MC Photo wrote:

Right, but licenses are giving the right to use a duplication, not to create more.

If someone uses a photo for the cover of a brochure and the make 5,000 copies of the brochure and then make another 5,000 copies after that, that's still one use, not 10,000. There may be terms that describe a total, but really the brochure is a separate copyright as a derivative work. The photographer doesn't have any copyright in the brochure.

In legal terms, "all" does not imply that the rights are unencumbered. It implies that the person writing the contract doesn't know how to properly specify the terms.

The idea of describing what's being transferred, "rights" is a separate idea from what the transferring party is warranting about their rights to enter into the agreement.

You can transfer "all rights" with existing licenses already in place.

"All rights" means all of the rights that you hold, not "this image has never been licensed."

That also means that royalty income would be transferred too, unless it's excluded. It's like selling an apartment building.

As a copyright owner, I generally have the authority to restrict any printing or reproduction of an image.

If I grant permission to use the image on 5,000 copies of a brochure, then that's it.  You may not make an additional 5,000 copies without further permission from me.


Obviously, I could grant an unlimited license, if I so choose but that's not typical.

If the contract meant to convey only those rights that the OP had, it would not say "all copyright" it would say "any and all copyrights that I own in this image",  or perhaps just "copyright".

By your interpretation, the OP could have previously granted a third party an exclusive license to use the image, and there would be nothing wrong with the OP subsequently licensing the image to the NCC.  Your position is that "all copyright" means only those rights he still has, even if there are no rights left.

Herman Surkis wrote:
You try to give something away and it suddenly becomes complicated.

This is the Usage license I came up with. Any thoughts.
Too me this says that they can do anything they want with the images, except sell to a third party, but I still own the images.

Suppose I could give them a 10 yr. exclusive use?

And I suppose I could give them 'all rights' and be done with it. They now own the images and I delete them from my files, since I cannot do anything with them except maybe on my website (and strictly speaking that would not be legal).

-------------------------------------------------------------------------------

Photograph Usage License

I, _________________________, the undersigned photographer, for value received, (the receipt and sufficiency of which are hereby acknowledged), represent and warrant that the photographs of
1. 
2. 
3. 
 
(hereinafter referred to as the “Photographs”) 
are my original works and are not copied from any other material, that the use of the Photographs will not infringe on the copyright or other proprietary right of any other party, that I am the sole author and creator of these photographs, that I am at least eighteen (18) years of age and that I have the right to execute this Photo Usage agreement,  without the consent or knowledge of any other person. 

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

Rights and permissions may not be transferred to a third party without written permission of photographer and photographer retains copyright of all images.
 
NCC agrees to credit all Photographs used in publications with the following credit:
“Photo by [Name] ___________________________”.

I acknowledge and agree that I shall not receive, or be entitled to receive, any fee or proceeds whatsoever from such use. NCC agrees that they will not sell any of these donated images.
 

Name of Photographer:
 
Address:
 
Signature of Photographer:                                                        Date:
 
Name of Witness:
 
Signature of Witness:                                                                Date:

Why make it exclusive? I don't know if I missed a description of what the photos are for so I don't know if that's relevant. Why not make it 10 years with the first year exclusive, or make the term in perpetuity, with one year exclusive?

"Rights and permissions may not be transferred to a third party without written permission of photographer and photographer retains copyright of all images"

Why even bother with "written permission...."? ""Rights and permissions may not be transferred to a third party." says it all. "Or this license is non-transferable."

You said that you didn't like the idea of them re-licensing the images to a magazine for $2,000. Are you ok with them making posters and selling 20,000 of them for $50? If you are, I'm not clear why you'd be bothered by the license to a magazine (obviously my opinion doesn't matter). Also, why would the magazine pay them when they could get stock photos for next to nothing?

More likely when someone writes an article about the NCC, they're going to ask for a photo. In theory that publisher should be paying you for the use, but when people pay for publicity photos, that's what they're paying to be able to do.


If I were writing my own, I'd refer to it as a "gratis license" and not bother with "value received". Then describe the term of the use and how much of that term is exclusive.

Next, identify which photos they're getting use of - for instance image numbers or, "photos provided on a CD" rather than leave it open to any photo the decide to pull from your website now or during the term of the license.

Then describe the usage "for web/print" "unrestricted" with no exceptions or "unrestricted with the following exceptions" and then list those - "this license is non-transferable" "any use except merchandise"

Generally the categories of use to consider are web, publicity, advertising, merch, and packaging. Merch could be broken in to for sale or promotion - for instance, can they make a postcard and sell them for $1 or can they make a postcard that any visitor can take for free?


One last thing to consider is their experience and perception. They obviously like your work. Will they come back if there's a paid job? Maybe, or maybe they'll expect free, but what about referrals? If you make too much of a deal out of every little unlikely detail and leave them thinking, "Wow, all this for a couple of photos to put on our website and Facebook???" that's going to leave them with a bad taste, even if they're going to think of a new use six months down the road that you're already addressing.

It's common to address the jurisdiction where disputes will be settled, but are you really going to sue a charity for how they use your donation?

As long as your clear in what you're allowing it's very unlikely you're going to have a problem.

You can sign it and also have a spot where it says "read and acknowledged" for someone to indicate that the NCC is aware of the terms.

If you don't specify that copyright is being transferred, it's not. You can specify that it's not if you want to be extra clear, and also be sure they know that. You can also specify that this is not a work-made-for-hire agreement.

You can also specify that any use that's not addressed in the agreement is restricted.

I'd try to make it one page, or just slightly longer and use the second page mainly for signatures.

No need for the witness signature, especially from your point of view.


It's a gift. I think it's best to keep it casual. The biggest issue that you face the people you dealing with leaving 2-3 years from now, and the images being so standard in their use the new people assume that they own the copyright and use them in a way you didn't agree to. What will you do at that point, sue? Can you really see yourself doing that with this particular organization?

Michael Fryd wrote:
Copyright ownership gives you the ability to restrict duplication.

And really that's not true. Copyright doesn't give you the right to restrict other people from doing anything. It only gives you the right to grant permission.

In practical terms they're the same thing, but it's this idea of "restriction" and power that gets people's panties all bunched up over this stuff.

Michael Fryd wrote:

It does not matter what you value your image at when you donate it.  No prolem with a value of a million dollars.  When tax time comes around, your valuation is irrelevant.  All that matters is your actual cost (tax basis)

It's also just fine to sell it to them for a million dollars, and then donate the million back to them.  The government will love you for this.  You need to declare the million as income.  Your  charitable donation of the million probably won't be fully deductable, and you will likely end up paying hundreds of thousands in additional taxes.  You don't get in trouble for structuring a transaction to increase your tax burden (as long as you pay those taxes)

An easy way to think of the tax laws around charitable donations is that they allow you to shift donated income to the charity.  Earn $100 and you would normally pay taxes on it.  Give that hundred to a charity, and it as if they earned the $100. When you donate something you made, you generally are hitting the income you used to buy the raw materials. You can't shift the retial value of the creation, as this isn't money you have made, so it can't be shifted.

Note the above is just a useful model that explains the taxability of most charitable donations. It does how the underlying text code is defined.

There are many situations where donations are not fully deductible. This is why a sale to a charity coupled with a matching donation may actually increase your tax burden. The income is fully taxable, but the donation may not be fully deductable.

Exactly. +1

Michael Fryd wrote:

Yes, "awarded" was a poor word choice.

In the US copyright covers creative works that are fixed in tangible form.  In order for something to be covered by copyright, there must be a creative element.   Without a creative element, there is no copyright.  .

Can you tell more about where you're getting this information?

The author is the author regardless of originality.

If the word "creative" is used in copyright law, I bet it's in the sense that an ideas isn't enough, something must be "created". It's not being used to describe originality.

Michael Fryd wrote:

As a copyright owner, I generally have the authority to restrict any printing or reproduction of an image.

If I grant permission to use the image on 5,000 copies of a brochure, then that's it.  You may not make an additional 5,000 copies without further permission from me.


Obviously, I could grant an unlimited license, if I so choose but that's not typical.

If the contract meant to convey only those rights that the OP had, it would not say "all copyright" it would say "any and all copyrights that I own in this image",  or perhaps just "copyright".

By your interpretation, the OP could have previously granted a third party an exclusive license to use the image, and there would be nothing wrong with the OP subsequently licensing the image to the NCC.  Your position is that "all copyright" means only those rights he still has, even if there are no rights left.

If he's granted an exclusive license he doesn't have the right to use it himself.

