Link  Quote 
Photographer
MC Photo
Posts: 4,144
New York, New York, US


Michael Fryd wrote:

It might be possible to write an agreement that would transfer copyright to the clients, yet allow the photographer to retain all the rights and privileges as if he owned the copyright.  I don't think such an agreement is easy nor straightforward.

Why bother?  Why make things more complicated then they need to be.  If your intention is to have the photographer have all the rights of copyright ownership, why transfer it to the client?

Your choices are a short and simple non-commercial, non-assignable usage license, or a work for hire agreement combined with a complicated exclusive licensing agreement, assigning rights and privileges or copyright, back to the photographer.

If I shoot a wedding, there are issues with commercial use of images taken of the bride, groom or guests.  When I shoot, I also get images that are valuable, and marketable that don't include people, and don't invade the privacy of my clients.  I am always keeping an eye open for useful shots that may not be related to the project at hand.

If there are beautiful clouds in the sky or a gorgeous sunset, I may capture those images on spec.  If a later need comes up, I already have the images I can license.  I recently did a shoot for a magazine ad.  The art director wanted the products hanging from a clothesline with certain types of clouds in the background.  We shot the products and clothesline in the studio, and dropped in some clouds I had in my library from a previous shoot.  This gave me bonus income form the previous job.  Had the previous job been a work-for-hire, I would not have had this opportunity.



In my opinion, granting the client a license for the photos they receive has significant advantages over doing the wedding as a work-for-hire, and executing a legally complicated licensing agreement.  When all is said and done. If I want to sell an image of the sky that I took at a wedding, I don't want to involve the bride/groom in that transaction.


Again, I am not saying that a photographer should never do work for hire.  I am saying that there are significant differences between a usage license and a work for hire.  The photographer should be aware of the differences and make an informed decision.  Pay me enough money, and I am happy to shoot on a work-for-hire basis.

First, for the photographer the agreement is very easy. You tell your lawyer what terms you want and they write it.

Second for the lawyer it's very easy because there are things that have to be addressed with a copyright transfer that you just leave out and you end up with what I'm suggesting.


The approach I'm suggesting is not the most logical way to agree to the terms that each side needs - it's in fact the inverse. My point is that clients can have illogical reasoning from insufficient understanding. You certainly can educate them, but any terms with an extended discussion/negotiation risks turning the client off and having them go somewhere. It also may become something they tolerate but is a blemish and should something else happen, becomes part of the list of things they hold against you.

My point is, if the client asks for something that doesn't make sense but makes no difference to you, why fight it?

I'm not saying that it makes precisely zero difference, because there is the difference in pursuing an infringer, but in the vast majority of the cases there is most likely no functional difference, so why make an issue out of something that doesn't matter.


There's a dogmatic view of never give up your copyright which can lead to big mistakes.

Nov 30 12 10:41 am  Link  Quote 
Photographer
Michael Fryd
Posts: 3,436
Miami Beach, Florida, US


MC Photo wrote:
First, for the photographer the agreement is very easy. You tell your lawyer what terms you want and they write it.

If I have to have an attorney customize an agreement for one client, I need to pass that cost along to the client.  This doesn't lead to happy clients.

MC Photo wrote:
Second for the lawyer it's very easy because there are things that have to be addressed with a copyright transfer that you just leave out and you end up with what I'm suggesting.

It's not easy for the attorney, as  I need to explain to him which rights I want transferred back to me.  I then need to explain to him why I want to pay him for a custom agreement that seems to do almost the same thing as a simple (and previously prepared) usage license.

I don't know about your attorney, but mine would tell me to retain copyright and grant a usage license.  Creating a custom document that is structured as a copyright transfer but attempts to operate as a usage license, is a waste of time and money.

MC Photo wrote:
The approach I'm suggesting is not the most logical way to agree to the terms that each side needs - it's in fact the inverse. My point is that clients can have illogical reasoning from insufficient understanding. You certainly can educate them, but any terms with an extended discussion/negotiation risks turning the client off and having them go somewhere. It also may become something they tolerate but is a blemish and should something else happen, becomes part of the list of things they hold against you.

I frequently have clients request unreasonable things.

My usual response is to take a few minutes and educate them.  I have been known to tell a client "As much as I want your money, you would be better served by doing XXX, and here's why..." 

Once the client understands, they typically change their request to something more reasonable.   

My customers also are much happier, and feel a stronger bond.  I find that this builds customer loyalty.


MC Photo wrote:
My point is, if the client asks for something that doesn't make sense but makes no difference to you, why fight it?

When a client asks for something that doesn't make sense I get a happier customer if I educate them (see previous answer).

Furthermore, in this case, the request does make a difference.

If the client wants something that involves a custom legal document, that's revenue that is being diverted from my pocket into the attorney's pocket.  If the client has a budget, I want him to spend it on my products and services.

As mentioned previously, there are significant differences between owning copyright and a usage license.  These are unlikely to affect the client, but can easily affect the photographer.


If I want to sub-license an image, I want the copyright notice to list my name so I get the added exposure.  If I have transferred the copyright, then it will list the bride/grooms name.   They may even feel this is a violation of their privacy.


If I create a derivative work of an image, I don't want to have to worry about copyright attribution issues.  I would rather my name be the only one on the copyright.

