Art of the nude wrote:
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.

Therein is the issue.
I want to donate use.
They want full ownership.
I have to decide what I am comfortable with.

To use a separate example ... NCC is given property on a regular basis. So I might give them a piece of land, but I retain the right of access for camping, and this right is transferable to my heirs. Or NCC could be precluded from disposing of the land during my lifetime. Or ...
NCC can say yea or nay. May be too much trouble or whatever.

As Barry mentioned I will check with Focus and see what they have.
And will also check with an IP lawyer to see what they come up with. Getting in touch with an IP lawyer is gross overkill for this, but if I am going to continue giving stuff away, I may as well have it clearly under terms that I am comfortable.

A couple of money making Nature Photographers would not touch the original agreement with a ten foot pole. Have not heard back from Art Wolf as he is on another exotic trip. Now admittedly these people actually make a living at nature photography, so their images are really worth money. Mine, not so much.

Became an interesting thread.

MC Photo wrote:

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.

It turns out that the Supreme Court has determined that certain classifications can be determined by opinion rather than a straightforward factual assessment.

For instance the question of whether or not an image is pornography.  There is no clear and concise metric that can be applied to an image to determine if it is porn.  You may have general agreement that a particular image is, or is not, porn, but there will be many images where is is not obvious.

I suspect that this is similar to whether or not something is a motion picture or a series of individual images.  Some images are clearly separate, some are clearly a motion picture.

Let's get back to the original question.  The NCC agreement specified that all copyright be transferred for the image.  Someone suggested that a way around this would be to take a series of multiple images, each of which could be separately, and exclusively licensed.   My position was that this method is not guaranteed to work, as it is open to many legal challenges.  For instance someone could reasonably take the position that the additional images are variations on the first, and hence derivative works, or all of the images constitute a motion picture covered by a single copyright.

My advice was that if you have given someone exclusive use of an image, you are on weak moral and legal grounds to license someone else an extremely similar image taken at almost the same time.

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.

Wikipedia disagrees with you.  Obviously Wikipedia is not definitive, so you may want to look at their cited sources.

See: http://en.wikipedia.org/wiki/Bridgeman_ … orel_Corp.

"... the key element for copyrightability under U.S. law is that copyrighted material must show sufficient originality.

A photograph that show no originality (such as copy work of a painting) is not copyrightable (even as a derivative work)


also see: http://en.wikipedia.org/wiki/United_Sta … yright_law

For a work to be original, it must possess a "modicum of creativity", which is a "low threshold" although some creativity must exist.

There is an interesting history of copyright and photography at the web site for the University of Pennsylvania's school of law.  Originally, photographs were not protected by copyright as it was felt they did not meet the standard of being a creative media.  When copyright was first extended to photography, it was limited to "artistic" photographs.   This paper has a good description of what sort of photos are eligible for copyright protection.

For instance

The most important thing to remember is that where the thing photographed has/had an independent reality and the photographer sought only to achieve and did achieve an accurate representation of that independent reality, there is a good chance that the photograph has no copyright protection at all.

The above certainly lends doubt to the assertion that two substantially identical images taken one right after the other can have independent copyright.

Michael Fryd wrote:

It turns out that the Supreme Court has determined that certain classifications can be determined by opinion rather than a straightforward factual assessment.

For instance the question of whether or not an image is pornography.  There is no clear and concise metric that can be applied to an image to determine if it is porn.  You may have general agreement that a particular image is, or is not, porn, but there will be many images where is is not obvious.

I suspect that this is similar to whether or not something is a motion picture or a series of individual images.  Some images are clearly separate, some are clearly a motion picture.

Let's get back to the original question.  The NCC agreement specified that all copyright be transferred for the image.  Someone suggested that a way around this would be to take a series of multiple images, each of which could be separately, and exclusively licensed.   My position was that this method is not guaranteed to work, as it is open to many legal challenges.  For instance someone could reasonably take the position that the additional images are variations on the first, and hence derivative works, or all of the images constitute a motion picture covered by a single copyright.

