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[help] Question regarding copyright - Lakeshore — LiveJournal
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Jay Lake
Date: 2011-01-08 06:24
Subject: [help] Question regarding copyright
Security: Public
Tags:help, photos, publishing
Apropos of this morning's zen photo, I've been meaning to ask this for a while. I think I know the answer, but suspect my intuition is out of place.

What's the copyright status of a photograph taken by someone else using my camera?

Example A:

I gave the camera to the_child and she took it on a field trip. Those are her photos, unambiguously. If I am going to reproduce them, I seek her permission.

Example B:

I am out with friends. I gave the camera to kenscholes to take a picture of me and bravado111 on my behalf. Generally I know who took the picture, and can secure a permission if needed. Say, because I have placed the photo in Locus or something.

Example C:

I am out with friends. I gave the camera to a waitperson to take a picture of the group of us on my behalf. I never get the photographer's name or contact info. Do I have any right to reproduce that photo under copyright law? It can't be work for hire, because I didn't pay them for the photo. The implicit ownership of the photo is clear: it's my equipment and the photo was taken at my request. But the copyright status is unclear to me.

Thoughts? Experiences?

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(no subject) - (Anonymous)
Elizabeth Coleman
User: criada
Date: 2011-01-08 17:06 (UTC)
Subject: (no subject)
I'm not going to add to the discussion beyond saying that my dad is at this moment making fun of me for reading this. "This is what you do with your morning? Read about copyright?" I'm attempting to explain to him why understanding copyright issues that aren't related to writing matter to me.
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Amanda
User: cissa
Date: 2011-01-10 23:23 (UTC)
Subject: (no subject)
But if you are in a "public space", then they do NOT need your permission to publish a photo of you, especially if it is not used for advertising etc.; news photographers can take pictures of anyone in public, and publish them without the subject's permission.
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Jim Hetley
User: jhetley
Date: 2011-01-08 14:52 (UTC)
Subject: (no subject)
In all your cases, you are a capitalist. You own the means of production. How you resolve the question is a political/polemical decision . . .

Just stay away from walls, is all I'm sayin'.
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Larry Sanderson: Baby Fighter
User: lsanderson
Date: 2011-01-08 15:24 (UTC)
Subject: Ghoogle
Keyword:Baby Fighter
Obviously, I ain't an attorney, but it seems to me that the shutter pusher would be the copyright owner. There's basically no difference in your three examples, other than can be measured by a stopwatch. I would assume the waitperson is considered to have "given away" the copyright.
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shelly_rae
User: shelly_rae
Date: 2011-01-08 15:45 (UTC)
Subject: (no subject)
I ran into this several times with photos I took while I worked for Locus. Now mind you, the added component is that the photos were taken while I was in the employment of Locus.

We went to Heinlein's after Robert died and were helping out Ginny with GRUMBLES. I took a bunch of photos of objects around the house, the cannon, book covers etc. but they were credited in the book to CNB. Now that could be in error or could have been deliberate, I never asked.

But if you set up the photo, had someone a camera to snap it? It's your photo.

If you know the person, give them credit, if not (waitress) it doesn't really matter.

My two cents.
Anon

Edited at 2011-01-08 03:45 pm (UTC)
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cathshaffer
User: cathshaffer
Date: 2011-01-08 16:00 (UTC)
Subject: (no subject)
I would say if you set up the photo and have a stranger push the shutter button, then that is a work for hire situation even if no money changes hands. The stranger is not in a position to press their rights. And throughout the world the understanding when you are asked to take a photo for strangers is that the photo belongs to them. It's a very quaint and friendly custom.
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Geoffrey H. Goodwin -- I Can See in the Dark
User: readingthedark
Date: 2011-01-08 16:04 (UTC)
Subject: (no subject)
I'm pretty sure that Canada's standard is still whoever owned the film at the time of the picture. I've always presumed the U.S. might have the same.
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Geoffrey H. Goodwin -- I Can See in the Dark
User: readingthedark
Date: 2011-01-08 16:11 (UTC)
Subject: (no subject)
For your examples. For the work-for-hire situations, it often depends on whether the person is freelance or an employee--the context of the pictures being taken. If it is viewed as in the course of the job, the employer usually gets it.
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hugh57
User: hugh57
Date: 2011-01-08 16:56 (UTC)
Subject: (no subject)
Note: I am *not* a lawyer. But I would think that if a stranger really *wants* to retain copyright on a picture taken with your camera (s)he should speak up at the time the picture is taken, and give you a card with his/her name and contact info (I doubt any restaurant server would do so, but a random fan at an SF convention might, I suppose). Otherwise, I would consider the stranger's copyright waived. But again, I am not a lawyer.

