Hiring my own photographer and getting the copywrite

[gimby]

Hello, a while back I got in trouble with Getty for putting on my webpage a tiny thumbnail of a photo I picked on the internet.  I won't do it again.  I decided after that to never use a stock photo again.   I'll generate my own photographs.

So I contacted a professional photographer to come in and take picture of my business and its product/service.   I have a rather unique product/service. This photographer sent me a contract in which they claimed the ownership and copyright of all photos.    After my negative experience with Getty, I am definitely not paying for photos that somebody else has copyright to.   So I explained to the photographer that this clause in the contract is unacceptable.  I said I need to own the photographs because they contain my business and product/service, so they contain my intellectual property.  The photographer sent me back a revised contract which now says the photographer still owns the photograph, but I own the intellectual property in the photograph.  This seems to me a distinction that doesn't make a difference.

Again, after my experience with Getty, I'm absolutely not going to put myself in a position where I need photographs for my business, and somebody else has the copyright to them.  I'll be telling the photographer, again, that if they want the job, then I own the photographs.

I did some search on the internet, and found out that photographers take their copyright very seriously.  However, in this case, the creative and intellectual content of the photographs that are going to be taken is almost entirely my content.  These photographs of my product/service would not exist without the product/service.

Any thoughts???  Sorry about the rant.

[Jerry Witt (mcfilms)]

You're the one hiring the photographer. It is up to you to negotiate an agreement that will work for you. Frankly it sounds like you have not found the right photographer.

You should do a search for "photographer work for hire agreement."

[Robert Krausankas (BuddhaPi)]

I was just having this same conversation the other day with Matthew. Most photographers are simply not going to releases the copyright, but rather will write in a clause, that gives you usage rights. Some will release the copyright, but you can plan on paying much, much more. As Jerry stated you could hire someone who would be an actual employee of your company, and skirt this issue, as it would be a work for hire by default. The other thing you need to consider is that copyright exists at the moment of creation, so even if the contract states that the photog is giving you copyright, I'm fairly certain, you would also need to have a legal copyright release, in addition to the contract..

I know and realize a lot of folks don't understand the thinking of why photogs seem so protective, a couple simple examples would be something like this.. ( keep in mind as a photog myself, this doesn't mean I would subscribe to this, it would greatly depend on the situation )

Lets say I am hired to shoot pictures of a no-name garage band and I release the copyright to them...5 yrs later, they are huge, my image which they now own lands on the cover of Rolling Stone, which in turn allows the band to sell 5 million cd's, and the cd cover is also one of the images I shot..The band just made a boatload of cash from record sales, and Rolling Stone also paid a hefty price to feature that cover on millions of magazines. Since I turned over the copyright, I make zero, not do I even get a credit for the photo, which doesn't help my business.. yes a an extreme sample, but the thinking behind it is the same..

Another example would be you hire me to photo your wedding, and I release the copyright, after spending hours cropping , editing the images.. You know have these images, which you send out to 50 family members, who proceed into walmart to get discount prints. Normally those 50 family memebers would need to order prints through me the photog...so I just lost those sales.. secondly they go to Walmart to get discount prints, and now all of the skin tones have a greenish hue to them..so they get the print, proudly hang it in theor home..a visitor comes by, looks at the cheesy cheap greeninsh print, and is told, yeah Bob the photog shot those, and they say, "we won't be hiring this guy, your family looks like a bunch of greenish trolls...more lost revenue, because the photog released copyright...

and another exampe using a Getty stock image which actually happened to a client of mine. Sperry shoes licensed an image from Getty images for use on their website and print ads. Sperry in turn told my client he could use the image on his website and even emailed him the image..Eventually my client gets the nasty-gram...you see it's all about keeping control of the images..my client used the image to promote the products it sells, and naturally Sperry is happy with this, but Getty is not, as my client did not purchase the image, and Sperry doesn't get to spread the image around to retailers as they don't own the image, the retailers are making money from using the image, but the photog doesn't stand to make anything, unless Getty collects and passes it along.