MC Photo wrote:
I'm not saying that it makes precisely zero difference, because there is the difference in pursuing an infringer, but in the vast majority of the cases there is most likely no functional difference, so why make an issue out of something that doesn't matter.

With both agree there's a difference, we differ in the significance of the difference.

You seem to feel that hiring an attorney for a custom agreement is an inconsequential expense.

We both seem to agree that the primary revenue source for a wedding job is selling images to the bride and groom.   You seem to be assuming there are no other revenue opportunities, and the only other use is for the photographer to promote his business.

I will admit, that as far as the bride/groom making copies for personal use, there is little practical difference between a proper usage license and a copyright transfer.

Once we start talking about secondary revenue sources for the photographer, there is a big difference.

I believe that there are many opportunities to leverage one's work and generate secondary income.  I maybe on location to shoot a wedding, but I can also generate revenue from selling to the vendors and collecting images for my stock library.  Not every marketable image needs to have a bride, groom or guest.  There are many marketable images that are not an infringement of the bride/groom's privacy and do not require a release from them.

MC Photo wrote:
There's a dogmatic view of never give up your copyright which can lead to big mistakes.

I never advised that one should always retain copyright.  My advice was that there is a cost to giving up copyright (even if one attempts to retain some rights).  These costs may be in lost opportunities and difficult to measure.  A photographer should be aware of these missed revenue opportunities, and take them into account when pricing a job as a work-for-hire.

Nov 30 12 12:45 pm  Link  Quote 
Photographer
Dan K Photography
Posts: 5,409
STATEN ISLAND, New York, US


I never quite understood this law. I think Canada originally had it right and I do not understand the change.

It is logical and normal that if you pay for something it should be yours. It is beyond me how the opposite is the norm and defended by so many. I understand that people just want to get the best deal possible for themselves and togs are no exception, but if you are paid to take photos of  a personal nature that you would not have access to otherwise you should not have any usage rights.

At least none that isn't expressly given to you by the people who hired you.
Nov 30 12 12:52 pm  Link  Quote 
Photographer
Michael Fryd
Posts: 3,436
Miami Beach, Florida, US


Dan K Photography wrote:
I never quite understood this law. I think Canada originally had it right and I do not understand the change.

It is logical and normal that if you pay for something it should be yours. It is beyond me how the opposite is the norm and defended by so many. I understand that people just want to get the best deal possible for themselves and togs are no exception, but if you are paid to take photos of  a personal nature that you would not have access to otherwise you should not have any usage rights.

At least none that isn't expressly given to you by the people who hired you.

For the same reason you don't own the copyright to a movie when you buy the DVD, or own the copyright to a story when you buy a book.

It is assumed that the rights go to the talent who created the work.

It's always been this way.  When someone mentions the ceiling in the Sistine Chapel, we talk about the artist who painted it (Michelangelo), not the person who hired him to paint it (Pope Julius II).

Nov 30 12 12:59 pm  Link  Quote 
Photographer
Dan K Photography
Posts: 5,409
STATEN ISLAND, New York, US


Michael Fryd wrote:
For the same reason you don't own the copyright to a movie when you buy the DVD, or own the copyright to a story when you buy a book.

It is assumed that the rights go to the talent who created the work.

It's always been this way.  When someone mentions the ceiling in the Sistine Chapel, we talk about the artist who painted it (Michelangelo), not the person who hired him to paint it (Pope Julius II).

It has not always been this way because stuff were not reproducible. Things were one of a kind and the person buying it had full rights to it. You owned a painting because you bought it from the artist you could do what you wanted with it. Sell it or paint over it then sell it.
Who owns the sistine chapel?

The difference in photography is that the people in the photograph is the story and is the talent that in part allows the photograph to be made. In a movie the on screen talent is paid so that the studio can use there talents to make money. In photography the tog is paid and is the only one allowed to make money on the fruits.

Does the cameraman in movies own the copyright? Why not?

Could the tog have made the photographs without the wedding he was paid to do. Of course not.

Your example is apples to oranges.

Nov 30 12 01:08 pm  Link  Quote 
Photographer
Michael Fryd
Posts: 3,436
Miami Beach, Florida, US


Dan K Photography wrote:
...
Does the cameraman in movies own the copyright? Why not?
...

Cameramen in movies and TV sign work-for-hire agreements so that they have no claim to copyright.  I've been working in TV for over 30 years.  Cameramen are very well compensated.  If I were making what they make, I wouldn't mind signing a work-for-hire agreement.


There is also the issue that in a multi-camera TV situation, someone else is telling the cameraman where to stand, and where to point the camera.  Someone in the control room is adjusting aperture, and fine tuning color.  There is separate team that designs the sets, another team designing the lights, and choreographers telling the talent where and when to stand and move.

A TV cameraman plays a smaller creative role than a traditional still photographer.


Dan K Photography wrote:
...Could the tog have made the photographs without the wedding he was paid to do. Of course not.

Your example is apples to oranges.

Perhaps the better statement would have been "Would the photographer have been there if he hadn't been hired to shoot the wedding?"  The answer is "probably not, but had he been he could have captured the secondary photos without the wedding".



The bottom line is that there are good reasons for the photographer retaining the copyright, and good reasons why the client should get it.  It's important to realize that there is a difference, and that difference affects the price.