In Example C above, I suppose you *could* credit the photo to "Unknown Photographer, for Jay Lake" and then claim the copyright for yourself. Of course, the copyright to most of my photos have little or no commercial value, so are not going to be worth litigating. And many people are so intimidated by my camera (a Canon 30D) that when I want to include myself in a group shot, I will either use a tripod and timer, or Photoshop myself in later. (I would imagine that Photoshopping two or more images, taken by different photographers, would open up a whole 'nuther can of worms.) ;-)
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dd-b
User: dd_b
Date: 2011-01-08 17:07 (UTC)
Subject: (no subject)
"Derivative work". Quite possibly, you'd end up with the copyright jointly held by all the photographers who contributed, plus the Photoshop artist.
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Renfield
User: cuddlycthulhu
Date: 2011-01-08 17:02 (UTC)
Subject: (no subject)
Not a lawyer but with example A I think you're right. Examples B & C I think you are still the owner of the rights of the picture for the reason that you not only created the shot, rather than the person using the camera directing you how to stand, sit, whatever. I would argue that copyright would cover this because it was your intention, creativity, and idea that created the shot.
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dd-b
User: dd_b
Date: 2011-01-08 17:04 (UTC)
Subject: (no subject)
While some things are similar worldwide now, my answer addresses only USA copyright law. I've paid close attention as a photographer, and read several books on the topic, plus discussed it with real lawyers and on-line lawyers, but I'm NOT a lawyer myself, and this is not legal advice (you can also tell because I'm not sending you a large bill :-) ).

I can't find anything that treats this case separately. The general rule is that the image is copyright by the photographer at the moment it's fixed in tangible form. This would seem to make the image copyright by the person you handed your camera to.

As a practical matter, the waitperson you handed the camera to would have a hard time proving that they were in fact the photographer. On the other hand, not being able to name a specific other person might hamper your defense.

This might become important if something happening in the background, say, made the photo newsworthy.

Addressing some of the other comments --

Work-for-hire is very VERY carefully limited. It requires an explicit, written, agreement specifying that the photographer is working-for-hire. Therefore it's not the way out in these specific examples.

You don't actually inherently own "your own image". While it cannot be used in "trade" (for advertising, basically) without your permission, it can be used in art and in news reporting without your permission. (And those aren't absolute rights of the artist either, there are a number of gray areas.)
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User: joycemocha
Date: 2011-01-08 17:12 (UTC)
Subject: (no subject)
And one of those gray areas of permissions has to do with minors (a very large concern at times in my life since I work as a teacher). Generally, school districts operate on the presumption that if you don't have explicit permission to take a child's picture or name, you can't use the image or name in any media. Period.

Those requirements can make editing a student newsletter that gets distributed outside the school or posted on the school website rather, um, interesting, shall we say?

(there are parents who aggressively Google their child's name to regulate said child's appearances on the intarnets).
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dd-b
User: dd_b
Date: 2011-01-08 17:23 (UTC)
Subject: (no subject)
How does that work with student newspapers, and yearbooks? And athletic events? And students appearing in the big parades (most cities have some excuse for a parade sometime each year, don't they? mine did.)

I also wonder how much real legal backing they have for this approach. Not that I have the funding to fight it, if it comes to that.
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User: joycemocha
Date: 2011-01-08 19:26 (UTC)
Subject: (no subject)
I don't know about the high school level, but at the middle school level it can be a real pain. Generally, in yearbooks that means just the standard portrait appears unless parents request otherwise (and in some cases this can be an issue related to custody or other weirdnesses. My school is in an area where people tend to go to hide out from things like abusive exes, bill collectors and so on...).

But yes, that means you have to scrutinize everything that goes up on the website. The webmistress for the school often angsts over pictures she can't use because she can't easily Photoshop a kid out without it being obvious.