My advice was that if you have given someone exclusive use of an image, you are on weak moral and legal grounds to license someone else an extremely similar image taken at almost the same time.

Motion pictures are defined in the copyright acts separate from still images.  there is plenty of definition and case law to go around, no need to speculate.  But arguing that one type of law has a certain result means that another one will is shaky ground.  You can't do it more reliably than a coin toss.  What they did in porn is entirely different from what they did for something else.  In fact, the other way around is much more common.  Even if you have a classification that works for you, getting to the classification that you want is another 50/50 battle. The court could simply say "no, that fits over there".

Also, different frames are not derivative works. you have to be able to 'derive' one from the other to make it derivative and there has to be a significant difference.   "[f]or obvious reasons, the derivative work must have some expressive elements not found in the original work; otherwise it would be identical to the original work.... ".  separate frames don't cut it for either part of the requirement.

another also: the copyright holder has the rights to all derivatives anyways.  The NCC, faced with the existence of multiple frames,  would simply argue 'mistake' under contract "I thought I was getting exclusivity. had I known there were multiple copies of essentially the same thing I never would have entered into this agreement. " or some tort like 'negligent misrepresentation' (there are other possibilities).   One thing to remember that even when you are dealing with intellectual property, not all issues are IP issues. Multiple frames and forgetting/pretending is a 'cheating' issue, not a purely IP issue.

AVD AlphaDuctions wrote:

Motion pictures are defined in the copyright acts separate from still images.  there is plenty of definition and case law to go around, no need to speculate.  But arguing that one type of law has a certain result means that another one will is shaky ground.  You can't do it more reliably than a coin toss.  What they did in porn is entirely different from what they did for something else.  In fact, the other way around is much more common.  Even if you have a classification that works for you, getting to the classification that you want is another 50/50 battle. The court could simply say "no, that fits over there".

Also, different frames are not derivative works. you have to be able to 'derive' one from the other to make it derivative and there has to be a significant difference.   "[f]or obvious reasons, the derivative work must have some expressive elements not found in the original work; otherwise it would be identical to the original work.... ".  separate frames don't cut it for either part of the requirement.

another also: the copyright holder has the rights to all derivatives anyways.  The NCC, faced with the existence of multiple frames,  would simply argue 'mistake' under contract "I thought I was getting exclusivity. had I known there were multiple copies of essentially the same thing I never would have entered into this agreement. " or some tort like 'negligent misrepresentation' (there are other possibilities).   One thing to remember that even when you are dealing with intellectual property, not all issues are IP issues. Multiple frames and forgetting/pretending is a 'cheating' issue, not a purely IP issue.

The copyright holder does have rights to derivative works.  As NCC's agreement gives them all copyright rights, this would include the rights to derivative works.

With two successive frames I would be interested in where you believe there is the creativity in the second frame that would merit a unique copyright.

Michael Fryd wrote:

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.

Wikipedia disagrees with you.  Obviously Wikipedia is not definitive, so you may want to look at their cited sources.

See: http://en.wikipedia.org/wiki/Bridgeman_ … orel_Corp.

"... the key element for copyrightability under U.S. law is that copyrighted material must show sufficient originality.

A photograph that show no originality (such as copy work of a painting) is not copyrightable (even as a derivative work)


also see: http://en.wikipedia.org/wiki/United_Sta … yright_law

For a work to be original, it must possess a "modicum of creativity", which is a "low threshold" although some creativity must exist.

There is an interesting history of copyright and photography at the web site for the University of Pennsylvania's school of law.  Originally, photographs were not protected by copyright as it was felt they did not meet the standard of being a creative media.  When copyright was first extended to photography, it was limited to "artistic" photographs.   This paper has a good description of what sort of photos are eligible for copyright protection.

