Photography copyrights (yes, more)

[cymbol]

What is the name of your state? Texas

In August of 2007 my brother wedded, and hired a photographer to take the wedding pictures. Fast forward to October, we now have trouble getting the digital files from the photographer because she claims copyright of the photographs and will only provide paper copies after we pay "print" fees.

It smells awfully wrong to me: putting aside the legality of her claims, it is indecent to hold wedding photos hostage for more money.

1. She was paid to take the photographs, is she in violation of that contract for not giving us the work?

2. Can weddings be sufficiently artistic that she cannot claim copyright? In this case the wedding was an amalgam of Asian and European ceremonial influences and definitely unique.

3. Can this be argued under work for hire laws such that her work is part of a greater compilation? There were other photographers, and video cams, etc.

What actions are available to us? I am not looking forward to ordering the same copies 20 years down the road simply because she claims copyrights.

4. Assuming that she does own the copyright to the photos, do we not own the publicity rights of our persons? Is she in violation of our publicity rights by trying to make money (commercial use?) of our likeness?

Thank you for your responses and any advice you might give to help us tackle this issue.

 

[divgradcurl]

1. She was paid to take the photographs, is she in violation of that contract for not giving us the work?

What does the contract say about negatives or the digital files?

2. Can weddings be sufficiently artistic that she cannot claim copyright? In this case the wedding was an amalgam of Asian and European ceremonial influences and definitely unique.

The copyright is in the photos, not the wedding. You or someone else could put on the exact same wedding without violating anyone's copyright.

3. Can this be argued under work for hire laws such that her work is part of a greater compilation? There were other photographers, and video cams, etc.

No. Work for hire requires either that the photographer be an employee (as defined under your state's employement laws), or requires a written contract that specifies that the parties agree that the work be considered a "work for hire."

If you just hired the photographer to take the picutres, most likely he or she was an independent contractor, so the photos are not a "work for hire."

What actions are available to us? I am not looking forward to ordering the same copies 20 years down the road simply because she claims copyrights.

Try and work something out where you can purchase the rights to the photographs. Most photographers make more on the reprints than they do on the actual photography, so don't expect the rights to come cheap or free.

To anyone else planning to hire a photographers -- negotiate the ownership of the rights to the photographs up front, and expect to pay for the rights.

4. Assuming that she does own the copyright to the photos, do we not own the publicity rights of our persons? Is she in violation of our publicity rights by trying to make money (commercial use?) of our likeness?

This is not commercial use of your likeness. Commercial use such that publicity rights are implicated generally requires that the photos be used in such a way to imply that the person who is the subject of the photo endorses, approves of or otherwise recommends a particular commerical establishment or service.

As noted above, your best bet is to sit down with the photographer, and try and negotiate a purchase of the rights to the photos, or at least a perpetual license to make you own prints and copies.

 

[cymbol]

Doh'eth!

Thank you very much for the answers.

What you said make sense (I don't like'em, but they do).

So, just to be clear:

1. If hiring photographer and interested in owning the photos, negotiate the rights of the photos before the work is done.

2. If failed 1 and later want ownership of the rights, negotiate for the rights of the photos, or negotiate for a perpetual license on the photos.

I am a bit bitter over this due to my over-inflated sense of justice, and may I propose:

3. Don't hire photographers for your personal events. I know I won't come my wedding.

 

[divgradcurl]

1. If hiring photographer and interested in owning the photos, negotiate the rights of the photos before the work is done.

2. If failed 1 and later want ownership of the rights, negotiate for the rights of the photos, or negotiate for a perpetual license on the photos.

Agreed.

3. Don't hire photographers for your personal events. I know I won't come my wedding.

That seems kind of extreme, and my guess is that your partner may have different feelings about this decision!

 

[cymbol]

You are right in that it may seem extreme, but I am bitter over this.

The photos are more valuable to our family than they are to anyone else in the world; we paid for the creation of these photos, we paid for the decoration, and we paid for the location on which these photos were taken. We are the primum mobile for these objects and yet we don't own the rights to them, and that seems ridiculous to me. My brother is more docile about this, but I feel like we are being double charged for the same service.

Is the fact that these photos are taken on private property any relevance? Or am I confusing the right to publish here?

And thinking from the perspective of data loss, I believe this law is outdated, imprecise, and needing revision.

If the photographer dies or disappears, how will we get more photographs? Or even more simply, the photographer can simply delete the photographs, can she not? And she wouldn't be responsible for the loss of those items, since they were legally hers. When my hard drive dies, I can look in a mirror and kick that guy's butt for not backing up, but no one is responsible in this scenario. We can't even protect something that isn't ours.

My moral sense tells me that works specifically commissioned should be implicitly works-for-hire and all rights be protected under such laws (I understand that this is currently not the case).

The other problem is that it seems a bad and misleading business practice. Yes, we were irresponsible for not researching copyright laws, and ignorance is no defense, but I also believe that photographers should be responsible and inform their clients of the legal issues involved. Had the photographer said, "Oh, by the way, I own all of the copyrights to all of the photos I take, and you do not have permission to reproduce any of those pictures without my explicit consent", we would have thought twice, or not at all, about hiring some one to take photographs. Frugality is not the issue here, but principles are. Greed be damned.

P.S. yes, you are certainly right that most brides would want some professional pictures taken. I just hope more people knew about this beforehand and pursue option 1.

 

[quincy]

You can always have a friend or family member take photos of a wedding - but this friend or family member will own the copyrights to the photos just as your professional photographer did. Obviously it will be less likely that a friend or family member would object to handing over all rights to their photos, however.

The reason people hire professional photographers, especially for important events like weddings, and are willing to pay for the copyrighted reprints without the copyright to the photos themselves, is that a professional photographer will not photograph floors, or the back of Uncle Henry's head, or thumbs. They know how to take a good photo. And while you can try to negotiate a contract with a professional photographer, giving you all rights to the photos once taken, you would probably find it prohibitively expensive.

You tend to get what you pay for.

 

[divgradcurl]

I only have one thing to add to quincy's response -- I doubt that the cost of purchasing the rights to the pictures would be "prohibitively expensive." Unless you are a movie star or other prominent figure, the market for pictures of your wedding is probably limited to you, and maybe your family, so it should be relatively straightforward to negotiate a price that balances the photographer's internal estimate of how many prints you would be likely to buy (he's probably thinking "lots") versus the threat that you might not buy any!

Good luck with the negotiations.

Just for the sake of disclosure -- when I got married, we specifically contracted with the photographer to purchase both the rights and the negatives to our wedding photos, and it really wasn't that much more than just paying the photographer without the rights.

EDIT: And that was BEFORE I went to law school, I did some research online before hiring a photographer!

 

[cymbol]

Thanks for the lessons, and my brother has yet to get back with me about any negotiations for those rights.

Lesson learned Oh, yes, I will post the price of the rights as a rough ratio to the price of 1 set of prints, when I get it.