Who should have copyrights to a photo?

[PeterGustafsson]

Hi!


First, this is what prompted my question:

Last week, my kids were in the kid´s page of the local paper. On that page, the paper prints children´s drawings. My oldest boy does clay figures, and he wanted his stuff to be photo´d and printed beside the drawings. I took a few samples to the paper to be photo´d, but the journalist in charge of that page decided to do a human-interest article about him and his figures. The photographer took a bunch of photos of the stuff with his good digital camera. When the story appeared in the paper, I phoned and asked if I could get copies of the photos emailed, since he had a better camera. I got the answer that I could pay for a A4 size paper printout of the photo that had appeared in the paper (13$! ) but that all other photos were unavailable, they would not give out, or even sell them at all.

This got me thinking - is this fair? After all, it was his artistic creation in the photo in the first place, why should the paper retain the sole copyright? I think that it were more fair if those who are depicted in a photo, or have created the things depicted in a photo, should at least have the right to freely use the photos, and that the photographer should provide digital copies (for a fee covering costs, of course) since he does not lose anything by doing so.

That is my take on it. What do you think is the fair allotment of copyrights? Remember that I am trying to start a discussion of what it should be, not how it is (except as supporting information).


Have a nice time!

Peter Gustafsson

[keropie]

Most likely a lot of depends on the photographers contract with the paper. After all, it's quite reasonable that the paper provided him with the camera, and potentially even part of his training, so anything that he does while on their time is their copyright. Of course, it might be that he's a free lance photographer/journalist, and that the paper can only offer what's in the paper because that's the only photo they purchased, and any others that you might want you'd need to contact the journalist directly.

For what it's worth, this sort of thing happens constantly in academia and (I suppose) in business. If you create a product as part of your work, it's usually (always?) patented by the employing organization, even if you appear on the paperwork. I expect due to the same reasons, in that the employer provides the space/materials/opportunity for a lot of the events that go into making the product. The sometimes questionable ones are people who create in their mind, etc., but even so they are given their pay (and therefor an amount of their opportunity) by the employer.

[lindajdunn]

The copyright belongs to the photographer if he is a freelancer. If the photographer is on staff, the photograph belongs to the newspaper. If the freelancer photographer signed a contract with the newspaper then the terms of that contract apply.

Freelance fiction writers do not usually sell their work to the publisher. Instead, they sell FNAR (First North American Rights -- assuming they are US writers). They retain all rights not explicitly sold in the contract. The same is not true for non-fiction, where they freqently receive one payment for something the buyer may sell multiple times.

[Philistine]

Seems pretty fair and workable the way it is now to me--i.e. absent an agreement to the contrary, the photographer has the copyright to the pictures he takes and cannot be forced to provide them to the subject. The subject may or may not have "veto" rights over whether and/or how the photographer can use the picture depending on local law and any agreements signed.

Otherwise, I could forsee problems on the subject demanding a copy, and then distributing/selling the copy--which would degrade the value of the photographer's work. As well as causing administrative problems--e.g. in the case of a picture of a crowd, what if everybody wanted all copies the photographer took? How long would a photographer have to keep all his pictures? In your specific case, did you ask the photographer for the pictures, or the paper? Most likely the paper itself doesn't have any of the other pictures, and the photographer very well may have deleted them.

--Philistine

[Epee_Pox]

Interesting question as to whether a photographer has created something when he merely snaps a shot of something not created by him. Copyright protects original creations, in order to encourage people to create original things.

I can understand if it's an "art" photo, where the photographer created the composition and lighting, or manipulated the processing and effects so as to create a new image.

But a quick digital snapshot that merely archives the appearance of something else, which is intended to be as non-creative as possible -- how is that an act of creation that copyright is intended to protect? It's like copyrighting the transcript of a presidential speech, or a weather report.

[seven6ty]

I've never heard of any subject of any artistic pieces having any type of control over the copyright to the work whatsoever. So, as far as I know, you have no rights to any of that material whatsoever. But the people here are right, it should be explicitly spelled out in whatever contract the photographer is working under, although it's unlikely that they would grant any control of the copyright to the subject. When it comes down to it, they are buying the photographer's work from him and paying for the associated expenses. If you wanted any kind of control or provisions spelled out giving you access to this material, you should have probably come to an agreement on that before agreeing to do the piece.

Edit: And if the works of your kid are not copyright protected, the photographer is not infringing on any copyrights and your son/daughter's artwork are most likely already going to be declared "public domain".

[parrythis]

Since the photographer captured and created "an image" using their own equipment and skills that had been developed over years of experience, the photographer owns that image and the copyright to it. That is what entitles him to sell it to you. How that image can be used beyond that, however, is subject to some rules.

