# Copyrights



## c0unt3rfeit (Sep 15, 2009)

Hi everyone. New Photo Forum user here with a very important question 

A while back I did my first commercial gig. Being inexperienced with commercial gigs and the fact that it was for my friend's company, I did not use a contract. We had a "verbal agreement", if you will, that the photos were to be used on a website and to "get the word out" about a new product that they would be selling down the road. *And believe me, I use contracts now.*

I took the photos. I gave them the photos. They gave me money. That was all.

*It gets interesting*...One of my photos is now being used on the PACKAGING for that product. This product is being sold all over the place.

My question: *Do I still own the copyrights to those photos???*

Don't I have to specifically sell the copyright, or sign away the copyright in order to not have it anymore? Is what they're doing legal?

I would greatly appreciate any help/advice on this topic. Thanks in advance!


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## Big Mike (Sep 15, 2009)

Unless there is something signed that proves that you transferred ownership to them...you likely still own the copyright.  Of course, you would have to prove that if it came down to it.  

Question is, what are you hoping to get out of it?  As with many legal battles, even though you may be right...it's just not worth the fight.


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## CSR Studio (Sep 15, 2009)

You need to contact an attorney because of the verbal contract that you have. Some states they are legal and some they are not. 

It may be that you were shooting for them and they own the copyright, I kind of doubt that but it's a possibility, or you still own it. 

You need help in getting usage rights for them and that sort of thing. 

Call an attorney that deals with copyrights.


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## Christie Photo (Sep 15, 2009)

c0unt3rfeit said:


> A while back I did my first commercial gig. Being inexperienced with commercial gigs ..., I did not use a contract.
> 
> My question: *Do I still own the copyrights to those photos???*



This is not different from any other shoot you do.

Like Mike, I wonder what you want to do.  What are you expecting?

-Pete


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## c0unt3rfeit (Sep 15, 2009)

Because it was never specified that the images would be used on the packaging, I did not charge an appropriate corresponding price for the shoot. This product easily has the potential to make hundreds of thousands...

I'm "expecting" to prove a point and not be taken advantage of again.


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## Christie Photo (Sep 15, 2009)

c0unt3rfeit said:


> Because it was never specified that the images would be used on the packaging, I did not charge an appropriate corresponding price for the shoot. This product easily has the potential to make hundreds of thousands...
> 
> I'm "expecting" to prove a point and not be taken advantage of again.



Ahhhh....  I see.

If the product is that good, it's likely to happen with or without your image.  We hear LOT about selling rights for usage here, but it happens a lot less than you might think.  I suppose if the image itself is the product...  say like calenders, posters, jigsaw puzzles, etc., that would be different.

The thing is, there are scores of photographers lined up behind us, willing to do more for less.  If we make it too hard for companies to use us, they'll use someone else.

I charge what I feel is fair for my work, and PRAY that the customer _does_ take advantage of me again.

-Pete


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## c0unt3rfeit (Sep 15, 2009)

Hey Pete thanks for the response. I understand that they don't have to use my image. But they did...on thousands of packages of this particular product. I guarantee you that NO photographer would do the shoot for what I charged. Not only that, I received absolutely no recognition/credit from the company for doing the shoot. Nothing at all. It's just the crappiest situation. I learned my lesson believe me...but I'm 99% sure they will not be using me again. I sent a fair but firm email to the owner of the company about the situation, and all he could say is that they are his photos (and actually got offended). That doesn't sit well with me. Believe me, I know what it's like to do more for less...but this is just on a completely different level.


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## c.cloudwalker (Sep 15, 2009)

Christie Photo said:


> We hear LOT about selling rights for usage here, but it happens a lot less than you might think.



What?

It has been a while since I shot for money and things may have changed but I kinda doubt it. When I did, usage was a big part of determining the fee. I used to shoot bands a lot and did album covers. The fee was sure different if I shot for a local band expecting to sell a couple thousand records (or CDs) or if it was a national act.

My lawyer has always told me that a verbal agreement IS a contract. The problem is proving what the agreement was. And that will depend on the payment you received and how established you are in the profession. If it can be made obvious (proven) that you would have normally charged more for the usage in question, you may have a case.