All he'd have is the right to call himself "copyright owner". The only right he'd have is to license out that title.

If there was a non-exclusive license, then he could keep licensing.


As far as the brochure example, the person is restricted by law, not by you, in the first place. They don't have the right to make the first 5,000 until you give it to them. You're not restricting them from making more, you're giving them permission to make that many.

In practical terms it's the same result, but I think the mischaracterization contributes to confusion in other aspects of the discussions that come up in the forums. Like a model asking what rights they have to restrict.

MC Photo wrote:

Can you tell more about where you're getting this information?

The author is the author regardless of originality.

If the word "creative" is used in copyright law, I bet it's in the sense that an ideas isn't enough, something must be "created". It's not being used to describe originality.

http://www.copyright.gov is a good source of copyright information.

I suggest starting with Copyright Basics

Again, I seem to have chosen my words poorly.  A work must contain "original authorship" in order to be protected by copyright.  Without "original authorship", the work is not copyrightable.

MC Photo wrote:

If he's granted an exclusive license he doesn't have the right to use it himself.

All he'd have is the right to call himself "copyright owner". The only right he'd have is to license out that title.

If there was a non-exclusive license, then he could keep licensing.


As far as the brochure example, the person is restricted by law, not by you, in the first place. They don't have the right to make the first 5,000 until you give it to them. You're not restricting them from making more, you're giving them permission to make that many.

In practical terms it's the same result, but I think the mischaracterization contributes to confusion in other aspects of the discussions that come up in the forums. Like a model asking what rights they have to restrict.

Yes. If he grants an exclusive license he has given up the right to use the work himself.

The agreement requested by the NCC actually asks that he assign "all copyright", which would, in effect, give them an exclusive license.


Whether or not this is something the OP is interested in doing is a very different question.  My concern is that he understand what is being asked of him.  That way he can make an informed decision in whether or not he wants to proceed.

In subsequent posts it appears he does want to retain some control over the image.  For instance he does not want the NCC to have the right to license the image to others.  This suggests that a copyright assignment will not meet his needs, and he should consider granting them a usage license.  This license should enumerate those uses he wishes them to have.  Remember, he can always decide to grant them additional rights.   It's difficult to rescind permission that you have already granted.

Michael Fryd wrote:

I see nothing wrong with charging $100 and then donating it back to the charity.

I see potential problems with expecting this to reduce my overall tax burden.

if this were legal, I would license the image to the charity for $1 million, donate the million to the charity, and not pay any taxes at all.


The issue is attempting to reduce taxes with such a transaction.  Remember, it was suggested that one could spend the money they saved on taxes by buying a filter or such.


Edit:  The referenced Canadian tax code seems to cover donating tangible works of art (such as physical paintings, prints, sculptures).  Normally, these works would be considered 'inventory items' for tax purposes.  The rules seem to generally limit the taxable deduction to the artist's cost of materials.  There is an exception for certified cultural pieces of art.   This rule does dot seem to apply to Intellectual Property such as the Copyright to a digital image.

Disclaimer: I know nothing about Canadian tax law.  Do not listen to me.

Interestingly, even if you know nothing, you are pretty close to right on.

I am involved with 2 other charitable organizations. I have been to a number of CRA seminars, and many of the loop holes have been closed. What was permitted a few few years ago, is no-longer. And the donation of a certifiable piece of art must have an evaluation by an accredited appraiser for any tax receipts to be valid. The cost of a good appraiser is usually greater then the objects value for small donations.

And services can be donated, at market value. But you have to prove that you would normally get that particular value for that service. You might get away with a value based upon common value for that service, but if questioned you will have to prove that "you" could have gotten that value.

Michael Fryd wrote:

http://www.copyright.gov is a good source of copyright information.

I suggest starting with Copyright Basics

Again, I seem to have chosen my words poorly.  A work must contain "original authorship" in order to be protected by copyright.  Without "original authorship", the work is not copyrightable.

Original authorship means not the author of a derivative work.

There doesn't have to be "creativity" and "originality" for someone to hold a copyright. Nearly identical photos will have separate copyrights.

Michael Fryd wrote:

Yes. If he grants an exclusive license he has given up the right to use the work himself.

The agreement requested by the NCC actually asks that he assign "all copyright", which would, in effect, give them an exclusive license.


Whether or not this is something the OP is interested in doing is a very different question.  My concern is that he understand what is being asked of him.  That way he can make an informed decision in whether or not he wants to proceed.

In subsequent posts it appears he does want to retain some control over the image.  For instance he does not want the NCC to have the right to license the image to others.  This suggests that a copyright assignment will not meet his needs, and he should consider granting them a usage license.  This license should enumerate those uses he wishes them to have.  Remember, he can always decide to grant them additional rights.   It's difficult to rescind permission that you have already granted.

"All" is redundant.

Maybe it's not even a lawyer writing their contract.

MC Photo wrote:

Why make it exclusive? I don't know if I missed a description of what the photos are for so I don't know if that's relevant. Why not make it 10 years with the first year exclusive, or make the term in perpetuity, with one year exclusive?

GOOD POINTS.

"Rights and permissions may not be transferred to a third party without written permission of photographer and photographer retains copyright of all images"

Why even bother with "written permission...."? ""Rights and permissions may not be transferred to a third party." says it all. "Or this license is non-transferable."

BECAUSE I MAY BE WILLING TO TRANSFER THE RIGHTS, BUT I WANT CONTROL TO WHOM. AS IN PREVIOUS COMMENT IF THEY WANT TO TRANSFER TO WWF, OR SIMILAR, THEN I WOULD BE OK. MONSANTO, NO WAY IN HELL. LEAVES THE DOOR OPEN FOR THEM TO ASK ME IF THEY CAN SELL THE IMAGES, AND I MIGHT AGREE.

You said that you didn't like the idea of them re-licensing the images to a magazine for $2,000. Are you ok with them making posters and selling 20,000 of them for $50? If you are, I'm not clear why you'd be bothered by the license to a magazine (obviously my opinion doesn't matter). Also, why would the magazine pay them when they could get stock photos for next to nothing?

HAPPENS. SOMETIMES AN IMAGE IS PERFECT FOR THE JOB. NO WAY TO PREDICT. AND THE CAN USE THEM FOR THE NCC MAGAZINE. THIRD PARTY, DEPENDS.

More likely when someone writes an article about the NCC, they're going to ask for a photo. In theory that publisher should be paying you for the use, but when people pay for publicity photos, that's what they're paying to be able to do.


If I were writing my own, I'd refer to it as a "gratis license" and not bother with "value received". Then describe the term of the use and how much of that term is exclusive.

VALUE RECEIVED IS THEIR WORDING. I FIND IT INTERESTING THAT THEY TALK ABOUT VALUE RECEIVED AND AT THE END THEY STATE THAT I HAVE RECEIVED NO VALUE AND AM NOT ENTITLED TO ANY.

Next, identify which photos they're getting use of - for instance image numbers or, "photos provided on a CD" rather than leave it open to any photo the decide to pull from your website now or during the term of the license.

GOOD POINT, AND IT IS COVERED. THEY ARE REQUESTING CERTAIN PHOTOS, WHICH I WILL HAVE TO IDENTIFY.

Then describe the usage "for web/print" "unrestricted" with no exceptions or "unrestricted with the following exceptions" and then list those - "this license is non-transferable" "any use except merchandise"

Generally the categories of use to consider are web, publicity, advertising, merch, and packaging. Merch could be broken in to for sale or promotion - for instance, can they make a postcard and sell them for $1 or can they make a postcard that any visitor can take for free?


One last thing to consider is their experience and perception. They obviously like your work. Will they come back if there's a paid job? Maybe, or maybe they'll expect free, but what about referrals? If you make too much of a deal out of every little unlikely detail and leave them thinking, "Wow, all this for a couple of photos to put on our website and Facebook???" that's going to leave them with a bad taste, even if they're going to think of a new use six months down the road that you're already addressing.

ALL THIS FOR PHOTOS THAT THEY CAN USE FOR ANY FORM OF PROMOTION, ADVERTISING AND SALES.

It's common to address the jurisdiction where disputes will be settled, but are you really going to sue a charity for how they use your donation?

I THINK THE REAL ISSUE IS THAT THEY ARE WANTING TO MAKE THEMSELVES SUIT PROOF, FROM ANYBODY, AND IN THE PROCESS IT SEEMED THAT THEY WERE TRANSFERRING THEIR POTENTIAL LIABILITIES BACK TO ME. LIKELY TO HAPPEN ... NO. BUT WHAT IS THE LIKELIHOOD THAT ONE OF THE WORLDS LARGEST CORPORATIONS IS GOING TO SUE A 15YR OLD KID IN A SMALL CANADIAN TOWN?

