Transferring "All Rights" to a printed photograph transfer copyright?? (Deed of Gift)

[photog_lover]

Transferring "All Rights" to a printed photograph transfer copyright?? (Deed of Gift)

What is the name of your state (only U.S. law)? NY

Hello,

If I make a donation of a printed photograph to an institution, and the "deed of gift" states (I hereby irrevocably give and transfer title, all rights and related interests associated with the property described below) am I transferring copyright or granting any rights associated with the object if I agree to these terms? Based on code 202 it seems as if transferring "title, all rights and related interests" to an object would not transfer copyright in the aforementioned "deed of gift" because transfer of the property does not convey the transfer of copyright. However, would adding the words "all rights" and "related interests" change that.

If I agree to transfer "all rights" what would that endow the institution with in relation to the donated object. Do they own anything more than the property and what are they entitled to do with it as it relates to the reproduction of the photograph?

§ 202 . Ownership of copyright as distinct from ownership of material object

Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object.[/size][/b][/b]

 

[quincy]

What is the name of your state (only U.S. law)? NY

Hello,

If I make a donation of a printed photograph to an institution, and the "deed of gift" states (I hereby irrevocably give and transfer title, all rights and related interests associated with the property described below) are you transferring copyright or granting any rights associated with the object? Based on code 202 it seems as if transferring "title, all rights and related interests" to an object would not transfer copyright in the aforementioned "deed of gift" because transfer of the property does not convey the transfer of copyright. However, would adding the words "all rights" and "related interests" change that.

If I agree to transfer "all rights" what would that endow the institution with in relation to the donated object. Do they own anything more than the property and what are they entitled to do with it as it relates to the reproduction of the photograph?

� 202 . Ownership of copyright as distinct from ownership of material object

Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object.[/size][/b][/b]

To make an unambiguous transfer of the copyrights in a work, you need to state that all exclusive rights to the work are transferred. The transfer needs to be in writing and signed by the author and the transfer should be recorded with the U.S. Copyright Office.

An agreement does not have to be "pretty" if it clearly states its intention so that all parties to the agreement understand it in the same way.

If you only want to give the photograph to the institution for display purposes but do not want to transfer any of your other exclusive rights in the work (the right to reproduce the work, create derivatives, distribute the work), your agreement should make this clear. If you want the institution to "share" the copyright with you, you can transfer non-exclusive rights to the work (right to copy, create derivatives, distribute, display) but you retain all of your rights to the work, as well.

And, if you merely want to give the photograph to the institution, you can even do that with no written agreement at all, because it is (or should be) understood with a gift of a work of art that only the single work of art is given but no copyrights are transferred. That said, I am sure the institution will insist on some sort of written agreement. This will protect them as well as you.

There are, in other words, several ways for an agreement to be drafted. If you want to give the institution a gift of your work, and you want to make it clear to the institution what your intentions are in giving them this gift, I recommend you have an attorney work with you to carefully draft an agreement, so there is no misunderstanding with its wording what it is that you are giving with your "gift." A well-written agreement should help you avoid any disputes over the donated work in the future.

Good luck.

 

[photog_lover]

All rights

Hi Quincy,

Thanks for your response - I really appreciate it. I understand everything you're saying but I still don't know what the implications are of transferring all rights associated with the object...does that mean transferring copyright. These institutions will only allow you to sign their "deed of gift"...you either accept the terms or they don't accept the donation. Transferring the title to property seems like it only transfers the object and nothing else..In the context of the "deed of gift" I mentioned what does transferring all rights to a printed photograph mean?? I have offered many non-exclusive licenses to my work but I' m unable to amend a non-exclusive agreement to these types of donations... It becomes a take it or leave or proposition. If I agree to transferring "all rights to the "printed photograph" ( the object) what have I granted in terms of image rights...nothing or something?? Is it a shared copyright now..







QUOTE=quincy;3267548]To make an unambiguous transfer of the copyrights in a work, you need to state that all exclusive rights to the work are transferred. The transfer needs to be in writing and signed by the author and the transfer should be recorded with the U.S. Copyright Office.

An agreement does not have to be "pretty" if it clearly states its intention so that all parties to the agreement understand it in the same way.

If you only want to give the photograph to the institution for display purposes but do not want to transfer any of your other exclusive rights in the work (the right to reproduce the work, create derivatives, distribute the work), your agreement should make this clear. If you want the institution to "share" the copyright with you, you can transfer non-exclusive rights to the work (right to copy, create derivatives, distribute, display) but you retain all of your rights to the work, as well.