The historical business model is that the photographer shoots a wedding on spec.  His shooting fee covers costs, and he makes the money by selling prints.  If the client wants more prints, they have to buy them from the photographer.  The photographer held the negatives, and therefore controlled the technology needed to make new prints. 

If the client expected to "own" the images, then the client would have expected to get the negatives.   in practice, clients rarely got negatives, and the photographer retained exclusive control over image reproduction.   if a client did want the negatives, it cost more.

Today, it's easy for clients to make copies.  This does't mean it's OK to do so.  The big difference is that the photographer has to rely on copyright law, rather than technological limitations, to enforce his rights.

It's common to hire a singer or band for a wedding.  It's also common to hire someone to video record your wedding.  You pay for these things, but it doesn't give you the right to publish and sell recordings of the performances.


People may expect that they own the images from their wedding, but that isn't how things have traditionally worked.

Nov 30 12 01:53 pm  Link  Quote 
Photographer
Woven Thought
Posts: 329
Petersburg, Virginia, US


The Signature Image wrote:
Please stop. If you shoot a wedding the bride/groom are assumed to own the copywright and the photos.

While I assume the bride and groom have no problem with you posting some pictures on your site, try and sell some of the images.

I have a family portrait session on Thursday. The images belong to them. That is common sense.

Please stop all this what if and what about nonsense. Someone pays you to shoot a wedding and there is some doubt as to who owns the images?

Please...

Wow.  Don't you have any idea what a photographer is?

Nov 30 12 02:17 pm  Link  Quote 
Photographer
Dan K Photography
Posts: 5,409
STATEN ISLAND, New York, US


Michael Fryd wrote:

Dan K Photography wrote:
...
Does the cameraman in movies own the copyright? Why not?
...

Cameramen in movies and TV sign work-for-hire agreements so that they have no claim to copyright.  I've been working in TV for over 30 years.  Cameramen are very well compensated.  If I were making what they make, I wouldn't mind signing a work-for-hire agreement.


There is also the issue that in a multi-camera TV situation, someone else is telling the cameraman where to stand, and where to point the camera.  Someone in the control room is adjusting aperture, and fine tuning color.  There is separate team that designs the sets, another team designing the lights, and choreographers telling the talent where and when to stand and move.

A TV cameraman plays a smaller creative role than a traditional still photographer.



Perhaps the better statement would have been "Would the photographer have been there if he hadn't been hired to shoot the wedding?"  The answer is "probably not, but had he been he could have captured the secondary photos without the wedding".



The bottom line is that there are good reasons for the photographer retaining the copyright, and good reasons why the client should get it.  It's important to realize that there is a difference, and that difference affects the price.


The historical business model is that the photographer shoots a wedding on spec.  His shooting fee covers costs, and he makes the money by selling prints.  If the client wants more prints, they have to buy them from the photographer.  The photographer held the negatives, and therefore controlled the technology needed to make new prints. 

If the client expected to "own" the images, then the client would have expected to get the negatives.   in practice, clients rarely got negatives, and the photographer retained exclusive control over image reproduction.   if a client did want the negatives, it cost more.

Today, it's easy for clients to make copies.  This does't mean it's OK to do so.  The big difference is that the photographer has to rely on copyright law, rather than technological limitations, to enforce his rights.

It's common to hire a singer or band for a wedding.  It's also common to hire someone to video record your wedding.  You pay for these things, but it doesn't give you the right to publish and sell recordings of the performances.


People may expect that they own the images from their wedding, but that isn't how things have traditionally worked.

That is interesting about cameraman. So you are saying by law they would have copyright if they didn't do a work for hire?

But as you are saying because they are compensated they give up copyright. How is that different from wedding photographers? there are plenty that make more then many movie cameramen. I am sure even more make more then cameramen for evening news etc.


As for playing a smaller role point I have to disagree as that has nothing to do with copyright. Sets could be built,  models chosen, creative directors direct, lighting assistants set up the lights and camera on a tripod, photoshop wizard doing all the post work. The tog comes in clicks the  shutter he automatically gets copyright.

The historical business model in Canada for instance is that the person who pays gets the copyright. Going by history makes no sense as we can name many harmful things done historically. I am discussing what I think should be.

I understand the business model and the need for photographers to make some cash and the business model of low day fee but making it up in print sales I have no problem with. Though that can just be changed to charging your average total sale to everyone and just handing the rights.


What I have a problem with is the Tog getting paid and using the photos for other purposes without the express permission of the employer.

Nov 30 12 02:19 pm  Link  Quote 
Photographer
Michael Fryd
Posts: 3,436
Miami Beach, Florida, US


Dan K Photography wrote:
That is interesting about cameraman. So you are saying by law they would have copyright if they didn't do a work for hire?

But as you are saying because they are compensated they give up copyright. How is that different from wedding photographers? there are plenty that make more then many movie cameramen. I am sure even more make more then cameramen for evening news etc.


As for playing a smaller role point I have to disagree as that has nothing to do with copyright. Sets could be built,  models chosen, creative directors direct, lighting assistants set up the lights and camera on a tripod, photoshop wizard doing all the post work. The tog comes in clicks the  shutter he automatically gets copyright.

The historical business model in Canada for instance is that the person who pays gets the copyright. Going by history makes no sense as we can name many harmful things done historically. I am discussing what I think should be.

I understand the business model and the need for photographers to make some cash and the business model of low day fee but making it up in print sales I have no problem with. Though that can just be changed to charging your average total sale to everyone and just handing the rights.


