Copyright - are US photographers wrong?

[Mark Thomas]

I have been doing a study of the differences/similarities between the copyright laws of South Africa and the USA. In essence they are the same. An article by Charles E Webster, SPOOR AND FISHER, PRETORIA (the top patent and copyright firm in the country) says "The underlying principle behind intellectual property law is best described by a clause in the Constitution of the United States of America which reads: “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to the respective writings and discoveries”. Our law is based on the US Copyright act.

Here is a section from Chapter 2 of the US copyright act

§ 201 · Ownership of copyright¹

(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.



SA copyright law


(b) Where a person commissions the taking of a photograph, the painting or drawing of a portrait, the making of a gravure, the making of a cinematograph film or the making of a sound recording, and pays, or agrees to pay, for it in money or money’s worth, the person who commissioned the work shall own the copyright subsisting therein;

Now here are the questions

Are these two paragraphs not saying the same thing in two different ways?
When a person hires a pro photographer to photograph something does that not fall under "works made for hire".
Why are US photographers then claiming they own copyright when they are commissioned to do a job - or am I reading the paragraph wrong?
US photographers get usage fees, we get a once off payment.

I'm trying to find out how US photographers managed to pull the wool over the eyes of the clients and claim usage fees and retain copyright. Maybe a lawyer can explain where the loophole is so I can apply it here in good old SA.

Comments very welcome.

[photosbymorgan2]

I would have to read the whole copyright laws to know if this one statement is true or if there are other factors that come in to play with who truly owns the copyrights to a photo.

I personally would think that the photographer owns the copyright even if paid.

If a person hires a photographer to do a wedding then the way the statement reads, the couple would own all the copyrights to the photos and if this is so then shouldn't they get the negatives also?

I am sure there are other photographers on here who have a more accurate knowledge of the Copyright laws.

[Mark Thomas]

You see thats what I'm getting at. Most wedding guys here give the negs or files on disk as the B&G own the copyright. The two sections seem so close in wording, how do the US photogs get it right to keep the copyright.

[mikej]

Mark, there is more to US law than just the written law itself. Most court cases are based on previous cases and how they were interpreted by the court. There have been many incidences of people going to court on both sides of this argument... those that said the work is theirs and it was taken by the company or individual that paid for the work and those that paid for the work and said the copyright was theirs. Although not in all cases, from what I understand, there are specific guidelines that have shown that the photographer owns the copyright, not the person or company that pays for the work.

I know it's different in other parts of the world... but that's why America is so great. We didn't get it backwards.

Mike

[Mark Thomas]

Thanks, looks like it boils down to interpretation. That's probably why they write these laws so longwinded, always room for interpretation and for lawyers to make more money. If they said it straight there would be no need for lawyers.

The question is how do we in SA manage to change the way we interprate our law. I think I'm going to get clients to sign a contract that says I own the copyright. This is allowable in our statutes - as in yours.

Cheers

[JohnC]

I am not a lawyer.

But as I understand it, "Work for Hire" is a specific phrase that has to be in the contract in the US. Unless the contract specifies that it is a Work For Hire and that the copyright will belong to the person hiring the photographer the copyright stays with the author (photographer).

I'm sure that most wedding photographers have worded their contracts to not spell it out as a Work For Hire situation.

Here are some links to web sites that talk about the rules:

http://www.keytlaw.com/Copyrights/wfhire.htm
http://www.poznaklaw.com/articles/workforhire.htm
http://copylaw.com/new_articles/wfh.html


JohnC

[Mark Thomas]

Thanks. I have now changed my contracts to say I keep the copyright. Only if the client has a problem with it will I negotiate.

Cheers

[Doug Lester]

Originally Posted by Mark Thomas

(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.