As long as your clear in what you're allowing it's very unlikely you're going to have a problem.

YEP.

You can sign it and also have a spot where it says "read and acknowledged" for someone to indicate that the NCC is aware of the terms.

If you don't specify that copyright is being transferred, it's not. You can specify that it's not if you want to be extra clear, and also be sure they know that. You can also specify that this is not a work-made-for-hire agreement.

You can also specify that any use that's not addressed in the agreement is restricted.

I'd try to make it one page, or just slightly longer and use the second page mainly for signatures.

No need for the witness signature, especially from your point of view.

THEIR DOCUMENT.
MY BAD JUST AMENDING.

It's a gift. I think it's best to keep it casual. The biggest issue that you face the people you dealing with leaving 2-3 years from now, and the images being so standard in their use the new people assume that they own the copyright and use them in a way you didn't agree to. What will you do at that point, sue? Can you really see yourself doing that with this particular organization?

?????
NEVER KNOW

Sorry for the caps. My way to point out my responses.


You went to a lot of trouble, so I will have to look at it closely.
Being a little lazy, I took their so called "release" and added what I wanted.
I know, usually creates more of a headache then starting from scratch.

I will answer your questions in the body of your comment.

MC Photo wrote:

Original authorship means not the author of a derivative work.

There doesn't have to be "creativity" and "originality" for someone to hold a copyright. Nearly identical photos will have separate copyrights.

I don't believe that the term "original authorship" means "Not a derivative work."  If it did, then derivative would not be copyrightable, as copyright is only available to works containing "original authorship".  As derivative works can be copyrighted,
original authorship" must mean something else.

The Copyright Basics publication specifically uses the term "original authorship" in the context of the work actually containing some sort or creative originality. 

They point out that works consisting entirely of information that is common
property and containing no original authorship, are not copyrightable.
For example standard calendars, height and weight charts,
tape measures and rulers, and lists or tables taken from
public documents or other common sources are not copyrightable.

Circular 32 further states: "To be protect by copyright, a work must contain a certain minimum, amount of original literary, pictorial, or musical expression"

I stand by my statement that creativity is a necessary factor in order for something to qualify for copyright protection.


This diverts us from the real issue of whether or not two subsequent frames, intended to have identical appearances, can have separate copyrights.  Assume the photographer has a legitimate copyright claim on the first photo.  The second photo, intended to look the same as the first, is likely a derivative work.

Circular 14 fromt he copyright office defines a derivative work as a work based on, or derived from one or more already existing works.  As in our example the second image is based on the first image, the second image must be a  derivative work.

MC Photo wrote:

"All" is redundant.

Maybe it's not even a lawyer writing their contract.

We see this very differently.  To me, the contract looks exactly like it was written by an attorney.   Not that authorship is important.  Even if it was written by a monkey, the words that are in the document are more important than how they got there.


The contract calls for the photographer to assign all his rights to the NCC.  It then enumerates that the transferred rights include  "all copyright".   If the intent was merely to transfer whatever rights the photographer happened to have, then there would be no need to mention either "copyright" or "all copyright".

To me the term "all copyright" clearly indicates that the rights transferred include all copyright rights, not just the ones that the photographer hasn't already licensed.

Of course, I am not an attorney, don't listen to me.  Perhaps we could get one to chime in on how a court would typically interpret this document.

Herman Surkis wrote:

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

This is sounding like way to big of a pain in the rear. When I do my volunteer stuff, there is typically a form. For organizations which deal mostly with families, I shoot photos, show the parents, and have them sign a consent form. If they don't want the images used by the organization, I delete them there, and we part ways.

If I shoot a photo of the buildings architecture, or attractions, I'm allowed to use the photos for non-monetary purposes and that's the whole deal. I don't get to use any photos of people who attended charity events, which I'm fine with.

Last year I shot in Fenway Park here in Boston. The deal was pretty straight forward. I was allowed to shoot as many images and I liked, and was allowed to post them to online ports. I was not allowed to gain from this financially. I did shoot a pretty kick ass photo of Fenway Park from the pitcher's mound. Since the agreement says I can't sell it, I've simply given it to a few people I'm close to. It's not like I'd make enough money off of a photo to make the tax paperwork worth it anyways.

If they're giving you this much trouble, why not just find another place to shoot for?

Herman Surkis wrote:

Sorry for the caps. My way to point out my responses.


You went to a lot of trouble, so I will have to look at it closely.
Being a little lazy, I took their so called "release" and added what I wanted.
I know, usually creates more of a headache then starting from scratch.

I will answer your questions in the body of your comment.

You need a standard usage license agreement.  If you are a member of a photographic professionals association, they may be able to provide you with one.  If not you may want to have an attorney to draft you a document you can use today, and in the future.

Basically the document needs to address what usage you are granting them and what you get in return.

- It should list the allowed uses for the image (i.e. use by the NCC for advertising the NCC, marketing the NCC, NCC branded calendars, NCC branded postcards, etc.)

- It should say whether or not the license is assignable and/or transferable (I suspect you want it non-transferable).

- It should say how long the license is for (the NCC wants it forever).

- It should state what your compensation should be (perhaps zero dollars, but each use of the image should be credited as "image courtesy and ©year your name)

- It should include any warranties you are making (i.e. you have the right to license, image does not infringe on others), and list any limitations on liability (i.e. your liability is limited to amount of any monetary licensing fee they paid).

- It should include whatever other terms your attorney believes appropriate.

- It may stipulate what the fees will be should they use the image in a way that exceeds the license.


Obviously the above is just a rough outline.  The specifics will vary from country to country.

It may seem like overkill to have an attorney involved to give away this one image.  The real reason for involving an attorney is to get a licensing agreement that you can use for this project, and on future projects. 

As always, don't listen to me, I am not an attorney.  Don't take legal advice from the web.  Go talk to a real attorney for advice you can trust.

Michael Fryd wrote:

We see this very differently.  To me, the contract looks exactly like it was written by an attorney.   Not that authorship is important.  Even if it was written by a monkey, the words that are in the document are more important than how they got there.


The contract calls for the photographer to assign all his rights to the NCC.  It then enumerates that the transferred rights include  "all copyright".   If the intent was merely to transfer whatever rights the photographer happened to have, then there would be no need to mention either "copyright" or "all copyright".

To me the term "all copyright" clearly indicates that the rights transferred include all copyright rights, not just the ones that the photographer hasn't already licensed.

Of course, I am not an attorney, don't listen to me.  Perhaps we could get one to chime in on how a court would typically interpret this document.

in most jurisdictions, copyright must be explicitly assigned (and executed via a written document).  so there is a need to mention it if the intent was to assign.  There is also a need to be explicit about licencing. At least thats the case in Canada. I'm too tired to look up US copyright law on licencing (especially since you Americans spell licencing wrong).
As for how a Canadian court would interpret? I can guarantee an answer.  Long before this ever got to a trial judge some clerk or prothonotary or motions judge or mediation judge would say "settle this, you idiots".

Michael Fryd wrote:

I don't believe that the term "original authorship" means "Not a derivative work."  If it did, then derivative would not be copyrightable, as copyright is only available to works containing "original authorship".  As derivative works can be copyrighted,
original authorship" must mean something else.

The Copyright Basics publication specifically uses the term "original authorship" in the context of the work actually containing some sort or creative originality. 

They point out that works consisting entirely of information that is common
property and containing no original authorship, are not copyrightable.
For example standard calendars, height and weight charts,
tape measures and rulers, and lists or tables taken from
public documents or other common sources are not copyrightable.

Circular 32 further states: "To be protect by copyright, a work must contain a certain minimum, amount of original literary, pictorial, or musical expression"

I stand by my statement that creativity is a necessary factor in order for something to qualify for copyright protection.


This diverts us from the real issue of whether or not two subsequent frames, intended to have identical appearances, can have separate copyrights.  Assume the photographer has a legitimate copyright claim on the first photo.  The second photo, intended to look the same as the first, is likely a derivative work.

Circular 14 fromt he copyright office defines a derivative work as a work based on, or derived from one or more already existing works.  As in our example the second image is based on the first image, the second image must be a  derivative work.

A derivative work is a separate new work. It may have a piece or a whole of something in it, but it's a separate work. I shouldn't have said derivative. Original meaning first first, like the source for the copy, not creative. Otherwise we'd have no copyrights for photos now "since everything has been done before".