If the image is to be used for editorial purposes (news, human interest, etc.) the image can be published without your having signed a release. If the image is to be used for commercial purposes (advertising, etc.) you would have to sign a release in order for the photographer to be able to sell that image of you or your property.

If the person that is to be the subject of a photograph wants to be compensated for the use of their image, they should negotiate that with the photographer up front.

That is how it is, but you are asking if that is how it should be. You are asking who should own an image - the person who creates it or the person who is in it.

IMHO, an image is a creative artistic expression of the person who creates it. They are putting their experience into the creation of that image. That experience may represent a considerable investment in training, equipment, learning, etc. I do think that the artist (a.k.a. "the photographer") deserves to own that image. Of course, if the artist/photographer is under contract or employed by someone else (like a newspaper) to take photos, then those photos belong to the entity paying for the image to be created.

Just so you know, photography is a life-long hobby of mine and may be a career for me someday, so I may be biased.

[PeterGustafsson]

Hi!

Most likely a lot of depends on the photographers contract with the paper.

Why should the rights of someone else that than the pair newspaper-photographer depend on the contract between them?

After all, it's quite reasonable that the paper provided him with the camera, and potentially even part of his training, so anything that he does while on their time is their copyright.

In this case, the photographer was an in-house employee photographer, with the camera presumably paid for by the paper. Still, what difference should that do in regard to the rights, or lack thereof, of the depicted person?

For what it's worth, this sort of thing happens constantly in academia and (I suppose) in business. If you create a product as part of your work, it's usually (always?) patented by the employing organization, even if you appear on the paperwork.

FWIIW, employees in Swedish academia have the right to patent for themselves the stuff that they figured out during work hours.

I expect due to the same reasons, in that the employer provides the space/materials/opportunity for a lot of the events that go into making the product. The sometimes questionable ones are people who create in their mind, etc., but even so they are given their pay (and therefore an amount of their opportunity) by the employer.

Keropie - your entire post seems to me a defense of status quo. Does this mean that you think that status quo is ideal, or is it that you missed the "what it should be part" of the original post?


Have a nice time!

Peter Gustafsson

[PeterGustafsson]

Hi!

Seems pretty fair and workable the way it is now to me--i.e. absent an agreement to the contrary, the photographer has the copyright to the pictures he takes and cannot be forced to provide them to the subject. The subject may or may not have "veto" rights over whether and/or how the photographer can use the picture depending on local law and any agreements signed.

Shall I take it that you think that status quo is perfect, and no tinkering whatsoever would be for the better?

Otherwise, I could forsee problems on the subject demanding a copy, and then distributing/selling the copy--which would degrade the value of the photographer's work. As well as causing administrative problems--e.g. in the case of a picture of a crowd, what if everybody wanted all copies the photographer took?

You have good points there. I modify my stance, and state that the depicted persons should not have the right to a digital copy if:
1. A sufficient time (a month?) has elapsed from the taking of the photo or publishing, whichever is later.
2. If the person depicted is so small in the image so that he can not be recognized.

How long would a photographer have to keep all his pictures? In your specific case, did you ask the photographer for the pictures, or the paper? Most likely the paper itself doesn't have any of the other pictures, and the photographer very well may have deleted them.
--Philistine

In this specific case, I asked the journalist who did the interview - and called for the photographer the same day as the article was published, 8 days after the interview was done and the photos were shot. She claimed that he still had the digital photos in the job computer. She said that she beleived that I could get digital copies, but forwarded me to some administrative person. This administrator then told me that no digital copies were given out or sold as principle, and the only thing I could by was a paper printout of the picture that had appeared in the paper.


Have a nice time!

Peter Gustafsson

[PeterGustafsson]

Hi!

Interesting question as to whether a photographer has created something when he merely snaps a shot of something not created by him. Copyright protects original creations, in order to encourage people to create original things.

I can understand if it's an "art" photo, where the photographer created the composition and lighting, or manipulated the processing and effects so as to create a new image.

But a quick digital snapshot that merely archives the appearance of something else, which is intended to be as non-creative as possible -- how is that an act of creation that copyright is intended to protect? It's like copyrighting the transcript of a presidential speech, or a weather report.

In this case, he just did a series of quick snaps of the clay figures. No lighting other than ordinary room lighting, no special background other than the white sheet of paper that they were placed on. No composition other than putting them so that they were in focus and not hiding each other. Snap,snap,snap.


Have a nice time!

Peter Gustafsson

[Philistine]

Shall I take it that you think that status quo is perfect, and no tinkering whatsoever would be for the better?

I wouldn't say perfect--but, I would say pretty good. I think your suggestions go too far, and would have to be too complicated to prevent abuse.