And, if you merely want to give the photograph to the institution, you can even do that with no written agreement at all, because it is (or should be) understood with a gift of a work of art that only the single work of art is given but no copyrights are transferred. That said, I am sure the institution will insist on some sort of written agreement. This will protect them as well as you.

There are, in other words, several ways for an agreement to be drafted. If you want to give the institution a gift of your work, and you want to make it clear to the institution what your intentions are in giving them this gift, I recommend you have an attorney work with you to carefully draft an agreement, so there is no misunderstanding with its wording what it is that you are giving with your "gift." A well-written agreement should help you avoid any disputes over the donated work in the future.

Good luck.[/QUOTE]

 

[photog_lover]

No model release signed

What happens when you donate a photograph with people in it... a "street photograph" ...In this scenario it is next to impossible to secure a model release.

You then agree to donate the printed photograph and the institution wants to reproduce it in accordance with standard institutional practices.

The institution claims they will never reproduce the image for commercial purposes but this terminology isn't written in their "deed of gift" and they want you to transfer "all rights in the donated property"

How can you transfer rights to a photograph with people in it when you haven't gotten consent from your subjects.

What if the institution gets sued for using the photograph to promote the institution.. Who's liable? Me or the institution. I didn't create the reproduction but I authorized reproductions of the work.

Specifically what have I agreed to by signing a "deed of gift" that states "transfer all title, rights and interests" associated with the object"

Can intellectual rights legally be transferred when the term "all rights and interests," is used in the contract.

Hi Quincy,

Thanks for your response - I really appreciate it. I understand everything you're saying but I still don't know what the implications are of transferring all rights associated with the object...does that mean transferring copyright. These institutions will only allow you to sign their "deed of gift"...you either accept the terms or they don't accept the donation. Transferring the title to property seems like it only transfers the object and nothing else..In the context of the "deed of gift" I mentioned what does transferring all rights to a printed photograph mean?? I have offered many non-exclusive licenses to my work but I' m unable to amend a non-exclusive agreement to these types of donations... It becomes a take it or leave it proposition. If I agree to transferring "all rights to the "printed photograph" ( the object) what have I granted in terms of image rights...nothing or something?? Is it a shared copyright now..







QUOTE=quincy;3267548]To make an unambiguous transfer of the copyrights in a work, you need to state that all exclusive rights to the work are transferred. The transfer needs to be in writing and signed by the author and the transfer should be recorded with the U.S. Copyright Office.

An agreement does not have to be "pretty" if it clearly states its intention so that all parties to the agreement understand it in the same way.

If you only want to give the photograph to the institution for display purposes but do not want to transfer any of your other exclusive rights in the work (the right to reproduce the work, create derivatives, distribute the work), your agreement should make this clear. If you want the institution to "share" the copyright with you, you can transfer non-exclusive rights to the work (right to copy, create derivatives, distribute, display) but you retain all of your rights to the work, as well.

And, if you merely want to give the photograph to the institution, you can even do that with no written agreement at all, because it is (or should be) understood with a gift of a work of art that only the single work of art is given but no copyrights are transferred. That said, I am sure the institution will insist on some sort of written agreement. This will protect them as well as you.

There are, in other words, several ways for an agreement to be drafted. If you want to give the institution a gift of your work, and you want to make it clear to the institution what your intentions are in giving them this gift, I recommend you have an attorney work with you to carefully draft an agreement, so there is no misunderstanding with its wording what it is that you are giving with your "gift." A well-written agreement should help you avoid any disputes over the donated work in the future.

Good luck.

[/QUOTE]

 

[photog_lover]

All rights

Hi Quincy,

Thanks for your response - I really appreciate it. I understand everything you're saying but I still don't know what the implications are of transferring all rights associated with the object...does that mean transferring copyright. These institutions will only allow you to sign their "deed of gift"...you either accept the terms or they don't accept the donation. Transferring the title to property seems like it only transfers the object and nothing else..In the context of the "deed of gift" I mentioned what does transferring all rights to a printed photograph mean?? I have offered many non-exclusive licenses to my work but I' m unable to amend a non-exclusive agreement to these types of donations... It becomes a take it or leave or proposition. If I agree to transferring "all rights to the "printed photograph" ( the object) what have I granted in terms of image rights...nothing or something?? Is it a shared copyright now..







QUOTE=quincy;3267548]To make an unambiguous transfer of the copyrights in a work, you need to state that all exclusive rights to the work are transferred. The transfer needs to be in writing and signed by the author and the transfer should be recorded with the U.S. Copyright Office.