You can't shoot a photo that doesn't have its own copyright.

Michael Fryd wrote:
Circular 14 fromt he copyright office defines a derivative work as a work based on, or derived from one or more already existing works.  As in our example the second image is based on the first image, the second image must be a  derivative work.

It must contain an actual part of the original work.

"A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted."

Two photos of the same landscape are separate copyrights because there's no copyright for landscape which is what the second photo has in it. You'd have to shot the back of the camera, for example, to make a derivative of the first photo.

Michael Fryd wrote:

We see this very differently.  To me, the contract looks exactly like it was written by an attorney.   Not that authorship is important.  Even if it was written by a monkey, the words that are in the document are more important than how they got there.


The contract calls for the photographer to assign all his rights to the NCC.  It then enumerates that the transferred rights include  "all copyright".   If the intent was merely to transfer whatever rights the photographer happened to have, then there would be no need to mention either "copyright" or "all copyright".

To me the term "all copyright" clearly indicates that the rights transferred include all copyright rights, not just the ones that the photographer hasn't already licensed.

Of course, I am not an attorney, don't listen to me.  Perhaps we could get one to chime in on how a court would typically interpret this document.

It's the equivalent of "all 100%".

A license to use an image is not a copyright. If two people jointly own a copyright, there are not two copyrights, there's still just one that two people own. If he owned 90% and someone owned 10% selling 90% is not all of it. "The copyright" refers to the whole.

MC Photo wrote:

It's the equivalent of "all 100%".

A license to use an image is not a copyright. If two people jointly own a copyright, there are not two copyrights, there's still just one that two people own. If he owned 90% and someone owned 10% selling 90% is not all of it. "The copyright" refers to the whole.

Copyright allows you to restrict the reproduction of an image.

A usage license is a transfer of some of the copyright rights.  Once I grant you a usage license, I no longer have control over the covered usages.  You now have control over those specific copyright rights.

The NCC agreement is clear.  They want the photographer to transfer all rights the photographer may have in the image, and they want that transfer to include "all copyright".  They do not simply want a usage license, they want to control the copyright. 

Our point of disagreement is "how much of the copyright do they want?"

If they simply wanted the ability to use the image, they would only need to ask for a usage license.  They specifically ask for the copyright.  In other words, they are specifically asking for the ability to restrict others from using the image. 

How much of the copyright do they want?  Are they willing to accept a copyright that is encumbered by previous licensing agreements, or do they want 100% of the copyright - free and clear of any other licenses or restrictions?

The answer here is that they want "all copyright".  This means "100%".  You cannot have 100% of the rights if you have already transferred away some of those rights via a usage license.


Imagine the following scenario: The photographer takes an image, and grants his mom an exclusive, transferable usage license for the image.  He then asks his mom to do him a favor and to allow the NCC to use the image.  His mom says "Yes".  He then signs the NCC's agreement.

My position is that he should not have signed the agreement, as he no longer has legal authority to transfer 100% of the copyright to the NCC (he has already transferred most of the copyright rights to his mom).

Your position seems to be that he is OK signing the agreement, as a transfer of a copyright encumbered by an exclusive usage license still counts as "all copyright"

Of course, the photographer is also warranting that the NCC can use the images, and that shouldn't be a problem as his mom said she would allow them to use it.


It is clear that the intent of the agreement is to transfer complete control of the image to the NCC.  If a usage license has already been granted, then complete control can no longer be granted.  An existing usage license would be a violation of the letter and spirit of the agreement.


Of course, these are just my unprofessional thoughts.  This is not legal advice, it is simply how it appears to me (and I am NOT a lawyer).  Please don't listen to anything I have suggested.  For reliable legal advice talk to an attorney.

Michael Fryd wrote:
The answer here is that they want "all copyright".  This means "100%".  You cannot have 100% of the rights if you have already transferred away some of those rights via a usage license.

I think you are getting wrapped up in useless terminology.

There are a few basic scenarios here:
Someone wants to see them an image, in whole or in part. NCC isn't interested.
Someone wants to donate an image to them because they want to donate an image. NCC will take the donation.
Someone wants to donate an image and has an ulterior motive, such as capitalizing on NCC's use of the image (maybe my producing their own calendar, later). NCC wants to stop this. That's the intent.

Now the language is, of course, different from the intent.

The language says you will sell/donate 100% of an image. However, you can't donate what you don't own. So if you don't own full usage, you can't donate it. So you can only donate what you own. If NCC wished to accept it, fine. If they don't, then that's up to them. That's really the long and short of it. So that where the photographer has to decide what rights he wants to dispose of, first, and then see if NCC still wants the image.

There are similar situations in real estate. You can sell a rental property with a tenant in it, even though you don't have the right of occupancy (the tenant does). You can also use a quit-claim deed to transfer less-than-full ownership or nebulous interests. Yeah, this isn't real estate but it does show how less-than-full transfers happen routinely. You can only sell what you own.

Now for certain images, there could be similar pictures where donating one still might benefit the photographer's reputation, while keeping other images. For example, if there was a deer walking through a field, you could donate one and keep the rest. Would NCC like that, probably not, but it would be within the agreement.

I have no problems skirting the rules. I do it all the time. But the donor needs to ponder why (s)he is making the donation. If (s)he is doing it to give NCC a nice image for a calendar, then great. If (s)he's doing it for exposure and wants to reuse the image for something else; they are trying to do what NCC doesn't want to happen. It really isn't a heart-felt gift but rather a marketing methodology. So yeah, there's ways around it, but is that the right thing to do?

ArtisticPhotography wrote:

I think you are getting wrapped up in useless terminology.

There are a few basic scenarios here:
Someone wants to see them an image, in whole or in part. NCC isn't interested.
Someone wants to donate an image to them because they want to donate an image. NCC will take the donation.
Someone wants to donate an image and has an ulterior motive, such as capitalizing on NCC's use of the image (maybe my producing their own calendar, later). NCC wants to stop this. That's the intent.

Now the language is, of course, different from the intent.

The language says you will sell/donate 100% of an image. However, you can't donate what you don't own. So if you don't own full usage, you can't donate it. So you can only donate what you own. If NCC wished to accept it, fine. If they don't, then that's up to them. That's really the long and short of it. So that where the photographer has to decide what rights he wants to dispose of, first, and then see if NCC still wants the image.

There are similar situations in real estate. You can sell a rental property with a tenant in it, even though you don't have the right of occupancy (the tenant does). You can also use a quit-claim deed to transfer less-than-full ownership or nebulous interests. Yeah, this isn't real estate but it does show how less-than-full transfers happen routinely. You can only sell what you own.

Now for certain images, there could be similar pictures where donating one still might benefit the photographer's reputation, while keeping other images. For example, if there was a deer walking through a field, you could donate one and keep the rest. Would NCC like that, probably not, but it would be within the agreement.

I have no problems skirting the rules. I do it all the time. But the donor needs to ponder why (s)he is making the donation. If (s)he is doing it to give NCC a nice image for a calendar, then great. If (s)he's doing it for exposure and wants to reuse the image for something else; they are trying to do what NCC doesn't want to happen. It really isn't a heart-felt gift but rather a marketing methodology. So yeah, there's ways around it, but is that the right thing to do?

My point was that the agreement provided by NCC precluded other usage licenses.  Also, once signed the photographer would no longer be allowed to use the image without the permission of NCC.

I agree that you can't sell what you don't own, hence you can't sign this particular agreement if there is already a usage license in place.  If you wanted to use this agreement, it would need to be modified to specify exceptions for existing usage licenses.


I was not commenting on whether or not this was a good agreement for the photographer to sign, just that this was the meaning of the agreement.


If I were buying an image from someone, this is exactly the sort of agreement I would like.  It transfers all benefits of the image to me, and leaves the liabilities with the photographer.  As a buyer, this is the ideal situation.  As a photographer, I would be very hesitant to sign this agreement.



The OP has stated that he wants to retain some control over the image.  The supplied NCC agreement is incompatible with this goal.  This suggests that this agreement is not appropriate for this situation.


My suggestion was that the OP speak to an attorney, and draft a usage license granting the NCC those rights that the photographer wishes to give them.  Depending on their needs, these may be exclusive rights.  It appears that the key issues is that the photographer does not want the NCC to profit by reselling the photo.  He should make sure his usage license does not give them this right.

