I was wondering if anyone had had dealings with scanning or burnin go to CD/DVD photographic work that falls into the issue of is it copyrighted or not? Some are obvious some are not. I know and understand the copyright laws, I have read and reread all 108 pages many times, but, there is what appears, so much in the way of gray areas, that it is confusing.
Are you talking about your own work, or the work of others? There are different issues involved....
Essentially the copyright to a photographic image is assigned and resides in the possession of the maker of the photographer who originated it. This remains the case even if the maker should sell a print of the image, or it is licensed to a publication and appears reproduced in a publication. Theoretically at least copyright remains with the maker unless the originator deliberately assigns all rights, usually through a contracted purchase, to another person or organization; or the make deliberately puts the image in the public domain.
I think today the copyright statute appears murky because of the internet. And, the courts have yet to establish interpretation and precedent in all cases. For instance what actually constitutes public domain is not well defined as far as the internet is concerned, nor is the provision of fair use.
Making a copy of a photograph that appears in some kind of "space" open to public access by itself does not constitute the loss of the maker's copyright ownership. So even if it is possible to make a copy of an image for your own personal use, and a person is not likely to be sued for copyright infringement, if anyone uses an image made by someone else for any kind of commercial purpose, copyright ownership can be protected by the maker by filing suit that his/her rights have been infringed and violated.
According to the law and practice copyright ownership is established by the creation or making of a photograph and exists even if no other action is taken by the maker. You don't have to record or register copyright to claim ownership, although doing so is a protection for you of that ownership in case of a challenge. Basically if you make a photograph you own the copyright, unless you did so as part of your work as an employee of someone else, then the employer has a copyright claim.
David,thanks for your input. I am mostly concerned with duplication of CD's that are provided to clients by individual wedding photographers. I am trying to determine what is right if those CD's are duplicated and distributed to friends and families; what is there, at that point, to prevent unauthorized use or printing of those images? It seems to me the photographer just cut him or herself out of the loop for copyright protection. Am I wrong? How does a lab for example protect itself from lawsuit? Does a lab refuse to process any print or duplication requests? And how would that lab know?
If a photographer gives out a CD of images that doesn't contain his copyright across each image, he has given away the keys to the kingdom. But that may be the deal that he has with his clients.
Some photographers shoot the job and hand over the CD - job over. But they price knowing there will be no residual income.
A number of the labs around where I live simply refuse to process prints if anyone's copyright info is on the media or the image (unless it is that of the person who is requesting the prints.) If you have the original film, OTOH, they don't ask questions.
But they can go to Wal-Mart or Costco and stick the CD in and order as many prints as they want. Both stores also have an upload service and you can have the prints delivered to your door.
Generally as far as copyright is concerned the creation of an image assigns copyright to the creator of the image. However, when a photographer is hired to do photographs there has been some contention and dispute about copyright ownership. Many companies have tried to impose the "work for hire" provision into their contract with the photographer, which gives the person/company doing the hiring the copyright ownership. So a photographer today really needs to make a formal agreement with a client as to the nature of the service contract. If it is not defined in writing up front, the person who did the hiring can claim it was "work for hire" and therfor the copyright is acquired through payment to the photographer for services rendered.
I have not kept up on this as to how the courts have settled disputes on this issue, other than to be hawk-eyed about the language in any contracts I have made.
A wedding photographer today I should think should to protect their interests, particularly if they are supplying defacto original files on a CD, make sure there is language in the a signed agreement made with the client that spells out what is being provided in terms of copyright and reproduction privileges.
As I have always understood the copyright law, it is the copyright owner's responsibility to police any infringement. So in the case of doing photography work for a client the only way to protect your interests is to spell them out as to who owns and retains copyright in a contract agreement signed by both parties.
