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Who owns the image


#1

Hi Everyone,

Harriete Estel Berman, Brigitte Martin (Crafthaus) and myself are
busily putting the details together for the Professional Development
Seminar held at SNAG this May in Seattle. (For details go to
snagmetalsmith.org and scroll down through “events”.) Part of our
program will be “Photography in Flux” the changing landscape of
photography.

After recent discussions online about granting photographic rights
for the publishing of images, we keep coming back to a central, but
rather foggy, question: Who owns the rights to a photographic image
of an artist’s work?

I have assumed that the photographer owns the rights to the image.
The artist is most often granted unlimited use of the image to
promote their work (this includes publishing in a book or magazine)
but any commercial use would have to be granted by the photographer.
Many publications ask for a release for images and my photographer
has given me signed release forms to forward to them.

There seems to be lots of confusion about this and many have
answered that it boils down to the negotiation that you have made
with your photographer. Sure. But what is the bottom line? What is
the default, if you will?

It goes without saying that a photographer should always be given
credit.

Thanks, Andy


#2

If it is not spelled out in the contract between the photographer and
the client then I believe the client owns the image as it is work for
hire. There is lots of case law about this and it has been argued
many times. My understanding is it is just like making a drawing for
an advertisement, if you do the drawing for pay then the
individual/company who pays you for it owns the copyright.

Jim

James Binnion
James Binnion Metal Arts


#3

I used to run a commercial photography studio. The images belong to
the photographer, unless the negatives are purchased by the artist.

Often times the photographer will grant use of the photos for a fee,
especially if the shoot was done for advertising purposes. I know we
gave a preset amount of pictures to be used in the original fee paid
to the photographer.

Angela Hampton
Hampton House Jewelry


#4

Hi Andy,

I am a photographer first, jewelry maker second. Personally I feel
it depends entirely on what the agreement was between the artist and
the photographer. More than likely the artist is paying the
photographer, which means to me that they own the images to promote
their work. However, if they sell the image as a photograph rather
than a promotion of their work, then they are selling the
photographer’s work which should not be done. It also goes the other
way, the photographer should request permission to sell images as
photographic art if they contain the work of the artist.

Not sure if this website would help you any or not -
http://www.photoattorney.com

Clear as mud, right?

Deb


#5

Hi Andy,

The photographer owns the rights to his work, you own the right to
yours.

The image is a photographic representation of your work, and is not
your work.

Commercial exploitation of that image without a prior notorised
agreement can cause legal problems.

It would be like getting an artist to paint your portrait, borrowing
it, then selling it, without paying the artist.

The best thing would be to pay the photographer, or come to an
arrangement.

There is a flip side to this.

If a photographer takes a photo of an historical museum piece of
jewellery, you can make a physical copy of the piece, and can sell
it, as no rights have been infringed.

Regards Charles A.


#6

Thanks Jim and Angela. It’s amazing how mixed responses are. From
artists AND photographers.

A lot of the confusion comes from the phrase “for hire”.

There is a good discussion about this unfolding on Harriete Berman’s
Ask Harriete blog:

http://www.ganoksin.com/gnkurl/235nwd5

Take care, Andy


#7
I used to run a commercial photography studio. The images belong
to the photographer, unless the negatives are purchased by the
artist. 

ah…but in this day and age, when shots are done in digital format
from the start, what constitutes as a negative? I have been doing
jewelry photography for a number of local artists and always assumed
once they paid me for my work, the images were theirs but I should
be credited with the photography work. Would you consider negatives
to be the original, out of the camera, unedited images?

Jeanne
http://www.jeannius.com


#8

Dear Andy,

As part of a large arts web site, I have been part of and witness to
many discussions concerning artistic copyright and image ownership.
Certainly I am no expert in discussing the rights of either
photographer or the subject of the image. However, I do have a
feeling for the default approach.

If I photograph another person and that person is the recognizable
"subject" of the image, rights to the photograph belong to the
subject. The photographer does not have rights over how the image is
used, sold, etc. For the photographer to own rights to use of the
photograph, a release authorization from the subject is required.

Now, your question involves a “subject” but the subject is not a
living person. However,the subject is essentially the property of an
artist or craftsperson and they own the rights to sale, duplication
or commercial use of the subject.

In my thinking, the default goes to the creator and not the
photographer. With release permission from the creator, the
photographer may receive rights of ownership or perhaps permission
to the photographic image within specified limits.

Consider the night lighting of the Eiffel Tower as an extreme
example. Unless something has changed fairly recently, the use of
photos of the lighting requires permission and payment of royalties
to those owning the copyrights to the lighting effects. (A daytime
photo of the tower is ok since the lights are not showing.)

This is opinion on my part. I would like to know what you finally
come up with. Tom.


#9

Andy,

You bring up a good point. As I understand it, a photographer has
the rights to their image and they should be credited. In the old
days of slides, (slides, remember slides?) a photographer I used had
their name printed right on the plastic slide. When attempting to
duplicate the slide, the photo house asked for a release form from
the photographer which I provided.