An agreement does not have to be "pretty" if it clearly states its intention so that all parties to the agreement understand it in the same way.

If you only want to give the photograph to the institution for display purposes but do not want to transfer any of your other exclusive rights in the work (the right to reproduce the work, create derivatives, distribute the work), your agreement should make this clear. If you want the institution to "share" the copyright with you, you can transfer non-exclusive rights to the work (right to copy, create derivatives, distribute, display) but you retain all of your rights to the work, as well.

And, if you merely want to give the photograph to the institution, you can even do that with no written agreement at all, because it is (or should be) understood with a gift of a work of art that only the single work of art is given but no copyrights are transferred. That said, I am sure the institution will insist on some sort of written agreement. This will protect them as well as you.

There are, in other words, several ways for an agreement to be drafted. If you want to give the institution a gift of your work, and you want to make it clear to the institution what your intentions are in giving them this gift, I recommend you have an attorney work with you to carefully draft an agreement, so there is no misunderstanding with its wording what it is that you are giving with your "gift." A well-written agreement should help you avoid any disputes over the donated work in the future.

Good luck.[/QUOTE]

 

[quincy]

... I still don't know what the implications are of transferring all rights associated with the object...does that mean transferring copyright. These institutions will only allow you to sign their "deed of gift"...you either accept the terms or they don't accept the donation. Transferring the title to property seems like it only transfers the object and nothing else..In the context of the "deed of gift" I mentioned what does transferring all rights to a printed photograph mean?? I have offered many non-exclusive licenses to my work but I' m unable to amend a non-exclusive agreement to these types of donations... It becomes a take it or leave or proposition. If I agree to transferring "all rights to the "printed photograph" ( the object) what have I granted in terms of image rights...nothing or something?? Is it a shared copyright now..

The words "all rights" is ambiguous but, without the "exclusive" before rights, it would seem you are not transferring any copyrights in the work with the deed of gift. Although I imagine it could be argued otherwise, you appear to be transferring with the deed of gift only the rights to the single work itself - no different than with any sale of artwork. The institution, in other words, is given no more rights and no less rights than any purchaser of a work of art (the right to own it, give it away, sell it, dispose of it) - but, like the purchaser of a work of art, with the deed of gift the institution would not be given the right to reproduce the work, to use the work for commercial gain. What the deed of gift does is provides insurance to the institution that you will not come and take the work of art away.

You would be smart, however, to inquire of the institution what exactly the "deed of gift" agreement actually deeds to the institution, or discuss it with an attorney in your area. Many museums and galleries, for example, will reproduce their works of art in brochures or for use on postcards, the sale of which benefits the institution. If you do not intend to give the institution this right of reproduction, you will need the terms clarified. Whenever there is confusion in the terms of an agreement, the confusion should be cleared up prior to signing.

 

[quincy]

What happens when you donate a photograph with people in it... a "street photograph" ...In this scenario it is next to impossible to secure a model release.

You then agree to donate the printed photograph and the institution wants to reproduce it in accordance with standard institutional practices.

The institution claims they will never reproduce the image for commercial purposes but this terminology isn't written in their "deed of gift" and they want you to transfer "all rights in the donated property"

How can you transfer rights to a photograph with people in it when you haven't gotten consent from your subjects.

What if the institution gets sued for using the photograph to promote the institution.. Who's liable? Me or the institution. I didn't create the reproduction but I authorized reproductions of the work.

Specifically what have I agreed to by signing a "deed of gift" that states "transfer all title, rights and interests" associated with the object"

Can intellectual rights legally be transferred when the term "all rights and interests," is used in the contract.

[/QUOTE]

You are asking the same question, essentially, in a different way.

If you take a photograph of a street scene, you generally would not need model releases unless the focus of the photograph is on a single person and you use the photograph commercially (e.g., to sell a product). The person who is pictured prominently in a photograph could potentially sue on privacy/publicity rights grounds, and this has been done in the past - sometimes successfully (e.g., a picture of a man on a coffee label), sometimes not (e.g., a picture of a man on a sailboat on a sailing magazine cover).

If you take a photograph of an individual without a release to use this individual's picture for a commercial purpose, and you authorize someone else to use the photograph for a commercial purpose, both you and the one you authorized could be sued and both of you could be held liable. It could be up to a court to determine the outcome. If, however, you have transferred ALL EXCLUSIVE RIGHTS to the photograph to the other person, you no longer hold the copyrights in the work and it would only be the new owner who would be liable.