Whether or not it is reasonable for the NCC to resell the photo at a profit is a different question.  Image donating an old coat to GoodWill instead of throwing it away.  It turns out it is a collectible, and GoodWill sells it for $10,000.  Should I be upset that GoodWill made more money than I expected?  It's doubtful I would have made the money had I not donated it. 


As to granting someone exclusive use of an image while licensing similar image elsewhere.  Depending on the situation, this may or may not be legal.  If it is a method of bypassing an exclusive license then the real danger is that it may harm your reputation.  If the client thinks they are getting one thing, but they get another, they will be unhappy.  They may feel deceived and they may spread the word.  This could very easily lead to the photographer getting a bad reputation, and losing business.

My suggestion is that in any given arrangement, both parties should have a clear understanding of what they are getting.  Misunderstandings generally lead to trouble.  If I sell an exclusive image of a bridge collapsing, the buyer may reasonably be upset if I sell the next frame to a competitor.   I may legally be allowed to do so, but it wasn't what the client thought he was getting with his exclusivity.

Michael Fryd wrote:

Copyright allows you to restrict the reproduction of an image.

A usage license is a transfer of some of the copyright rights.  Once I grant you a usage license, I no longer have control over the covered usages.  You now have control over those specific copyright rights.

The NCC agreement is clear.  They want the photographer to transfer all rights the photographer may have in the image, and they want that transfer to include "all copyright".  They do not simply want a usage license, they want to control the copyright. 

Our point of disagreement is "how much of the copyright do they want?"

If they simply wanted the ability to use the image, they would only need to ask for a usage license.  They specifically ask for the copyright.  In other words, they are specifically asking for the ability to restrict others from using the image. 

How much of the copyright do they want?  Are they willing to accept a copyright that is encumbered by previous licensing agreements, or do they want 100% of the copyright - free and clear of any other licenses or restrictions?

The answer here is that they want "all copyright".  This means "100%".  You cannot have 100% of the rights if you have already transferred away some of those rights via a usage license.


Imagine the following scenario: The photographer takes an image, and grants his mom an exclusive, transferable usage license for the image.  He then asks his mom to do him a favor and to allow the NCC to use the image.  His mom says "Yes".  He then signs the NCC's agreement.

My position is that he should not have signed the agreement, as he no longer has legal authority to transfer 100% of the copyright to the NCC (he has already transferred most of the copyright rights to his mom).

Your position seems to be that he is OK signing the agreement, as a transfer of a copyright encumbered by an exclusive usage license still counts as "all copyright"

Of course, the photographer is also warranting that the NCC can use the images, and that shouldn't be a problem as his mom said she would allow them to use it.


It is clear that the intent of the agreement is to transfer complete control of the image to the NCC.  If a usage license has already been granted, then complete control can no longer be granted.  An existing usage license would be a violation of the letter and spirit of the agreement.


Of course, these are just my unprofessional thoughts.  This is not legal advice, it is simply how it appears to me (and I am NOT a lawyer).  Please don't listen to anything I have suggested.  For reliable legal advice talk to an attorney.

Your understanding of a license, the scenario of the mother and my position on it are very convoluted.

A standard license does not give control, it gives permission.

Having a copyright does not give to the ability to restrict usage, it's already restrict for everyone. It gives you the right to give permission.

The scenario with the mother was a hypothetical scenario and not set up in a way that permission had to be asked, so you've made up a new scenario, changed my words and applied it to this new scenario. Rather than telling me what my opinion is, you might want to ask.


When you lease a car it's "yours" but you don't own it. You can control it. Copyright is the equivalent of title. A license is the equivalent of the lease. If the title holder sells the car they can sell 100% of the ownership rights even with the lease in place. The owner may not have the right to drive it because of the lease agreement, but 100% of the ownership rights have been transferred.


You aren't getting why clients want copyright. It's not for exclusivity of use. It's because they don't want their use restricted, they don't want a term with an ending, and they want to be able to give permission to other people to use the images, like a publicity scenario. It's to about restriction. And again, they can't cause restrictions with copyright. The restriction is already in place, they can only lift restrictions.

ArtisticPhotography wrote:

I think you are getting wrapped up in useless terminology.

There are a few basic scenarios here:
Someone wants to see them an image, in whole or in part. NCC isn't interested.
Someone wants to donate an image to them because they want to donate an image. NCC will take the donation.
Someone wants to donate an image and has an ulterior motive, such as capitalizing on NCC's use of the image (maybe my producing their own calendar, later). NCC wants to stop this. That's the intent.

Now the language is, of course, different from the intent.

The language says you will sell/donate 100% of an image. However, you can't donate what you don't own. So if you don't own full usage, you can't donate it. So you can only donate what you own. If NCC wished to accept it, fine. If they don't, then that's up to them. That's really the long and short of it. So that where the photographer has to decide what rights he wants to dispose of, first, and then see if NCC still wants the image.

There are similar situations in real estate. You can sell a rental property with a tenant in it, even though you don't have the right of occupancy (the tenant does). You can also use a quit-claim deed to transfer less-than-full ownership or nebulous interests. Yeah, this isn't real estate but it does show how less-than-full transfers happen routinely. You can only sell what you own.

Now for certain images, there could be similar pictures where donating one still might benefit the photographer's reputation, while keeping other images. For example, if there was a deer walking through a field, you could donate one and keep the rest. Would NCC like that, probably not, but it would be within the agreement.

I have no problems skirting the rules. I do it all the time. But the donor needs to ponder why (s)he is making the donation. If (s)he is doing it to give NCC a nice image for a calendar, then great. If (s)he's doing it for exposure and wants to reuse the image for something else; they are trying to do what NCC doesn't want to happen. It really isn't a heart-felt gift but rather a marketing methodology. So yeah, there's ways around it, but is that the right thing to do?

You get it.

It's really not skirting the rules when your the copyright holder. The rules are to protect you, so anything weird you come up with is fine. You can certainly come up with things that are deceitful, but that's not against the rules, it's unethical.

The best analogy for copyright is stock. Copyright is stock in the image. You can sell options and derivatives and anything else you can come up with.

Michael Fryd wrote:

My point was that the agreement provided by NCC precluded other usage licenses.  Also, once signed the photographer would no longer be allowed to use the image without the permission of NCC.

I agree that you can't sell what you don't own, hence you can't sign this particular agreement if there is already a usage license in place.  If you wanted to use this agreement, it would need to be modified to specify exceptions for existing usage licenses.


I was not commenting on whether or not this was a good agreement for the photographer to sign, just that this was the meaning of the agreement.


If I were buying an image from someone, this is exactly the sort of agreement I would like.  It transfers all benefits of the image to me, and leaves the liabilities with the photographer.  As a buyer, this is the ideal situation.  As a photographer, I would be very hesitant to sign this agreement.



The OP has stated that he wants to retain some control over the image.  The supplied NCC agreement is incompatible with this goal.  This suggests that this agreement is not appropriate for this situation.


My suggestion was that the OP speak to an attorney, and draft a usage license granting the NCC those rights that the photographer wishes to give them.  Depending on their needs, these may be exclusive rights.  It appears that the key issues is that the photographer does not want the NCC to profit by reselling the photo.  He should make sure his usage license does not give them this right.

Whether or not it is reasonable for the NCC to resell the photo at a profit is a different question.  Image donating an old coat to GoodWill instead of throwing it away.  It turns out it is a collectible, and GoodWill sells it for $10,000.  Should I be upset that GoodWill made more money than I expected?  It's doubtful I would have made the money had I not donated it. 


As to granting someone exclusive use of an image while licensing similar image elsewhere.  Depending on the situation, this may or may not be legal.  If it is a method of bypassing an exclusive license then the real danger is that it may harm your reputation.  If the client thinks they are getting one thing, but they get another, they will be unhappy.  They may feel deceived and they may spread the word.  This could very easily lead to the photographer getting a bad reputation, and losing business.

My suggestion is that in any given arrangement, both parties should have a clear understanding of what they are getting.  Misunderstandings generally lead to trouble.  If I sell an exclusive image of a bridge collapsing, the buyer may reasonably be upset if I sell the next frame to a competitor.   I may legally be allowed to do so, but it wasn't what the client thought he was getting with his exclusivity.

Their agreement didn't preclude existing agreements because an agreement can't do that.

That was the premise behind the mother scenario.

An agreement can be contingent upon there being no encumbrances. The person who presented the mother scenario was doing that because they saw that there wasn't any wording where the photographer was warranting that there are no previous agreements.

They can warrant that they are fully able to enter in to the agreement and there are no encumbrances if they've issued licenses, because giving permission doesn't create an encumbrance.

