ArtisticDigitalImages wrote:
If I email one of my images to someone else to be photoshopped.

Who owns the copyright of the edited image?

you... it is a derivative work of your copyrighted work

ArtisticDigitalImages wrote:
If I hire a MUA and allow him/her full creative freedom then photograph the model they accentuated.

Who owns the copyrights of the images?

you... you are the artist.  Makeup is not considered an art by copyright law.

ArtisticDigitalImages wrote:
What if the MUA makes the model up in a full blown mask like KISS wears when performing?

Makes no difference.  Makeup is a personal style...anyone can copy it as much as they like.

ArtisticDigitalImages wrote:
Do I lose any copyright claim by allowing a model to give me a list of images they want me to delete and a list of images they want me to be sure not to delete?

no...though I personally would never allow a model to decide what photos I'm going to "keep"... A large part of a photographer's eye is his/her selection of photos.  It's a definite do it yourself job.

ArtisticDigitalImages wrote:
The thread on mom clicking the shutter in the studio with the camera on a tripod and the shot set up by the photographer got me thinking. It also got too tedious for such a narrow topic.

Read www.copyright.gov

If you have further questions consult a lawyer

This has not been legal advice.

James Jackson wrote:

you... you are the artist.  Makeup is not considered an art by copyright law.

Makes no difference.  Makeup is a personal style...anyone can copy it as much as they like.

I'd really like to see a justification for that statement.  I'd particularly like to see a citation to case law which says it.  (And before you refer me to the Copyright Office home page or to Title 17, neither of them mention makeup.)

It seems to me that there comes a time (say, body painting) when the makeup is a highly creative art form, not at all obvious, and is reduced to tangible form.  That is, it should qualify for protection under copyright, and the makeup artist/body painter would be the author.  If a photo is taken of a person with that makeup, the photographer would not be the sole owner of copyright on that work.

Please show me specifically where some authoritative source says that is not true.

ArtisticDigitalImages wrote:
If I email one of my images to someone else to be photoshopped.

Who owns the copyright of the edited image?

I was just wondering about this myself. My current avatar was primarily processed by the model seen in it, and then I added some final touches. One other model I have worked with has also taken part in process, even helping with images of a different model.

I handle these situations by crediting the "silent" post-processor if they so wish.

TXPhotog wrote:
I'd really like to see a justification for that statement.  I'd particularly like to see a citation to case law which says it.  (And before you refer me to the Copyright Office home page or to Title 17, neither of them mention makeup.)

It is the specific non-mention of makeup that is important here.

From copyright.gov under "examples of Visual Arts Works":

Visual Arts Works

For copyright purposes, visual arts are original pictorial, graphic, and sculptural works, which include two-dimensional and three-dimensional works of fine, graphic, and applied art.

Examples of visual arts works:

Advertisements, commercial prints, labels
Artificial flowers and plants
Artwork applied to clothing or to other useful articles
Bumper stickers, decals, stickers
Cartographic works, such as maps, globes, relief models
Cartoons, comic strips
Collages
Dolls, toys
Drawings, paintings, murals
Enamel works
Fabric, floor, and wallcovering designs
Games, puzzles
Greeting cards, postcards, stationery
Holograms, computer and laser artwork
Jewelry designs
Models
Mosaics
Needlework and craft kits
Original prints, such as engravings, etchings, serigraphs, silk screen prints, woodblock prints
Patterns for sewing, knitting, crochet, needlework
Photographs, photomontages
Posters
Record jacket artwork or photography
Relief and intaglio prints
Reproductions, such as lithographs, collotypes
Sculpture, such as carvings, ceramics, figurines, maquettes, molds, relief sculptures
Stained glass designs
Stencils, cut-outs
Technical drawings, architectural drawings or plans, blueprints, diagrams, mechanical drawings
Weaving designs, lace designs, tapestries

NOTICE it says "Artwork applied to clothing or to other useful articles"

This is because makeup is specifically excluded from copyright due to it's transient nature and what it is applied to.

James Jackson wrote:
It is the specific non-mention of makeup that is important here.

