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adeptus
Aug 20, 2003, 12:08 PM
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Does the photographer who takes a picture own the result, or does it belong to the owner of the camera and film?
I'm facing this problem because I'm selling a picture, that shows me on top of the Matterhorn, to a magazine. I was taking a lot of pictures at the summit and of course asked my friend to take a picture of me as well. This picture happened to turn out pretty good. Since it was my camera, I paid for the film and I took the majority of pictures on that film, I found it natural that the results were mine and that my friend could get copies of the pictures he liked.
But since I'm getting paid for a picture that I consider mine, but didn't take I guess the reasonably thing would be to split the money.
I'm sure there's a law concerning the problem of the ownership, I just don't know it.
Do any of you?
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vertical_planar
Aug 20, 2003, 12:28 PM
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I admit that I have no idea what is officialy correct but to me it sounds right that the copyrights of a photo belong to the artist meaning the person which took the photo.
In fact its a tough one with photography as the equipent is a major determinant of the result (if its is a good camera etc etc...)
However, lf you think of any work of art it is usually attributed to the artist and not the owner of the means. On the otehr hand, when the owner of the means and the composer are not the same person, the copyrights are usually set before the composition takes place
I know I did not help much but... :roll:
If I were you I would split the money...
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gideon
Aug 20, 2003, 12:39 PM
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Are we talking about enough money to even open a forum or should you two just take the money to dinner and a bar - together and forget about the squabble?
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adeptus
Aug 20, 2003, 1:28 PM
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In reply to: Are we talking about enough money to even open a forum or should you two just take the money to dinner and a bar - together and forget about the squabble?
Well it's only 200 US dollars, but it's more about knowing whose photo it is, than whose money.
When I think of it, I chose the program and did the metering from the spot I wanted him to take the picture from. All he did was pointing the camera at me and pushing a button. This guy don't know anything about photography and in fact he always complains about me hauling that heavy camera with us on every route we do. I'd like to think of photography as an art form, but this guy is definitely not an artist (not that it changes anything about the ownership of the photo).
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overlord
Aug 20, 2003, 1:30 PM
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i would say that whoever took the picture, unless you gave him exact instruction about how to take the pic. but since he IS your FRIEND, you should split the payment 50/50. or if its not that big a deal, spend it on a couple of beers. and some new equipment that both can use.
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dsafanda
Aug 20, 2003, 1:53 PM
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It's an interesting question.
I suppose that technically speaking, you own the negative or slide in question. However, your friend in this case is the photographer and should be appropriately credited as such whenever the photo is published. As the photographer, your friend probably also has a right to a percentage of any profits you gain as a result of his photography skills. What that exact percentage is would probably have to be determined by a court of law. I would think you would want to avoid the costs associated with any type of legal squabble that requires hiring lawyers. Come up with a percentage that will make you both happy.
On a personal note: If it was me, I would consider the friend as the new owner of the negative or slide. A single frame costs what?... a few cents? I'd give him the slide or negative. I wouldn't want to make money off someone elses photography even if it happened to be on film loaded in my camera. I'd be happy for my friend who happened to get a great shot. I might ask him to buy me a beer. :)
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philbox
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Aug 21, 2003, 1:56 AM
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Try this, when stating the accreditation you merely state that the photo is from your collection. You used a human tripod to take a self framed photo. Your pic mate. If it was me though and money was involved I would definitely be including my mate into the discussion. Be generous and even magnanimous, it`s good for the soul.
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thrasher
Aug 21, 2003, 2:15 AM
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I saw a photo opportunity and asked my friend to get up on the rock so I could take the picture. He refused. I then set my camera, focused it from the spot I wanted him to take the picture from, told him where to put what in the picture so it would be framed properly, climbed up on the rock and he pressed the button when I told him to.
Photo won first place at a large contest and I took full credit. Like mr philbox said, a human tripod is all it was. I didn't get any money, but if I did I would give him some of it.
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pico23
Aug 21, 2003, 5:09 AM
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In reply to: In fact its a tough one with photography as the equipent is a major determinant of the result (if its is a good camera etc etc...)
Two parts to my answer of your question.
