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Photographer
MC Photo
Posts: 4,144
New York, New York, US


Al Lock Photography wrote:

From the practical point of allowing for usage of copyrighted material, they can be very similar. However, from an ownership and rights standpoint, they are always different. The fact that from a usage point of view, they can be so alike argues that a usage agreement is the preferred solution 99.9% of the time.

I think you have made your points very well, Michael. I find it disheartening that photographers like a couple in this thread know so little about their rights, the laws that protect those rights, and the processes that we all should be aware of and practice to protect those rights.

I find it disheartening that you don't take the time to explain these things that you know so much about and others don't.

Maybe it's because you don't understand what's being discussed.

And I don't mean copyright law, I mean the purpose behind the discussion.

Dec 07 12 10:57 pm  Link  Quote 
Photographer
MC Photo
Posts: 4,144
New York, New York, US


ei Total Productions wrote:

Michael Fryd wrote:
I think it's fair to say that there can be many similarities.

I think it is also fair to say that there are many situations which can be addressed by either a copyright transfer, or a usage agreement.

You are correct in that they are not the same thing, and there are always differences between the two.

Preferred by who, the photographer or the client?   I agree, most photographers would prefer to grant a license than to transfer copyright.  The legal department for many knowledgeable clients would prefer copyright to a license.  The reason is that a transfer of copyright conveys ownership.  All rights, including the enforcement of the copyright inure to them.

With a license, it is a contractual issue.  Contracts are subject to interpretation.  In the case of disputes, there is an additional layer introduced.  As an example, if the client finds a third party using one of the images, as the copyright holder they litigate to enforce.  As the licensee, they cannot be sure if it is the end user that has infringed upon copyright or if the photographer has breached the contract and licensed the images to a third party.

So while, from a practical standpoint, the client can get similar usage rights either by license or transfer of copyright, only with ownership of the copyright, do they have the full and unencumbered ability to enforce.

Any right can be assigned including administration rights/the right to enforce.

Dec 07 12 11:01 pm  Link  Quote 
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Photographer
GPS Studio Services
Posts: 34,773
San Francisco, California, US


ei Total Productions wrote:

Preferred by who, the photographer or the client?   I agree, most photographers would prefer to grant a license than to transfer copyright.  The legal department for many knowledgeable clients would prefer copyright to a license.  The reason is that a transfer of copyright conveys ownership.  All rights, including the enforcement of the copyright inure to them.

With a license, it is a contractual issue.  Contracts are subject to interpretation.  In the case of disputes, there is an additional layer introduced.  As an example, if the client finds a third party using one of the images, as the copyright holder they litigate to enforce.  As the licensee, they cannot be sure if it is the end user that has infringed upon copyright or if the photographer has breached the contract and licensed the images to a third party.

So while, from a practical standpoint, the client can get similar usage rights either by license or transfer of copyright, only with ownership of the copyright, do they have the full and unencumbered ability to enforce.
MC Photo wrote:
Any right can be assigned including administration rights/the right to enforce.

If a licensee were to attempt to bring an action for infringement, you introduce many kinds of additional issues.  The most important of which, the assignment is contractual, not a matter of law.  I am surprised that people don't seem to grasp it.  I agree that most clients don't need ownership of copyright, but I fully understand why the corporate legal department would want it.

From the point of view of the client, other than cost, there is no downside to the client to own copyright rather than merely having a license.

Dec 07 12 11:11 pm  Link  Quote 
Photographer
Al Lock Photography
Posts: 15,810
Bangkok, Bangkok, Thailand


ei Total Productions wrote:
Other than the possible higher cost, why would it ever be in the better interest of the client to have a license when they could own copyright?  Putting aside the cost issue, please explain the benefits to a client for not owning copyright and being licensed instead.

Generally, clients are not in the business of managing photographs. As a result, they have neither the systems or the resources to manage those assets. As a result, it is to their advantage to have someone who does (the photographer) do that, and they simply license the usage that they actually need.

Even major corporations like Johnson & Johnson, Chevron, Nestle, etc. don't need the additional headaches or manpower requirements to manage an image library.

You want to discount cost, but to a business? Cost is a key element that isn't often discounted or ignored.

Dec 08 12 12:59 am  Link  Quote 
Photographer
Al Lock Photography
Posts: 15,810
Bangkok, Bangkok, Thailand


MC Photo wrote:

I find it disheartening that you don't take the time to explain these things that you know so much about and others don't.

Maybe it's because you don't understand what's being discussed.

And I don't mean copyright law, I mean the purpose behind the discussion.

Join ASMP. Avail yourself of the information they make available, of their services and of their legal council. There you go, shared all the information anyone needs.

Dec 08 12 01:01 am  Link  Quote 
Photographer
Al Lock Photography
Posts: 15,810
Bangkok, Bangkok, Thailand


MC Photo wrote:

What is the significance of ownership?

Whatever you answer can be addressed in a reverse license. "Client grants license identical to ownership of copyright."


The significance of ownership is the rights that gives you. If you have all of the same rights, then you have the same rights. It can't be made any simpler than that.

A license cannot be identical to ownership. Logically and legally, what you have stated is nonsense. It has no meaning.

Dec 08 12 01:03 am  Link  Quote 
Photographer
Michael Fryd
Posts: 3,479
Miami Beach, Florida, US


MC Photo wrote:
You've completely missed my point. I've never said keep the rights in all circumstances, nor have I said mislead the client.

I can't figure out if it's that you don't want to get my point or can't get my point, but I've done everything I can to explain it. What it comes down to is that there's no concept than can be thought of that can't be addressed in an agreement, including the ones you've listed.

You have presented me with a challenge to think of a concept that can't be addressed by agreement.  I accept your challenge.


Let's take the simple case.

The client wants copyright, and is willing to license back to me any rights I want, as long as the client remains the copyright owner.

I want to enter one of the images in a photo contest.  The rules say that I can only enter an image the I personally took, and where I own the copyright.


How would you structure a usage license from the client back to me such that I can enter the image in the contest?


Sometimes it matters who owns the copyright. 

The reason the the law has a mechanism to transfer ownership of copyright is that it matters who owns the copyright.  If it didn't matter, then the law would not provide for copyright transfer, and things would be handled by an appropriate license.

Dec 08 12 04:47 am  Link  Quote 
Photographer
MC Photo
Posts: 4,144
New York, New York, US


ei Total Productions wrote:

ei Total Productions wrote:
Preferred by who, the photographer or the client?   I agree, most photographers would prefer to grant a license than to transfer copyright.  The legal department for many knowledgeable clients would prefer copyright to a license.  The reason is that a transfer of copyright conveys ownership.  All rights, including the enforcement of the copyright inure to them.

With a license, it is a contractual issue.  Contracts are subject to interpretation.  In the case of disputes, there is an additional layer introduced.  As an example, if the client finds a third party using one of the images, as the copyright holder they litigate to enforce.  As the licensee, they cannot be sure if it is the end user that has infringed upon copyright or if the photographer has breached the contract and licensed the images to a third party.

So while, from a practical standpoint, the client can get similar usage rights either by license or transfer of copyright, only with ownership of the copyright, do they have the full and unencumbered ability to enforce.