From copyright.gov under "examples of Visual Arts Works":

[b]Visual Arts Works

For copyright purposes, visual arts are original pictorial, graphic, and sculptural works, which include two-dimensional and three-dimensional works of fine, graphic, and applied art.

Examples of visual arts works:

. . .

Drawings, paintings, murals

1.  The list is examples, not intended to be exhaustive.  The fact that something doesn't show up on a list of examples does not mean that it can't be covered by copyright.

2.  Body painting (or very creative makeup) is "drawing, painting" - which is on the list of examples.  The list says nothing about the canvas on which that drawing must be made.

So your argument fails.

TXPhotog wrote:
1.  The list is examples, not intended to be exhaustive.  The fact that something doesn't show up on a list of examples does not mean that it can't be covered by copyright.

2.  Body painting (or very creative makeup) is "drawing, painting" - which is on the list of examples.  The list says nothing about the canvas on which that drawing must be made.

So your argument fails.

The list is specific and exhaustive enough to specify where works need to be made in several examples, so I'd say that the list not including makeup anywhere at all or body painting is a clear enough exclusion.

Also I would further make my point by saying that anything that is not a fixed piece of art, but rather only exists for a short time and is in a fluid state (not permanent) is not copyrightable.

Again from copyright.gov:

WHAT IS NOT PROTECTED BY COPYRIGHT?

Several categories of material are generally not eligible for federal copyright protection. These include among others:

Works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)

If you doubt the accuracy of my supposition consult a copyright lawyer.

MHana wrote:
I think it will be interesting to compare answers here,  compared to this thread.

https://modelmayhem.com/posts.php?threa … 668&page=2

You'll notice I haven't responded to that thread...that is because it would be like trying to shovel out the entire result of a heard of cattle eating a field of alfalfa with a teaspoon.

James Jackson wrote:
The list is specific and exhaustive enough to specify where works need to be made in several examples, so I'd say that the list not including makeup anywhere at all or body painting is a clear enough exclusion.

That's nonsense.  There is no such thing as "exhaustive enough".  It's exhaustive or it isn't.  This list isn't.

James Jackson wrote:
Also I would further make my point by saying that anything that is not a fixed piece of art, but rather only exists for a short time and is in a fluid state (not permanent) is not copyrightable.

And you get that from where?  Please cite a justification for that statement.

If an artist makes a painting, someone takes a picture of it, and later the painting is destroyed, does that mean that the artist's copyright interest in the photograph does not exist? No, of course not.  Again, your argument fails.

James Jackson wrote:
If you doubt the accuracy of my supposition consult a copyright lawyer.

The usual dodge when your argument doesn't hold water.

As it happens, I have done exactly that.  So far I've spent $18,000 on copyright lawyers.  Where do you get your information from?  Do you take your own advice?  (It doesn't seem so, since you keep saying things that a lawyer would not.)

ArtisticDigitalImages wrote:
If I email one of my images to someone else to be photoshopped.

Hmmmmm, I think it would depend on what they did to the image.  If they did nothing more than color correction, fix blemishes, etc, then I doubt that the changes would be substantial enough to create a derivative work.  To me that was simply akin to sending the image to the lab for post production when we did film.  Perhaps we'd reuest a bit of "dodge and burn" or color correction.  I doubt that anyone would regard those adjustments to the image to be substantial enough to become derivative.

Now what if you send an image off to someone and ask them to add fairy wings to the model or change the location?  Perhaps you asked them to move the model to a beach or put them into the space shuttle?  Beyond that, perhaps you sent them the image and gave them a free rein?

Now they may have created a derivative work since there are substantial changes which, in and of themself, could become copyrightable.

Here is a circular to read on the subject:  http://www.copyright.gov/circs/circ14.pdf

It is important to understand though that you would still own the copyright for the original image.  The question would be whether the derivative, was copyrightable.  In that case, the photoshop artist might own the copyright to the additions and you the copyright to the original photo.  A situation might be created where you might need the permission of the photoshop artist to use or sell the modified image, but not the original image.  Of course, the artist would need your permission to sell the derivative image since you own the copyright to the underlying original.