David, what you have stated makes sense, in fact most photographers that I have spoken to about the subject are concerned. I manage and operate a quality photo and digital imaging lab locally. My lab handles up to a dozen film and digital file processing orders from local pros every weekend March through November. While we burn CDs for the photographers, they pass it on to their clients and they take it home with them to print or make additional copies of the CD for family and friends. We have been getting more and more phone calls from Wal-Marts and Costcos throughout the Southwest and Southern California that they need a copyright release from us. I have done my very best to correct their interpretation of the copyright law, but when you are talking to the box stores they have their orders, if it looks like a professionally done image, you don't do the order. I think it is a corporate decision on the part of these box stores and I am trying to help but more and more I am looking like the villan to the client of the photographer. So during the slow season I am trying to find answers and work with the photographers to better provide service to them and not risk losing their business. I respect your thoughts and you are most helpful.
Yes, I have heard some pro photographers just want to shoot the job and then turn the files over to the client and forego any residual print order business. In today's market environment it is probably a wise business strategy considering how little margin can be built into print sales considering the time invested in dealing with customers. No one really wants to pay for service anymore, except the super rich.
What can be done is to do the CD's on printable CDR discs and then custom label and print them with a legal statement that the copyright is owned by the named client. In addition the copyright name can be embedded in the files in the clients name in Photoshop using the DigiMark plugin, which would to an extent limit the reprint to the client that paid for the service.
But there is really nothing that can be done if corporate lawyers advising big-box stores are cautioning the stores not to print anything that "looks" professional. If they want to give up business just to be safe and advise a policy that's so broadly limiting that's their problem and the store's loss.
I agree that as soon as you turn over a cd you give away the keys to the kingdom, but I also agree with Mr. Brooks that it makes good business sense to give the client a CD rather than go through the headache of dealing with customers again.
The online wedding photo hosts take a lot of that headache out of the proofing and reprint process. Rather than giving the client the CD, you upload the images to a host from whom the client purchases the prints. The host takes its cut, then sends you your markup.
But the photographer who prefers to turn over a CD to the client doesn't relinquish ownership of the images unless he specifically agrees to engage in what is called work-for-hire. That is, the photographer has absolutely no claim to ownership. The only photographers that I know who work under such terms are guys who are in-house photographers. A lot of retailers who produce their own imagery and advertising require their employees to work under such terms.
But in the case of the WP who produces a CD rather than prints what is at issue is CONTROL over the image. A digital image is subject to the same copyright laws and licensing agreements that all other traditional images are subject to. The problem lies with the integrity of the client.
By 1999, my reprint sales from film-captured weddings dropped to the point that reprints weren't worth fooling with. Clients could scan their proofs or their enlargements from their wedding albums and bypass me altogether. What made it so much worse was the fact that local videographers actually ADVERTISED that they could make video presentations from the bride's albums. (The videographers had the usual weasel words in their advertising requiring release forms from the photographer. This of course, went right out the window when the bride showed up with her book. When the videographer saw that the face in the book matched the face of their new client, they made their own copy).
My advice to the WP who turns over a CD to a client is to have an agreement in which the B&G are licensed to duplicate the images, but you retain all rights for promotional purposes and that you may revoke that right at any time. The problem comes when you try to police and enforce the agreement.
You can't police, and enforcing the law and recovering damages is time consuming and expensive. The Hicks case is a good example.
The B&G who goes for the CD album is looking to save money at the WP's expense, so why not sell the CD with a release file stating the terms of agreement. Make sure that you incorporate into your fees whatever profit you think you lose by not selling reprints. That way, you come out WAY ahead.
You should make the agreement regarding prints vs files when you sign the contract with the B&G. Stating terms of copyright and licensing, etc., won't make the client any more honest, but you'll free yourself from the hassles of output, collect a nice fee, plus retain rights for future use in self-promotion. You'll also have recourse if the B&G decides to license the image to someone else.
In a nutshell: 1).Agree to terms at the signing of the contract. 2). Charge the client enough to recover whatever you might lose by not handling the printing end of it, and incorporate that into your service fee.