Aaron_H wrote:
No studio, you've misquoted it, and misread it or misunderstood it. A written work for hire agreement prior to commencing work is valid and binding. We've been through this before and I've posted and explained the relevant passages. It's true, and it's done all the time unfortunately.

I have not misquoted it, mis-read it... or mis-understood it... read it for yourself. This is copied and pasted directly from the Copyright Office web page:

Link: US Copyright Office Circular #9

Determining Whether a Work Is Made for Hire

"...If a work is created by an employee, part 1 of the statutory definition applies, and generally the work would be considered a work made for hire. IMPORTANT: The term “employeeâ€? here is not really the same as the common understanding of the term; for copyright purposes, it means an employee under the general common law of agency. This is explained in further detail below. Please read about this at “Employer-Employee Relationship Under Agency Law.â€?

If a work is created by an independent contractor (that is, someone who is not an employee under the general common law of agency), then the work is a specially ordered or commissioned work, and part 2 of the statutory definition applies. Such a work can be a work made for hire only if both of the following conditions are met: (1) it comes within one of the nine categories of works listed in part 2 of the definition and (2) there is a written agreement between the parties specifying that the work is a work made for hire...."

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A model may engage me to take her picture but that does NOT make me their employee - unless, for instance, they are also paying the tax contributions; carry workers comp on my behalf; and other factors that create an "employment relationship" as the statute requires. Someone may hire my services to shoot their wedding but that doesn't make me THEIR employee either.

Here is a US Supreme Court case that examined exactly those questions in light of Copyright Law

Case Law: Community for Creative Non-Violence (CCNV) v. Reid; U.S. Supreme Court; June 5, 1989

aka this cite: Community for Creative Non-Violence v. Reid, 490 U.S. 730,  1989

Summary:
Reid, a sculptor, was engaged by CCNV to make a statue; CCNV separately designed and completed the base to mount it on; both laid conflicting claims to the copyright of the statue once the statue was mounted on the base with CCNV claiming copyright to the whole.

Extract:
"...although CCNV members directed enough of the work to ensure that the statue met their specifications, all other relevant circumstances weigh heavily against finding an employment relationship. Reid engages in a skilled occupation; supplied his own tools; worked in Baltimore without daily supervision from Washington; was retained for a relatively short period of time; had absolute freedom to decide when and how long to work in order to meet his deadline; and had total discretion in hiring and paying assistants. Moreover, CCNV had no right to assign additional projects to Reid; paid him in a manner in which independent contractors are often compensated; did not engage regularly in the business of creating sculpture or, in fact, in any business; and did not pay payroll or Social Security taxes, provide any employee benefits, or contribute to unemployment insurance or workers' compensation funds. Furthermore, as petitioners (CCNV) concede, the work in question does not satisfy the terms of § 101(2)."

---

In this case the claims of CCNV failed on several points: Reid was not held to be an employee and the sculpture/statue was not something within one of the nine specified categories of work spelled out in Sec101(2) of the 1979 Copyright Act; further, there was ALSO no written explicit work-for-hire agreement. Notably, there was also no mention of a copyright assignment by any other means.

This case is definitive on the relative meaning of, and, the differences between employment and work-for-hire.

Studio36

studio36uk wrote:
A model may engage me to take her picture but that does NOT make me their employee - unless, for instance, they are also paying the tax contributions; carry workers comp on my behalf; and other factors that create an "employment relationship" as the statute requires. Someone may hire my services to shoot their wedding but that doesn't make me THEIR employee either.

Here is a US Supreme Court case that examined exactly those questions in light of Copyright Law.... blah, blah, blah snip
This case is definitive on the relative meaning of, and, the differences between employment and work-for-hire.

Studio36

It's incredibly insulting for you to include all that in responding to me. Have you ever heard me try to make the case that being hired as a freelancer makes it "work for hire" because I've been "hired for work"? I have corrected that absurd misconception by others over and over again on this and other forums. Why would you pull it out of your ass and act like you're arguing with me over that point and you have to prove it to me? The only thing I'm telling you is that photographers can indeed (stupidly) sign work for hire agreements.

"Statutory Definition

Section 101 of the copyright law defines a “work made for hireâ€? as:

    (1) a work prepared by an employee within the scope of his or her employment; or

    (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary workâ€? is a work prepared for a publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes; and an “instructional textâ€? is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities."