Likewise, there could be questions as to whether you had a work for hire.  If they were working at your direction and were being paid, the copyright for the derivative might innure to you as the commissioner. 

All of that having been said, I am a photographer, not a lawyer.  Every situation is different, but depending on what you asked the photoshopper to do, you might want them to sign a document transferring any copyright from which they might benefit to you as a result of their creative efforts.  Particularly if they are making substantial modifications to the image.

You might also want to contact an attorney knowledgeable in copyright law.  I am by no means an expert.  I can, however, see situations where a derivative work might be created where the artist could conceivable seek copyright protetion.

So I think I threw a little monkey wrench into the works, but it is something to consider.

TXPhotog wrote:
That's nonsense.  There is no such thing as "exhaustive enough".  It's exhaustive or it isn't.  This list isn't.

To me, it is.  It provides several exhaustive examples...by exhaustive I mean making a special notation for instance of album cover art...  This would normally be covered under "art" but they went ahead and made the special notation of it...thus an exhaustive list.

TXPhotog wrote:
And you get that from where?  Please cite a justification for that statement.

Again from copyright.gov:

WHAT IS NOT PROTECTED BY COPYRIGHT?

Several categories of material are generally not eligible for federal copyright protection. These include among others:

Works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)

TXPhotog wrote:
If an artist makes a painting, someone takes a picture of it, and later the painting is destroyed, does that mean that the artist's copyright interest in the photograph does not exist? No, of course not.

No that is not my meaning...as most people can fully understand the logic behind a "fixed" work, I'll let you try to fit your brain around that one on your own.

TXPhotog wrote:

James Jackson wrote:
If you doubt the accuracy of my supposition consult a copyright lawyer.

The usual dodge when your argument doesn't hold water.

This is not a dodge...I'm simply saying this is not legal advice and I am not a lawyer...this is what I have figured out on my own from reading the copyright laws and copyright.gov web site.  It is also a regurgitation of what *my* copyright lawyers have told me.  That does not however make it legal advice, and you should always consult a lawyer on such matters if you doubt what someone else is saying.

TXPhotog wrote:
As it happens, I have done exactly that.  So far I've spent $18,000 on copyright lawyers.  Where do you get your information from?  Do you take your own advice?

Look, your attempts to start a fight are not necessary...I don't really care enough to argue with you as a matter of who is right or wrong.  If you feel you are right, good on you, I'm happy for you...  Provide this man with your own advice instead of arguing directly against mine.  Copyright law just like any law is open for interpretation.  Just because at current no one has *ever* claimed copyright over an application of makeup does not mean that it won't happen in the future.  Should it happen in the future a simple argument over whether or not they *can* do that on a message board isn't going to resolve the question...it would have to go to court.  Also the copyright law not explicitly protecting makeup (or even if it explicitly said "Makeup is not protected under copyright law") would not stop a suit from being filed for such a case.  It could be filed, and it could go all the way to the supreme court.

I do follow my own advice, but I also do cover my butt on most shoots in which a makeup artist makes a significant contribution to the shoot by having them sign a release which acknowledges that the copyright belongs to me for all images shot during that day.

James Jackson wrote:
Works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)

Hmmmm, I am not trying to be argumentative here, I am curious.  You seem to be suggesting that make-up is not notated or recorded.

If a make-up artist body paints a model, that would certainly be a creative work.  The copyright act does not specify the types of canvas which are covered.  The make-up artist can certainly fix the work by taking a photo of the model.

My take, and again I am not a lawyer so my word is by no means definitive, is that what we would have is a derivative work.

The body painter would have the original work since the paint work was obviously done first.  The photographer would have a copyrightable derivative work whereby the photo, less the body painting itself would be copyrightable by the photographer.

The copyright for any photos taken by the make-up artist would be solely owned by the make-up artist himself/herself.

As to what degree of paint or make-up would be necessary to create a copyrightable work, I will leave that for lawyers.  However, I could see a make-up artist taking a photo of a body painting project and then registering it with the copyright office.

Alan from Aavian Prod wrote:
Hmmmm, I am not trying to be argumentative here, I am curious.  You seem to be suggesting that make-up is not notated or recorded.

