Pavel wrote:
If they re-shoot - he is out of the loop. It is a compliment in a way that they did not bother to re-shoot, right.
But in the past I've noticed that if someone brings to light that the client has shaky rights and the the photographer is somewhat unhappy - that they tend to shoot it themselves in a case such as this. So he would be out again.
Well, they were already planning on re-shooting from the beginning, so why should the photographer be upset ? If they don't use his shot, he is back to square one without any losses or gains, and the calendar does not lose or gain anything since they will just do the re-shoot as planned (i.e., they already budgeted for a re-shoot). If they use his shot, the calendar "wins" and the OP clearly loses, since the OP does not get compensated for his work, the calendar has taken advantage of the photographer to save money, and the OP's copyright is called into question since now the calendar can claim it commissioned the OP.
While it is a compliment that they want to use his shot for their calendar, it is an insult that they value the photo so little that they are unwilling to pay for it. If the client valued the photograph, they should have just hired the OP to shoot the model for the same cost as hiring a professional in a re-shoot, or they should have compensated the OP accordingly.
I agree with Axe9. You did the job free for the model/friend. But you did not agree to let the calendar publisher use the image free--just the model. This is an entirely new use not heretofore agreed on.
Charging the publisher, who will make aprofit off the calendar, will not be any problem to the model. They most likely are expecting to pay for it and they are expecting a model release. It's still not too late to get the model/friend to sign one. By all means, whether you charge or not, get a model release! She (and said picture) may be famous one day!
jjlphoto: Anyone notice the OP is in Canada? Anything relating to control of the image or model releases really needs to be addressed by people familiar with Canadian law.
Phoveo: "Under Section 13(2) of the Act, any person or corporation that hires a photographer (commissions a work) will automatically own the copyright in that work, once the work has been paid for UNLESS there is an agreement to the contrary." ~ http://www.capic.org/copyright.html
I was not aware of this so, as a Canadian, I appreciate this info even if I am not in the business and it prompted me to find out more. The OP was never compensated for the work therefore he is still the original owner of copyright - no contract here (written or verbal) because there wasn't any consideration/compensation. Craig Gillette and Pavel have already said as much. If the model had provided any compensation to the OP then, as 13(2) states, she would be the owner of copyright and then be the one in a position to deal with the calendar company.
What I find interesting about 13(2) is that it is likely that many, if not most clients, may not even be aware of this, since they may not be photographers (or lawyers). I doubt the model would be aware of it, even if she had paid for the photos. However, there is a better chance that the calendar company is aware of it ... (accusation omitted).
It seems the OP is still the original owner of copyright until he relinquishes that in writing. In my understanding, the calendar company is still obligated to obtain permission from the OP to legally use the photos and, as stated above, a release must be obtained from the model.
The OP may have already emailed the raw files but the copyright law explicitly states "at the time when that photograph was made" (Section 10(2) http://laws.justice.gc.ca/en/ShowFullDoc/cs/C-42//20090630/en ), in describing the author of the photograph. (However, as the saying goes, possession is 9/10 of the law. )
Disclaimer: I am not a legal professional and I don't play one on tv.
Phoveo wrote:
As I understand, and I will quote from the CAPIC (Canadian Association of Photographers and illustrators in Communications): "Under Section 13(2) of the Act, any person or corporation that hires a photographer (commissions a work) will automatically own the copyright in that work, once the work has been paid for UNLESS there is an agreement to the contrary." ~ http://www.capic.org/copyright.html
Basically, in Canada, unless there is a proper agreement between photographer and client, the client automatically owns the image.
I don't know Canadian law, but the facts you've discussed here don't fall under the purview of section 13(2). The calendar publisher did not commission anything, or hire you to do anything. You were working for a model, and the model submitted the image after being solicited (though not specifically) for submissions of modeling images. A third party submission of a photographer's work is a far cry from a "commission," and I would definitely consult a Canadian attorney who can talk to you about this is greater detail. Of all the ways you might lose copyright, a Canadian "for hire" exception seems like a pretty unlikely "crack" to fall through here.
Indeed, this statute sounds fairly similar to the U.S. "for hire" exception, which definitely would not cover these facts. Knowing nothing more about Canadian IP law, I suspect that you still own the copyright. There may be prudential or personal reasons to avoid pursuing the matter (not getting published, for example), but I think you have a legal right to do so, unless Canadian copyright law is fundamentally different from its American counterpart.
The model is a friend of my partners. The three of us were under the impression that these photos were as a "tryout".
My partner and I are in a bit of a disagreement here:
He thinks we couldn't get much money for the photo, and considers it a favour for the model (his friend). He's saying, we're getting publicity, let's take that and not push it.
I don't care about the money, but on principle, i hate that the studio is trying to screw us by trying to use this shot.
They have a photographer hired out for a day regardless apparently. ...Show more →
I don't see a problem with setting a price. It does nothing to detract from your agreement with the model, and I promise you the calendar guys are willing to pay in order to avoid the expense of the shoot.
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