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Copyright-Public opinion
Old 12-07-2005, 01:00 PM   #1 (permalink)
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Photographer gets asked to attend a "contest" that runs for several days in an exotic location. Host agrees to pay the photographers way if he shoots the contest and provides images to the host.

During "free time", think early morning and sundown, photographer asks some of the "contestants" to shoot at the beach.

Upon return from the trip, photographer delivers "contest" photos to host.

A second disk is provided to the "host" where the photographer has changed the name of the files to clearly indicate his copyright. Second disk is to be looked at by Host for host to determine whether host might be interested in "publication" of the images.

Dispute later breaks out and the photographer and host part ways. Photographer tells Host to not make any use of the photos from the second disk.

Photographer wakes up one morning and sees that calendar is for sale on internet with 7 of his images from disk 2 in the calendar. Images were registered with the copyright office by photographer.

Somebody give a reason, any reason, any argument that Host has right to the images.

Anyone, anyone?

I'm playing devils advocate here and want to see what if anything you can come up with for why Host has any right.

Nothing is in writing about use of images.

No written transfer or assignment or license.

If you were the HOST what would your argument be?

Mark
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Re: Copyright-Public opinion
Old 12-07-2005, 01:05 PM   #2 (permalink)
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IMO, the host has no rights to the images from disk 2. in fact, i'm not sure host has rights to images on disk 1. all the host did was invite the photographer to attend and offset some of the photographer's travel expenses. i could be wrong, but i don't think that qualifies as a "work for hire" situation wherein host would have the rights, i.e., host would still need to license those rights before making those images commercially available.
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Re: Copyright-Public opinion
Old 12-07-2005, 01:17 PM   #3 (permalink)
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BTW, this is a real world situation and not a hypothetical.

At present I am not at liberty to name names or potential defendants.

In about 2 weeks I will.

The resolution of the matter will be of great public interest to probably every photographer on this board as it is about to explore the connection between the theoretical world of copyright and the actual resolution in a real world environment.

I have tried with all my might to try and figure what "they" will argue in return and keep coming back empty.

Mark
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Re: Copyright-Public opinion
Old 12-07-2005, 01:28 PM   #4 (permalink)
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I'm new to a lot of this and I don't have a law degree, but I have questions.

1. Does the host have any signed release from models?
2. Are your images backed up and dated?
3. The photos released, did they have your copyright on them on the calander
print?

In my mind, such as it is, they are your property unless otherwise assigned to someone else. The disc you gave to them, in my opinion would and could only be used for self promotion type stuff and not for profit.

This only MHO
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Re: Copyright-Public opinion
Old 12-07-2005, 02:08 PM   #5 (permalink)
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A. these are not my photos.

B. They were created digitally, and yes the Exif Data has the original date and time of their creation. There is no argument that the photographer created the images originally and thus copyright vested in him at the moment of creation. There is no claim that he then transfered the image rights in writing as required by the copyright act. The cases on implied license do not seem to favor the HOST.

C. The models signed releases for the "contest" as they expected to be photographed as part of the contest scheme. The lanquage is broad, and could certainly cover the use of the images by the HOST, but the models release and the photographers copyright is 2 totally seperte distinct issues.

D. The photographer did not have the models sign releases at the time as he knows most of them and intended to have appropriate releases signed if and when licensing was arranged. Again, a release has to do with the model, not the copyrights (unless of course it contains copyright licensing lanquage).

F. The images were printed without the photogrpahers copyright credit in a calendar.

What I am trying to do is see if anyone can think of any argument that benefits the Host.

I'm not saying the host is right, just trying to see if anyone can begin to fashion an argument as to why Host thinks he was in the right under this scenario.

Mark
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Re: Copyright-Public opinion
Old 12-07-2005, 02:12 PM   #6 (permalink)
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Mark,
That's why I asked, I was trying to do the same, and haven't been able to yet.

Good Luck,
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FWIW (which is nothing, actually)
Old 12-07-2005, 02:27 PM   #7 (permalink)
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[ QUOTE ]
Host agrees to pay the photographers [sic] way if he shoots the contest and provides images to the host.


[/ QUOTE ]

I'm no lawyer, but, as stated, doesn't that constitute "work for hire", and thus the copyright belongs to the host, not the photographer?

As you stated, this verbal agreement wasn't in writing, but oral contracts are valid. Are there potential witnesses to this exchange?

In my first reading, I questioned whether the photographer had any right to claim copyright to ANY of the images, disk 1, 2 or n, shot at that location on that visit.
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Re: The real lesson here...
Old 12-07-2005, 02:36 PM   #8 (permalink)
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Gunslinger's account leaves out many details such as any agreement(s) in writing beforehand, or afterwards, and other pertinent details. The real lesson for my learned colleagues is that vague arrangements and ambiguities make for bad feelings and perhaps even litigation.

As for the other party, he could reasonably argue (based on what has been posted by Gunslinger) that he was given a license to use the photos for calendars/promotional use, and that obviously Gunslinger kept the copyright. Without CLEAR agreement in writing, the question of whether the other party received a license for this usage, is a matter of fact for the Court or Jury.

I remind my learned colleagues that the loser in a copyright case can wind up responsible for the winner's attorney fees. Generally massive.

As for the arrangement at issue, and the issues here, I am reminded of the "bird's nests" you used to see with the old-fashioned fishing reels... a mess to straighten out.
 
 
Re: Copyright-Public opinion
Old 12-07-2005, 07:39 PM   #9 (permalink)
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My opinion would be:

1) Consult an attorney familiar with this type of work.

2) Send a bill for use of the photos. Say at the highest going rate + 10%. Don't forget to include modeling fees. But don't do this prior to 1).

These days when I give out proofs, they have "PROOF" diagonally across them with my copyright just to prevent misunderstandings.
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Re: Copyright-Public opinion
Old 12-07-2005, 07:58 PM   #10 (permalink)
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You mentiioned "in an exotic location"; if that was in another country, then that countries laws might be argued to apply. For example, I understand Canada has a different definition of 'work for hire' than in the US and without a written contract, the verbal offer of paying the photographer's expenses might be argued to be work for hire under Canadian law. I suspect it's a pretty weak argument, but I can't think of another half way valid argument.

I suspect the lack of photographer's credit on the pix in the calendar is a non issue, unless it could be argued that removal of the copyright notice might show 'intent'.
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