I can see how that would be confusing, but what's missing are some pretty well established definitions. "Work for hire" has been well defined in court cases and so forth. Instead of a casual employer, such as the briode and groom, "work for hire" comes about in a couple of different ways. First, if the photographer is a regular employee of a business receiving regular pay checks, (a salary) at a place of regular, daily employment, then the shooter's work will probably belong to the employer. For example, if you own a studio in the US and I work for you every day as a regular employee, the copyright would probably belong to you. In the second case, the "work foe hire" would be spelled out in specific contract form. If you are a commercial client, a magazine or maybe a celebrety and 'hire' me as a photographer and if your client wants all rights, that would be work for hire and it would be set out in writing at the time I was hired for the shoot. In the US, that's usually called a "buy out" and carries a pay rate of from 2 to 5 times the standard rate.

If you hire me and pay me to shoot a portrait of yourself, that's considered casual employment of an independant contrator, not "work for hire" and the copyright belongs to me. I believe but am not sure, Canada has wording similar to that of S. Africa. That's a major difference in the copyright laws.

[Mark Thomas]

You've cleared it up quite well with your definition of "Work for hire".

I'm not sure I can get around "commissions the taking of a photograph" though, I don't think one could distinguish between casual commission by B&G or hired by other professional etc. As I said before I have now just stated that copyright remains with me and the client gets a licence.

Cheers

[kauai-hi]

Here are some other issues that seem to cloud copyright:

Actual posession of the film or digital medium does not convey the right to copy. Just because a client has the film or digital image, the "right to copy" that image is retained by the creator of the image, except as excluded by written agreement or working situation (works for hire). But, just because the photographer has posession of the film or digital image that they created the "right to copy" may be limited by contract or the rights of the subject of the image - thus the need, in some situations, for a model and/or property release before copying...

Works For Hire - my experience through discussions with lawyers for a couple of different Fortune 100 companies is that Works for Hire may be conveyed to the client through written agreement or the actual work situation. In order to obtain copyright through Works For Hire, the client must demonstrate both of the following:

1) That the image was created under the strict direction of the client. This includes minutiae such as specific lens, camera, film, filter, lighting, location, elevation and all settings. In other words, the client specified everything to the point that it did not matter who or what pushed the button to make the image.

2) The client paid for the Works For Hire in a manner consistent with that of an employee - not a 1099 contractor.

Absent these two points or written agreement, the photographer owns the copyright. However, as stated earlier, the right to copy may be limited by the absence of model and/or property releases...

[Doug Lester]

For what it's worth, here in the US I don't recall ever seeing a work for hire situation in which it was not spelled out in specicific in a contract form. I'm sure there might be exceptions, but a specific written agreement is the norm. Sometims it's just one sentence buried in a paragraph, but that's enough. As for mark's situation, I've absolutely no idea about the law or practices in S. Africa, but I suspect that phrase in the signed agreement should cover it. But I've been worng before, esp when talking about something I know nothing about. A brief chat with a l ocal lawyer should solve the problem.

And Kauao is right about the actual possession of film or negs. For example, I might send chromes to a client, but physical possession of the original chromes does not effect the need for a usage license.

[bevilaquafoto]

Here is the deal as I understand it. i have a fair amount of experience with this because as a photographer who works a great deal with television networks, much of my shooting is "work for hire" and my contracts spell that out. In the absence of a contract, the photographer, or artist who creates the work owns the copyright regardless of who has paid for it. If you want to be very official about it (and I would suggest this) you should register your copyright. As far as my my editorial work, i.e. work for magazine clients, I own the copyright, and we either have a signed contract to back this up, or in the case of some clients it is merely understood. Work for hire is a bad habit to get into with a client. It tends to whittle away the rights of the photographer, and the client will try to retain all rights from every photog that he/she comes into contact with. Sometimes you don't have a choice. Life is getting tougher for the freelance photographer. Big agencies like Time-Life are ganging up on photographers, and demanding all rights.

When dealing with private individuals, i.e. wedding clients, portrait clients, etc, there is no question that the rights to the photographs remain with the photographer unless the photographer gives up those rights in writing. Given that private clients aren't usually deriving profit from the photographs, and the images are for personal use, I tend not to worry too much about protecting my copyright. I tend to give wedding clients my negs or digital files, for example. HOWEVER...I am not a wedding shooter, and do not make money on reselling prints. I am ONLY talking about the copyright issue.
Please forgive the lengthy nature of the post. Sleep eludes me tonight.