1. Does the paint manufacturer own my paintings cause I used their paint to compose my art? Why does it matter who's camera it was? Your friend took the picture, he is the artist and he should own the rights to it unless you worked out a deal before hand. Give your friend the money and the credit and enjoy your fame as the person in the photo but not the photographer.
edited to note: you murked the water with this human tripod deal. Clearly your friend fired the shutter but you claim to have composed and set the picture? This falls into quite a grey area.
2. A film camera is a box that captures light onto film. Anything more is bells and whistles therefore a good camera is a camera that captures light. I'm not really sure why it matters if you let you friend use a good or bad camera to take the picture. Photography is the one art that seemingly the less apt people always chalk up to equipment. Even the best camera in the world can't compose the picture, select the depth of field, and (always) select the proper exposure.
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vicum
Aug 21, 2003, 5:41 AM
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Your analogy is a little weak. That's like saying that nikon or canon owns the picture. I think a better analogy would be somebody working for an graphic design house, called XYZ, using XYZ'z computers and programs, following XYZ's instructions etc. Then who ones the art? Mr. artist or XYZ? Obviously XYZ. However, that would probably be stated in a contract. I think that here, since the metering, depth of field and framing were all done for him, how can you call him an artist? He was just an itelligent yet ignorant tripod and and automatic shutter realese. If he made all those decisions, one might more easily consider him the aritist.
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trialsnclimbing
Aug 23, 2003, 8:52 PM
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Even if I told a person exactly how to shoot a photo, I would never take full credit for it if they released the shutter. Possibly it could be credited to both of you, the photo would not have been possible had you not been there, nor would it have been possible without your friend... As much of a photo muggle as your buddy might be, he framed the shot, even with instruction. As far as money goes, it was your equipment, your know-how, you carried the camera, he just helped, I'd say take him to a decent dinner and call it even. dunno if that helps at all?
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psycho
Aug 24, 2003, 12:05 AM
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you own the photo (it was on your film) but your friend has the copyright (he took the picture)...
sorry, that's how it is.
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alwaysforward
Aug 24, 2003, 12:06 AM
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This doesn't need to be a discussion. It's free beer. Maybe some free gear. Leave it at that.
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bxt
Aug 26, 2003, 6:25 PM
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First, congrats on the photo. Here's my $0.02:
1) If someone hands me their camera to take an already framed shot (with camera mode already set) I will happily do so and implicitly transfer any possible copyright ownership to them. If I think the shot is that great, I'll take it with my own camera and be sure to get one of their feet with theirs. :lol:
2) If someone hands me their camera and gives me full artistic control over taking some shots, I'd be more interested in taking some form of join ownership of the shots. If I was serious about the photo potential I would want them to sign something first so they would understanding that the photos are mine (at least in part). I would be happy to pay for any film or other costs.
3) If I want to have full ownership of a photo I should carry a camera with me to do the job.
4) If I won the contest I'd suggest to split the money.
5) If I was the photographer in your situation, I wouldn't accept the money and suggest (as others here) maybe dinner.
Two related questions:
1) If someone did not want to allow you to take ownership of the photo and demanded the negative (or whatever) could you then deny them authorization to use your image thus putting you into a complete deadlock on using the photo? Seems like it would.
2) What should you do if the photo was taken by someone you don't know (random guy on street)? Should the photo never see the light of day? Seems like that would be silly.
-Bryan
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maldaly
Aug 26, 2003, 7:25 PM
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We buy a lot of photos so I've looked into who owns what. Here's the deal. The person who clicks the shutter owns all right to that photo. Period. It seems weird but that what the courts have decided. The only exception is when you hire a photog on a "work for hire" basis. That is a contractual term which means that when you pay her all right to those photos transfer to you.
Malcolm
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climbsomething
Aug 26, 2003, 7:57 PM
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Knowing nothing about the legal matters or having any practical experience in this kind of thing, I'd say, it's your friend's photo. Hopefully it'd be no big deal though. If he's your buddy, this shouldn't be a huge problem.
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renobdarb
Aug 26, 2003, 8:27 PM
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The photograph is owned by the photographer, the person who took the picture, no question. but if it's a photo of you and he wants to sell the photograph, he needs to get a model release from you in order to profit from your likeness. hopefully you are friends enough to split the bread 50/50.