My friend, Christine Quiriy answered this question best. She states,
“a good jewelry photographer creates an articulate artifact above and
beyond the original object. Therefore, their “creative image” is a
work of their own artistic ability and should be credited. A good
jewelry photographer does more than just point and shoot. They are
involved in a complex setup to create mood with the destination being
a photo of your work that jumps off the page. Therefore, their work
is unique just like the jewelry they are photographing.”

Karen Christians
http://www.cleverwerx.com


#10

Yes there is a tremendous amount of confusion here. Back in tech
college when I was training as a commercial artist (never finished
that degree :frowning: ) We were taught that the customer owns the product
unless you have it in writing that it is your copyright. I have seen
several law suits over this in the years since then and the result
has always been the customer owns it if there was not some form of
contract verbal or otherwise stating that the artist owned the
copyright.

James Binnion
James Binnion Metal Arts


#11

I do not possibly see how an in-between photo negates copyright law.
It is not so simple to freely knock off some elses artistic work or
otherwise copyrighted work. If the piece in the museum is public
domain, that is different.

As for a commercial photographer owning the images, yes, the
physical negative perhaps(?) depending on the agreement with the
client. The content of the photo is however the property of the
client unless released for the photographers use. What can the
photographer legally do with the images if there is no release?
Nothing. And, what did the client actually purchase?

There is much confusion and old wives tales running around about
copyright and rights of ownership. Who knows, I may be just as wrong
in my thinking as someone else.


#12

Dear All,

One of my art students is trying to make small metal spheres out of
copper wire like silver does. But we can’t seem to make it melt into
small spheres. Can this actually be done? If so how?

Many thanks,
Sharron in Dhaka


#13

I do know that in art there are legal differences in how the product
is obtained and might also differ for different countries: Somebody
who commisions an artist to make something is the product copyright
owner (unless an contarct states differently, which might be
disputed)Somebody who buys an existing product/artwork is not the
copyright ownerThis how far my knowledge stretches and is based on an
experience from some years ago: I did do a big sculpture commission
and discovered to my amasement that the owner also holds the
copyright to it, not the maker/designer.

Peter Deckers


#14

Hi Tom,

Australian law looks differently on these matters.

With regards to photographs of individuals on public land the
ownership of the image belongs to the photographer. Painting an exact
representation of an individual, the work belongs to the artist, the
same goes for photography in this country.

Photography of children is not permitted on public land without
consent, photography of people on the beach is forbidden.

Photographing someone on private land without their permission is an
offense.

A photograph, or anything, is the property of the photographer,
unless there are arrangements in place, at least this is true in
Australia.

Copyright law is messy.
Regards Charles A.


#15
I do not possibly see how an in-between photo negates copyright
law. It is not so simple to freely knock off some elses artistic
work or otherwise copyrighted work. If the piece in the museum is
public domain, that is different. 

I assume you’re talking about this statement

"There is a flip side to this. If a photographer takes a photo
of an historical museum piece of jewellery, you can make a
physical copy of the piece, and can sell it, as no rights have
been infringe". 

I do not consider “historical piece of jewellery” to mean anything
less 200-300 years old. There would be no infringement if a copy of
the artifact is made from that photograph.

The only infringement that would happen in this instance is if
someone took the photograph and published it without the
photographers approval.

Currently there are archaeologist trying to copyright artifacts,
which they will not be able to do, as it’s not their work. However
they do own the copyright to the photographs of those artifacts. From
those photographs anyone can make a replica of the original piece,
this is not infringing copyright.

I’ll throw you another example which uses a photographers work, that
is not in breech of copyright law.

If you make a collage of a photographers work, and let’s use in this
example a photographer that photographs jewellery.

That collage is not in breech of copyright, and can be sold as an
original work.

However it cannot be replicated, or photographed as that would be a
breech of the original copyright.

Like I said copyright is messy.
Regards Charles A.


#16

I’ve been in the gem business for 30 years and a photographer for 8.

I make it clear from the beginning that copyright is retained by

me as long as the copyright laws allow. If this is unacceptable to
the client then I don’t do the work.

Christopher L. Johnston
Omaruru Namibia
http://www.chrisjohnstonphoto.com


#17
I did do a big sculpture commission and discovered to my amasement
that the owner also holds the copyright to it, not the
maker/designer. 

This is legally unsettled issue, but may be decided soon.

There is a case in front of Supreme Court right now dealing with
this. The case is about the following:

Cosco purchased a shipment of Omega watches on grey market. The deal
was so good that they could offer them several hundred dollars bellow
list price. Omega took them to court for copyright violation, basing
claim on small section of copyright law, which seems to imply that
copyrights holder has control on how an object is sold or otherwise
distributed.

Cosco defense is based on doctrine that once product enter chain of
commerce, the owner of a product can do as one wish, except copying
it. An example of this doctrine - I buy a book. After I finish
reading it, I have the right to sell it to anybody and copyright
holder have no say in it.

Once Supreme Court rules, we would have an answer to the question.

Leonid Surpin
www.studioarete.com


#18
Currently there are archaeologist trying to copyright artifacts,
which they will not be able to do, as it's not their work. 