What I have a problem with is the Tog getting paid and using the photos for other purposes without the express permission of the employer.

I am saying that the compensation for the cameraman takes into account the fact that he has signed a work for hire agreement.

Although many people believe that the person who clicks the shutter is the natural copyright holder, this is not what the law says.  The law says that the natural copyright holder is the author of the work (i.e. the creative talent).  The law also says that a work must be fixed in tangible form to qualify for copyright.  No special status is given tot he person who fixes it in tangible form.

In particular, it is clear that copyright protection is only applicable to creative works.  A person who merely presses a button on command, has not contributed creatively in any fashion, and does not qualify for copyright protection.

To be fair, the person who is the creative author of a photo is usually the person who presses the shutter button.  He is the natural copyright holder because he was the creative force, not because he pressed the shutter button.

I don't have the copyright law in front of me, but there are specific exemptions for some industries that make it clear that even though the person who fixes the work may contribute creatively, he is not the natural copyright holder.  For instance, the natural copyright holder is the singer, not the recording engineer, even though the recording engineer may significantly contribute to the sound.

Nov 30 12 02:47 pm  Link  Quote 
Photographer
MC Photo
Posts: 4,144
New York, New York, US


Michael Fryd wrote:

MC Photo wrote:
First, for the photographer the agreement is very easy. You tell your lawyer what terms you want and they write it.

If I have to have an attorney customize an agreement for one client, I need to pass that cost along to the client.  This doesn't lead to happy clients.

MC Photo wrote:
Second for the lawyer it's very easy because there are things that have to be addressed with a copyright transfer that you just leave out and you end up with what I'm suggesting.

It's not easy for the attorney, as  I need to explain to him which rights I want transferred back to me.  I then need to explain to him why I want to pay him for a custom agreement that seems to do almost the same thing as a simple (and previously prepared) usage license.

I don't know about your attorney, but mine would tell me to retain copyright and grant a usage license.  Creating a custom document that is structured as a copyright transfer but attempts to operate as a usage license, is a waste of time and money.

MC Photo wrote:
The approach I'm suggesting is not the most logical way to agree to the terms that each side needs - it's in fact the inverse. My point is that clients can have illogical reasoning from insufficient understanding. You certainly can educate them, but any terms with an extended discussion/negotiation risks turning the client off and having them go somewhere. It also may become something they tolerate but is a blemish and should something else happen, becomes part of the list of things they hold against you.

I frequently have clients request unreasonable things.

My usual response is to take a few minutes and educate them.  I have been known to tell a client "As much as I want your money, you would be better served by doing XXX, and here's why..." 

Once the client understands, they typically change their request to something more reasonable.   

My customers also are much happier, and feel a stronger bond.  I find that this builds customer loyalty.


MC Photo wrote:
My point is, if the client asks for something that doesn't make sense but makes no difference to you, why fight it?

When a client asks for something that doesn't make sense I get a happier customer if I educate them (see previous answer).

Furthermore, in this case, the request does make a difference.

If the client wants something that involves a custom legal document, that's revenue that is being diverted from my pocket into the attorney's pocket.  If the client has a budget, I want him to spend it on my products and services.

As mentioned previously, there are significant differences between owning copyright and a usage license.  These are unlikely to affect the client, but can easily affect the photographer.


If I want to sub-license an image, I want the copyright notice to list my name so I get the added exposure.  If I have transferred the copyright, then it will list the bride/grooms name.   They may even feel this is a violation of their privacy.


If I create a derivative work of an image, I don't want to have to worry about copyright attribution issues.  I would rather my name be the only one on the copyright.

MC Photo wrote:
I'm not saying that it makes precisely zero difference, because there is the difference in pursuing an infringer, but in the vast majority of the cases there is most likely no functional difference, so why make an issue out of something that doesn't matter.

With both agree there's a difference, we differ in the significance of the difference.

You seem to feel that hiring an attorney for a custom agreement is an inconsequential expense.

We both seem to agree that the primary revenue source for a wedding job is selling images to the bride and groom.   You seem to be assuming there are no other revenue opportunities, and the only other use is for the photographer to promote his business.

I will admit, that as far as the bride/groom making copies for personal use, there is little practical difference between a proper usage license and a copyright transfer.

Once we start talking about secondary revenue sources for the photographer, there is a big difference.

I believe that there are many opportunities to leverage one's work and generate secondary income.  I maybe on location to shoot a wedding, but I can also generate revenue from selling to the vendors and collecting images for my stock library.  Not every marketable image needs to have a bride, groom or guest.  There are many marketable images that are not an infringement of the bride/groom's privacy and do not require a release from them.


I never advised that one should always retain copyright.  My advice was that there is a cost to giving up copyright (even if one attempts to retain some rights).  These costs may be in lost opportunities and difficult to measure.  A photographer should be aware of these missed revenue opportunities, and take them into account when pricing a job as a work-for-hire.

You need a new attorney.

You might want to learn a little more about IP. You might find it easier to see the bigger picture if you learned about music recording copyrights and publishing deals and the odd ones like "Bowie bonds". There's no issue that can't be addressed and hasn't already been addressed in some previous deal. It's the same as ideas for photos. Seeing it might be easier when you see how the music side splits a recording into two separate copyrights in a way that could be done in photography but isn't.