Most photographers will try to get model releases to protect themselves from suit, even when model releases are not always necessary. Without a release, the photographer increases his legal risk.

Again, the best way to handle the rights in a work of art is to make any agreement clear and specific, so there is no misunderstanding by either party as to what the intent is.

 

[photog_lover]

Code 202

I know I'm asking the same question question... I was hoping to get a different response. Btw, I do appreciate your feedback very much - thank you.

I guess it comes down to this..if copyright is not conveyed in the transferred property, using the ambiguous term " all rights" in the deed is a way of giving image rights without being specific. Unless I amend a clause that specifically states that the the image is not to be reproduced in any media known/unknown for sale, then the institution can use it for commercial purposes. The tricky thing is, if an image is used to promote an institution, theoretically that benefits the institution, and in a court of law that "benefit" could be quantified. I am happy to let the institution reproduce the image as long as it's for non-commercial purposes and does not generate income.

Can I add this simple sentence to the deed of gift (reproductions of the donated property may executed but can not be used for commercial purposes and/or for sale) ???

Do you have a suggestion for a simple sentence that I can amend to the deed?








You are asking the same question, essentially, in a different way.

If you take a photograph of a street scene, you generally would not need model releases unless the focus of the photograph is on a single person and you use the photograph commercially (e.g., to sell a product). The person who is pictured prominently in a photograph could potentially sue on privacy/publicity rights grounds, and this has been done in the past - sometimes successfully (e.g., a picture of a man on a coffee label), sometimes not (e.g., a picture of a man on a sailboat on a sailing magazine cover).

If you take a photograph of an individual without a release to use this individual's picture for a commercial purpose, and you authorize someone else to use the photograph for a commercial purpose, both you and the one you authorized could be sued and both of you could be held liable. It could be up to a court to determine the outcome. If, however, you have transferred ALL EXCLUSIVE RIGHTS to the photograph to the other person, you no longer hold the copyrights in the work and it would only be the new owner who would be liable.

Most photographers will try to get model releases to protect themselves from suit, even when model releases are not always necessary. Without a release, the photographer increases his legal risk.

Again, the best way to handle the rights in a work of art is to make any agreement clear and specific, so there is no misunderstanding by either party as to what the intent is.[/QUOTE]

 

[quincy]

I know I'm asking the same question question... I was hoping to get a different response. Btw, I do appreciate your feedback very much - thank you.

I guess it comes down to this..if copyright is not conveyed in the transferred property, using the ambiguous term " all rights" in the deed is a way of giving image rights without being specific. Unless I amend a clause that specifically states that the the image is not to be reproduced in any media known/unknown for sale, then the institution can use it for commercial purposes. The tricky thing is, if an image is used to promote an institution, theoretically that benefits the institution, and in a court of law that "benefit" could be quantified. I am happy to let the institution reproduce the image as long as it's for non-commercial purposes and does not generate income.

Can I add this simple sentence to the deed of gift (reproductions of the donated property may executed but can not be used for commercial purposes and/or for sale) ???

Do you have a suggestion for a simple sentence that I can amend to the deed?

When terms of an agreement are either vague or ambiguous, it allows for different interpretations. The institution could argue that, with the "deed of gift," you transferred all rights to the artwork to them, allowing them to reproduce the photograph and use it for commercial gain. You could equally argue that you only transferred the typical rights given in any single piece of work when the work is sold or gifted to another, and that you did not transfer any of the exclusive copyrights in the work (with one of those exclusive rights being the right to reproduce the image).

Standard contracts or forms can always be altered for clarification or amended as to terms, as long as all parties agree to the changes and initial the changes to indicate this agreement. You can always restrict uses of a work to non-commercial uses.

I am afraid I cannot provide you with a simple sentence (or even a complicated one ) to add to the gift of deed. For that you will need to see an attorney in your area. Or you could, potentially, discuss changes to the deed with the institution and work with them on wording that clearly and concisely states your intentions with the gift and indicates the extent any rights granted. As long as the wording is understood by all to mean the same thing and it meets the needs and wants of everyone involved, you should be okay.

Good luck, photog_lover.

 

[photog_lover]

one last thing

I believe "all rights" alludes to copyright and this thread was started to determine one and only one thing...what rights are transferred other than owning the right to the artwork when this terminology is used and refers to the transfer of the title of the object. It's really a none or some answer.

Can the term "all rights" transfer specific image rights when it's used to describe the transfer of the said property (object)?? Yes or no??