If a licensee were to attempt to bring an action for infringement, you introduce many kinds of additional issues.  The most important of which, the assignment is contractual, not a matter of law.  I am surprised that people don't seem to grasp it.  I agree that most clients don't need ownership of copyright, but I fully understand why the corporate legal department would want it.

From the point of view of the client, other than cost, there is no downside to the client to own copyright rather than merely having a license.

It depends on what the license says. Administration rights to IP are granted all the time, just like power of attorney.

Dec 08 12 08:20 am  Link  Quote 
Photographer
MC Photo
Posts: 4,144
New York, New York, US


Al Lock Photography wrote:

Join ASMP. Avail yourself of the information they make available, of their services and of their legal council. There you go, shared all the information anyone needs.

Why not just ask my lawyer, which is what I've done.

Dec 08 12 08:21 am  Link  Quote 
Photographer
MC Photo
Posts: 4,144
New York, New York, US


Michael Fryd wrote:

You have presented me with a challenge to think of a concept that can't be addressed by agreement.  I accept your challenge.


Let's take the simple case.

The client wants copyright, and is willing to license back to me any rights I want, as long as the client remains the copyright owner.

I want to enter one of the images in a photo contest.  The rules say that I can only enter an image the I personally took, and where I own the copyright.


How would you structure a usage license from the client back to me such that I can enter the image in the contest?


Sometimes it matters who owns the copyright. 

The reason the the law has a mechanism to transfer ownership of copyright is that it matters who owns the copyright.  If it didn't matter, then the law would not provide for copyright transfer, and things would be handled by an appropriate license.

Before I answer, I'll point out I'm not a lawyer, but a lawyer would probably be able to think of multiple ways to do this.

You're also presenting and extremely absurd hypothetical scenario where you shoot a wedding photo, which your average wedding is going to be generate pretty lame photos. Even the best photographer can't change the location and the people and their appearance in the photos. You have to have so many details line up in an unlikely way that I don't believe that there's any chance of this actually being an issue. However since it's only a discussion of what's theoretically possible I'll give it a go. But you don't get to make up a convoluted scenario where the client wants the copyright and there's a contest for wedding photos and thats the one wedding where you get a contest worthy photo and then dismiss an answer as convoluted.


The most obvious solution is to grant permission to label the licensee as copyright ownner for contest purposes. The possible problem is it's possible that even though that permission can be agreed upon, it could be illegal. So you create a temporary reversion clause for entry into contests and you can limit it to that and the term of the contest and you can create a list of what other rights are retained by each party during the temporary reversion.


Here's the way to look at it. When you hold a copyright that's actually a list of rights spelled out in copyright law. There's a specific number of rights - I don't know how many, let's say 10.

You can write an agreement to do anything with any of those 10 rights. You can assign any of them, you can assign them to multiple people, you can assign the income from certain uses to one person, but the right to make the decision as to whether those uses are permitted to another. You can sell options. You could make futures. You could have ownership alternate on days of the week or odd or even days of the month. You can put them in a limited family trust. You can give all or some of the rights to charity. You could auction the right to make 4x6 laser jet prints with borders - but not any other size, not ink jet prints and not with out borders - on eBay. You could auction that right, but have the right revert if the auction winner gets a speeding ticket. Or you could specify that they only need to get pulled over and a warning or a ticket both automatically revert that right. You could assign the right to make color prints of Pi inches by golden ratio inches to anyone who wants to argue about it in an MM thread and when it gets to 10 pages, you can only print in B&W on metallic paper from blue cube images with prints being made only on the third Wednesday of the month - and only if it's a photo that you're going to enter into a contest for photos of brides with fat asses who were married in VFW halls.

There no limit to the absurdity of the terms you can put into an agreement.

I look forward to your next post how you advocate using standard contracts and that I advocate tricking clients into auctioning rights on eBay eventhough I'm providing a hypothetical answer to a hypothetical and unrealistic situation.

The other thing is, had I not had any idea for an option of how to adress the scenario you presented, it doesn't mean there isn't one.

If this is genuinely helpful to you, don't hesitate to make up other scenarios. I'll keep coming up with answers if I can. The point is that any right can be assigned in anyway and that the agreement supersedes the defaults spelled out by copyright law. Because of that you don't have to worry about copyright ownership just the rights spelled out in the agreement.

Dec 08 12 09:03 am  Link  Quote 
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GPS Studio Services
Posts: 34,773
San Francisco, California, US


ei Total Productions wrote:

If a licensee were to attempt to bring an action for infringement, you introduce many kinds of additional issues.  The most important of which, the assignment is contractual, not a matter of law.  I am surprised that people don't seem to grasp it.  I agree that most clients don't need ownership of copyright, but I fully understand why the corporate legal department would want it.

From the point of view of the client, other than cost, there is no downside to the client to own copyright rather than merely having a license.
MC Photo wrote:
It depends on what the license says. Administration rights to IP are granted all the time, just like power of attorney.

Draft a sample complaint, pleading, as the licensee, a cause of action for infringement by a third party.  I will draft a demur to your complaint and we'll let one of the attorneys on the site act as judge.  I understand what you are trying to say but I don't think you understand why there are a 1000 issues created by what you are saying.  It is quite complex and it also creates questions of fact that a smart lawyer won't want to deal with.

While I understand why most clients don't need copyright to the images, not one person here has shown me any legitimate reason why they wouldn't be better off owning it (absent the greater cost to purchase it).  You are all writing from the perspective of the photographer and arguments you would make to a client as to why you feel they don't need copyright.  None of you are arguing from the point of view of the client.

Dec 08 12 09:07 am  Link  Quote 
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GPS Studio Services
Posts: 34,773
San Francisco, California, US


ei Total Productions wrote:
Other than the possible higher cost, why would it ever be in the better interest of the client to have a license when they could own copyright?  Putting aside the cost issue, please explain the benefits to a client for not owning copyright and being licensed instead.
Al Lock Photography wrote:
Generally, clients are not in the business of managing photographs.

I think you are creating a problem where no problem exists.

Dec 08 12 09:08 am  Link  Quote 
Photographer
MC Photo
Posts: 4,144
New York, New York, US


Michael Fryd wrote:
The reason the the law has a mechanism to transfer ownership of copyright is that it matters who owns the copyright.  If it didn't matter, then the law would not provide for copyright transfer, and things would be handled by an appropriate license.

Copyright is just a term to describe a specific list of rights. What matters is what rights on that list you have. If you want someone to have all of those rights you could write them out by hand, you could describe them as the list of rights described by copyright law, or you could assign ownership. Or if the agreement is for the photographer to have all of those rights you could do nothing and go with the default, which is the photographer having all of those rights.

Here's another example. We can't make an agreement in the US that is governed by Canadian law, but we could make an agreement that assigns rights in accordance with Canadian copyright law. By using that phrase, we don't have to write out the entire list. Copyright is just a bundle of rights and you can bundle them identically without using that term - just write them out as a list.

Dec 08 12 09:13 am  Link  Quote 
Photographer
Michael Fryd
Posts: 3,479
Miami Beach, Florida, US


MC Photo wrote:

Before I answer, I'll point out I'm not a lawyer, but a lawyer would probably be able to think of multiple ways to do this.