For instance
The above certainly lends doubt to the assertion that two substantially identical images taken one right after the other can have independent copyright.

Let's look at the case of a clay pot made on a pottery wheel.

If there's nothing on the wheel and then a person puts some clay on it and make the most unoriginal identical copy of another pot, something universally agreed on as unoriginal, they were "creative" because the created something out of nothing. If they made a mold and then made more identical versions "out of nothing" those are copies and the first one is the "original".

Now, if they had made an exact copy of a specific pot that someone else had made, it would not be a derivative work. If they took that person's pot and added a handle, it would be a derivative work, because it contains part of the original.

The pot that was duplicated by eye could possibly be a derivative work if they were both made from someone's design, which would mean that the pot copied by eye was also a derivative work, as well as being an "original".

Michael Fryd wrote:

It turns out that the Supreme Court has determined that certain classifications can be determined by opinion rather than a straightforward factual assessment.

For instance the question of whether or not an image is pornography.  There is no clear and concise metric that can be applied to an image to determine if it is porn.  You may have general agreement that a particular image is, or is not, porn, but there will be many images where is is not obvious.

I suspect that this is similar to whether or not something is a motion picture or a series of individual images.  Some images are clearly separate, some are clearly a motion picture.

Let's get back to the original question.  The NCC agreement specified that all copyright be transferred for the image.  Someone suggested that a way around this would be to take a series of multiple images, each of which could be separately, and exclusively licensed.   My position was that this method is not guaranteed to work, as it is open to many legal challenges.  For instance someone could reasonably take the position that the additional images are variations on the first, and hence derivative works, or all of the images constitute a motion picture covered by a single copyright.

My advice was that if you have given someone exclusive use of an image, you are on weak moral and legal grounds to license someone else an extremely similar image taken at almost the same time.

Don't gloss over your idea, it's really a pretty radical one. Think about Noah Kalina's self portrait project. Is that a bunch of single images or a motion picture? I don't think he's ever presented it other than as video, so I'm comfortable with calling it a motion picture if someone wants to. The thing is some of those photos were shot in other locations, so it's not got the same sequential properties that the majority of motion pictures do. Once you accept that lack of frames being only subtly different, why can't we all consider every photo we take in our entire lives one long moving picture? I'm sure someone will eventually present their work that way.


I completely agree that there are cases where shooting multiple versions and licensing them separately is unethical. But there are cases when it's not.

If a sports photographer shot Tiger Woods hitting a golf ball at 10fps and his agency made every photo available and there was something about it that made one or more parties want one frame exclusively, it's not deceitful to continue licensing the other images that are a frame before and after since that was presented upfront.

MC Photo wrote:

Let's look at the case of a clay pot made on a pottery wheel.

If there's nothing on the wheel and then a person puts some clay on it and make the most unoriginal identical copy of another pot, something universally agreed on as unoriginal, they were "creative" because the created something out of nothing. If they made a mold and then made more identical versions "out of nothing" those are copies and the first one is the "original".

Now, if they had made an exact copy of a specific pot that someone else had made, it would not be a derivative work. If they took that person's pot and added a handle, it would be a derivative work, because it contains part of the original.

The pot that was duplicated by eye could possibly be a derivative work if they were both made from someone's design, which would mean that the pot copied by eye was also a derivative work, as well as being an "original".

Interesting idea.  However you would have a hard time convincing a judge to ignore precedent and go with your theory.

The safe bet is to rely on previous court rulings.

Herman Surkis wrote:
Therein is the issue.
I want to donate use.
They want full ownership.
I have to decide what I am comfortable with.

To use a separate example ... NCC is given property on a regular basis. So I might give them a piece of land, but I retain the right of access for camping, and this right is transferable to my heirs. Or NCC could be precluded from disposing of the land during my lifetime. Or ...
NCC can say yea or nay. May be too much trouble or whatever.