As far as copyright is concerned, you own it until you sell it. Since they can't show you sold it to them (from what you are saying, anyway) you still own it. Period.

Do you have a lawyer? Intellectual property lawyer, that is. Don't get a family lawyer to handle that kind of thing. If you do, talk to him/her. If you don't find one. In the meantime try and talk to your friend and see if you can take care of the problem without a lawyer. Unless you're a big shot photog, the lawyer's fees may be more than the money you would get from a settlement.

Good luck.


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## Christie Photo (Sep 15, 2009)

c.cloudwalker said:


> Christie Photo said:
> 
> 
> > We hear LOT about selling rights for usage here, but it happens a lot less than you might think.
> ...



And there's another example of when the image itself is part of the product.

But when it comes to product work, things are different.  Maybe I'm too close to Chicago.  I know if I ever charged more for an image because it was used on the cover of annual report rather than on the back of a sell sheet it would be the last job I get from that company.

-Pete


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## c.cloudwalker (Sep 15, 2009)

Christie Photo said:


> c.cloudwalker said:
> 
> 
> > Christie Photo said:
> ...



I think I see what you are saying. But if your product photo was going to be used on billboards across the land, wouldn't you charge more? I know I would.


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## epatsellis (Sep 16, 2009)

As a commercial shooter as well, I can agree with Pete.

In this day and age of everybody having a digital camera (and by inference, a photographer) getting paying work is getting harder and harder, I've had customers that I've charged a fair price to shoot their products, only to have them use somebody else to copy similar shots. Quite frustrating to have this happen, but it happens more and more these days.


erie


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## skieur (Sep 16, 2009)

One reason for a contract especially with a business is to specify that payment is NOT for the work, but for the use of the photos.

The difference is important.  If they have hired you to take photos, then in law, they have the copyrights to your work....employer...employee.

skieur


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## RodeoFotocom (Sep 16, 2009)

Big Mike said:


> Question is, what are you hoping to get out of it? As with many legal battles, even though you may be right...it's just not worth the fight.


 
Yup, quote of the day! :thumbup:


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## KmH (Sep 16, 2009)

Companies are making it a routine tactic to hire inexperienced photographers and saving themselves thousands of dollars.

You most likely still own the copyright since a 'work for hire' situation can only occur with a written contract. 

However, if you have not registered the copyrights to the images you made, any attorney you hire cannot approach an infringement filing in Federal court. Infringment can only be persued in Federal court because it's Federal law.

Visit www.copyright.gov and read up on US copyright law.


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## skieur (Sep 16, 2009)

KmH said:


> Companies are making it a routine tactic to hire inexperienced photographers and saving themselves thousands of dollars.
> 
> You most likely still own the copyright since a 'work for hire' situation can only occur with a written contract.
> 
> Visit www.copyright.gov and read up on US copyright law.


 
Not the case in Canada, where barring a contract to the contrary by the photographer, a portrait comes under the 'work for hire' situation.

skieur


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## KmH (Sep 17, 2009)

skieur said:


> KmH said:
> 
> 
> > Companies are making it a routine tactic to hire inexperienced photographers and saving themselves thousands of dollars.
> ...


Very true. I noted the OP was located in the US (FL).

What's the staus on the Canadian governments copyrights, re-write?

Is there a web site that is keeping track of developments?


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## smn_xps (Sep 19, 2009)

KmH said:


> You most likely still own the copyright since a 'work for hire' situation can only occur with a written contract.



I do not know if that is a point of law or not, BUT the IRS has clear rules which determine whether a person is an employee. I believe there are seven points that all must be met to be considered an independent contractor. My best thought is that if the IRS considers you a contractor then most courts would as well. and IF the IRS thinks you were an employee you will have a hard time claiming copyright on those images. 

Good luck,
Jerry


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## KmH (Sep 24, 2009)

smn_xps said:


> KmH said:
> 
> 
> > You most likely still own the copyright since a 'work for hire' situation can only occur with a written contract.
> ...


Copyright law and tax law aren't the same thing.

The IRS rules you refer to don't apply to a 'work for hire' copyright issue.

Unless the OP registers the copyrights with the Feds his attorney wouldn't be allowed to submit an infringement action the in federal court anyway.


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