You're also presenting and extremely absurd hypothetical scenario where you shoot a wedding photo, which your average wedding is going to be generate pretty lame photos. Even the best photographer can't change the location and the people and their appearance in the photos. You have to have so many details line up in an unlikely way that I don't believe that there's any chance of this actually being an issue. However since it's only a discussion of what's theoretically possible I'll give it a go. But you don't get to make up a convoluted scenario where the client wants the copyright and there's a contest for wedding photos and thats the one wedding where you get a contest worthy photo and then dismiss an answer as convoluted.


The most obvious solution is to grant permission to label the licensee as copyright ownner for contest purposes. The possible problem is it's possible that even though that permission can be agreed upon, it could be illegal. So you create a temporary reversion clause for entry into contests and you can limit it to that and the term of the contest and you can create a list of what other rights are retained by each party during the temporary reversion.


Here's the way to look at it. When you hold a copyright that's actually a list of rights spelled out in copyright law. There's a specific number of rights - I don't know how many, let's say 10.

You can write an agreement to do anything with any of those 10 rights. You can assign any of them, you can assign them to multiple people, you can assign the income from certain uses to one person, but the right to make the decision as to whether those uses are permitted to another. You can sell options. You could make futures. You could have ownership alternate on days of the week or odd or even days of the month. You can put them in a limited family trust. You can give all or some of the rights to charity. You could auction the right to make 4x6 laser jet prints with borders - but not any other size, not ink jet prints and not with out borders - on eBay. You could auction that right, but have the right revert if the auction winner gets a speeding ticket. Or you could specify that they only need to get pulled over and a warning or a ticket both automatically revert that right. You could assign the right to make color prints of Pi inches by golden ratio inches to anyone who wants to argue about it in an MM thread and when it gets to 10 pages, you can only print in B&W on metallic paper from blue cube images with prints being made only on the third Wednesday of the month - and only if it's a photo that you're going to enter into a contest for photos of brides with fat asses who were married in VFW halls.

There no limit to the absurdity of the terms you can put into an agreement.

I look forward to your next post how you advocate using standard contracts and that I advocate tricking clients into auctioning rights on eBay eventhough I'm providing a hypothetical answer to a hypothetical and unrealistic situation.

The other thing is, had I not had any idea for an option of how to adress the scenario you presented, it doesn't mean there isn't one.

If this is genuinely helpful to you, don't hesitate to make up other scenarios. I'll keep coming up with answers if I can. The point is that any right can be assigned in anyway and that the agreement supersedes the defaults spelled out by copyright law. Because of that you don't have to worry about copyright ownership just the rights spelled out in the agreement.

You have an iron clad answer:  Any situation that doesn't fit your assertion is not a real world situation and hence doesn't count.

Your assertion was that copyright ownership isn't important.  That a suitably written license agreement could always be used to yield the same result.

I have posted a simple, real life example to the contrary (A contest will only accept submissions from the photographer, and only when he still owns the copyright).


Your position has an inherent contradiction.  Either copyright ownership is important, or it is not.  Make up your mind.

On one hand you say that the photographer should transfer copyright, as the client will not be happy unless they own it.  In other words copyright ownership is of critical value and can make the difference between a sale and no sale.

On the other hand, you say that copyright ownership isn't important, therefore the photographer shouldn't hesitate to transfer it.

You can't have it both ways.  Either it isn't important (and the client doesn't care), or it is important, and there is value in the photographer transferring it.

Perhaps your point is that no one should care about copyright ownership.  That's an interesting point of view, but it ignores the fact that people are free to care, and in fact they do.  Clients sometimes insist on owning copyright.  Contests sometimes care.  There are many situations where it makes a difference who owns the copyright.

An agreement between two parties can't control what an unrelated third party thinks.  If the third party cares who owns the copyright, you can't change their mind with a licensing agreement between the photographer and the original client.

Dec 08 12 09:34 am  Link  Quote 
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GPS Studio Services
Posts: 34,773
San Francisco, California, US


BTW MC Photo, I am not being critical.  I understand what you are trying to say.  I just think you are looking at it from your perspective not the client's.
Dec 08 12 09:35 am  Link  Quote 
Photographer
MC Photo
Posts: 4,144
New York, New York, US


ei Total Productions wrote:

ei Total Productions wrote:
If a licensee were to attempt to bring an action for infringement, you introduce many kinds of additional issues.  The most important of which, the assignment is contractual, not a matter of law.  I am surprised that people don't seem to grasp it.  I agree that most clients don't need ownership of copyright, but I fully understand why the corporate legal department would want it.

From the point of view of the client, other than cost, there is no downside to the client to own copyright rather than merely having a license.

Draft a sample complaint, pleading, as the licensee, a cause of action for infringement by a third party.  I will draft a demur to your complaint and we'll let one of the attorneys on the site act as judge.  I understand what you are trying to say but I don't think you understand why there are a 1000 issues created by what you are saying.  It is quite complex and it also creates questions of fact that a smart lawyer won't want to deal with.

While I understand why most clients don't need copyright to the images, not one person here has shown me any legitimate reason why they wouldn't be better off owning it (absent the greater cost to purchase it).  You are all writing from the perspective of the photographer and arguments you would make to a client as to why you feel they don't need copyright.  None of you are arguing from the point of view of the client.

I think the problem is that people are not acknowledging the perspective were each looking at. My point is really about what happens after you stop seeing ownership of copyright from an emotional point of view. I'm still stuck explaining why there's no need to worry about it. So my perspective is theoretical/academic. Michael Fryd is looking at the practical side of the wording of an agreement. The practical part that I want to address is the process of discussing terms for the agreement and how the emotions connected to the word copyright can needlessly interfere with a deal. I think it's not an issue in most cases.

I am in agreement with you that many issues are brought up. I suspect it's not precisely 1,000. But if it is, all 1,000 of those issues are addressable. That's what copyright law is - all of the issues addressed as a default.

When a client says they want to own the copyright, there is no need to respond "no way" but consistently there are people who take that position and over time it will be worse for business than having a discussion over terms. That's very similar to Michael Fryd suggesting educate your client. The thing is it's not absolutely necessary to educate them, just listen to them and then present an agreement that addresses the terms that are important to each side.

In the end the most efficient way to write those terms is for one party to hold the copyright and the other to hold a usage agreement that provides a shorter list of rights. Most likely the shorter list will be for the client.

When a client has their heels dug in, you can push or offer no resistance. I'm saying why resist? Make a list of terms and let the lawyers sort it out. I have no doubt that the lawyers for both sides will say the list is unnecessarily convoluted and the client's lawyer will tell him he doesn't need to own the copyright rather than the photographer.

I am certain that Michael Fryd is not shady in his client education, but depending on the conversation it can get into legal advice and it's possible for a client to not fully understand and be pissed off down the road, or not even remember the discussion. And, this is all in the context of weddings, so we're talking about multiple people on the client's side - you could have separate conversations with the bride and groom and think you're icon the same page with them as a couple, but they aren't. You could even end up in discussions with a pushy mother who interferes.