If you turn down a job over copyright, you've lost money. If you give up a copyright there's a very small, speculative chance that you will loose future income - for instance, you won't get $30 for a usage through a stock company. That's a good trade - give up $3k or even $300 for a chance to make $30.

I'm not advocating giving up copyright, I'm advocating have a palate of deals and not be locked into one.

Nov 30 12 06:53 pm  Link  Quote 
Photographer
MC Photo
Posts: 4,144
New York, New York, US


Dan K Photography wrote:
I never quite understood this law. I think Canada originally had it right and I do not understand the change.

It is logical and normal that if you pay for something it should be yours. It is beyond me how the opposite is the norm and defended by so many. I understand that people just want to get the best deal possible for themselves and togs are no exception, but if you are paid to take photos of  a personal nature that you would not have access to otherwise you should not have any usage rights.

At least none that isn't expressly given to you by the people who hired you.

Yes, it is and that is exactly what happens with wedding photos.

When a client pays a photographer to shoot their wedding and deliver prints, the photographer owns the copyright and the client owns the prints and can do anything the want with them. They can resell them to anyone at anytime for any price. They can't make copies, but they own what they paid for.

Using your logic, the photographer paid for the film, so they should own it. They own the negative and the couple gets prints.


When it's digital, the couple owns the CD/DVD.

They also own the license they paid for.

What your missing what what's getting paid for. People are buying a license. That's what they own.

A copyright is not a "thing" it's a right, specifically the right to make duplications.


You could make a deal where the couple buys that right and the cost is $100 every time they exercise their purchased right to make a copy in the form of a print. In practical terms that's no different then paying for a license.

This is all about a method of setting rates based on the time and cost of shooting and the volume and format of the photos that come from a shoot.

Nov 30 12 07:01 pm  Link  Quote 
Photographer
MC Photo
Posts: 4,144
New York, New York, US


Michael Fryd wrote:

For the same reason you don't own the copyright to a movie when you buy the DVD, or own the copyright to a story when you buy a book.

It is assumed that the rights go to the talent who created the work.

It's always been this way.  When someone mentions the ceiling in the Sistine Chapel, we talk about the artist who painted it (Michelangelo), not the person who hired him to paint it (Pope Julius II).

But it doesn't. The movie studio owns the movie, not the writer, director or actors.

Nov 30 12 07:02 pm  Link  Quote 
Photographer
MC Photo
Posts: 4,144
New York, New York, US


Dan K Photography wrote:
That is interesting about cameraman. So you are saying by law they would have copyright if they didn't do a work for hire?

But as you are saying because they are compensated they give up copyright. How is that different from wedding photographers? there are plenty that make more then many movie cameramen. I am sure even more make more then cameramen for evening news etc.


As for playing a smaller role point I have to disagree as that has nothing to do with copyright. Sets could be built,  models chosen, creative directors direct, lighting assistants set up the lights and camera on a tripod, photoshop wizard doing all the post work. The tog comes in clicks the  shutter he automatically gets copyright.

The historical business model in Canada for instance is that the person who pays gets the copyright. Going by history makes no sense as we can name many harmful things done historically. I am discussing what I think should be.

I understand the business model and the need for photographers to make some cash and the business model of low day fee but making it up in print sales I have no problem with. Though that can just be changed to charging your average total sale to everyone and just handing the rights.


What I have a problem with is the Tog getting paid and using the photos for other purposes without the express permission of the employer.

You might want to look into the definition of employer. If I hire Goldman Sachs to manage my money, is everyone who works at Goldman Sachs my employee? It's no different from hiring a photographer. You're hiring a business, not a person. If the photographer isn't incorporated they are still a business not an employee. Instead of being an S corporation, C corporation or LLC, they are a sole proprietorship.

As far as the camera man, whether they have a claim to the copyright is dependent on the circumstances. If there's a cameraman who works for NBC five days a week every week, tax laws require that he's not paid as a contractor, but as an employee. So he will be an NBC employee. If they say "Go shoot X." and there is no written agreement between them indicating who owns the copyright, NBC will own it because of his status as an employee.

If the same guy works one weekend a month for CBS, he will not be an employee. If they say "Go shoot X" and there is no written agreement between them indicating who owns the copyright, the camera man will own it, because he's not an employee, he is there as an independent entity, like when Goldman Sachs manages my money.

If Goldman Sachs had a video production wing and I hired them to come shoot my wedding, the camera man would be Goldman Sachs' employee and I would not own the copyright because it would be owned by the independent entity that created it. If they sent someone who they hired as a contractor, the contractor owns the copyright unless there's something in writing, which will most likely be a work-for-hire agreement. I could also have Goldman Sachs sign a work-for-hire agreement that indicates that I hold the copyright.

The cameraman isn't "compensated because he gives up copyright". If he's an employee, he's compensated for his labor. If he's a contractor, he as a business, is compensated because they've agreed on compensation. That could be for a service, or that could be for service and expenses, or service, expenses and copyright. Or maybe the person hiring a contractor doesn't want an itemized bill and it's one amount that's not specific as to what it's for.


Your term "the historical business model" is incorrect. They are Canadian photographers who cut deals where they retain ownership. The correct term is "Candanian law...." and what Canadian law said was "in the absence of of a written agreement that defines who owns the copyright, the default is the entity who commissions the work." It's the opposite of American law.