Our contributions to magazines, newspapers and books are contributions to collective works. That's the very first of the 9 categories. They are also "supplementary work" in all those editorial uses because they variously illustrate, explain, comment upon, and are in themselves "pictorial illustrations." They also act in those "secondary adjunct" roles as supplementary work when we contract our work to advertise for brands, companies, products and services.

Many clients try to get us to sign work for hire contracts, contracts that their vast teams of high priced attorney's have poured over, not so that they could be thrown out on their ears with the slightest effort because they don't even meet the basic definitions of being legally enforceable, but in order to acquire our valuable rights. Why aren't these agreements routinely challenged? Show me where they've been successfully challenged? (not the irrelevant case you already sited which deals with the other type of work for hire instead of contractual work for hire) Tell me why the ASMP and APA preach and warn against signing work for hire agreements instead of just telling us they're not legal or enforceable?

XtremeArtists wrote:
Mediocre photographers have been complaining about being undercut for as long as there have been mediocre photographers. It's nothing new.

I'll try to take that one on a positive note as a generalization, and not that you're calling me a mediocre photographer.

But yes, it's true enough, if you can't land a contract on your quality, you do it by charging less.  Or, as I stated, you shoot crappy shots, fix em up nice in photoshop, and poof, good photography is now about your photoshop skills, not your photographic skills.  Composition?   who needs it, just take the liquify tool to the background and you don't need to compose.

So my point stands, if there were no digital cameras, no photoshop, or only minimal editing functions, then it would be about how good a photographer you are.  I think I'd stack up fairly well.

bobby sargent wrote:
Just wanted to see if ANYBODY in their right mind pays any internet model their asking price of $100 an hour?

Oh I know that there are a lot of GWC'S who want to see a girl or any girl naked and they will pay that kind of money.

But are there any for real photographers who will pay that kind of money to any model on the net?

Yea I really want to know. bs

Im not sure what an "internet model" has to do with anything! A model is a model..

EMG STUDIOS wrote:
I'm not sure I would pay $100 an hour for stills. The porn industry is real and we know where the money is not going.... The movie companies are making the money, same as the music industry, same as girls gone wild and the playboy models. If the model is getting rich it's from some sort of side hustle.

At $100 an hr for 8 hours a day = $800 for 40 hours a week = $3200 for 12 months = $153,600.00 a year. The majority of members on this site probably doesn't see that much a year on a regular 9 to 5. Some of us see half, other dream of landing a $20 an hour job, while the rest struggle to make ends meet.

When I get ready to pay a model for guaranteed results, her per hour rate will be the starting point, we negotiate down from there. I've seen images in some models ports before I worked with them, then I've worked with them and thought to myself, how the hell was that photographer able to get "that" from you???

When and if you're getting ready to pay a model to shoot, you'll have a talk and the smart thing to do would be to negotiate the full shoot, not on an hourly basis.

I'm not the smartest dude on the planet but I know a little something about a lot of things and when talking with new models, sometimes they don't have the slighest idea on how to conduct "business" and when you start talking business with them, the whole situation changes.

I can pay you by the hour, that means you're my employee for the day, let's fill out the W4 forms and I'll give uncle sam his cut of your money and mail your check at the end of the week. Oh you're an independent contractor, which means you carry insurance and you have a tax ID number?

A lot of people don't really wanna do business, they just want to get paid for a hobby they love doing. Which are you?

Aaron_H wrote:
The only thing I'm telling you is that photographers can indeed (stupidly) sign work for hire agreements.

(break in text)

Our contributions to magazines, newspapers and books are contributions to collective works. That's the very first of the 9 categories. They are also "supplementary work" in all those editorial uses because they variously illustrate, explain, comment upon, and are in themselves "pictorial illustrations." They also act in those "secondary adjunct" roles as supplementary work when we contract our work to advertise for brands, companies, products and services.

Because in these cases the work falls within one of the nine groups and you CAN have a valid and binding work for hire with such work as long there is a ALSO written contract to that effect. Both conditions must exist Not only that but both conditions must exist BEFORE the work is done. Existing works, such as stock photography, can NOT also be claimed to be work for hire.

