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Archive 2013 · hard ball with copyright ownership
  
 
david debalko
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p.1 #1 · p.1 #1 · hard ball with copyright ownership


I have been working with a hospital in my area for over 10 years, I get a lot of work from them. They have recently combined with a larger hospital and know I have the hope of working for them as well, actually I already have shot a job for them, but now they came to me with a contract they say I have to sign that would surrender the rights to the photos- they say I could use any of the photos for self promotion (web site, promos )
So If I don't sign the contract not only will I not get any work from the larger Hospital but my original client will not be able to use me anymore. I am sure if I refuse to sign and loose the work there is a photographer right behind me with pen in hand ready to sign. My contacts at my original client says their hands are tied.
Has anyone else came across this?



Mar 19, 2013 at 09:00 PM
mdude85
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p.1 #2 · p.1 #2 · hard ball with copyright ownership


What do you have to lose from signing the contract? You still have the right to use the photos for self-promotion, and you get paid.


Mar 19, 2013 at 10:14 PM
sorpa
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p.1 #3 · p.1 #3 · hard ball with copyright ownership


mdude85 wrote:
What do you have to lose from signing the contract? You still have the right to use the photos for self-promotion, and you get paid.


+1

Work for hire. No copyright.
But you could negotiate a better price for your services.



Mar 20, 2013 at 01:46 AM
FLSTCSAM
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p.1 #4 · p.1 #4 · hard ball with copyright ownership


David,

I think more info is needed.

Are they buying the files or a print? What type of images are we talking about? Are these fine art prints of a general nature, or images of the hospital and staff?

Have you talked to them to find out what they really want and why?

They may only want to insure that no other medical facility will be using the images.

They may be asking because they can. They may want to use the images on a national basis, national add campaign, etc. without paying for that right.

Depending on the answers you may say why not, or might say no way.

If they are looking to get high quality professional images and the copyright on the cheap, good luck.

If they are willing to pay a premium that would be a different story.

Again more info is needed.

Sam








Mar 21, 2013 at 04:52 PM
obscure
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p.1 #5 · p.1 #5 · hard ball with copyright ownership


david debalko wrote:
.....but now they came to me with a contract they say I have to sign that would surrender the rights to the photos- they say I could use any of the photos for self promotion (web site, promos )

Exactly what rights is it they are asking you to surrender? It obviously isn't all rights as you retain the right to use the images for promotional purposes.
Do they want exclusive use or actual copyright ownership - do they even understand the difference? Also what is the real financial value of these rights to you? Are there other ways to generate income from these images that you would be giving up?



Mar 21, 2013 at 08:10 PM
veroman
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p.1 #6 · p.1 #6 · hard ball with copyright ownership


sorpa wrote:
... Work for hire. No copyright ...


Not true. I own the copyright on all of my freelance assignments from magazines.

Copyright ownership is always a major issue. I, for one, believe the photographer should own the copyright. Yes, this means making a decision that could very well lose a client's business. But if the photographer is consistently doing very good to excellent work, another client awaits right around the corner ... if the business model is right.

- Steve



Mar 24, 2013 at 02:32 PM
TT1000
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p.1 #7 · p.1 #7 · hard ball with copyright ownership


@obscure "Do they want exclusive use or actual copyright ownership - do they even understand the difference?"

What's the difference (between exclusive license and copyright ownership) ?








Mar 24, 2013 at 09:55 PM
markd61
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p.1 #8 · p.1 #8 · hard ball with copyright ownership


This is increasingly common as businesses delegate photography to a marketing department that is staffed with people entirely unfamiliar and unsympathetic to the "old days".
They believe they should get ownership for their money and it is only the legal department that keeps them from trampling all over your copyright. Thus you see "All your copyrights are belong to us" contracts.

I ask myself "What use is this image to me apart from the context of this client?", "Do I like them?", " Do they pay well and on time?" AND "Can I negotiate a backdoor to usage that makes me money?"

In this last case I usually want to market my work, enter competitions and in some cases, sell for stock. Clients are always fine with the first two and less so on the last. I do have a client that I photograph sensitive material for and they pay a premium to own the images outright. I even delete from my archives to ensure that the issue of usage does not come up later. However this is something negotiated on an individual basis.

As to the issue of another photographer waiting to snare your job.... yes there always is. As to another client that will work on your terms....less and less so. Principle is very nice but not too tasty at times. As for being a photographer with clients clamoring for you day and night.... that may happen but I notice it usually happens to photographers that have become fashionable due to factors other than the quality of their work.



Mar 25, 2013 at 12:30 AM
Micky Bill
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p.1 #9 · p.1 #9 · hard ball with copyright ownership


Allowing a client to have control over your images may make a difference if there are other uses for the image some where down the line...I do alot of work in the auto industry and there are many uses ranging from internal/corporate, editorial, marketing, catalogs and advertising. When do a job we limit the usage right to what they need at the time. If they need to re-purpose for an ad campaign or catalog they need to upgrade the use. And the $$$

I can see this being the same in a hospital business especially as they expand in other markets.