There are a ton of ways to address this. One is what Michael Fryd is suggesting and I'd agree that's effective most of the time, but depending on the personalities involved there will be times where other approaches are more effective. One approach is dependent on the understanding the ownership of copyright does not have to be the deal breaker that so many photographers think it is.

Michael Fryd sees rate as a way of making copyright not a deal breaker. I agree with that. I also see terms in the agreement as a way to make copyright not a deal breaker. This is really what the discussion is about.


And then there's the side discussion about how I need to join the ASMP for legal advice rather than listen to my lawyer, but only one person finds that sub thread worthwhile.

Dec 08 12 09:46 am  Link  Quote 
Photographer
MC Photo
Posts: 4,144
New York, New York, US


ei Total Productions wrote:
BTW MC Photo, I am not being critical.  I understand what you are trying to say.  I just think you are looking at it from your perspective not the client's.

No worries I haven't taken it that way at all.

It's not my intent to look at it from either perspective, just what is possible to agree upon.

My point is ultimately to change the photographer's perspective to a more open minded one and not fixated on a detail that doesn't matter, so that part has to be about the photographer's perspective.

Dec 08 12 09:53 am  Link  Quote 
Photographer
MC Photo
Posts: 4,144
New York, New York, US


Michael Fryd wrote:

You have an iron clad answer:  Any situation that doesn't fit your assertion is not a real world situation and hence doesn't count.

Your assertion was that copyright ownership isn't important.  That a suitably written license agreement could always be used to yield the same result.

I have posted a simple, real life example to the contrary (A contest will only accept submissions from the photographer, and only when he still owns the copyright).


Your position has an inherent contradiction.  Either copyright ownership is important, or it is not.  Make up your mind.

On one hand you say that the photographer should transfer copyright, as the client will not be happy unless they own it.  In other words copyright ownership is of critical value and can make the difference between a sale and no sale.

On the other hand, you say that copyright ownership isn't important, therefore the photographer shouldn't hesitate to transfer it.

You can't have it both ways.  Either it isn't important (and the client doesn't care), or it is important, and there is value in the photographer transferring it.

Perhaps your point is that no one should care about copyright ownership.  That's an interesting point of view, but it ignores the fact that people are free to care, and in fact they do.  Clients sometimes insist on owning copyright.  Contests sometimes care.  There are many situations where it makes a difference who owns the copyright.

An agreement between two parties can't control what an unrelated third party thinks.  If the third party cares who owns the copyright, you can't change their mind with a licensing agreement between the photographer and the original client.

That's nonsense. I gave you an answer.

Yes, my point is that no one shoud care about copyright. I've said it over and over, ownership of copyright doesn't matter only the rights you have within the terms of the deal and those can be any that both parties agree on.

You're absolutely right that people sometimes care when they don't need to. That's my point. If you understand the bigger picture then you can see how there's no need to care about it.


Let's say I'm hiring you to shoot my wedding. Let's make this deal. You own the copyright, but you agree not to enter any of the photos in any contests.

Or how about I own the copyright and you have the right to buy back the copyright to any photo you want to enter in a contest for $1 and I have the right to buy it back from you after it's over.


Who owns the copyright makes no difference in your ability to enter a photo in the contest. That is determined by the agreement. The fact that you hold it temporarily is symbolic and not functional and therefor semantics.


Don't worry about the specifics, but do you see how it's the agreement that determines what you can do and not the copyright?

There are an infinite number of terms you can come up with so writing the contract I the context of bundling the terms based on copyright law is far far more efficient, but that's just a method of defining the terms. It's the agreement that gives you the rights.

Dec 08 12 10:05 am  Link  Quote 
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GPS Studio Services
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San Francisco, California, US


MC Photo wrote:
I am in agreement with you that many issues are brought up. I suspect it's not precisely 1,000. But if it is, all 1,000 of those issues are addressable. That's what copyright law is - all of the issues addressed as a default.

I think you should listen to your lawyer.  That is why you pay him.

Take this scenario:

1.  You assign all rights to the client including the right to license and sub-license the images; and
2.  You make the license exclusive, meaning that no image will ever be licensed to any other individual or business unless the client grants the license; and
3.  You surrender any right to use the images in any way yourself without the consent of the client; and
4.  You assign all rights of administration and litigation to the client; and
5.  You assign to the clients the right to collect all damages in the event that an infringement occurs (meaning that he gets the money, not you); and
6.  You waive your rights to sue anybody for infringement yourself since you have now given those rights to the client.

Then question then becomes why wouldn't the court simply see that as a convoluted transfer of copyright from you to the client?  From a practical matter, if you contend that you still own the copyright, what do you own?

I see your point that people put a lot of emphasis on the word.  You can still (maybe) own the copyright and give up all rights.  I dunno, but in my mind, what is the point of doing it?

It is complex as are all legal issues.

Dec 08 12 11:11 am  Link  Quote 
Photographer
MC Photo
Posts: 4,144
New York, New York, US


ei Total Productions wrote:

I think you should listen to your lawyer.  That is why you pay him.

Take this scenario:

1.  You assign all rights to the client including the right to license and sub-license the images; and
2.  You make the license exclusive, meaning that no image will ever be licensed to any other individual or business unless the client grants the license; and
3.  You surrender any right to use the images in any way yourself without the consent of the client; and
4.  You assign all rights of administration and litigation to the client; and
5.  You assign to the clients the right to collect all damages in the event that an infringement occurs (meaning that he gets the money, not you); and
6.  You waive your rights to sue anybody for infringement yourself since you have now given those rights to the client.

Then question then becomes why wouldn't the court simply see that as a convoluted transfer of copyright from you to the client?  From a practical matter, if you contend that you still own the copyright, what do you own?

I see your point that people put a lot of emphasis on the word.  You can still (maybe) own the copyright and give up all rights.  I dunno, but in my mind, what is the point of doing it?

It is complex as are all legal issues.

I haven't suggested the above scenario at any point. All of my descriptions have been to suggest what's conceptually possible, which is anything, and that ownership of copyright is irrelevant in the context of an agreement that spells out the assignment of all rights on an itemized basis.

I have no idea what the point of doing what you suggested is, but a lot of people come close when they grant an exclusive license and keep the copyright. Outside of a few exceptions it's purely emotional.

If you're saying that you get my point about agreements vs ownership, who cares, that's something I can answer.

My response is in part to a pattern of responses that I see here in the forums. Here are two quotes from this thread:

"Don't give him the copyright for some discounted rate because this is your first wedding."

"Whenever you give someone the copyright, YOU no longer own the images.  Meaning if afterwards YOU wanted to use them, YOU would have to ask THEM permission to use them.  This is a reason you never do that. "

"NEVER." I'm sure there is someone somewhere who licensed a wedding photo for $1 million through some miraculous opportunity and thank god they kept the copyright, because only that image could have been licensed.

When a client ask you for something and your position is NEVER, then as I'm sure Michael Fryd does nearly 100% of the time, you can educate the client and they'll see things your way and change their position. But some will react to your reaction of NEVER and you will lose them. Or worse, they'll hire you, but you've left a bad taste in their mouth and when your camera breaks and they have a choice of being understanding that sometimes things are out of our control or taking out their emotions on you through a lawsuit or harassment of some sort you get the latter. Doctors who listen and smile get sued far less than doctors who don't regardless of the quality of medical care they provide.