If I ask an intellectual property lawyer would it be cleared up with yes or no?? I believe it would.

Is striking and initialing a contract legal?

When terms of an agreement are either vague or ambiguous, it allows for different interpretations. The institution could argue that, with the "deed of gift," you transferred all rights to the artwork to them, allowing them to reproduce the photograph and use it for commercial gain. You could equally argue that you only transferred the typical rights given in any single piece of work when the work is sold or gifted to another, and that you did not transfer any of the exclusive copyrights in the work (with one of those exclusive rights being the right to reproduce the image).

Standard contracts or forms can always be altered for clarification or amended as to terms, as long as all parties agree to the changes and initial the changes to indicate this agreement. You can always restrict uses of a work to non-commercial uses.

I am afraid I cannot provide you with a simple sentence (or even a complicated one ) to add to the gift of deed. For that you will need to see an attorney in your area. Or you could, potentially, discuss changes to the deed with the institution and work with them on wording that clearly and concisely states your intentions with the gift and indicates the extent any rights granted. As long as the wording is understood by all to mean the same thing and it meets the needs and wants of everyone involved, you should be okay.

Good luck, photog_lover.

 

[photog_lover]

I agree

When terms of an agreement are either vague or ambiguous, it allows for different interpretations. The institution could argue that, with the "deed of gift," you transferred all rights to the artwork to them, allowing them to reproduce the photograph and use it for commercial gain. You could equally argue that you only transferred the typical rights given in any single piece of work when the work is sold or gifted to another, and that you did not transfer any of the exclusive copyrights in the work (with one of those exclusive rights being the right to reproduce the image).


And what you've said above is precise!!

 

[photog_lover]

can't amend

Or you could, potentially, discuss changes to the deed with the institution and work with them on wording that clearly and concisely states your intentions with the gift and indicates the extent any rights granted.

Some institutions don't allow the deed to be changed or amended.

 

[quincy]

I believe "all rights" alludes to copyright and this thread was started to determine one and only one thing...what rights are transferred other than owning the right to the artwork when this terminology is used and refers to the transfer of the title of the object. It's really a none or some answer.

Can the term "all rights" transfer specific image rights when it's used to describe the transfer of the said property (object)?? Yes or no??

If I ask an intellectual property lawyer would it be cleared up with yes or no?? I believe it would.

Is striking and initialing a contract legal?

To answer your last question first in the quoted portion above: Yes, striking portions of a contract or adding to a contract is legal when the changes are agreed to by all parties and initialed. That said, if the institution you are dealing with does not allow for the altering of the "deed of gift," and if the institution you are dealing with will not allow for a "replacement" agreement that you draft (or have drafted), then you must decide if you trust the institution enough in what they claim the deed transfers as far as rights and if you can live with that.

An IP attorney will not be able to clear up any misunderstanding that might come with the agreement worded as it is. If the institution believes it says one thing and you believe it says another, it would ultimately be up to a court to decide whose interpretation of the agreement should rule. What an IP attorney CAN do is help you word the agreement so that both you and the institution are clear in what rights are being conveyed with the "gift of deed."

I KNOW you are looking for a definitive yes or no answer here, photog_lover. You won't get it from me.

 

[photog_lover]

To answer your last question first in the quoted portion above: Yes, striking portions of a contract or adding to a contract is legal when the changes are agreed to by all parties and initialed. That said, if the institution you are dealing with does not allow for the altering of the "deed of gift," and if the institution you are dealing with will not allow for a "replacement" agreement that you draft (or have drafted), then you must decide if you trust the institution enough in what they claim the deed transfers as far as rights and if you can live with that.

An IP attorney will not be able to clear up any misunderstanding that might come with the agreement worded as it is. If the institution believes it says one thing and you believe it says another, it would ultimately be up to a court to decide whose interpretation of the agreement should rule. What an IP attorney CAN do is help you word the agreement so that both you and the institution are clear in what rights are being conveyed with the "gift of deed."

I KNOW you are looking for a definitive yes or no answer here, photog_lover. You won't get it from me.

wink wink Thanks for all your help. Everything you've suggested has already been suggested to the institution... as you've already stated...do i want to take a leap of faith and trust the institution? I am still undecided. Thanks again

 

[photog_lover]

very last thing

I received a signed contract from an institution where I had stricken and initialed parts of the contract. Although it was signed and sent back to me, the parts that were stricken and initialed were not "counter-initialed" by the institution. Is that going to be a problem?