Mar 25, 2013 at 01:02 AM
veroman
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p.1 #10 · p.1 #10 · hard ball with copyright ownership


Micky Bill wrote:
Allowing a client to have control over your images may make a difference if there are other uses for the image some where down the line...I do alot of work in the auto industry and there are many uses ranging from internal/corporate, editorial, marketing, catalogs and advertising. When do a job we limit the usage right to what they need at the time. If they need to re-purpose for an ad campaign or catalog they need to upgrade the use. And the $$$ I can see this being the same in a hospital business especially as they expand in
...Show more

This is precisely the reason why retaining copyright is important and a major component in the business decision. In fact, it was the basis for a major alteration of the copyright law in 1978. A photographer had been contracted by a major advertiser to shoot for some consumer print ads (magazine ads) and priced his work accordingly. The next thing he knew was that his images were being used for aisle displays, trade advertising & marketing, etc., and with no additional compensation. His lawsuit altered the copyright law forever.

Part of parcel of that copyright law revision was to AUTOMATICALLY assign all copyrights to the creator. No filing necessary. No paperwork necessary. Photographer, writer, etc. gets the copyright and, in the event of a dispute, only has to prove having taken the picture. The copyright ownership is voided, of course, if one AGREES via contract to relinquish that copyright to the client ... as is being asked of the OP. But if that contract isn't signed or isn't requested, the creator owns the copyright, no questions asked.

- Steve



Mar 25, 2013 at 12:58 PM
 

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obscure
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p.1 #11 · p.1 #11 · hard ball with copyright ownership


TT1000 wrote:
@obscure "Do they want exclusive use or actual copyright ownership - do they even understand the difference?"

What's the difference (between exclusive license and copyright ownership) ?

x10 on the price.
You own a car. I hire you to drive me to work every day. During that time you work exclusively for me but you own the car and can do what you want the rest of the time.
Alternatively I buy the car. That is much more expensive for me and you can no longer do what you want with the car when not driving me to work.

Commercial images are billed in part (often a large part) based on usage. An image that will be used in an advert that goes in a local newspaper (and generates a few thousand pounds in business for the client) is far less valuable than the same image used in an advert used across multiple publications internationally. The more ways that you use an image (selling prints, using on a website, using in advertising, in printed marketing materials etc) the more it costs. Logically it makes sense to only pay for the usage you actual need. Buying the copyright means that you own the image and control forever every possible usage. You are in effect buying it for the maximum amount of usage for all time... as such the cost should be dramatically higher than if you are licensing it to use for three years on a single web site.

How often does a business refresh its marketing? Every year, every three years, every five? If the OPs client operates only in certain cities or just one country and is likely to use an image for three to five years (in just those territories), it makes no economic sense for them to pay for other rights they wont use. It also makes no sense for the OP to give away those rights when they may be able to sell the same image in a different market.

The above is why to is important for photographers to ensure they (and their clients) understand what usage options are available and which ones the client actually needs. Many clients may ask for all rights simply because they don't understand and don't realise they are paying for rights they will never use.



Mar 30, 2013 at 10:47 AM
TT1000
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p.1 #12 · p.1 #12 · hard ball with copyright ownership


I follow the pay for intensity of usage model.

Your car/driver analogy to copyright, however, is not good but can be improved somewhat if you add that when you hire the driver with car you are deemed by the law to be the owner of the car during that time period with all the protections and remedies that the initial owner of the car has.

In other words, you own the car during that period and he owns the car during the rest of the time. Ownership of the car is divisible. You have two owners. You can have multiple owners. I can own it on Tuesday but only while it's in San Francisco. You can own it on weekends throughout the country. Ownership of the car can be divided in an infinite variety of ways and may be limited by time and/or place so long as we don't overlap exclusive rights. One car can have multiple owners. That's how copyright works.

Anyway, I understood your statement "Do they want exclusive use or actual copyright ownership " that you were really asking do they want all the rights or some of the rights. Which is the way to think of it.








Mar 31, 2013 at 04:07 AM
Micky Bill
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p.1 #13 · p.1 #13 · hard ball with copyright ownership


Copyright can be confusing but all these analogies make it more confusing than need be.
Copyright is not a tangible thing so any analogy using a car or a house or a teddy bear falls apart quickly.

IMO Too many photographers know a bit about and too many clients know a little bit too but rarely to those areas of knowledge intersect, so both parties end up bluffing their way through the discussion or negotiation. In most case whomever puts terms down on paper first has the upper hand no matter how off base they are.
When you say exclusive, what do you mean? Exclusive to an area? Exclusive to an industry, exclusive forever everywhere?
IMO most photographer underprice the usage and clients vastly over claim the usage...