Interesting angle, but if you'll notice most of the types of work that are protected by copyright that aren't in a physical form (such as a dance routine or a musical performance) have both an element of notation and performance... whereby the notation could be used by another performer to create the work again but with different hands (like a band doing a cover or another dance troupe performing the same ballet).

While the notations of the song (the musical score) are protected by copyright, and the actual recording of the specific performance of the song (the recording) are both separate copyrightable articles, the music itself (the sound waves) is not eligible for copyright.  But the copyright for the recording goes to the band, while the musical score still belongs to the songwriter.

So too, the notations of the choreographer, and the video tape of the dance troupe performing it are copyrightable but the dance itself is not... The choreography belongs to the choreographer and the video belongs to the videographer...

I would believe then that the same thing could be said of Makeup art...if the body painter or makeup artist had enough special technique to notate the performance of that technique in words they could copyright those notations... S/he could also copyright a recording of that makeup that they made themselves, but if the only recording of the work is a photo that a separate photographer takes, then the copyright intrinsically belongs to the photographer.

James Jackson wrote:

TXPhotog wrote:
That's nonsense.  There is no such thing as "exhaustive enough".  It's exhaustive or it isn't.  This list isn't.

To me, it is.  It provides several exhaustive examples...by exhaustive I mean making a special notation for instance of album cover art...  This would normally be covered under "art" but they went ahead and made the special notation of it...thus an exhaustive list.

Once again, nonsense.  "Exhaustive" doesn't mean "a  lot", it means "all".  Each and every case would have to be on the list for it to be exhaustive, and that is not true.  Consequently, the fact that a particular case does not appear on the list is not evidence that copyright law does not cover it.  "To me" does not count.

James Jackson wrote:

TXPhotog wrote:
And you get that from where?  Please cite a justification for that statement.

Again from copyright.gov:

WHAT IS NOT PROTECTED BY COPYRIGHT?

Several categories of material are generally not eligible for federal copyright protection. These include among others:

Works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)

Once again, your example fails.  To be copyrightable, a work of art must be "fixed".  That does not mean that it will last until the end of time.  It just means to make stable and firm.  A speech or performance that is not recorded ceases to exist even as it is performed.  Not so with art works on canvas - or skin.

James Jackson wrote:

TXPhotog wrote:
If an artist makes a painting, someone takes a picture of it, and later the painting is destroyed, does that mean that the artist's copyright interest in the photograph does not exist? No, of course not.

No that is not my meaning...as most people can fully understand the logic behind a "fixed" work, I'll let you try to fit your brain around that one on your own.

Once again, I do understand what "fixed" means, and you obviously do not.  "Most people" evidently does not include you.

James Jackson wrote:

This is not a dodge...I'm simply saying this is not legal advice and I am not a lawyer...this is what I have figured out on my own from reading the copyright laws and copyright.gov web site.  It is also a regurgitation of what *my* copyright lawyers have told me.  That does not however make it legal advice, and you should always consult a lawyer on such matters if you doubt what someone else is saying.

If I intended to rely on advice given on the forums I would be a fool not to consult a lawyer.  But to insist that a discussion in which you are losing on the merits must be concluded and a lawyer be consulted instead is a copout, as I said.

Conversations on the web have a valid and valuable purpose, and "see a lawyer" because you can't defend your own position doesn't help advance the process.

James Jackson wrote:
Should it happen in the future a simple argument over whether or not they *can* do that on a message board isn't going to resolve the question...it would have to go to court.

Yes it would - but the purpose of a conversation on a message board is to raise issues, raise consciousness of issues, and to converse and debate about them sufficiently for people to make rational choices about what courses (including seeing a lawyer, if necessary) they need to take in their own lives and businesses.

For instance, I'm reasonably certain that there are people reading this who never considered the issue of copyright as it applies to makeup artists.  If this conversation can help them think through the issue it is all to the better.

James Jackson wrote:
Interesting angle,

I am not going to get into an argument.  The question is whether the medium recorded on is tangible if it is not permanent?

Paintings on buildings have been copyrighted even thought they are eventually painted over.  The word permanent isn't included anywhere in the copyright law.  It only requires that it be recorded in a tangible format.