In business is it's always negotiated. The choice not to discuss it means that in the negotiation you are agreeing to whatever the law says the default is.

Nov 30 12 07:25 pm  Link  Quote 
Photographer
MC Photo
Posts: 4,144
New York, New York, US


Michael Fryd wrote:
I am saying that the compensation for the cameraman takes into account the fact that he has signed a work for hire agreement.

Although many people believe that the person who clicks the shutter is the natural copyright holder, this is not what the law says.  The law says that the natural copyright holder is the author of the work (i.e. the creative talent).  The law also says that a work must be fixed in tangible form to qualify for copyright.  No special status is given tot he person who fixes it in tangible form.

In particular, it is clear that copyright protection is only applicable to creative works.  A person who merely presses a button on command, has not contributed creatively in any fashion, and does not qualify for copyright protection.

To be fair, the person who is the creative author of a photo is usually the person who presses the shutter button.  He is the natural copyright holder because he was the creative force, not because he pressed the shutter button.

I don't have the copyright law in front of me, but there are specific exemptions for some industries that make it clear that even though the person who fixes the work may contribute creatively, he is not the natural copyright holder.  For instance, the natural copyright holder is the singer, not the recording engineer, even though the recording engineer may significantly contribute to the sound.

Compensation takes into account market rates for freelancers and union agreements, not copyright.

Market rates are based on supply and demand and have nothing to do with copyrights.

Nov 30 12 07:31 pm  Link  Quote 
Photographer
Michael Fryd
Posts: 3,436
Miami Beach, Florida, US


MC Photo wrote:

You need a new attorney.

You might want to learn a little more about IP. You might find it easier to see the bigger picture if you learned about music recording copyrights and publishing deals and the odd ones like "Bowie bonds". There's no issue that can't be addressed and hasn't already been addressed in some previous deal. It's the same as ideas for photos. Seeing it might be easier when you see how the music side splits a recording into two separate copyrights in a way that could be done in photography but isn't.

If you turn down a job over copyright, you've lost money. If you give up a copyright there's a very small, speculative chance that you will loose future income - for instance, you won't get $30 for a usage through a stock company. That's a good trade - give up $3k or even $300 for a chance to make $30.

I'm not advocating giving up copyright, I'm advocating have a palate of deals and not be locked into one.

A custom contract costs more than a standard contract that's already been written.  Even pulling the terms from previous contracts takes more time then using an existing standard contract.



You suggest the best solution is to charge $3k, pay an attorney, and give up copyright.

I suggest spending 5 minutes educating the client, get paid $3k, and keep the copyright.  Even without selling any additional images I come out ahead as I save on attorney's fees.

Nov 30 12 08:08 pm  Link  Quote 
Photographer
Art of the nude
Posts: 11,780
Olivet, Michigan, US


MC Photo wrote:
Unrestricted usage rights and copyright are the same thing.

If you gave them the copyright and took an unrestricted usage agreement for yourself it would be the same thing.

If you have a corporation, I'm pretty sure that you could grant your corporation an irrevocable unrestricted usage license and then transfer the copyright to someone else without voiding that license.

Assuming that's possible it should also be possible to grant one to yourself before transferring the copyright.

This may be a little shady because if they had a lawyer draft an agreement to purchase the copyright there would probably be wording about disclosing this or warranting that no one else has claim to ownership of the images. Since the intent may be about controlling use, not disclosing the license is questionable. If the request for copyright is because they don't want to be extorted for prints later or tied to bad post or a watermark, then it's not a big deal,  but you could also put usage terms in the copyright agreement.

No, they aren't.

Nov 30 12 08:24 pm  Link  Quote 
Photographer
MC Photo
Posts: 4,144
New York, New York, US


Michael Fryd wrote:

A custom contract costs more than a standard contract that's already been written.  Even pulling the terms from previous contracts takes more time then using an existing standard contract.



You suggest the best solution is to charge $3k, pay an attorney, and give up copyright.

I suggest spending 5 minutes educating the client, get paid $3k, and keep the copyright.  Even without selling any additional images I come out ahead as I save on attorney's fees.

No. My suggestion is to not be dogmatic about keeping copyright and keep an open mind.

If educating the client will always get them to change their mind, then I want to change my suggestion to "spend 5 minutes educating the client, get paid $30k and keep the copyright."

When you have a client who makes copyright a deal breaker, you're getting $0 unless you give them the copyright. The reality is that you can give them the copyright and still get everything you need.

You can pass the legal cost to the client by having them hire an attorney to write the contract.

Your attorney fee argument is specious when you're advocating keeping the copyright to pursue infringers and the infinite licensing fees you're going to generate with the photos from every single wedding you shoot. Your attorney will be on a retainer if you've got aal of that licensing going on.

It will not be a custom contract because there are plenty of versions of this already in existence.

Dec 02 12 01:25 pm  Link  Quote 
Photographer
MC Photo
Posts: 4,144
New York, New York, US


Art of the nude wrote:

No, they aren't.

It depends on what the contract says, doesn't it?

As I said before, you're correct that what I described doesn't give the photographer the right to make claims against unauthorized uses, but that right is assignable. All rights are assignable in any conceivable deal in any conceivable field/industry.