The things that can encumber the copyright are part ownership, and agreement where the photographer agreed not to transfer the copyright, or a scenario where the copyright was used as collateral.

A standard license does not encumber the copyright.

MC Photo wrote:
Your understanding of a license, the scenario of the mother and my position on it are very convoluted.

A standard license does not give control, it gives permission.

Having a copyright does not give to the ability to restrict usage, it's already restrict for everyone. It gives you the right to give permission.

The scenario with the mother was a hypothetical scenario and not set up in a way that permission had to be asked, so you've made up a new scenario, changed my words and applied it to this new scenario. Rather than telling me what my opinion is, you might want to ask.


When you lease a car it's "yours" but you don't own it. You can control it. Copyright is the equivalent of title. A license is the equivalent of the lease. If the title holder sells the car they can sell 100% of the ownership rights even with the lease in place. The owner may not have the right to drive it because of the lease agreement, but 100% of the ownership rights have been transferred.


You aren't getting why clients want copyright. It's not for exclusivity of use. It's because they don't want their use restricted, they don't want a term with an ending, and they want to be able to give permission to other people to use the images, like a publicity scenario. It's to about restriction. And again, they can't cause restrictions with copyright. The restriction is already in place, they can only lift restrictions.

Clients want copyright for may reasons.  Sometimes they want to guarantee usage rights, sometimes they want to restrict others from using the image, sometimes they don't understand the law and think they need it.

However, why NCC wants the copyright is not the issue.  The issue is that their agreement calls for them to have "all copyright".  It does not matter why they want it. 

Copyright gives you the right to control reproduction of an image.  A usage license voluntarily reduces your right to control.  When your rights are reduced, you have less rights.  If you have fewer rights you do not have "all" rights.  This is simply plain English.

If a usage license exists, you can not give someone "all copyright" rights, as some of those have already been assigned to others.

Although there may be similarities between car titles/leases and copyright ownership/usage agreements, they are governed by different laws.  Something that is true for cars, may not be true for copyright.

MC Photo wrote:
...
You get it.

It's really not skirting the rules when your the copyright holder. The rules are to protect you, so anything weird you come up with is fine. You can certainly come up with things that are deceitful, but that's not against the rules, it's unethical.

The best analogy for copyright is stock. Copyright is stock in the image. You can sell options and derivatives and anything else you can come up with.

Imagine I sell options on my shares to my brother.  I then sell you "all" ownership in my shares.  I suspect you will think you have been cheated when my brother exercises his option and buys your shares at a below market price.

MC Photo wrote:
Their agreement didn't preclude existing agreements because an agreement can't do that.

That was the premise behind the mother scenario.

An agreement can be contingent upon there being no encumbrances. The person who presented the mother scenario was doing that because they saw that there wasn't any wording where the photographer was warranting that there are no previous agreements.

They can warrant that they are fully able to enter in to the agreement and there are no encumbrances if they've issued licenses, because giving permission doesn't create an encumbrance.

The things that can encumber the copyright are part ownership, and agreement where the photographer agreed not to transfer the copyright, or a scenario where the copyright was used as collateral.

A standard license does not encumber the copyright.

Again, perhaps a poor choice of words on my part.  instead of "precludes" I should have said "incompatible".  Instead of "encumbered" I should have said "reduced"


The NCC agreement as written is incompatible with a situation where there is an existing usage agreement.    If there is an existing usage agreement, then one cannot sell "all" rights to the image. 

The wording "all copyright" is there to ensure that all copyright rights are being included, and they are not reduced by any pre-existing agreements.

Michael Fryd wrote:
Copyright gives you the right to control reproduction of an image.  A usage license voluntarily reduces your right to control.

Copyright does it give you the right, it is the right.

A usage agreement is a control. It's not a reduction.

When you grant a usage license you have not granted them any portion of the copyright.

MC Photo wrote:

Copyright does it give you the right, it is the right.

A usage agreement is a control. It's not a reduction.

When you grant a usage license you have not granted them any portion of the copyright.

You have taken the question out of context.

The question was whether or not a photographer could legitimately sign NCC's supplied agreement if there was a pre-existing usage license on the image.

The NCC agreement calls for the photographer to transfer all rights, including all copyright rights.

The right to authorize and/or restrict duplication is one of the primary copyright rights.

Let us suppose I grant person A a usage license allowing them to make copies of my image.

Person B then offers me $2,000 to license all of the copyright rights to the image.  I can not legitimately sell/license/transfer person B all of the rights, as I have already licensed some of them to person A.


NCC's form specifically states that the photographer is transferring all the copyright rights to NCC.  The photographer cannot legitimately do this is he has already licensed away some of those rights.

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

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

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

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

It is sad to see people and companys,  try to hoodwink  the photographer,  and other suppliers..    You can release one time use..  one time North American use..   You can release  all North American rights,  You can release all European rights..       This is a field that I work in...  and it goes on and on...  I have sold rights to  England,  and  Spain at the same time  and on and on..

Michael Fryd wrote:
You have taken the question out of context.

The question was whether or not a photographer could legitimately sign NCC's supplied agreement if there was a pre-existing usage license on the image.

The NCC agreement calls for the photographer to transfer all rights, including all copyright rights.

The right to authorize and/or restrict duplication is one of the primary copyright rights.

Let us suppose I grant person A a usage license allowing them to make copies of my image.

Person B then offers me $2,000 to license all of the copyright rights to the image.  I can not legitimately sell/license/transfer person B all of the rights, as I have already licensed some of them to person A.


NCC's form specifically states that the photographer is transferring all the copyright rights to NCC.  The photographer cannot legitimately do this is he has already licensed away some of those rights.

This is incorrect.

A license is a set of permissions, not a set of rights.

MC Photo wrote:
This is incorrect.

A license is a set of permissions, not a set of rights.

Are you disagreeing with my use of words, or the interpretation of the NCC agreement?

Copyright gives you the "right" to withhold permission.  It does not matter what you have licensed, if after the you have licensed it you have given up some of your rights.  Once you have given someone permission, you no longer have the "right" to withhold it. 




Do you believe that someone who has given person A a usage license, can then transfer all the rights associated with copyright to person B?

Without the previous usage license, person B could prohibit person A from making copies.  If the prior usage license is in place person B may not prohibit person A from making copies.  Certainly you see this as a difference in the rights being granted to person B?

The next question is does the previous usage license increase or decrease the rights being granted to person B?  Obviously, person B is getting less rights.  By definition this means he is not getting all rights.   The NCC agreement specifies all rights.  A previous usage agreement precludes this.

Michael Fryd wrote:

Are you disagreeing with my use of words, or the interpretation of the NCC agreement?

Copyright gives you the "right" to withhold permission.  It does not matter what you have licensed, if after the you have licensed it you have given up some of your rights.  Once you have given someone permission, you no longer have the "right" to withhold it. 




Do you believe that someone who has given person A a usage license, can then transfer all the rights associated with copyright to person B?

Without the previous usage license, person B could prohibit person A from making copies.  If the prior usage license is in place person B may not prohibit person A from making copies.  Certainly you see this as a difference in the rights being granted to person B?

The next question is does the previous usage license increase or decrease the rights being granted to person B?  Obviously, person B is getting less rights.  By definition this means he is not getting all rights.   The NCC agreement specifies all rights.  A previous usage agreement precludes this.

I can see how and why you're interpreting it the way you are, but you're wrong.

One thing that makes it really difficult is that neither of us are specifying the terms in the hypothetical license that's been granted. For instance if the license allows the copyright holder to revoke it at any time, then even with your misinterpretation, you can see how the's no reduction in rights.

One way that may help you see it is this: if I give you a usage license, do you see how I am still prohibiting your use?

Another way that you're looking at it wrong is there is only one right: copyright. It's not a list if rights. There not an amount. It's partly because you're looking at it backwards ith copyright being about restricting use. The default is that all use is restricted. Copyright is the right to allow copies to be made. A person with a license can not allow copies to be made. They can make them, but the can't give permissions. A copyright holder can't excercise a right to restrict someone's use use because the person didn't have the right to use it in the first place.


You're view is essentially right in practical terms. Whether it's ethical or not to transfer "100% of copyright" to someone depends on what they care about, what they ask and what the terms of the deal are.

When it's important that there are no previously existing licenses that discussed, it has nothing to do with the definition of copyright. Someone make make it a term of the deal and the seller may have to warrant that there are no previously existing licenses. On the other hand, someone may be buying a copyright because of the previously existing licenses. Copyright goes beyond photographs. There are licenses that generate royalties, so sometimes people are buying copyrights because of the existing licenses. 