If everything can be addressed in an agreement then NEVER as a reaction to copyright transfer is irrational. So rather than react with NEVER, you listen and you think about why it is that you feel you need to keep the copyright and then you ask if keeping the specific rights you need is a problem for them. If it's not the deal is done and you haven't had  discussion that sends your client to someone else.

In a career, which is more income, 1,000 x $3,000 weddings and a one time license of a photo to Modern Bride magazine for $1500 or 1,001 $3,000 weddings?

I think most wedding photographers will never license a wedding photo to a third party. If they do it's not going to be for a lot of money, even over a career.

I think that any business who responds to a customer request with NEVER is going to end up with fewer clients than they could have had. I think in some cases they may be the first photographer they contact and they don't like the response and they go to someone else who tells them the same thing and eventually they catch on that they need to listen, but they're not going back to the first person at that point.

I think that the number of clients that you won't have will lead to a lost income that far exceeds any amount of licensing you might get - if any. And I'm not even suggesting giving up the right to license. My point is if you understand that you can give up ownership of copyright and retain whatever it is you need you don't have to have a client losing policy of NEVER - even if what you need to retain are all of the rights that copyright ownership provides.

In every deal all rights are negotiated either through itemized discussion or non-discussion and acceptance of the default rights. So when a client brings something up, don't get distracted by an emotional reaction to a word, focus on what it means in terms of rights because that's what matters. If you don't you may not miss out on a lot of clients, but in a career, you'll miss out on at least one and certainly enough to be a larger financial loss than all of your licensing combined.

And since we're going to put a value on speculative licenses, we should put a value on speculative referrals and new clients that you get through the jobs that you would have otherwise lost.

It's just math.

Dec 08 12 11:54 am  Link  Quote 
Photographer
Michael Fryd
Posts: 3,479
Miami Beach, Florida, US


MC Photo wrote:
...

When a client ask you for something and your position is NEVER, then as I'm sure Michael Fryd does nearly 100% of the time...

I am wondering what this opinion is based on?

I have consistently suggested that when a photographer and client both desire copyright ownership, there should be  simple two-step process.

Step 1 - discuss and see if the client will be happy with a usage license.

Step 2 - if the client still wants copyright, let him have.

I also suggested that a transfer of copyright (and hence loss of control of the images) should be considered in determining the price.


I am at a loss to see how you managed to mis-construe this into a suggestion that a photographer should "never" do anything.



Where we differ is that I suggest that if a client wants something, you should sell it to them.  This is a simple and straightforward solution that leaves everyone happy.

Your suggestion is that instead of charging a (perhaps small) premium, the photographer should spend money crafting a custom document that reserves any needed rights.  In this way the photographer can keep the rights he needs, and doesn't have to charge the client extra.

This hardly seems practical.   If the photographer pays the legal fees he comes out behind.  If the client pays the legal fees, they may have saved money just buying the copyright from me.  Under your suggestion, the only winners are the attorneys.

I have trouble imagining a client who would be unhappy paying a few hundred extra for copyright ownership and exclusive rights, but would happily pay a thousand for a custom agreement that give him copyright ownership and nonexclusive rights.



Your position is based on the assertion that in any possible situation, a custom licensing agreement could be crafted that would make ownership of copyright irrelevant.   

Many have pointed out that this is not true.   You have answered by saying the situation isn't real world, or that you are not an attorney, but are sure that you are correct.

Custom crafted agreements are an expensive solution to what should be a simple issue. 


Next time you have a client that wants copyright, go ahead and give it to him for no charge.  Have your attorney draft a custom licensing agreement to retain the rights you want.  Have the client pay their attorney to review the contract and suggest changes.  Have both attorneys work out the differences.

I'll tell my client, "most people are happy with a usage license, but if you really want to own the copyright it will add an extra $X to the price".   I will make more profit than you.  My client will pay less, and my job will be completed before your attorney has finished negotiating the changes with the client's attorney.




But you are correct that we shouldn't talk about contrived situations that are rare in the real world.  When I have a client that wants copyright, they want it so they can control the image.  They are not interested in licensing it back to me.  The clients that don't care about control, are happy with a usage license.

Dec 08 12 12:21 pm  Link  Quote 
Photographer
MC Photo
Posts: 4,144
New York, New York, US


Michael Fryd wrote:

I am wondering what this opinion is based on?

I have consistently suggested that when a photographer and client both desire copyright ownership, there should be  simple two-step process.

Step 1 - discuss and see if the client will be happy with a usage license.

Step 2 - if the client still wants copyright, let him have.

I also suggested that a transfer of copyright (and hence loss of control of the images) should be considered in determining the price.


I am at a loss to see how you managed to mis-construe this into a suggestion that a photographer should "never" do anything.



Where we differ is that I suggest that if a client wants something, you should sell it to them.  This is a simple and straightforward solution that leaves everyone happy.

Your suggestion is that instead of charging a (perhaps small) premium, the photographer should spend money crafting a custom document that reserves any needed rights.  In this way the photographer can keep the rights he needs, and doesn't have to charge the client extra.

This hardly seems practical.   If the photographer pays the legal fees he comes out behind.  If the client pays the legal fees, they may have saved money just buying the copyright from me.  Under your suggestion, the only winners are the attorneys.

I have trouble imagining a client who would be unhappy paying a few hundred extra for copyright ownership and exclusive rights, but would happily pay a thousand for a custom agreement that give him copyright ownership and nonexclusive rights.



Your position is based on the assertion that in any possible situation, a custom licensing agreement could be crafted that would make ownership of copyright irrelevant.   

Many have pointed out that this is not true.   You have answered by saying the situation isn't real world, or that you are not an attorney, but are sure that you are correct.

Custom crafted agreements are an expensive solution to what should be a simple issue. 


Next time you have a client that wants copyright, go ahead and give it to him for no charge.  Have your attorney draft a custom licensing agreement to retain the rights you want.  Have the client pay their attorney to review the contract and suggest changes.  Have both attorneys work out the differences.

I'll tell my client, "most people are happy with a usage license, but if you really want to own the copyright it will add an extra $X to the price".   I will make more profit than you.  My client will pay less, and my job will be completed before your attorney has finished negotiating the changes with the client's attorney.




But you are correct that we shouldn't talk about contrived situations that are rare in the real world.  When I have a client that wants copyright, they want it so they can control the image.  They are not interested in licensing it back to me.  The clients that don't care about control, are happy with a usage license.

You cut off the part of the quote that was about you. Re-read it, my point was that I'm sure that you educate your clients successfully nearly 100% of the time. That's what the rest of the sentence says. Why do I think that? You seem to have some idea of what you're talking about, although this last post is making me reconsider.

As far as NEVER, that's from a quote that I took from the beginning of this thread, that wasn't from you, and I included it in the beginning of my post. Just take the line out that referenced you. It was meant to be a compliment, but clearly it was a mistake to include because it misdirected your interpretation.