Aron_H wrote:
Why aren't these agreements routinely challenged? Show me where they've been successfully challenged? (not the irrelevant case you already sited which deals with the other type of work for hire instead of contractual work for hire) Tell me why the ASMP and APA preach and warn against signing work for hire agreements instead of just telling us they're not legal or enforceable?

The agreements are not challenged because they are entered into by informed consent and BEFORE the work is done.. What you claim is "irrelevant,"  the CCNV v Ried case, was in fact a case that the court heard specifically to get at the definitive answer to what was work for an employer and work for hire versus contract work and connected specifically with the interpretation of the Copyright Act.... It is anything but irrelevant. It cuts right to the heart of the matter. The SCOTUS only heard that case because the lower courts were reading it more than one way. CCNV v Reid settled the law. Fin; das Ende; infine conclusivo; het Eind; a extremidade; Extremo... THE END!

Marvin Dockery wrote:
This is not always true. If a model hires a photographer, under a work for hire agreement, to photograph her, and the agreement states that she will own all rights to the images, then the copyright is hers.

THEN YOU CLAIMED

Aaron_H wrote:
No studio, you've misquoted it, and misread it or misunderstood it. A written work for hire agreement prior to commencing work is valid and binding. We've been through this before and I've posted and explained the relevant passages. It's true, and it's done all the time unfortunately.

My initial response to Marvin Dockery was specifically in answer to the first statement he made. Then you accused me of misquoting; misreading or misunderstanding the statute. I did none of these things. You are correct but not fully correct - you CAN sign a work for hire agreement that is valid and binding BUT ONLY if the work ALSO falls within one of the nine uses.

A photographer can NOT simply sign a work-for-hire agreement with the/a model and transfer copyright by that means. The agreement would be invalid, or at least voidable, in light of copyright law ... first because they are NOT the model's employee AS THE LAW REQUIRES; and second because photography, in and of itself, is NOT either specifically called out in the Copyright Act as a separate category within the meaning of the section; OR, where it otherwise might be the subject of work for hire it is not being made (for the model) for one of the nine specific purposes.

It sounds simple but it won't work if challenged: "If a model hires a photographer, under a work for hire agreement, to photograph her, and the agreement states that she will own all rights to the images, then the copyright" is hers."

In the case of working with a model one-on-one why not just use a properly drafted and written "assignment of copyright"? Instead of all the work for hire horseshit that is a legal minefield? It is and was such a legal minefield that it has actually been abandoned in some countries - the UK, where I work, included. IIRC it is either gone or going in Canada as well.

Studio36

dynamo wrote:
My 2 cents, how about a penny for your thoughts?
DYNAMO

When it comes to the working relationship, and in particular the contractual relationship... it all depends on how much the heat is applied.

LOL

Studio36

bobby sargent wrote:
Just wanted to see if ANYBODY in their right mind pays any internet model their asking price of $100 an hour?

Oh I know that there are a lot of GWC'S who want to see a girl or any girl naked and they will pay that kind of money.

But are there any for real photographers who will pay that kind of money to any model on the net?

Yea I really want to know. bs

bobby sargent wrote:
Just wanted to see if ANYBODY in their right mind pays any internet model their asking price of $100 an hour?

Oh I know that there are a lot of GWC'S who want to see a girl or any girl naked and they will pay that kind of money.

But are there any for real photographers who will pay that kind of money to any model on the net?

Yea I really want to know. bs

I know when I started do group events (Glamour Photographers International (GPI) back in the early 80's we started paying the nude models $45 for 4 hours and we had 4 to 10 models. The other sponsor back in San Diego paid the models $20 for the day and had 10 to 30 nude models Then in the late 80's we paid the models $100 for 4 hours.  Then in the late 90's we paid the models $150.  Now in 2005 we pay our models $200 for 4 hours. 

BUT, with the internet porn web sites needing models all the time(More Content). It seems that models want a mim of $100 an hour or a lot more for nude modeling.  I know we all do it for mostly as a hobbies on the weekends.  It seems the models are asking for commerical rates all the time. 

No more Fun anymore. It seems everything is changing all the time.

I know when I use to get stripers to model for our events for $100 for 4 hours.  Now because of table dancing the girls are getting from $500 to $1000 Per shift.  The old days before table dancing the girls made from $100 to $300 per shift.  It is getting harder to get models from these places without $$$$$$$.

Then you get all these so called Model Managers (Unlicensed Talent agency) who get there 10 to 20% commission so that want that $100 an jobs all the time.