If you can transfer all of the rights granted under the copyright laws in the first place, you can transfer/keep them on an a la carte basis from 0% to 100%. It is possible to transfer a copyright in title only, and not functionally. Ownership of copyright is a red herring, it's having the rights granted by holding thenp copyright that matters. The law is only the default in the absence of an agreement that says different.

You can sell a car and keep ownership of the drive shaft or the lug nut in the right rear tire that's in the best condition.

You can sell a car an keep the right to drive it, or keep the right to control who drives it which could mean preventing the owner to drive it. You could sell a car and keep the option to buy it back at any time. You could sell a car and keep the right to resell additional shares and devalue the ownership that was paid for.

No one would agree to any of these terms, but they could if they wanted to.

If you tell an attorney to write a contract that transfers the ownership of the copyright to someone else, but gives you the full rights that you previously had as owner, then you can make it 100% exactly the same with the transfer of ownership being symbolic only. You can maintain the administration rights and income rights, the credit as author.

I'll rephrase it in a way that might help. You could write a contract that transfers the right to someone to call themselves the copyright owner, and nothing else. You could add to that an unrestricted usage license, or you could add a very restricted usage license. The right to call yourself the copyright owner is symbolic and worthless. It's the administration rights and income rights that matter.


Ultimately saying that it's important to keep ownership of a copyright is misinformation. It's important to keep the rights that you need.

Conceptually it's easier and more to describe these rights with the term "copyright".

You could sell the copyright and keep nothing, but create a reversion clause where ownership reverts to the photographer upon any unopauthorized third party use of an image or inquiry into the use of the image.

If a client is asking for copyright for emotional reasons and not functional reasons, it is possible to give it to them without giving anything up. This can be put in writing in an infinite number of ways.

Focus on the rights, not a superficial title.

Dec 02 12 01:51 pm  Link  Quote 
Photographer
Michael Fryd
Posts: 3,436
Miami Beach, Florida, US


MC Photo wrote:
It depends on what the contract says, doesn't it?
...

Not always.

If I am selling a photo of a sunset to a magazine, the copyright notice will list my name if I have retained the copyright, and it will list my client's name if they own the copyright.

If the magazine promotes ideas my client does not agree with, they may not wish to do business with the magazine.  They may be very unhappy that their name appears in the magazine, even if it's a copyright notice.


We both seem to agree that a photographer should be flexible on selling copyright.   

Where we differ is in the value of retaining copyright vs. selling it.

I believe that once you have sold copyright, you should expect that you will no longer have access to the images.  You should consider this when pricing the job.  Depending on the images, there may be little value to losing access, or a lot of value.


You seem to state that the solution is to create an agreement, where the copyright is transferred, but a licensing agreement is created that gives the photographer all the rights of copyright.

I believe that there are many issues that make your solution impractical.


First of all, a client who understands and insists on copyright is likely doing so because they want to control the image.  Such a client is unlikely to give up control by licensing the image back to the photographer.

Secondly, a client who would be willing to license back the image can easily be talked into accepting a license rather than copyright.  After all, your position is that the only difference between the two is the cost of a well crafted legal document. 



Obviously, there are some clients who have a legitimate need to own copyright.  I am simply suggesting that the copyright has value, and this should be taken into account when pricing the job.

For those clients who don't need copyright, a 5 minute conversation is usually enough to convince them that they only need a license.  A big selling point is that there is additional cost if they want the copyright, and it will not provide them sufficient to justify the cost.

Dec 02 12 02:54 pm  Link  Quote 
Photographer
MC Photo
Posts: 4,144
New York, New York, US


Michael Fryd wrote:

Not always.

If I am selling a photo of a sunset to a magazine, the copyright notice will list my name if I have retained the copyright, and it will list my client's name if they own the copyright.

If the magazine promotes ideas my client does not agree with, they may not wish to do business with the magazine.  They may be very unhappy that their name appears in the magazine, even if it's a copyright notice.


We both seem to agree that a photographer should be flexible on selling copyright.   

Where we differ is in the value of retaining copyright vs. selling it.

I believe that once you have sold copyright, you should expect that you will no longer have access to the images.  You should consider this when pricing the job.  Depending on the images, there may be little value to losing access, or a lot of value.


You seem to state that the solution is to create an agreement, where the copyright is transferred, but a licensing agreement is created that gives the photographer all the rights of copyright.

I believe that there are many issues that make your solution impractical.


First of all, a client who understands and insists on copyright is likely doing so because they want to control the image.  Such a client is unlikely to give up control by licensing the image back to the photographer.

Secondly, a client who would be willing to license back the image can easily be talked into accepting a license rather than copyright.  After all, your position is that the only difference between the two is the cost of a well crafted legal document. 



Obviously, there are some clients who have a legitimate need to own copyright.  I am simply suggesting that the copyright has value, and this should be taken into account when pricing the job.

For those clients who don't need copyright, a 5 minute conversation is usually enough to convince them that they only need a license.  A big selling point is that there is additional cost if they want the copyright, and it will not provide them sufficient to justify the cost.

No, the copyright is the magazine's for the magazine as a collection. The photo credit will be yours.

The thing is we're not talking about magazines and we're not talking about clients who understand copyright, we're talking about a couple who's been told by someone they trust more than you that they need to have the copyright.

Just like any agreement can give back any rights to the photographer, there could be an identical contract made for the couple. So if they really understood, they'd be asking for a license that gave them the rights they need.