A license doesn't reduce the number of rights of a copyright which is only one right. It may reduce the market or it may reduce the value, but it does not reduce the copyright or copyrights as you're thinking of it.

MC Photo wrote:

Another way that you're looking at it wrong is there is only one right: copyright. It's not a list if rights. There not an amount. It's partly because you're looking at it backwards ith copyright being about restricting use. The default is that all use is restricted. Copyright is the right to allow copies to be made. A person with a license can not allow copies to be made. They can make them, but the can't give permissions. A copyright holder can't excercise a right to restrict someone's use use because the person didn't have the right to use it in the first place.

sorry but you are mistaken. Open any text on copyright (modern or ancient) and before the end of the first paragraph they are talking about the list, more specifically the copyright bundle that is an enumeration of the various rights (which varies by medium). And sorry again but you also have it backwards. Copyright is the right to prevent others from doing stuff.

Thinking about it some more, your example is wrong as well.  A person with a licence may or may not have the right to sub-licence (which is the right to use or make copies) all or a subset of the materials covered by the licence agreement. It all depends on how the licence agreement was drafted.  This happens all the time with images, songs, stories, videos pretty much everything.

You seem passionate about this subject.  Why not take a real course in copyright at a law school? Or at least an Intellectual Property course which will give you copyright for 1/3 of the time.  Patents are cool so you won't regret that part either. Trademarks????? I won't lie.  much more fun to work in that to study. Join INTA to enjoy trademarks while you are stuck learning about them.

Michael Fryd wrote:
Circular 32 further states: "To be protect by copyright, a work must contain a certain minimum, amount of original literary, pictorial, or musical expression"

I stand by my statement that creativity is a necessary factor in order for something to qualify for copyright protection.


This diverts us from the real issue of whether or not two subsequent frames, intended to have identical appearances, can have separate copyrights.  Assume the photographer has a legitimate copyright claim on the first photo.  The second photo, intended to look the same as the first, is likely a derivative work.

Circular 14 fromt he copyright office defines a derivative work as a work based on, or derived from one or more already existing works.  As in our example the second image is based on the first image, the second image must be a  derivative work.

I wonder if an idea can be so utterly and completely wrong that it takes a full loop around wrongness and comes back for seconds.

"Expression", in this context, means it must be put forth. A song not sung nor written cannot be copyrighted. A picture not drawn cannot be copyrighted. It also does not mean it must be creative, merely unique

Consider this example. You walk out of your house while carrying your camera. You trip over your cat and your camera goes flying. It hits the ground and -- while pointing up -- the shutter is released. This is strictly accidental and there was no intentional act by you (or your cat). Amazingly, it even turned itself on in mid-flight. Okay, you're mad and concerned about your camera. So you check it over and see an image was taken. You take a look at it and WHOA, you have a picture of UFO beaming Elvis back to Earth. Wow. You've got THE PICTURE OF THE CENTURY and it's going to earn you a LOT of money. You know everyone from Fox News to the National Enquirer to the Vatican is going to want this baby. You know that copyright law is what going to protect you and make you millions. There's only one problem. According to your theory, it isn't copyrightable. There was no creative content. You said, "creativity is a necessary factor in order for something to qualify for copyright protection." There's no creativity here. It's just accidental. Heck, some could argue that you didn't even take the picture.

Now let's take a second example. A person is profoundly mentally disabled. They live in a group home with similar persons. The home wants to have a fundraiser so it straps a paintbrush into the person's hand. The person has no bodily control, no concept that (s)he is painting, not intending to paint something. It's just sort-of-random movements. However, it's paint on paper. The art director does this for 12 people and assembles them into a calendar for sale. The calendar, per se, isn't copyrightable - only the art is. But, there's no creativity here. So again, it's not copyrightable under your theory.

Again, NO. It is.

The issue isn't creativity. It is uniqueness.

Copyright works must be unique and must be physical.

So now you are going to go photocopy a form. You are going to make a copy. You are going to decide how to lay it on the glass. You decide the copy settings. Do you want the cover up or put it down? There are lots of decisions here. You can let your creativity flow. You hit "copy" and create a derivative work that you can copyright. You've been a creative copier!

No. It's a copy. It's not copyrightable even with all of your creative juices flowing. And it's not a derivative work. It's a photocopy. I litho produced by a skilled craftsman who had to create CYMB plates to make the print, get the color right, choose the colors, etc. is also a copy. It is not a derivative work even though it's not an exact copy.

Now, let's look at separate frames.

Are they the same. Maybe, or maybe not? If you shot a burned-out exposure of a white wall, they may be exactly the same.

So, I'm at Disneyworld at a Photospot or whatever they call those places where they've set up things to look good for you. I have my wife and 2.4 kids carefully framed in my camera and take a picture. Being the clutz that I am, I hold the shutter down too long and shoot two frames. Ooops. Now obviously the 2nd shot can't be copyrighted because it's just a repeat of the first shot. The wife and kids didn't move. The sky was cloudless and I had no artistic intent to take a second frame. But WOW, the UFO showed up again and I have the ONLY picture. You already made your millions. This is my chance to make my millions. Oh, but that's right. I can't copyright it because the copyright is for the first frame that didn't have the inadvertent UFO.

Oh, did someone say the pictures are different so I can do it? They are unique! Excellent. I'll go copyright it and be rich!!!!!

Okay, but what if the UFO wasn't in the picture? Would they still be unique?  Didn't the angle of the sun change minutely? Didn't my kids grow just a tiny bit? Didn't my wife get just a touch prettier? Didn't my camera angle change just a bit? Didn't it all happen in 1/50th of a second. Didn't the fact that 1/50th of a second go by mean anything. How much time can go by before there is a difference? If I don't move my camera and wait from a lush summer to a snowy winter, is it the same picture, but with a longer delay? How much delay is needed?

If I shoot two frames with bracketing the exposure or lengthening the shutter, isn't that expressing creative intent to take a different picture? Are the pictures different because the wind blew that piece of grass?

Finally, a picture. A very important picture, at that. It's a horse and a rider and a white background. It has a few reference lines and nothing else. Obviously under your idea, any image after the first one is not, in fact, a separate image but just a repeat of the original/first image - taken a fraction of a second apart. After all, there is nothing changing but some minor movements of the subjects and the camera.

AVD AlphaDuctions wrote:

sorry but you are mistaken. Open any text on copyright (modern or ancient) and before the end of the first paragraph they are talking about the list, more specifically the copyright bundle that is an enumeration of the various rights (which varies by medium). And sorry again but you also have it backwards. Copyright is the right to prevent others from doing stuff.

Thinking about it some more, your example is wrong as well.  A person with a licence may or may not have the right to sub-licence (which is the right to use or make copies) all or a subset of the materials covered by the licence agreement. It all depends on how the licence agreement was drafted.  This happens all the time with images, songs, stories, videos pretty much everything.

You seem passionate about this subject.  Why not take a real course in copyright at a law school? Or at least an Intellectual Property course which will give you copyright for 1/3 of the time.  Patents are cool so you won't regret that part either. Trademarks????? I won't lie.  much more fun to work in that to study. Join INTA to enjoy trademarks while you are stuck learning about them.

From the US Copyright Office:

"Copyright is a form of protection provided by the laws of the United States (title 17, U.S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:
    •    reproduce the work in copies or phonorecords
    •    prepare derivative works based upon the work
    •    distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending
    •    perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audio­ visual works
    •    display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work
    •    perform the work publicly (in the case of sound recordings*) by means of a digital audio transmission 
In addition, certain authors of works of visual art have the rights of attribu­ tion and integrity as described in section 106A of the 1976 Copyright Act. For further information, see Circular 40, Copyright Registration for Works of the 
Visual Arts.
It is illegal for anyone to violate any of the rights provided by the copyright 
law to the owner of copyright. These rights, however, are not unlimited in scope. Sections 107 through 122 of the 1976 Copyright Act establish limitations on these rights. In some cases, these limitations are specified exemptions from copyright liability. One major limitation is the doctrine of “fair use,” which
is given a statutory basis in section 107 of the 1976 Copyright Act. In other instances, the limitation takes the form of a “compulsory license” under which certain limited uses of copyrighted works are permitted upon payment of specified royalties and compliance with statutory conditions. For further infor­ mation about the limitations of any of these rights, consult the copyright law or write to the Copyright Office. "

Do you see the words "restroct" or "prevent" anywhere?

Do you see the word "authorize"?


Yes, everything is dependent on what's written in the license. I said that in my post but gave a different example.