NO, I have not paid ANY models $100 an hour.  We pay our nude models at least up to $50 an hour or Less.

NO MORE FUN


Rocky Forguson
Glamour Photographers International
www.glamourphotonet.com

Numee Productions wrote:

Extremely intelligent post. Thank you for some logic into these conversations. Cheers, Tim at Portland Filmworks.com

Tim Baker wrote:
I don't pay models, unless it's for a commercial client. If I get paid $200, then I will pay the model 1/2. If not ... no such thing. Christ. I once advertised for Met Art models at $60 for the shot and got about 1/2 who were not even models, let alone Met Art quality. .... Just ain't gonna happen.

$60 for Met Art? For the whole shoot? It's a high quality version  of "barely legal." $60 is LOW.

theda wrote:

$60 for Met Art? For the whole shoot? It's a high quality version  of "barely legal." $60 is LOW.

The shot was for a test shot (1/2 hour - 45 mins) to see if Met Art would accept them.  Not the actual series, which pays considerably more. I've had 6 models now accepted by them. Tim

studio36uk wrote:

Not true and won't work, because if the photogrpaher is not factually an "employee" of the model then copyright law says that the work is then one that is "specially ordered" or "commissioned". Ref: [US] Copyright Office Circular 9; Works Made for Hire under the 1976 Copyright Act; Section 101 of the Act.

In that case two conditions must be satisfied:

1) The work MUST be one of a kind specifically listed in the copyright statute - there are nine very specific kinds of work listed:

a contribution to a collective work,
a part of a motion picture or other audiovisual work,
a translation,
a supplementary work,
a compilation,
an instructional text,
a test,
answer material for a test,
an atlas

2) The second condition is that there is a written agreement between the parties specifying that the work is a work made for hire.

BOTH CONDITIONS MUST EXIST FOR A WORK FOR HIRE TO EXIST Photography as the principle purpose of the work is not a listed class of work. A written agreemnt alone won't do it to create a "work for hire" copyright ownership.

In the US the photographer will own the copyright.

The notes above apply to work done in the US. As I work in the UK I will also point out that UK copyright law abandoned the whole concept of "work for hire" some years ago. Work for hire no longer exists here. Now, it is either work done by an employee (employer owns the copyright) or work not done by an employee (photographer owns the copyright). There are only a few particular circumstances in the UK where a model would ever have even a prayer of claiming that they owned any part of the copyright... usually only by means of a written contract of copyright assignment (or a share in it) or some form of joint authorship claim.

Studio36

I have done a lot of jobs for hire, and in my agreement,(contract), I have released all rights to the images.  If a model hired me to shoot just her needs, and paid me, I would give her a full release to all of the images.  At this point, she would become the copyright holder.

You need to talk to a USA attonery, about contracts.  In most cases here in the USA, the court's want to establish, (prove), the intent of both parties making the contract.

There would be no dispute, if the photographer assigned all of his/her rights to the images over to the model in his contract.

Marvin Dockery wrote:
There would be no dispute, if the photographer assigned all of his/her rights to the images over to the model in his contract.

No there wouldn't be any problem. The ONLY issue I am disputing is if a model hired the photographer whether a "work-for-hire" relationship then exists under the very specific and very narrow construct of s:101 of the Copyright Act which assigns the copyright to someone other than the creator (photographer). It doesn't, it won't, and it is wrong to assume, as some do, that it does.

As for copyright itself... that is a personal property right of the owner of the copyright (creator) that can be sold, shared or even given away in the same way as a car or a boat or a house could be... by means of a contract or assignment of rights. In doing so, however, it is NOT in any way part of the "work-for-hire" legal construct.


Studio36

Paul Ferrara wrote:

I for one think you're blowing smoke.  Why would a client pay you for pics as bad as you posted on your port?

Paul

Thankyou paul, sometimes people need to state the obvious. lol

ClevelandSlim wrote:

i want to elaborate so bad.  but i'm not.  you guys continue to have fun with it.  i'm lying, i don't make any money shooting for adult sites.  as a matter of fact, emg was right.  the only ones making any money off it are the movie companies.  every one else from models to photogs to whoever, they just particitpate cuz it's fun.

LOL

I think your on the wrong site... this one is for photographers not people who have shot on "auto for five years...you were looking for www.modelxxx