In most cases, this could probably fairly easily be resolved (at least in posed pictures) by securing the agreement of the photographer to provide digital images beforehand.

You have good points there. I modify my stance, and state that the depicted persons should not have the right to a digital copy if:
1. A sufficient time (a month?) has elapsed from the taking of the photo or publishing, whichever is later.
2. If the person depicted is so small in the image so that he can not be recognized.

The first doesn't address the issue of dilution--for instance a subject getting the pictures and selling them (or giving them away) to a rival paper. There, the closer in time, probably the worse for the photograher. The second is likely to cause further administrative hassle in determining who is "recognizable" and who isn't. Plus, even for those who are recognizable (or at least arguably so)--how does that person "prove" they are the one in the picture? Do they have to show up in person? Send a copy of their photo ID?

In this specific case, I asked the journalist who did the interview - and called for the photographer the same day as the article was published, 8 days after the interview was done and the photos were shot. She claimed that he still had the digital photos in the job computer. She said that she beleived that I could get digital copies, but forwarded me to some administrative person. This administrator then told me that no digital copies were given out or sold as principle, and the only thing I could by was a paper printout of the picture that had appeared in the paper.

I sympathize with your position--in that in your case you simply want good quality pictures for your own personal use for pictures that are really only valuable to you. They already exist and would cause insignificant cost and time for the paper to provide to you, and the paper will never use them again. In this instance, it's a silly policy.

My guess is, like most silly policies, they're intending to stop something that they legitimately have reason to fear, but end up being too inclusive because it's much easier to have a bright-line test.

--Philistine

[PeterGustafsson]

Hi!

Since the photographer captured and created "an image" using their own equipment and skills that had been developed over years of experience, the photographer owns that image and the copyright to it.

I doubt the "years" thing, he looked young enough to be fresh out of school (early 20ies). He was the employee of the paper presumably using tools bought by the paper, so I do not see why he should any copyrights.

That is what entitles him to sell it to you. How that image can be used beyond that, however, is subject to some rules.

As I said, the paper did not want to sell the digital images at all. I had intended to use it for personal use - emailing copies to relatives.

That is how it is, but you are asking if that is how it should be. You are asking who should own an image - the person who creates it or the person who is in it.

I do not see why the copyright must solely belong to either one. These were digital images, and the newspaper (or for that matter, the photographer) will experience no degradation of their commercial use if the depicted person has rights to use the image for non-commerical uses.

That is what I suggested in the 1st post - all rights to the newspaper, and noncommercial rights to the depicted person/creator of depicted thing.

IMHO, an image is a creative artistic expression of the person who creates it.

There was no artistic expression on the photographers part, just quick documentation.

Just so you know, photography is a life-long hobby of mine and may be a career for me someday, so I may be biased.

With all due respect, Yes, I think that your bias does show. OTOH, one could argue that I show bias due to familial link.


Have a nice time!

Peter Gustafsson

[dcmdale]

I think you are mixing two concepts here. Copyright is a legal monopoly over making reproductions of a covered work. If you could establish that you owned the copyright, not the photographer, you could prevent the photographer from making and distributing copies of the photo. You wouldn't necessarily get the right to get a copy for yourself which seems to be what you want.

If you want to talk about what copyright should be, as opposed to what is, I think you have to start by asking the question of whether copyright should exist at all in its present form. The concept of copyright did not come from a deep sense of author's rights. The monopoly came censorship laws and non-competition agreements between publishers. See http://policy.meadholm.com/copyright for a brief history.

As to your question about being able to get a copy of pictures taken, my remedy for that has always been to request copies at the time of the photo shoot and write that stipulation into the Model Release that they should always ask for my signature on. That way, they cannot publish any photos from the shoot without first providing me with the copies I want. In general, most photographers that I have worked with are willing to provide a photo or two to the subject if they are asked at the time depending on the circumstances.

If somehow you did get the law changed to give the subject of a photo shoot a right to get a copy of all pictures, you can be sure that the standard model release would be changed to waive that right.

[lindajdunn]

There's an old joke about charging $100 to fix something by hitting it with a You could have taken your own camera to the event and taken your own picture but did not. The newspaper sent a reporter and presumably paid for his gasoline, the use of the equipment to process the digital picture, etc. They paid for it, they own it (in the case of an employee).

When photographers freelance, they also have expenses even if it's nothing more than their time and the wear and tear on their shoes.

If an artist has arrived with an easel and paints and spent an hour painting the scene, there would be little argument that the artist (or the company that sent the artist) owned the rights to the artist's creation.

[prototoast]

Why on earth do you feel entitled to the pictures that he took? He took the pictures, he can do what he wants with them. It is not as if he is claiming right to all images of that subject. These are the pictures he took, it does seem like there's any reason he owes you anything.