The contract is not impractical, it's inefficient because it's the long way to say something simple, but all of the concepts exist with boiler plate wording. It's not difficult for a lawyer to write.

There are reasonable couples who you can educate in one sentence and there are bridezillas who will not listen nor understand. So you can put a lot of time and energy in to getting something that can be made superficial, and you risk alienating and loosing the client.

So you give them the agreement that has the keywords to make them happy and the functionality that makes you happy and you save a ton of time.

My guess is that they'd give the agreement to a lawyer who'd ask them why they want the copyright and they'd tell him whatever it is they've been told and he'll educate them instead of you. Or not it doesn't matter because the agreement can be made so that both sides get what they want. Neither side has to own the copyright for whatever use they want.

What I'm saying is that there's no difference between having the copyright and having all of the rights that copyright gives. It's precisely 6 vs half dozen.


You're looking at this as being about copyright. I'm looking at this as how do deal with a client who's emotional rather than rational/reasonable.

You're 100% right that it's way faster and easier to write "6" but if you're client is fixated on "6" because someone told them that was important and they're not bothering to understand what that represents.


I had a situation recently where I'd shot for a full day and the client wanted 6 photos. Their proposal was a buyout because in this context it's always a buy out. That's what my lawyer said to me too - I do deals like this all the time, it's always a buy out.

My point was what's the need to make it a buyout for all of the photos for the entire day when they only want 6? Why not make it a buyout just for those 6? Why not make it a license that covered all of their needs just for those 6? That's what it ended up being because no one really cared about anything beyond usage.

Had he come back saying they don't care, they want a buyout because that's what it always is, I would have said fine, here's a list of the usage that I need and it would have made no difference.

Dec 03 12 09:46 pm  Link  Quote 
Photographer
MC Photo
Posts: 4,144
New York, New York, US


Michael Fryd wrote:

Not always.

If I am selling a photo of a sunset to a magazine, the copyright notice will list my name if I have retained the copyright, and it will list my client's name if they own the copyright.

If the magazine promotes ideas my client does not agree with, they may not wish to do business with the magazine.  They may be very unhappy that their name appears in the magazine, even if it's a copyright notice.


We both seem to agree that a photographer should be flexible on selling copyright.   

Where we differ is in the value of retaining copyright vs. selling it.

I believe that once you have sold copyright, you should expect that you will no longer have access to the images.  You should consider this when pricing the job.  Depending on the images, there may be little value to losing access, or a lot of value.


You seem to state that the solution is to create an agreement, where the copyright is transferred, but a licensing agreement is created that gives the photographer all the rights of copyright.

I believe that there are many issues that make your solution impractical.


First of all, a client who understands and insists on copyright is likely doing so because they want to control the image.  Such a client is unlikely to give up control by licensing the image back to the photographer.

Secondly, a client who would be willing to license back the image can easily be talked into accepting a license rather than copyright.  After all, your position is that the only difference between the two is the cost of a well crafted legal document. 



Obviously, there are some clients who have a legitimate need to own copyright.  I am simply suggesting that the copyright has value, and this should be taken into account when pricing the job.

For those clients who don't need copyright, a 5 minute conversation is usually enough to convince them that they only need a license.  A big selling point is that there is additional cost if they want the copyright, and it will not provide them sufficient to justify the cost.

No, the copyright is the magazine's for the magazine as a collection. The photo credit will be yours.

The thing is we're not talking about magazines and we're not talking about clients who understand copyright, we're talking about a couple who's been told by someone they trust more than you that they need to have the copyright.

Just like any agreement can give back any rights to the photographer, there could be an identical contract made for the couple. So if they really understood, they'd be asking for a license that gave them the rights they need.

The contract is not impractical, it's inefficient because it's the long way to say something simple, but all of the concepts exist with boiler plate wording. It's not difficult for a lawyer to write.

There are reasonable couples who you can educate in one sentence and there are bridezillas who will not listen nor understand. So you can put a lot of time and energy in to getting something that can be made superficial, and you risk alienating and loosing the client.

So you give them the agreement that has the keywords to make them happy and the functionality that makes you happy and you save a ton of time.

My guess is that they'd give the agreement to a lawyer who'd ask them why they want the copyright and they'd tell him whatever it is they've been told and he'll educate them instead of you. Or not it doesn't matter because the agreement can be made so that both sides get what they want. Neither side has to own the copyright for whatever use they want.

What I'm saying is that there's no difference between having the copyright and having all of the rights that copyright gives. It's precisely 6 vs half dozen.


You're looking at this as being about copyright. I'm looking at this as how do deal with a client who's emotional rather than rational/reasonable.

You're 100% right that it's way faster and easier to write "6" but if you're client is fixated on "6" because someone told them that was important and they're not bothering to understand what that represents.


I had a situation recently where I'd shot for a full day and the client wanted 6 photos. Their proposal was a buyout because in this context it's always a buy out. That's what my lawyer said to me too - I do deals like this all the time, it's always a buy out.

My point was what's the need to make it a buyout for all of the photos for the entire day when they only want 6? Why not make it a buyout just for those 6? Why not make it a license that covered all of their needs just for those 6? That's what it ended up being because no one really cared about anything beyond usage.

Had he come back saying they don't care, they want a buyout because that's what it always is, I would have said fine, here's a list of the usage that I need and it would have made no difference.

Dec 03 12 09:46 pm  Link  Quote 
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