Mar 31, 2013 at 09:26 PM
TT1000
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p.1 #14 · p.1 #14 · hard ball with copyright ownership


Sorry if I added to the confusion. I was initially making a comment about the fact that an assignment and exclusive license are basically treated the same by copyright law. You're right though. It added nothing.





Apr 01, 2013 at 05:05 AM
obscure
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p.1 #15 · p.1 #15 · hard ball with copyright ownership


TT1000 wrote:
Your car/driver analogy to copyright, however, is not good but can be improved somewhat if you add that when you hire the driver with car you are deemed by the law to be the owner of the car during that time period with all the protections and remedies that the initial owner of the car has.

Sorry but I'm going to stick with my version because the above is wrong. If I License an image (or other IP) from you, the law does not deem me to be the owner, nor do I have all the remedies and protections available to you as the copyright owner. I have only those right specifically enumerated in the license agreement and the copyright holder retains all other rights. Likewise protections - Just because I license an image from you that doesn't give me all the protections you have. For example, if I have an exclusive license to use your image in print and on websites and someone else uses it, I have no right to sue them for copyright infringement. Only the copyright owner can do that.



Apr 01, 2013 at 05:56 AM
TT1000
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p.1 #16 · p.1 #16 · hard ball with copyright ownership


Obscure,

There is a big difference between exclusive and non-exclusive copyright license. Until your last sentence you don't specify which you are talking about but when you do in the last sentence you are incorrect about its legal effect.

You can rearrange rights by contract but I'm explaining what the default is.

The copyright law pretty much scraps any distinction between assignment and exclusive license (like most things in the law there are gotchas but it isn't important for this conversation.)

(1) an exclusive license is by definition a transfer of copyright ownership. (17 U.S.C. 101).

(2) Copyright owner means which respect to any one of the exclusive rights comprising copyright the owner of that particular right. (17 U.S.C. 101)

Therefore, if you grant me an exclusive license you have transferred copyright ownership and I am the copyright owner to the extent of the license.

(3) The owner of an exclusive right under a copyright has standing to sue for infringement of that particular right committed while he or she is the owner of it. (17 U.S.C. 501(b))

Taking your example, if you grant me an exclusive license to web display and someone infringes that right, I can sue them for infringement. I am the copyright owner of the exclusive right to web display.

(4) The owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title. See 17 U.S.C. 201(d)(2)

The concept involved here is called copyright divisibility.

I can record my exclusive license you granted me with the copyright office. 17 U.S.C. 205(a). Which gives me certain benefits if you try to play games and transfer ownership to the same rights again.

If you, the author of the work, have not registered the copyright (which becomes important to me because of both 411(a) (registration required prior to lawsuits for all US works) and 412 (setting time limits on registration of a work to be entitled sue for statutory damages and/or request recovery of attorney fees), I may, as the owner of an exclusive right, register the copyright to the underlying work. You would still be listed as author and copyright claimant. I would be the certifying party in Part 8.

Summary: A copyright is a bundle of statutory rights. Such rights may be transferred in whole or in part (and subdivided) and limited as to time or duration. Both an assignment and an exclusive license are transfers of ownership. The copyright owner has standing to sue for infringement.













Apr 01, 2013 at 07:34 AM
TT1000
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p.1 #17 · p.1 #17 · hard ball with copyright ownership


The last sentence "The copyright owner has standing to sue for infringement." was clear to you before. What I should have wrote was the owner of any of the exclusive rights has standing to sue for infringement.




Apr 01, 2013 at 09:07 PM
mdude85
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p.1 #18 · p.1 #18 · hard ball with copyright ownership


You own a car. I hire you to drive me to work every day. During that time you work exclusively for me but you own the car and can do what you want the rest of the time.
Alternatively I buy the car. That is much more expensive for me and you can no longer do what you want with the car when not driving me to work.


Could we make it a bit simpler?

To use the car analogy, the exclusive license is analogous to letting one and only one person use your car for whatever purpose they want. That person has control of the car as set forth in the contract for the duration of the contract period, but does not actually own the car.

The difference between an exclusive license and and a copyright ownership is that the copyright still gives the owner the right to control the terms of the license at the end of the contract period and to perform other actions like recover damages from infringers or establish new contracts. In other words the copyright owner retains full control over how the copyright is used. The exclusive user's control over the material is significantly more limited.




Apr 02, 2013 at 01:49 PM
Micky Bill
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p.1 #19 · p.1 #19 · hard ball with copyright ownership





Apr 02, 2013 at 05:57 PM
mdude85
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p.1 #20 · p.1 #20 · hard ball with copyright ownership



Copyright is not a tangible thing so any analogy using a car or a house or a teddy bear falls apart quickly.


The analogy could still be proper even if it relates something tangible to something intangible. Even so, in the analogy of a copyright to a car, the car would be analogous to the copyrighted content -- both of which are tangible.



Apr 02, 2013 at 07:33 PM
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