I am not a lawyer.  Body painting is definitely fixed on the human canvas.   The question is whether it is a tangible format.  I think you could probably argue that it is.

What we need to see is some case law as to duration to become copyrightable.  Absent that, we are just all speculating.

James Jackson wrote:
[I would believe then that the same thing could be said of Makeup art...if the body painter or makeup artist had enough special technique to notate the performance of that technique in words they could copyright those notations... S/he could also copyright a recording of that makeup that they made themselves, but if the only recording of the work is a photo that a separate photographer takes, then the copyright intrinsically belongs to the photographer.

Look at the implications of what you have said.

Suppose a makeup artist took a Polaroid of the body painting job she did and sent it in to the Copyright Office to register as a work of art.  Registration would be granted - she would own the copyright to that work.

And that is "notation" so that, in your concept, other makeup artists could then recreate the work, using her picture as a guide.  So by your own argument, she would have a copyright interest in the work.  Also, since that copyright exists from the moment of creation and fixation (which happens when the art is done, not when the Polaroid is created), she has a copyright interest whether or not she chooses to register the Polaroid.

Now, to further use your example, a band cannot make a recording of a song by a composer without the permission of the composer (copyright holder) and, normally, paying a royalty.  Their performance and recording is derivative, and although they can copyright the recording, they also have to acknowledge the underlying copyright.  So too with a makeup artist and photographer, where the level of work done by the MUA rises to the level of creative art.  It's exactly the same concept that you speak of approvingly in music.

UCPhotog wrote:
Does the work a makeup artist do, or can makeup be copyrighted? Call the copyright office.

Holy crap - you folks get into pissing contests about nothing. You've got a photographer checking the website, and another photographer challenging him. Neither seems to be an attorney, and neither is a makeup artist (or at least not listed as such).

It's Sunday.  The copyright office is closed.

Is it your position that nobody can ever have a conversation on a topic on a web forum unless they are licensed professionals who specialize in that topic?  That only lawyers who specialize in intellectual property law could comment, or have something of value to say?

Well, we can scrap the forums, then.  All of them.

TXPhotog wrote:
It's Sunday.  The copyright office is closed.

Is it your position that nobody can ever have a conversation on a topic on a web forum unless they are licensed professionals who specialize in that topic?  That only lawyers who specialize in intellectual property law could comment, or have something of value to say?

Well, we can scrap the forums, then.  All of them.

So wait until Monday or whenever they are open. It seems all you are doing is trying to incite, not trying to have intelligent, thought provoking discussions. If you think you are, I would suggest that you have another person read your comments to this post and give you their thoughts.

Specifically, what the OP was asking needed to be addressed by a professional or by the copyright office. If the OP were to do something with your advice that got him into legal trouble, will you pay to defend him? No? Then refer him to an attorney. If someone were to ask about low key shooting, you seem to be good at it. Why wouldn't you comment on it?

UCPhotog wrote:
If the OP were to do something with your advice that got him into legal trouble, will you pay to defend him? No? Then refer him to an attorney. If someone were to ask about low key shooting, you seem to be good at it. Why wouldn't you comment on it?

What I have been arguing is that photographers should be sensitive to the possibility that a makeup artist, particularly for artistic, body-painting or similar shoots, might potentially have a copyright interest in the work.  By extension, that suggests that they should consider protecting themselves from that possibility (which might involve a written statement signed by the MUA, or might involve seeking legal advice in a particular case.)  Absent those comments, photographers would not be sensitive to the issue.

How, exactly, could that "get him into legal trouble"?

phcorcoran wrote:
http://www.usa829.org/USA/copyright_article.htm

Hmmm, the judge seemed to answer the question I raised above.  From the article, I quote:

The parties did not dispute that the designs are protected by copyright. The court found that the designs were original and are fixed in tangible form when applied to the actors’ faces.

That is not law, but the view of a judge.  But he seems to reinforce the view that painting on a body is sufficient to make it tangible.

Thanks for the good research.

Alan from Aavian Prod wrote:
If a make-up artist body paints a model, that would certainly be a creative work.  The copyright act does not specify the types of canvas which are covered.  The make-up artist can certainly fix the work by taking a photo of the model.