As far as custom agreements being possible or not, one person has made an unsubstantiated claim that it's not true. And they're wrong because it is possible.

Have you every done any work for a record label? For certain jobs they send an agreement that starts out as neither a licensing or copyright transfer. It's a list of rights and they just check off which terms they want applying to this situation. They can check off buyout or license and then under license they have options for web use, publicity, merch, album artwork etc. Someone's administrative assistant fills it out. It's that easy.

Looking at the rest of your post your taking things I said about one thing and attributing them to another. I'm not an attorney so the language I use to give you an example is not necessarily appropriate.

The rest is a bunch of hyperbolic BS. It takes a few minutes to adjust and existing agreement to suit the custom needs. No negotiations need to happen between the attorneys because they've happened with the client. If there's a second attorney they read it to be sure that they language accurately reflects the terms agreed upon. You're not going to finish you job before they're done negotiating because people book weddings weeks/months in advance. Even if it took 10 hours of negotiating rather than 10 minutes, that's simply a flat out load of crap, so why write something so clearly false?

On top of all of that your responding to a post that wasn't in response to you and you've skipped over the one that was.

I'll repost the key parts for you:


Let's say I'm hiring you to shoot my wedding. Let's make this deal. You own the copyright, but you agree not to enter any of the photos in any contests.

Or how about I own the copyright and you have the right to buy back the copyright to any photo you want to enter in a contest for $1 and I have the right to buy it back from you after it's over.

Do you see how it's the agreement that determines what you can do and not the copyright?

It should be pretty easy to see. There's nothing complicated about this.

Dec 08 12 04:12 pm  Link  Quote 
Photographer
Al Lock Photography
Posts: 15,810
Bangkok, Bangkok, Thailand


MC Photo wrote:
Why not just ask my lawyer, which is what I've done.

Get a competent IP lawyer or listen to yours if he is.

Ownership cannot be the same as a license. A license can give the same practical usages, but it cannot give ownership, nor can your fiction of a contract that is "the same as ownership" have any validity in a court. It is simply asking for a Judge to call your lawyer an idiot for letting you pass such silliness off on a client.

Dec 08 12 10:31 pm  Link  Quote 
Photographer
Al Lock Photography
Posts: 15,810
Bangkok, Bangkok, Thailand


ei Total Productions wrote:

I think you are creating a problem where no problem exists.

Clients don't agree. Nor do law firms that deal with IP infringement.

Dec 08 12 10:33 pm  Link  Quote 
Photographer
Al Lock Photography
Posts: 15,810
Bangkok, Bangkok, Thailand


MC Photo wrote:
Copyright is just a term to describe a specific list of rights.

Under the Berne Convention, copyright is not just a term to describe a specific list of rights, it is a term to define the ownership of creative works.

Dec 08 12 10:35 pm  Link  Quote 
Photographer
MC Photo
Posts: 4,144
New York, New York, US


Al Lock Photography wrote:
Get a competent IP lawyer or listen to yours if he is.

Ownership cannot be the same as a license. A license can give the same practical usages, but it cannot give ownership, nor can your fiction of a contract that is "the same as ownership" have any validity in a court. It is simply asking for a Judge to call your lawyer an idiot for letting you pass such silliness off on a client.

This is what a competent IP lawyer says. Where have you passed the bar?

Dec 09 12 01:58 am  Link  Quote 
Photographer
MC Photo
Posts: 4,144
New York, New York, US


Al Lock Photography wrote:

Under the Berne Convention, copyright is not just a term to describe a specific list of rights, it is a term to define the ownership of creative works.

Ownership of copyright means having a list of rights. If you are assigned that same list of rights, it's the same. I'm saying if it's the same, it's the same. You're welcome to argue against that on your own. Good luck with it.

Dec 09 12 01:58 am  Link  Quote 
Photographer
Michael Fryd
Posts: 3,479
Miami Beach, Florida, US


MC Photo wrote:
Ownership of copyright means having a list of rights. If you are assigned that same list of rights, it's the same. I'm saying if it's the same, it's the same. You're welcome to argue against that on your own. Good luck with it.

By definition it is not the same.

For instance, a client wanting an image for an important advertising campaign may insist they deal directly with the copyright holder, and not the licensee.

Your original premise is that customers are emotional, and sometimes have requirements that you feel are not legally necessary.  If this is true, then copyright ownership is very significant.  If this is not true, you could have kept copyright and granted a usage license.



Another example is a secondary client who wants to buy the copyright (and is ok with existing usage licenses).  If you have already sold the copyright, you cannot sell it to the new client.


Obviously, this is a unlikely scenario for a wedding shooter.  A typical wedding client does not have an Intellectual Property attorney on call to review and/or prepare custom licensing agreements.  It doesn't make good sense to create complicated arrangements for a typical wedding shoot.


A record company certainly has an army of IP attorneys.  The record company will tell you what rights they are buying and whether or not they want copyright.  Record companies certainly understand copyright.  If they want copyright, they are not about to license all the rights back to you.


Ownership of copyright means that your own the copyright and have control over the associated rights.  This is different from being a licensee of those rights.

You may be able to come close with a sufficiently complicated custom agreement.  This is a ridiculous solution for a wedding client, and likely unacceptable to a large client.

Be flexible.  If a client wants copyright, sell it to them.

If you believe that you will lose clients because of high prices, then either adjust your marketing, or consider changing your prices.

Dec 09 12 05:14 am  Link  Quote 
Photographer
Al Lock Photography
Posts: 15,810
Bangkok, Bangkok, Thailand


MC Photo wrote:

This is what a competent IP lawyer says. Where have you passed the bar?

If you actually believe that, you are asking to be told by a Judge one day that you should have spent your money elsewhere.

Dec 09 12 09:09 pm  Link  Quote 
Photographer
Al Lock Photography
Posts: 15,810
Bangkok, Bangkok, Thailand


MC Photo wrote:

Ownership of copyright means having a list of rights. If you are assigned that same list of rights, it's the same. I'm saying if it's the same, it's the same. You're welcome to argue against that on your own. Good luck with it.

You think you're Bill Clinton? Redefining "is"? He got disbarred, remember?

It isn't the same and CAN'T be the same. Just because you want to say it is doesn't mean any court would agree with you.

How would you actually defend this ludicrous claim of yours?

"Well, your honor, the client wanted all the benefits of copyright"

"The transfer copyright"

"What I did was the same"

"No, what you did was a silly piece of paper with no legal basis. The court orders copyright transferred, you will pay all court and legal costs for wasting the court's time."

Dec 09 12 09:14 pm  Link  Quote 
guide forum
Photographer
GPS Studio Services
Posts: 34,773
San Francisco, California, US


Al Lock Photography wrote:
Get a competent IP lawyer or listen to yours if he is.

Ownership cannot be the same as a license. A license can give the same practical usages, but it cannot give ownership, nor can your fiction of a contract that is "the same as ownership" have any validity in a court. It is simply asking for a Judge to call your lawyer an idiot for letting you pass such silliness off on a client.
MC Photo wrote:
This is what a competent IP lawyer says. Where have you passed the bar?
Al Lock Photography wrote:
If you actually believe that, you are asking to be told by a Judge one day that you should have spent your money elsewhere.