It's kinda weird for me to sometimes be on both sides of the fence, with this whole copyright thing, but I think I get an advantage in learning and understanding the mindset a little better from both sides...and yeah most ( not all, but most ) photogs can be dick heads, plain and simple in terms of how they enforce their copyright. The ones that will succeed are the ones that will change and adapt to the indusrty.

[gotletter]

Greetings Jerry,

I'm not sure what part of the world you reside in (or specifically where your business is located), but I do photography and I'd be more than happy to take photos and give them to you (where you retain the full copyrights).  I've done this before where I charge a simple flat rate based on the number of photos needed and the odd "positions" I may have to get to in order to obtain said photo (up a ladder, on top of a building, in the middle of a lake; etc.) .

Copyright is a strange beast; seems like any, ANY, place you look you can find violations of it; it's a strange beast indeed.

[Jerry Witt (mcfilms)]

I have had a couple cases where the photogs wish to retain the copyright. But the world it is a-changing. Although many photographers default position is that they would like to retain the copyright, it is up to the person paying for their services to negotiate an agreement where they copyright is transferred to them.

Although some photographers will balk at this, think about it. A copywriter, a logo designer, a videographer, an animator, a programmer all typically transfer the copyright to the person paying for the service. (Or do when they get a work-for-hire agreement.) A freelance programmer may get contracted to do code for a program that goes on to become Photoshop. But they got paid and presuming they signed a work-for-hire agreement and transferred their copyright to their boss.

Under the United States Copyright Act of 1976 a piece is considered work-for-hire if it is specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

In Robert's example of the garage band, I would agree that someone getting paid peanuts and helping the band and barely getting paid, should retain copyright.

[lucia]

Jerry Witt,
Obviously, if a photographer is not paid, they shouldn't transfer the copyright.  But if they are paid, whether they keep the copyright should be negotiable, perhaps for an extra fee.  In Roberts example, it is true that the photographer might miss out on the opportunity to hit it big selling his photos of the members of the garage band later on. On the other hand, if he is paid specifically for the copyright, he has money now and he gets it even if the garage band flops.  This possibility ought to be negotiable.

Oddly, if the garage band does hit it big and becomes the next "Beatles" or "Rolling Stones" and later insists on copyright transfers, they will likely find plenty of photographers willing to transfer the copyright provided their name is listed as creator when the copyright is registered (which quite likely, it would be anyway.)

[gimby]

I'm so glad my post generated such good comments. 

With regard to the "next Beatles" photo: Yes, any photographer of the early Beatles who doesn't own a copyright has lost out on a lot of money.  But a photo of the Beatles is not valuable because of the photographer, it is  valuable because of the great music the Beatles made.   The photographer would have mostly been lucky to have been in the Beatles company at that early time.  In fact, a lot of people would pay big money today if they could go back in a time machine and have been around the Beatles in their early days.

Can anybody guide me to a "work for hire" contract that gives me the copyright ownership?

Thanks, Chris



But

[lucia]

You may be able to just cross out the offending language, write in language of your choice and initial.  Then present it back.  (Of course, someone has to suggest the language you want.)

[Oscar Michelen]

You really don't need much "legalese" I suggest you go to the copyright office's website and read their circular on works made for hire." The basic language you need is "Photographer understands and agrees that all photographs, negatives, prints and other works taken, made or produced by photographer under this agreement are "works for hire" and that therefore all copyright rests with "Gimby" and not with photographer. Photographer agrees that if for some reason a court holds that the works are not "works for hire" then photographer hereby assigns all copyright in the works (including moral rights) to "Gimby." Photographer agrees to execute all such other and further documents as shall be deemed necessary by Gimby in order to effectuate the transfer of copyrights from photographer to Gimby." Here is a link to a form http://www.docracy.com/4834/work-for-hire-agreement

[Mulligan]

Thanks, Oscar. That's one for my "Just in Case" files even though I'm no longer using images on my website.