Alan the fixation need not be permanent. It may be transient. It is "fixed" at the point in time that it can be apprehended visually or by technical means [e.g. make-up that only appears in it's complete form under UV light]

To say otherwise would disallow the likes of Christo from claiming copyright in his "art" of draping anything and everything in fabric but for limited times... sometimes mere hours. Paint... or make-up of a unique design... applied to a human body is "fixed" at the instant of it's creation regardless of how transient it might be. Taking a photo of it merely fixes an image of it in a second medium... as a derivative representation of an underlying work. The artist can claim copyright in the unique original and the photographer in the photographic image subject to the underlying claim [NOT joint authorship.] Where the make-up is created with the specific intention of photographing it then an implied license, at least, would exist vis a vis the photograph and the photographer. The difficulty, there, is that an implied license can be withdrawn at will.

Studio36

TXPhotog wrote:
What I have been arguing is that photographers should be sensitive to the possibility that a makeup artist, particularly for artistic, body-painting or similar shoots, might potentially have a copyright interest in the work.  By extension, that suggests that they should consider protecting themselves from that possibility (which might involve a written statement signed by the MUA, or might involve seeking legal advice in a particular case.)  Absent those comments, photographers would not be sensitive to the issue.

TX I agree wholeheartedly especially considering the distinction between US and UK law on the subject. Joint authorship in a US work [photograph] will only exist by way of an explict agreeemnt [preferably in writing] to create such a work... however... seperate works of the same subject matter in two mediums can give rise to separate copyright claims.

In the UK, on the other hand, joint authorship [equal rights in the photograph jointly owned by BOTH the MUA and the photographer] can be created by default UNLESS there is a written agreement of separation of rights applicable to the two independently created contributions in the photographic medium - one element being the image and the second being an underlying copyrightable work [unique make-up design] where it is not merely an incidental inclusion. The tipping point to joint authorship is where there was 1) a collaboration AND 2) when the contributions of each [author] can not be separated in the finished work [photograph]

Effectively I need to consider, case by case, a waver of claim; or assignment of rights; or a license from MUAs; ADs; stylists; and sometimes even for creative hair styles. Better to have one now than have a claim of joint authorship advanced years later. There is absolutely no reason not to do the same in the US context either and everything to be gained, in perfecting the photographer's copyright, by doing so.

Studio36

TXPhotog wrote:
1.  The list is examples, not intended to be exhaustive.  The fact that something doesn't show up on a list of examples does not mean that it can't be covered by copyright.

2.  Body painting (or very creative makeup) is "drawing, painting" - which is on the list of examples.  The list says nothing about the canvas on which that drawing must be made.

So your argument fails.

I agree w/TX

The Face/Body Is A Canvas ... We are Artists, we use brushes/sponges to add color, highlights, shadows, blend, smudge we use different mediums besides the makeup...clothes, food, paper, glitter, feathers, latex, jewels, flowers ecc ecc. otherwise it would just be plain canvas...we help bring it to life.

-Liz

Chris Oakley wrote:
what many people are forgetting.. when most make up artists and body painters are hired they are hired for a specific task and there skills.. they are work for hire.. there works of art are not theres the moment they are paid.. its just like a client hires a photographer to do a series of pictures.. we dont own the copyright to the images.. because we are working for hire.. only when the makeup artist or the bodypainters would have any argument to have a portion of the copyright would be if it was a trade for there services along with them applying there idea's for the photographer to shoot.. when in doubt.. put it all out on paper for everyone to sign..

chris

Mere payment does not meet the test of law to transfer a copyright interest from the MUA to you under the work for hire theory. There must be a written agreement concerning the copyright interest.

Mere payment does not make them an employee either for purposes of copyright law.

Your concept of what "work for hire" or "employment" is is not the same as what the law requires.

You are inviting problems for yourself down the road.

God, I am glad that in the UK they have abandoned the whole work for hire concept all together. It just is no longer even recognised at all except in the case of FACTUAL employees. An artist owns their work unless a written transfer of rights happens - full stop.