Actually, this is a very complex issue and I am not sure either one of you grasp it completely.   I do think MC is reflecting what his IP attorney is saying, but it isn't totally in context.

I will give you an example, If I grant you the exclusive right to make copies of an image, to publish the image, to display the image and to sub-license the image, that also means that I have the right to register as the exclusive holder of those rights with the U. S. copyright office.  That is true even if the exclusive license to those rights are of a time-limited duration.  Rights, under copyright, are severable.  That means that individual rights can be licensed or transferred to third persons.

It blurs everything because you could still, technically own the copyright, but have granted the meaningful rights, on an exclusive basis to another party.  It is the third party, not you, who registers the image and then gains the benefits of statutory damages.

That is why I asked MC to draft his complaint to which I would demur.  Selectively granting rights, does indeed, as you are saying , creates various contractual issues.  There are questions of fact which come into play as well as issues of construction of the license and/or contract.

Which does bring it down to MC's point, the actual ownership of the copyright can, quite often be phyric in nature.  As with most of these kinds of things, it is never black and white.

Dec 09 12 09:21 pm  Link  Quote 
Photographer
MC Photo
Posts: 4,144
New York, New York, US


Michael Fryd wrote:

By definition it is not the same.

For instance, a client wanting an image for an important advertising campaign may insist they deal directly with the copyright holder, and not the licensee.

Your original premise is that customers are emotional, and sometimes have requirements that you feel are not legally necessary.  If this is true, then copyright ownership is very significant.  If this is not true, you could have kept copyright and granted a usage license.



Another example is a secondary client who wants to buy the copyright (and is ok with existing usage licenses).  If you have already sold the copyright, you cannot sell it to the new client.


Obviously, this is a unlikely scenario for a wedding shooter.  A typical wedding client does not have an Intellectual Property attorney on call to review and/or prepare custom licensing agreements.  It doesn't make good sense to create complicated arrangements for a typical wedding shoot.


A record company certainly has an army of IP attorneys.  The record company will tell you what rights they are buying and whether or not they want copyright.  Record companies certainly understand copyright.  If they want copyright, they are not about to license all the rights back to you.


Ownership of copyright means that your own the copyright and have control over the associated rights.  This is different from being a licensee of those rights.

You may be able to come close with a sufficiently complicated custom agreement.  This is a ridiculous solution for a wedding client, and likely unacceptable to a large client.

Be flexible.  If a client wants copyright, sell it to them.

If you believe that you will lose clients because of high prices, then either adjust your marketing, or consider changing your prices.

In your example you are correct that copyright ownership is significant, but it's on an emotional basis not a legal basis.

As far as a third party wanting to buy the copyright that's the closest you've come to a valid example.

That still can be dealt with in the initial contract by having the copyright revert to the photographer to all the photographer to sell the copyright.

Both what you've written and I've written are so far fetched I'm not sure what I even think of them. No third party is going to want to buy the copyright of some average wedding. I think that's just as dismissable as asking why someone would agree to those terms if they cared about owning the copyright, but the point is there is no need that a photographer can have that can not be addressed in an agreement.

Literally you could put in language that says "If something comes up that we haven't thought of, whatever the photographer says goes."

I'm sure you seen contract that have language that describe the territory for the terms as the known and unknown universe and the same for formats. That's some pretty absurd wording, but that's standard for certain contracts.

This: "It doesn't make good sense to create complicated arrangements for a typical wedding shoot." is 100% true, but what we're debating is not what you should do, but what's possible. I've explained it 2-3 times that once you understand that any issue can be addressed in an agreement you don't have to react with "NEVER" when the discussion of copyright comes up. I've haven't said that you have said never, but that there are people who have a dogmatic reaction of never and it's not necessary.

Dec 10 12 01:29 am  Link  Quote 
Photographer
MC Photo
Posts: 4,144
New York, New York, US


Al Lock Photography wrote:

If you actually believe that, you are asking to be told by a Judge one day that you should have spent your money elsewhere.

Here's why your 100% wrong. This is a thread about copyrights connected to weddings. No judge is ever going to say anything to me about my wedding contracts because I don't shoot weddings.

It's still the case that any issue can be address in any agreement, but I'm not going to treat other shoots that a third party may potentially care about in the same way I'd treat a wedding.

If you're applying what's being discussed to non-weddings, then that's your problem. The rest of us are discussing wedding agreements.

Dec 10 12 01:34 am  Link  Quote 
Photographer
MC Photo
Posts: 4,144
New York, New York, US


Al Lock Photography wrote:

You think you're Bill Clinton? Redefining "is"? He got disbarred, remember?

It isn't the same and CAN'T be the same. Just because you want to say it is doesn't mean any court would agree with you.

How would you actually defend this ludicrous claim of yours?

"Well, your honor, the client wanted all the benefits of copyright"

"The transfer copyright"

"What I did was the same"

"No, what you did was a silly piece of paper with no legal basis. The court orders copyright transferred, you will pay all court and legal costs for wasting the court's time."

This post makes it clear that you have no idea what's being discussed.

The court can't order the copyright to be transferred because it will have been transferred to the client.

What would the premise of the lawsuit be? No only are you making stuff up, you're making stuff up that has nothing to do with what's being discussed.

Dec 10 12 01:36 am  Link  Quote 
Photographer
MC Photo
Posts: 4,144
New York, New York, US


ei Total Productions wrote:

Al Lock Photography wrote:
Get a competent IP lawyer or listen to yours if he is.

Ownership cannot be the same as a license. A license can give the same practical usages, but it cannot give ownership, nor can your fiction of a contract that is "the same as ownership" have any validity in a court. It is simply asking for a Judge to call your lawyer an idiot for letting you pass such silliness off on a client.
MC Photo wrote:
This is what a competent IP lawyer says. Where have you passed the bar?

Actually, this is a very complex issue and I am not sure either one of you grasp it completely.   I do think MC is reflecting what his IP attorney is saying, but it isn't totally in context.

I will give you an example, If I grant you the exclusive right to make copies of an image, to publish the image, to display the image and to sub-license the image, that also means that I have the right to register as the exclusive holder of those rights with the U. S. copyright office.  That is true even if the exclusive license to those rights are of a time-limited duration.  Rights, under copyright, are severable.  That means that individual rights can be licensed or transferred to third persons.

It blurs everything because you could still, technically own the copyright, but have granted the meaningful rights, on an exclusive basis to another party.  It is the third party, not you, who registers the image and then gains the benefits of statutory damages.

That is why I asked MC to draft his complaint to which I would demur.  Selectively granting rights, does indeed, as you are saying , creates various contractual issues.  There are questions of fact which come into play as well as issues of construction of the license and/or contract.

Which does bring it down to MC's point, the actual ownership of the copyright can, quite often be phyric in nature.  As with most of these kinds of things, it is never black and white.

I'm very curious to hear what you consider the benefits of statutory damages are. I think stock photography has guaranteed that no one will every get statutory damages in a lawsuit for an unlicensed use of a photo. They may get punitive damages, but not statutory.

Regardless, the subject of this discussion is what's technically possible - at least the part we're stuck on - and if you disagree with that, please specify that if you respond.