-brad
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renobdarb
Aug 26, 2003, 8:35 PM
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In reply to: I saw a photo opportunity and asked my friend to get up on the rock so I could take the picture. He refused. I then set my camera, focused it from the spot I wanted him to take the picture from, told him where to put what in the picture so it would be framed properly, climbed up on the rock and he pressed the button when I told him to. Photo won first place at a large contest and I took full credit. Like mr philbox said, a human tripod is all it was. I didn't get any money, but if I did I would give him some of it.
even though you won an award for this photograph, it was fake. it was fabricated. it didn't actually happen. you didn't take a photograph of someone climbing, you took a photograph of yourself pretending to climb. It's not necessarily a bad thing, but i wouldn't enter it in a contest for that reason, and in my opinion you don't deserve a cup of wee wee in a contest even if it's the best climbing photograph in the bunch.
-brad
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csoles
Aug 26, 2003, 10:32 PM
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Actually, Malcolm brought up exactly why the person who clicked the shutter in this case does NOT own the photograph. It's called "work for hire" and even a verbal contract counts. You commissioned the work of a freelancer to contribute to your collective work. The court may also look at who provided the equipment, the supplies, the transportation, and the instruction to determine ownership. If you bought them a beer as a reward, then they could even be considered an employee. It is not simply an open and shut case of clicking the shutter, owning the pic.
From the ASMP:
WORK FOR HIRE
Work for hire is another way the client can become the copyright owner. The difference between work for hire and a copyright transfer is rather simple. In the case of a copyright transfer you own the copyright until you transfer it. In a work for hire situation you never own the copyright. It is owned by the client from the moment the work is created, and the client is by law the author of the photograph. The photographer is denied authorship and is treated as a tool of the client.
Work for hire exists automatically in the case of an employee taking photographs for the employer. As provided in the copyright law, no agreements are required.
An independent contractor ("freelancer") can do a work for hire only in certain circumstances. First, the work must be commissioned-that is specifically ordered by someone, and if it is commissioned, it can be a work for hire only if the photograph comes within one of the nine specific categories enumerated in the copyright act as qualifying for a work for hire: as a contribution to a collective work, as a contribution to a motion picture or audio-visual 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. The category most frequently involving photographers is a contribution to a collective work such as a magazine or other periodical.
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hallm
Aug 26, 2003, 10:39 PM
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ummm . . . that is why the situation here cannot be described as a WORK FOR HIRE.
This person's buddy was not an employee and the work does not fall into the specific categories enumerated in 17 U.S.C. section 101.
The compilation category does not fit because the work was not originally intended to be put into a compilation (i.e., magazine), and even if there was, it does not appear that this was in any way communicated to the friend.
Further, on the facts presented in the original post, there was no contract, verbal or otherwise, for freelance work. A contract consists of offer, acceptance and consideration. A request to a friend to take a picture is not an offer, the friend's agreement to take a picture is not an acceptance (as there are no terms to accept), and there was a lack of consideration (no indication that the friend bargined for any benefit).
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csoles
Aug 26, 2003, 11:35 PM
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In reply to: Further, on the facts presented in the original post, there was no contract, verbal or otherwise, for freelance work. A contract consists of offer, acceptance and consideration. A request to a friend to take a picture is not an offer, the friend's agreement to take a picture is not an acceptance (as there are no terms to accept), and there was a lack of consideration (no indication that the friend bargined for any benefit).
I was joking about the employee part. But the conversation just has to go like this: "hey, will you take my picture with my camera?" "Sure, if you take mine with my camera." Or "Sure, if I can get a copy of the slide." The courts have been very liberal on the interpretation of work for hire, which is why the ASMP drills it into members. The monkey deserves a beer but he doesn't own the photo.
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tradmanclimbs
Aug 26, 2003, 11:52 PM
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I shoot for a liveing and when I hire an assistant, anything they shoot is sold under my name. That might sound weird but that is the way it is. I worked for a photo company for 4 years and thats how it worked. My mom worked for a potter when she was younger and he designed the the pots,plate, tea sets etc. and she as well as other employes made them and signed them with the big cheeses name before putting them in the kiln. As far as an ammatures getting paid for a shot that his buddy took, I would say split the dough and the credit. Somthing like from Your collection by so and so. If it was me and I published a shot that my partner took on my gear I would give him cedit but keep the money as I am starveing artist and would have been the one that did all the legwork to sell the shot. Might sound cheap but thats the way it is 8)
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