[keropie]

Keropie - your entire post seems to me a defense of status quo. Does this mean that you think that status quo is ideal, or is it that you missed the "what it should be part" of the original post?

I suppose that I don't find the status quo to be at all abusive. You (and your son) were certainly under no obligation to appear in the photos, and could have stipulated (or attempted to stipulate) that in order for permission to take the photos to be given, you would require copies of the photos.

The same, however, could not be said of the reverse. If you had any right to the photos (in terms of ownership, not in terms of preventing them from being published), then there is a chance that you (not you particularly, mind you) could abuse this in such a way to distribute the photo to a large enough group (for free, hence non commercial) that it impacts the paper's ability to sell copies. I know, for instance, that when my brother was in the local paper, my mother bought several copies so that she could send them to friends and such, and perhaps having ready availability of copies of the photo might have reduced her desire to do so.

So yes, I believe that I am supporting the status quo on a policy basis. I find that it's unfortunate that in this case the powers that be are unwilling/unable to supply you with pictures, but it seems that by opening that door, they then have to have a decision making policy and decision makers to determine when they do or don't give out copies (or sell them or whatever).

^^

[PeterGustafsson]

Hi!

If somehow you did get the law changed to give the subject of a photo shoot a right to get a copy of all pictures, you can be sure that the standard model release would be changed to waive that right.

Obviously, if there would be any point to changing the law, it would include language making the right to get picture copies unwaivable.

I do not know about US. laws covering contracts, but in the Swedish legal system several laws are written so that the described rights and obligations are unwaivable. Philistine, fill me in - does go for US. laws also?


Have a nice time!

Peter Gustafsson

[PeterGustafsson]

Hi!

The first doesn't address the issue of dilution--for instance a subject getting the pictures and selling them (or giving them away) to a rival paper. There, the closer in time, probably the worse for the photograher.

Selling, and also giving away to a commercial entity, would be a commercial use. I specified in an earlier post that the subject should only have non-commercial rights.

The second is likely to cause further administrative hassle in determining who is "recognizable" and who isn't. Plus, even for those who are recognizable (or at least arguably so)--how does that person "prove" they are the one in the picture? Do they have to show up in person? Send a copy of their photo ID?

If one puts the burden of proof on the person wishing to get a copy, then there would not be an extra hassle to the photograper/newspaper. Those that are not recognizable would not go through the legal hassle to get a photo of so little noncommercial value to them, and for those that are easily recognizable the newspaper would rather just email a copy than going though the legal motions.

I sympathize with your position--in that in your case you simply want good quality pictures for your own personal use for pictures that are really only valuable to you. They already exist and would cause insignificant cost and time for the paper to provide to you, and the paper will never use them again. In this instance, it's a silly policy.
--Philistine

I was willing to pay for their emailing expenses, but nosiree.


Have a nice time!

Peter Gustafsson

[PeterGustafsson]

Hi!

The newspaper sent a reporter and presumably paid for his gasoline, the use of the equipment to process the digital picture, etc. They paid for it, they own it (in the case of an employee).

Actually, no. The gasoline was payed for by me, I turned up to the newspaper main office without any involvement by the newspaper. The journalist and the photographer only had to walk downstairs to meet me and the boys in the lobby. On the contrary, I think that one could argue that my son and I plunked a story right in the lap of the journalist, and made it easier and cheaper for her to fill her page than if she would have had to search for news on her own.


Have a nice time!

Peter Gustafsson

[PeterGustafsson]

Hi!

I suppose that I don't find the status quo to be at all abusive. You (and your son) were certainly under no obligation to appear in the photos, and could have stipulated (or attempted to stipulate) that in order for permission to take the photos to be given, you would require copies of the photos.

Come to think of it - when the photographer was clicking away, I asked the journalist of she could see to it that I could get digital copies of those photos. She said that she would fix it.

The same, however, could not be said of the reverse. If you had any right to the photos (in terms of ownership, not in terms of preventing them from being published), then there is a chance that you (not you particularly, mind you) could abuse this in such a way to distribute the photo to a large enough group (for free, hence non commercial) that it impacts the paper's ability to sell copies. I know, for instance, that when my brother was in the local paper, my mother bought several copies so that she could send them to friends and such, and perhaps having ready availability of copies of the photo might have reduced her desire to do so.

This does not explain the fact that the paper, though the journalist, willingly sent me five copies of the paper free of charge. Furthermore, it should have been clear to the journalist when she listened to my accent that the chance of any of my relatives would be living in the area covered by the paper was very slim. Thus, the chance of them selling any copies to people whom I might send free copies to was small.
[/QUOTE]


Have a nice time!

Peter Gustafsson