The issue of statutory damages can be addressed with a reversion clause, technically two, where the copyright reverts back to the photographer so that they can make their lottery like millions in the copyright lawsuit and then reverts back to the the wedding client. That is possible to put in an agreement.

Is it practical? I think the premise of a lawsuit for an infringement for your average wedding photo is so implausible that it's irrelevant. I can absolutely see how someone who wants the copyright for irrational reasons is unlikely to be rational enough in their understanding to agree to those terms, but again, we're discussing what's possible.

And the point is not to do "what's possible" put to not react delusionally that you're giving up millions in statutory damages when a $3k wedding client asks about owning the copyright.


As an aside, I'm curious, statistically, do you think wedding photographers need to worry about being able to sue for statutory damages after an average wedding shoot? Do you think that there's going to be some kind of third party who with all of the millions of stock wedding photos is going to steal an image, refuse to settle out of court, lose and be unable to prove what the damages were? There are so many unlikely things that have to happen that I think it's really not a realistic worry, even if you don't have the right to sue for statutory damages.

I don't believe that all the wedding photographer who worry about that are properly registering their images anyway. I'm curious which way you'd speculate on that.

Dec 10 12 01:53 am  Link  Quote 
Photographer
MC Photo
Posts: 4,144
New York, New York, US


Here's a really simple way to look at it.

It's possible to grant revokable licenses. Is it possible to grant a revokable copyright transfer? If it is, then end of story, that addresses every issue by allowing it to be revoked at any point. That's a single sentence added by a lawyer.

I would bet that anything can be written into an agreement other than criminal acts.
Dec 10 12 01:59 am  Link  Quote 
Photographer
Michael Fryd
Posts: 3,479
Miami Beach, Florida, US


MC Photo wrote:
Here's a really simple way to look at it.

It's possible to grant revokable licenses. Is it possible to grant a revokable copyright transfer? If it is, then end of story, that addresses every issue by allowing it to be revoked at any point. That's a single sentence added by a lawyer.

I would bet that anything can be written into an agreement other than criminal acts.

Let's assume for a moment that a contract can be written to allow a copyright transfer to act as a usage license (or vice versa).

In what sort of typical situation would this be a better solution than a standard usage license or a standard work for hire agreement?

Dec 10 12 05:22 am  Link  Quote 
guide forum
Photographer
GPS Studio Services
Posts: 34,773
San Francisco, California, US


Alas I am away from the studio all day writing to you from my cell phone so you're going to have to wait until tonight to answer sorry. 

MC Photo wrote:

I'm very curious to hear what you consider the benefits of statutory damages are. I think stock photography has guaranteed that no one will every get statutory damages in a lawsuit for an unlicensed use of a photo. They may get punitive damages, but not statutory.

Regardless, the subject of this discussion is what's technically possible - at least the part we're stuck on - and if you disagree with that, please specify that if you respond.

The issue of statutory damages can be addressed with a reversion clause, technically two, where the copyright reverts back to the photographer so that they can make their lottery like millions in the copyright lawsuit and then reverts back to the the wedding client. That is possible to put in an agreement.

Is it practical? I think the premise of a lawsuit for an infringement for your average wedding photo is so implausible that it's irrelevant. I can absolutely see how someone who wants the copyright for irrational reasons is unlikely to be rational enough in their understanding to agree to those terms, but again, we're discussing what's possible.

And the point is not to do "what's possible" put to not react delusionally that you're giving up millions in statutory damages when a $3k wedding client asks about owning the copyright.


As an aside, I'm curious, statistically, do you think wedding photographers need to worry about being able to sue for statutory damages after an average wedding shoot? Do you think that there's going to be some kind of third party who with all of the millions of stock wedding photos is going to steal an image, refuse to settle out of court, lose and be unable to prove what the damages were? There are so many unlikely things that have to happen that I think it's really not a realistic worry, even if you don't have the right to sue for statutory damages.

I don't believe that all the wedding photographer who worry about that are properly registering their images anyway. I'm curious which way you'd speculate on that.

Dec 10 12 06:43 am  Link  Quote 
Photographer
AVD AlphaDuctions
Posts: 10,524
Gatineau, Quebec, Canada


MC Photo wrote:
Here's a really simple way to look at it.

It's possible to grant revokable licenses. Is it possible to grant a revokable copyright transfer? If it is, then end of story, that addresses every issue by allowing it to be revoked at any point. That's a single sentence added by a lawyer.

I would bet that anything can be written into an agreement other than criminal acts.

sorry but you would be wrong on this one.  transfer of copyright is the transfer of 'property'.  just like selling your house. once you transfer it you lose the rights bundle associated with the copyright. I should really be putting more words in here but I just pulled a needless all-nighter so this is as good as it gets.

Dec 10 12 07:20 am  Link  Quote 
Photographer
Michael Fryd
Posts: 3,479
Miami Beach, Florida, US


MC Photo wrote:
Here's a really simple way to look at it.

It's possible to grant revokable licenses. Is it possible to grant a revokable copyright transfer? If it is, then end of story, that addresses every issue by allowing it to be revoked at any point. That's a single sentence added by a lawyer.

I would bet that anything can be written into an agreement other than criminal acts.

I think it's clear that a normal usage license or copyright assignment is generally a better solution than a custom agreement that tries to make one look like the other.

However, for an intellectual challenge, one might consider whether it or not a copyright assignment can ever be the same as a carefully constructed usage license/contract.


I have already given examples of emotional differences.  There are cases where someone prefers to deal directly with the copyright holder instead of a licensee.


Here are two examples of important legal differences that cannot be circumvented via contract.

First there are significant differences should the client go bankrupt.  During bankruptcy, the court has the option of voiding contracts, modifying licenses, and selling assets.

If I retain copyright ownership, then I have no worries that your bankruptcy will cause me to lose access to the image.

Compare this to a situation where I sell you copyright, but we have a contract requiring you to sell it back to me on demand.   If you go bankrupt, not only can I lose the contractual right to buy back the license, but my usage license may be voided.

Clearly this is a case where there is a huge difference between copyright ownership and a usage license.


Secondly,  there are liability issues.  A claim against a licensee and an owner usually does not extend to other licensees.

Consider an image which is used in violation of someone's rights.  The injured party may have a case against the copyright holder for allowing the offending use, in addition to their claim against the publisher of the image.

Other licensees of the image would not have a concern unless they also used the image inappropriately.

The standard method of addressing this issue is by adding an indemnification clause to the contract.   Indemnification does not relieve one from liability, it is merely a promise to you that the party will do their best to protect you.  If the obligated party does not have the resources to fully protect you, then you are still exposed.

There is a big difference between not being legally responsible, and being legally responsible, but having someone who promises to protect you.  An extreme example would be that you are responsible for a $5million judgement, and the party indemnifying you has only $1million in assets.  Even with the indemnification clause, you will end up paying at least $4 million.

Thus copyright ownership does make a difference for liability concerns.


A complicated legal document can make a usage license act similarly to a copyright transfer (or vice versa).  It cannot make them the same.

Dec 10 12 07:36 am  Link  Quote 
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