As Barry mentioned I will check with Focus and see what they have.
And will also check with an IP lawyer to see what they come up with. Getting in touch with an IP lawyer is gross overkill for this, but if I am going to continue giving stuff away, I may as well have it clearly under terms that I am comfortable.

A couple of money making Nature Photographers would not touch the original agreement with a ten foot pole. Have not heard back from Art Wolf as he is on another exotic trip. Now admittedly these people actually make a living at nature photography, so their images are really worth money. Mine, not so much.

Became an interesting thread.

After all is said and done ... and more is said than done ... here's my suggestion.

You obviously have a very nice image.

They have expressed some interest in it.

You see future potential in the image and so do they, that's why there's a slight disagreement.

The image is not worth anything to anyone, if it remains nothing but a chuck of 1s and 0s taking up space on your hard drive.

You say you aren't an established photographer making your living off of this.

Obviously you have some connection of NCC.

Here's the solution:

1. Donate the image to them; lock, stock and barrel as long as they give you an informal (verbal) agreement that they will use it and not just warehouse it (where it would be no use to anyone).

2. Feel good that you did something for an organization you support.

3. Feel REALLY good that a respected organization is using one of your pictures.

4. Break every law in Canada and use a copy of the image on your Christmas cards to friends and family, with an acknowledgement of ownership by NCC on the back, and photo credit to yourself!

5. Be proud of yourself.

6. Go out and take some even better pictures. You can't make a career or avocation on a single image.

Herman Surkis wrote:
This is my final version sent to them.
Without the use of $$$ legals, so it may be missing stuff, but should have worked for them.
Apparently they did not like it, as communications ended. They seemed to want a transfer of ALL rights, and that was not going to happen.

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


Usage License Agreement

Licensor:
Herman Surkis
3488 Sunheights Dr.
Victoria, BC V9C 3P7

Licensee:
Nature Conservancy Canada
[address etc.]
I, _________________________, the undersigned photographer, for value received, (the receipt and sufficiency of which are hereby acknowledged), enter into the following agreement.
The licensee agrees to credit Herman Surkis in a reasonable manner whenever the image(s) is/are
printed or displayed with this text: “copyright Herman Surkis”. If possible, as a courtesy,
the licensee will provide a link to Herman Surkis' website:http://hermansurkis.com/
This agreement between licensor and licensee is exclusive for a period of 5 (five) years. The licensor
agrees to not enter into separate license agreements with third parties interested in using the same photographs for the duration of the exclusivity of this agreement. Further exclusivity may be negotiated.  Non-exclusive use is granted for 99 years. However the licensor reserves the right to use the photographs for personal promotion and exhibitions.

By this agreement, the licensor allows the licensee to use, display, or publish the following
images...

[list images here or as an addendum]

...in any commercial (sales of calendars, postcards, or any other means of raising funds), personal, or editorial projects involving advertising, print media, web site publication, or broadcast as chosen by the licensee.

This license is not transferable to a third party.

Herman Surkis remains the sole owner of the image’s copyright. No transfer of intellectual
property is made or implied by this agreement.

The licensor hereby warrants that the images are his 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 he is the sole author and creator of these photographs, that he is at least eighteen (18) years of age and has the right to execute this photo usage agreement,  without the consent or knowledge of any other person. 

This agreement is effective as of this date: [1/1/13] and is executed by the undersigned parties
representing licensor and licensee:

________________________                                      ________________________

Licensor                                                                        Licensee

Unless the laws are different in Canada, "Herman Surkis remains the sole owner of the image’s copyright." is redundant and "No transfer of intellectual
property is made or implied by this agreement." probably is too.

I'd put it here "The licensor hereby warrants that he is the sole owner of the copyright and has the right to execute this license agreement."

All of that other stuff is unnecessary. Who cares who made the image. If you bought the copyright it's yours. All they need to know is that you're promising them that they are making the agreement with someone who's authorized.