Studio36

REFS:

http://www.bitlaw.com/source/17usc/201.html

§201. Ownership of copyright
(a)
Initial ownership. Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are co-owners of copyright in the work.
(b)
Works made for hire. In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.
(c)
Contributions to collective works. Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.

-------

For a definition of Works Made for hire you must also see §101:

http://www.bitlaw.com/source/17usc/101.html

(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,

AND

if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

AND

That agreement must be in place in advance - before the work [for hire] starts.

My note: It has been discussed before whether that "agreement" can be oral and then memorialised [repeated] in writing at a later point in time. That is possible, it seems, but the essence of the §101 requirement is that it must be an agreement in advance and it must ultimately be committed to a written form.

-------

For those who might want to consider using a written agreement here is one form of it that you can cut and paste - but consider that what you are doing is creating specifically a "collective work" and only that under the terms of §101 and §201 - but that is only implied here not spelled out, so even then your rights may be limited if a future challenge is mounted. Further, if you register works you may then still have to spell out the contributing authors relative contributions in a collective work.

http://copylaw.com/forms/Workhire.html    [form of agreement]

In my view it's better to use a different form of agreement that is more like a rights assignment; rights transfer; or license.

studio36uk wrote:
God, I am glad that in the UK they have abandoned the whole work for hire concept all together. It just is no longer even recognised at all except in the case of FACTUAL employees. An artist owns their work unless a written transfer of rights happens - full stop.

It's always interesting to see how different countries handle these things.  In Canada it's quite different.  A photographer who is commissioned to produce a photo, and is paid for it by the client, does not own the copyright to the photo.  There is a move in Parliament to change that, but that's the law for now.

TXPhotog wrote:
It's always interesting to see how different countries handle these things.  In Canada it's quite different.  A photographer who is commissioned to produce a photo, and is paid for it by the client, does not own the copyright to the photo.  There is a move in Parliament to change that, but that's the law for now.

In the UK copyright in a commissioned work remains with the photographer. There is only one exception, and even there where only the photographer's use rights are restricted. A commissioned work [say, wedding / birthday / bar mitzvah / graduation, ect. photos] that are commissioned for "private and domestic purposes." Then the actual copyright and the right to make further or additional copies or create derivative works, for the commissioner's benefit, still remains with the photographer... but the photographer may not distribute copies or derivative works outside the terms of the commission. [Also would apply to paintings/portraits done by fine artists]

Studio36

Alan from Aavian Prod wrote:
If a make-up artist body paints a model, that would certainly be a creative work.  The copyright act does not specify the types of canvas which are covered.  The make-up artist can certainly fix the work by taking a photo of the model.

studio36uk wrote:
Alan the fixation need not be permanent. It may be transient. It is "fixed" at the point in time that it can be apprehended visually or by technical means [e.g. make-up that only appears in it's complete form under UV light]

Err, ehhh, obviously, duh.  I was just not trying to slam the other poster.  I think he was sincere, but it is so obvious that body painting is copyrightable.

Thanks for letting me know

Alan from Aavian Prod wrote:
Err, ehhh, obviously, duh.  I was just not trying to slam the other poster.  I think he was sincere, but it is so obvious that body painting is copyrightable.

Thanks for letting me know

Nor was I, except to expand on the actual time of fixation. Where you suggested that it might become fixed if a photo was taken... I suggested that fixation actually occurs before that - such as in performance art - as, say, doing a body painting exhibition or demonstration in front of a live audience... even if it is never photographed at all.

We are and have been in full agreement here on the fundamental copyrightability.

Studio36

studio36uk wrote:
Nor was I, except to expand on the actual time of fixation. Where you suggested that it might become fixed if a photo was taken... I suggested that fixation actually occurs before that - such as in performance art - as, say, doing a body painting exhibition or demonstration in front of a live audience... even if it is never photographed at all.

We are and have been in full agreement here on the fundamental copyrightability.

Studio36

I was gonna respond, but, nevermind.  Not a big deal.  What you are commenting on was a suppositive to provoke his thought not my view on when it was fixed.  Copyright ensued as soon as the designed was transcribed onto the skin.  It is really all academic. He stopped posting so I think he got the point.