We've referred to a "standard" license a couple of times. I'm pretty sure that we all consider that to mean a license that does not allow transfer or sub-licensing.

I have two IP lawyers who write my contracts and answer questions when I have them. I've co-authored magazine articles with third IP lawyer. Coincidentally one of these lawyers is in one of my MM ports. I have not called one of them to double check the statements in this discussion, but I've done that for previous ones and I get the same answer over and over again - it's the right to make/authorize copies. It's far easier to send a text or make a call to get the information I need than to sit through a class.

As far as the bundle of rights, I assume you mean this:

"The Bundle of Rights Called “Copyright”
The bundle of rights given to the owner of copyright in literary works, such as computer programs, are the rights to control 1) reproduction of the work, 2) preparation of derivative works, 3) distribution of copies of the work, 4) public performances of the work and 5) public display of the work."

Which of those rights are given up or authorize transfer or sub-licensing in a standard agreement?

Those are all descriptions of copies. They are referred to as "rights" by some lawyer and may be discussed as a "bundle". I can find the term all over the place when people are explaining copyright, but it's not something I've been able to find in the actual copyright law.

Once you have the right to control 1) reproduction of the work in any format, the rest is all covered from that right. It's copyright. That's what it is.

A license doesn't break those up. You can break it up by dividing the ownership of the copyright. You can also assign administration rights for derivative works - for instance a music publisher or a stock photo company. That could be done in a way that a photographer couldn't transfer their right without that assignment - as we've both said, it depends on wording. But standard usage licenses for photos do not assign those rights.

ArtisticPhotography wrote:

I wonder if an idea can be so utterly and completely wrong that it takes a full loop around wrongness and comes back for seconds.

"Expression", in this context, means it must be put forth. A song not sung nor written cannot be copyrighted. A picture not drawn cannot be copyrighted. It also does not mean it must be creative, merely unique

Consider this example. You walk out of your house while carrying your camera. You trip over your cat and your camera goes flying. It hits the ground and -- while pointing up -- the shutter is released. This is strictly accidental and there was no intentional act by you (or your cat). Amazingly, it even turned itself on in mid-flight. Okay, you're mad and concerned about your camera. So you check it over and see an image was taken. You take a look at it and WHOA, you have a picture of UFO beaming Elvis back to Earth. Wow. You've got THE PICTURE OF THE CENTURY and it's going to earn you a LOT of money. You know everyone from Fox News to the National Enquirer to the Vatican is going to want this baby. You know that copyright law is what going to protect you and make you millions. There's only one problem. According to your theory, it isn't copyrightable. There was no creative content. You said, "creativity is a necessary factor in order for something to qualify for copyright protection." There's no creativity here. It's just accidental. Heck, some could argue that you didn't even take the picture.

Now let's take a second example. A person is profoundly mentally disabled. They live in a group home with similar persons. The home wants to have a fundraiser so it straps a paintbrush into the person's hand. The person has no bodily control, no concept that (s)he is painting, not intending to paint something. It's just sort-of-random movements. However, it's paint on paper. The art director does this for 12 people and assembles them into a calendar for sale. The calendar, per se, isn't copyrightable - only the art is. But, there's no creativity here. So again, it's not copyrightable under your theory.

Again, NO. It is.

The issue isn't creativity. It is uniqueness.

Copyright works must be unique and must be physical.

So now you are going to go photocopy a form. You are going to make a copy. You are going to decide how to lay it on the glass. You decide the copy settings. Do you want the cover up or put it down? There are lots of decisions here. You can let your creativity flow. You hit "copy" and create a derivative work that you can copyright. You've been a creative copier!

No. It's a copy. It's not copyrightable even with all of your creative juices flowing. And it's not a derivative work. It's a photocopy. I litho produced by a skilled craftsman who had to create CYMB plates to make the print, get the color right, choose the colors, etc. is also a copy. It is not a derivative work even though it's not an exact copy.

Now, let's look at separate frames.

Are they the same. Maybe, or maybe not? If you shot a burned-out exposure of a white wall, they may be exactly the same.

So, I'm at Disneyworld at a Photospot or whatever they call those places where they've set up things to look good for you. I have my wife and 2.4 kids carefully framed in my camera and take a picture. Being the clutz that I am, I hold the shutter down too long and shoot two frames. Ooops. Now obviously the 2nd shot can't be copyrighted because it's just a repeat of the first shot. The wife and kids didn't move. The sky was cloudless and I had no artistic intent to take a second frame. But WOW, the UFO showed up again and I have the ONLY picture. You already made your millions. This is my chance to make my millions. Oh, but that's right. I can't copyright it because the copyright is for the first frame that didn't have the inadvertent UFO.

Oh, did someone say the pictures are different so I can do it? They are unique! Excellent. I'll go copyright it and be rich!!!!!

Okay, but what if the UFO wasn't in the picture? Would they still be unique?  Didn't the angle of the sun change minutely? Didn't my kids grow just a tiny bit? Didn't my wife get just a touch prettier? Didn't my camera angle change just a bit? Didn't it all happen in 1/50th of a second. Didn't the fact that 1/50th of a second go by mean anything. How much time can go by before there is a difference? If I don't move my camera and wait from a lush summer to a snowy winter, is it the same picture, but with a longer delay? How much delay is needed?

If I shoot two frames with bracketing the exposure or lengthening the shutter, isn't that expressing creative intent to take a different picture? Are the pictures different because the wind blew that piece of grass?

Finally, a picture. A very important picture, at that. It's a horse and a rider and a white background. It has a few reference lines and nothing else. Obviously under your idea, any image after the first one is not, in fact, a separate image but just a repeat of the original/first image - taken a fraction of a second apart. After all, there is nothing changing but some minor movements of the subjects and the camera.

Your take on this is correct.

When this idea came up, it was presented in a way that could be interpreted as unethical rather than a clever compromise.

There's no question that those are all separate copyrights, plus the one for them as a whole (collection).

I think his interpretation was not something along the lines of two shots with the difference handheld movement makes, but with the difference that being on a rock solid tripod with mirror lock up makes - your blade of grass example.

In practical terms they end up the same trademark. If you can't see the difference and someone licensed image 123, but published 124, is that an infringement?

In the most academic interpretation, we know that they are difference because the angle of light will have changed because of the rotation of the earth. We don't have to worry about a copyright suit because there wasn't enough wind to blow a single blade of grass.

In the end, I think there's not going to be a case where this matters.

Although if you took one image, 123.jpg, and duplicated it to be 124.jpg, that might be a valid debate. That happens in music all of the time where a writer re-titles a song so that multiple agents can make placements and have a way to track which one generated the PRO income. That's a parallel to a stock agency.

But you're correct that back to back images are each an "original" work. Original is being used as the opposite of duplicate. Even with a derivative work, there's still the original/first creation of the derivative and that is a separate copyright because it's the original fixation in that form.

Michael Fryd wrote:
Set your SLR for 5 fps.  Take 30 pictures of grass blowing in the breeze.

Try to tell me that you have 30 images each with a separate and unique copyright, and I will tell you that you have a six second motion picture, covered by one copyright.

The individual images are each covered by the copyright of the motion picture. If you want to register the work, only one copyright is necessary.

That's an interesting argument.

What if they are prints?


Actually what difference does the frame rate make? is it not a moving picture at 4 fps? What about 3?

What about 1 second? Or an hour? And the scene in motion pictures change, right?


So why not argue that all still photos are moving pictures that may have a frame rate measured in days for parts and has extreme pans and zooms?

Maybe motion pictures have "two" copyrights, one for each frame and one for the edit.


It's an interesting angle. I don't know if it makes any difference, but as IQ improves there are going to be more and more frame grabs.

WR Photographics wrote:
If you donate something (IE: give it away), then you are releasing ownership. It doesn't really matter what the valuable consideration is. It could be money, a car, or a photograph.
If you give them a hundred dollars in cash, are you going to insist on telling them how to spend it?
If you fund your local Humane Society for a new van, are you going to tell them they can only pick up puppies?
This isn't how donations work. How it works is you donate what is yours, and it becomes theirs.
It sounds like the OP wants to have his cake and eat it too. He wants the feel good of making a donation, and perhaps getting a nice tax write off for it, but doesn't really want to make a donation.
Sometimes we just have to decide if a charity is worth a donation or not.

He wants to donate USE of the images.  That's his choice, and he seems to have tried to make that clear to them, and to us.  Just as I can allow a charity to use my car for their purposes without transferring ownership, if I choose.