The threat of a lawsuit is often enough to make a school district or building administrator waver.
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cathshaffer
User: cathshaffer
Date: 2011-01-09 00:42 (UTC)
Subject: (no subject)
There is a big difference between what the law states and what school policy is set due to pressure from parents. I don't think a lawsuit based on a child's photograph being posted would hold up, but can understand the school's desire to avoid it, and it is a reasonable courtesy to offer parents a privacy option.
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melissajm
User: melissajm
Date: 2011-01-08 19:26 (UTC)
Subject: (no subject)
I used to be a counselor at a camp for disabled kids. I don't know if this was a special situation or not, but before photographers could publish a picture, they had to have a signed permission slip from a parent/guardian of every kid in the shot.
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User: joycemocha
Date: 2011-01-08 17:07 (UTC)
Subject: (no subject)
Generally, when it comes to pictures of people, I'd look at Example C and figure that this is implicitly a case where work for hire is implied. I run into this a lot on the ski slopes or in National Parks. There is usually a tentative but brief negotiation, agreement, and service is performed. Sometimes compensation in the form of reciprocal pictures is given.

Arguably, one could point to taking pictures of a group party at the request of a member of the group is implied as part of the job duties in at least some entertainment venues (I would not be surprised to find it explicitly stated in places like the Disney parks). When possible, it's best to attribute the shot to waitperson or anonymous shooter.
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Tom
User: voidampersand
Date: 2011-01-08 18:07 (UTC)
Subject: (no subject)
B and C are examples of social cooperation, not work or commerce. When a friend or stranger snaps a photo of you, they are not expecting credit or compensation. They are momentarily sharing your happiness. That is currency enough. If you know who took your picture, it is courteous to credit them.

Really, it is not necessary that everything we do be the subject of law, even though in theory we could find ways to apply the law.
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russ: lyles constant
User: goulo
Date: 2011-01-08 20:29 (UTC)
Subject: (no subject)
Keyword:lyles constant
That's kind of what I'd think (but IANAL) as well.



Jay:
> "It can't be work for hire, because I didn't pay them for the photo."

Is that actually true? Or can you technically hire someone without paying them? (Or paying them $0.00 for example...) I think you can legally hire someone for non-direct-payment compensation (e.g. a percentage of expected future royalties, or a share in a company, etc) - can you legally hire someone for literally nothing? (Or if you like, their compensation is that you say "Thanks".)
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dd-b
User: dd_b
Date: 2011-01-08 21:05 (UTC)
Subject: (no subject)
For a legal contract, there has to be compensation. However, it doesn't have to be significant. That's where "one dollar plus other good and valuable considerations" comes from.

Work for hire requires a specific written agreement, though.
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ericjamesstone
User: ericjamesstone
Date: 2011-01-08 19:23 (UTC)
Subject: (no subject)
I looked into this a couple of years ago, and there doesn't seem to be an specific court ruling on it, but it appears that on the face of the law, whoever took the picture owns the copyright unless there is an explicit work for hire agreement.

I think it's a case where the law should be changed to something more commonsensical, because I don't think Congress really thought through how cameras actually end up being used sometimes. I think that in both B and C, you should own the copyright on the picture because the person who took the picture was clearly acting as your agent in taking the picture.

Perhaps the simplest way to amend the law would be to say that copyright in a photograph taken at the request of the owner (or other legitimate possessor) of the camera belongs to that person unless there is an explicit agreement that it belongs to the person who takes the photo. Also, any photo taken by someone unauthorized to use the camera belongs to the owner of the camera.

I think that would cause the law to conform to what most people would feel was the correct distribution of ownership.

For example A, The Child would be a legitimate possessor of your camera. Photos she took would be hers, as would any photos she asked someone to take for her.

For examples B and C, you are the owner of the camera, and the pictures were taken at your request, so you own them.
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e_bourne
User: e_bourne
Date: 2011-01-08 20:11 (UTC)
Subject: (no subject)
Copyright doesn't come into play until something is published. So B & C historically don't count as they are your family pictures.

The person who takes the picture owns the copyright. Until/unless the image is published, there is no copyright.

Publication is putting the image anywhere the public views it.

In B & C, traditionally the person hands the camera back to you with the photo on it. As soon as they give up possession of the image, they've given up their right to copyright.
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dd-b
User: dd_b
Date: 2011-01-08 20:16 (UTC)
Subject: (no subject)
Copyright comes into existence when the image (in the case of photos) is first fixed in tangible form, and that explicitly includes in digital form in computer memory. It is not dependent on publication. (What you describe was roughly true before 1978.)
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e_bourne
User: e_bourne
Date: 2011-01-08 21:24 (UTC)
Subject: (no subject)
You are correct. I am showing my age. :) Shhh. Don't tell anyone. Bad me for relying on memory.
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dd-b
User: dd_b
Date: 2011-01-08 21:41 (UTC)
Subject: (no subject)
I first studied up on this pre-1978, and I still catch myself missing changes now and then. It's been a remarkably active area of law, and not (IMHO) mostly for the good either.
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