Alan from Aavian Prod wrote:
He stopped posting so I think he got the point.

Bada...boom!

LOL

Studio36

Alan from Aavian Prod wrote:
He stopped posting so I think he got the point.

If you mean me?  As I said from the beginning I think they're all valid arguments, and I'm not quite qualified as a lawyer, so I can't really say with absolute certainty that I'm right.  And also as I said it doesn't really matter in the long run if I'm right or not...unless these things are discussed and documented in advance of the shoot there is always room for argument and argument in the form of litigation.  Heck, even if they *are* fully documented you can still be sued.

If I were a lawyer, I would argue that makeup is not protected by copyright just as a performance is not protected by copyright...only the recording...the fixed form of those performances...are copyrightable, and in such state they are only copyrighted by the person who recorded them.

It would however be a valid counter argument to say that the makeup is an art form and "fixed" when applied to the model.

These are just two different legal arguments...both of which from what I have read have never been fully argued in a court of law.

The closest to these arguments having been judged upon is the above case of the makeup artist responsible for the primary makeup on the Broadway production of "Cats" the musical.  In that case, no one argued my side...instead the defense was one of work for hire, and compilation copyright.  The arguments however were never tested, because the judge in the case encouraged an out of court settlement and the appeal was not heard.

So, all in all, the question is unanswerable. 

Is photographing makeup artistry and showing the image violating the makeup artist's copyright?
That case has never been tested in court.
Yes or no, it would take a minimum of two lawyers and a judge to resolve.

Several things can be said to help determine what the answer would be...what the judge and two lawyers would say:

1- The copyright office's issuance of a copyright has been considered de-facto proof of the ability of a particular thing to be copyrighted. (In other words if the copyright office says that something is copyrighted it can't be argued...it just is.)

2- Performances though obviously artistic are not protected under copyright

3- Recordings of performances are copyright protected

4- This particular issue has never been tested fully in previous case law and would have to rely on similar types of argument

5- Fair use is a well established and documented concept that covers making artistic renditions of most copyrighted work without permission from the copyright owners

James Jackson wrote:
If I were a lawyer, I would argue that makeup is not protected by copyright just as a performance is not protected by copyright...only the recording...the fixed form of those performances...are copyrightable, and in such state they are only copyrighted by the person who recorded them. . . . In that case, no one argued my side...instead the defense was one of work for hire, and compilation copyright.

If you note, in the Cats case the defendants were represented by a lawyer - and either he did not make that case (because he knew it wouldn't be viable) or he made it and it was ruled against.  In either event, the evidence suggests that it is not a viable argument.

The arguments however were never tested, because the judge in the case encouraged an out of court settlement and the appeal was not heard.

James Jackson wrote:
Several things can be said to help determine what the answer would be...what the judge and two lawyers would say:

1- The copyright office's issuance of a copyright has been considered de-facto proof of the ability of a particular thing to be copyrighted. (In other words if the copyright office says that something is copyrighted it can't be argued...it just is.)

In the Cats case a copyright registration was issued by the Copyright Office, which is strong evidence for their view that it can be copyrighted.

James Jackson wrote:
2- Performances though obviously artistic are not protected under copyright

Makeup isn't a "performance", so that argument is irrelevant.

James Jackson wrote:
3- Recordings of performances are copyright protected

Meaning what?  The makeup itself is a "recording" of the artist's work.  It is copyrightable.  See the Cats case.

James Jackson wrote:
4- This particular issue has never been tested fully in previous case law and would have to rely on similar types of argument

It has been to court, and the court did not find a reason to issue a summary judgment for the defendants on the basis that the makeup was not copyrightable.  Consequently it is, until some other court rules differently - which has not happened.

James Jackson wrote:
5- Fair use is a well established and documented concept that covers making artistic renditions of most copyrighted work without permission from the copyright owners

Please cite the specific portion of the "fair use" exemption which would apply in this case.  I can see no justification for invoking it.  Further, the court did not apply this exemption to the Cats case (again, the defendants were represented by lawyers - are they worse at this kind of analysis than you are?)