This has been affirmed by a US Federal Court ruling that museums do
not own the copyright to images simply because they own the
originals. If the image is public domain because of antiquity or any
other reason photographs, copies or reproductions of the art is not
protected by copyright because the museum is not the author of the
creative content, which is where copyright originates. This is
contrary to European law. I wish I could cite the actual case. It
involved a publishing company that reproduced a clip-art collection
that was quite old. A museum claimed ownership of the collection,
but the case went against the museum. I believe that the museum was
previously publishing the same clip-art collection but the court
found that their claim to the copyright was invalid. I think this
means that a museum or other owner of an older artwork can only
claim copyright if they have a legal title to it that goes back to
the original artist or author.


#19

If the artist works for you, then he is your “employee”. I don’t see
any way he could own the image.

now if he’s taking pics of clouds, sky,… things you didn’t
make… then i bet he owns 'em.

best bet: take your own pics/ photoshop/ watermark

steve


#20

Someone said you can make a collage of someone’s photographs and not
be in breech of copyright law. That is incorrect, at least in the US.
This is an excerpt from the US Copyright office:

*How much do I have to change in order to claim copyright in someone
else’s work?

*Only the owner of copyright in a work has the right to prepare, or
to authorize someone else to create, a new version of that work.

Accordingly, you cannot claim copyright to another’s work, no
matter how much you change it, unless you have the owner’s consent.

See Circular 14


Copyright Registration for Derivative Works.

-In America any article or photograph is implied to be copyrighted
even if we don’t put a mark (like “R” or “copyright”) on it. The
courts have upheld people can basically steal “thumbnail” images
though. So if you don’t want those taken, put some type of watermark
over top of them so they are unusable.

On point for what your discussion has been about “Who owns the
image?”… Here is another excerpt from the US Copyright office. I
italicized pertinent parts of the second paragraph.

My local copying store will not make reproductions of old family
photographs. What can I do?

Photocopying shops, photography stores and other photo developing
stores are often reluctant to make reproductions of old photographs
for fear of violating the copyright law and being sued. These fears
are not unreasonable, because copy shops have been sued for
reproducing copyrighted works and have been required to pay
substantial damages for infringing copyrighted works. The policy
established by a shop is a business decision and risk assessment that
the business is entitled to make, because the business may face
liability if they reproduce a work even if they did not know the work
was copyrighted.

In the case of photographs, it is sometimes difficult to determine
who owns the copyright and there may be little or no information
about the owner on individual copies. Ownership of a “copy” of a
photograph – the tangible embodiment of the “work” – is distinct
from the “work” itself – the intangible intellectual property. /The
owner of the “work” is generally the photographer or, in certain
situations, the employer of the photographer./ Even if a person hires
a photographer to take pictures of a wedding, for example, t/he
photographer will own the copyright in the photographs unless the
copyright in the photographs is transferred, in writing and signed by
the copyright owner, to another person. The subject of the photograph
generally has nothing to do with the ownership of the copyright in
the photograph. If the photographer is no longer living, the rights
in the photograph are determined by the photographer’s will or passed
as personal property by the applicable laws of intestate succession./

There may be situations in which the reproduction of a photograph
may be a “fair use” under the copyright law. Information about fair
use may be found at: http://www.copyright.gov/fls/fl102.html However,
even if a person determines a use to be a “fair use” under the
factors of section 107 of the Copyright Act, a copy shop or other
third party need not accept the person’s assertion that the use is
noninfringing. Ultimately, only a federal court can determine whether
a particular use is, in fact, a fair use under the law.

My local copying store will not make reproductions of old family
photographs. What can I do?

Photocopying shops, photography stores and other photo developing
stores are often reluctant to make reproductions of old photographs
for fear of violating the copyright law and being sued. These fears
are not unreasonable, because copy shops have been sued for
reproducing copyrighted works and have been required to pay
substantial damages for infringing copyrighted works. The policy
established by a shop is a business decision and risk assessment that
the business is entitled to make, because the business may face
liability if they reproduce a work even if they did not know the work
was copyrighted.

In the case of photographs, it is sometimes difficult to determine
who owns the copyright and there may be little or no information
about the owner on individual copies. Ownership of a “copy” of a
photograph – the tangible embodiment of the “work” – is distinct
from the “work” itself – the intangible intellectual property. The
owner of the “work” is generally the photographer or, in certain
situations, the employer of the photographer. Even if a person hires
a photographer to take pictures of a wedding, for example, the
photographer will own the copyright in the photographs unless the
copyright in the photographs is transferred, in writing and signed by
the copyright owner, to another person. The subject of the photograph
generally has nothing to do with the ownership of the copyright in
the photograph. If the photographer is no longer living, the rights
in the photograph are determined by the photographer’s will or passed
as personal property by the applicable laws of intestate succession.

There may be situations in which the reproduction of a photograph may
be a “fair use” under the copyright law. Information about fair use
may be found at: http://www.copyright.gov/fls/fl102.html However,
even if a person determines a use to be a “fair use” under the
factors of section 107 of the Copyright Act, a copy shop or other
third party need not accept the person’s assertion that the use is
noninfringing. Ultimately, only a federal court can determine
whether a particular use is, in fact, a fair use under the law.

Vali