Copyright release

[chynesecutie]

What is the name of your state? south carolina

i would like to copy a photograph of myself which was taken in new york, however it is a professional photograph and the photographer and his company in are no longer in business. I have tried to reach him but i have been unsuccessful. what are my options and how do I go about getting a release so that I can get a copy of the picture made just so i can have one (a picture) to put in my house?

Thank You

 

[macktosh]

well come to NYC, spend your vacation time here, go to his store, ask the people who are in his space if they know what happend to him...he could have rented another space right around the corner under another business name,

Ask the landlord/owner of the building, maybe the landlord/owner will help you find him, especially if he owes them money.

footwork is required for this one, and then you still may not find him. But you will be in NYC and can have a wonderfull week here in the big apple.

PS, just copy it.., and keep your phone reciepts, and any certified return reciepts letter you sent, just in case the idiot shows up in 10 years and file a suit

 

[chynesecutie]

Easier said than done. I am really not looking to come to NYC anytime soon. I have already tried to call the shops around where he is. No avail. I can't just take the picture and copy it on Kodak Picture maker which is what I want because no one willl copy it

 

[hexeliebe]

You do not need permission to copy the photo. You do, however, require permission to copy the photo for commercial purposes.

Go to Wal-Mart and in the photo section you'll see the Kodak Photo station. It's set up like a scanner and you can copy anything to CD. I just buried my father last year and copied a bunch of old polaroids taken of him in the 40s aboard a Navy frigate into wonderful 10X12 black and whites for his memorial.

 

[chynesecutie]

is what you said in writing somewhere about it being for commercial purposes......the key factor in your case is that you had old poloroids...I have a picture taken by a professional photographer....

 

[hexeliebe]

So? Do you think I sit here and wear my fingers out for the joy of hearing my old keyboard sounds?

It makes no difference. You paid the photographer right? He was your agent in this deal? Therefore it is a work for hire and any copyright of the Photo belongs to you.

He may have copyright on the process, the pose or the subject matter composition but you own the photos and can do as you wish with them as long as you do not attempt to protray them as your own product.

In other words, you can copy them, send them to modelling agencies, throw darts at them or post them on the web.

 

[chynesecutie]

so what the heck do i say to walmart or any other person in charge of the Kodak thingy when they question what i'm doing and where is my release? that's why i want to know where this is in writing? I'm dealing with "ass-a-nine" people down here

 

[hexeliebe]

You don't tell them anything. Or have they already asked? If so, tell them it was a work for hire and your property and if they would like to show you how to use the machine great. If not, they need to contact their legal department in Bentonville, Arkansas (tell them to speak with Steven Hall).

 

[chynesecutie]

KEWL!!!! Thanx....you are a big helpTHEY HAVEN'T ASKED BUT I ALREADY KNOW WHAT i'M GONNA GO THROUGH....i have the picture on disc....the only way they are gonna see the picture is when the ring it u...that's where the conflict begins....you think I could talk to Mr. Hall just in case?

 

[hexeliebe]

Just go get the copies made. You're getting your undies in an uproar for no reason .

 

[divgradcurl]

I respectfully disagree with hexeliebe on this.

"You paid the photographer right? He was your agent in this deal? Therefore it is a work for hire and any copyright of the Photo belongs to you."

This is not the case. A "work for hire" exists in two specific cases: first, where the agent was an employee (as defined by applicable state rules) of the person, and second, when the work is part of a collaboration or other enumerated type of joint work as defined in 17 U.S.C. 100 or 101, I can't remember exactly which. Even work done by a contractor working for a company does not produce a "work for hire" if the contractor not considered as an "employee" by the state.

"He may have copyright on the process, the pose or the subject matter composition but you own the photos and can do as you wish with them as long as you do not attempt to protray them as your own product.

In other words, you can copy them, send them to modelling agencies, throw darts at them or post them on the web."

Its true that she owns the copies of the photos that the photgrapher sold her, but without a contractual agreement to the contrary, she does not own the copyrights, and therefore does not have the right to reproduce the pictures.

Unfortunately, unless you contractually agree to purchase the rights to the photos along with the photos, the photographer will still hold the copyright to the photo -- even if the photo is of you.

Your best bet is still to try and find out the whereabouts of the photographer and get his or her permission. Failing that, you should just go down and see about getting a copy made -- if all you want is a personal copy, you could always argue that making a single copy for your personal use is a "fair use" under copyright law. Besides, if the picture is of you, I doubt the photo people are going to ask you for a release -- usually they ask for a release when you want to make a copy of a picture of someone famous or the like. If you want to make a bunch of copies and distribute them, you are much better off seeking permission first...

 

[hexeliebe]

Ah ye of little faith...

The reason I stipulated a 'work for hire' is a recent (within the last few months) court decision here in Tennessee (Federal Court) where this exact thing happened.

As I stated, as long as she doesn't try to sell the photos, distribute them as her own work or otherwise use the photographer's talent as her own and only copies the photos for personal use, then she is well within her rights.

As I recall, the judge in this case (and I'll have to start digging for the particulars) equated the services of a professional photographer to that of a tailor. They both produce a product for hire using their talents, tools and specific insight into the process however, a tailor does not own the finished product (a suit) and has no more say over how you can wear it anymore than a photographer owns the completed photo.

The tailor (and the photographer) own the tools and the process. (in this case the negatives) and can control the use of that process (require release to use the product in a commercial setting. Using the photos for personal use such as distribution to a modelling agency, friends, family or on stationary or business cards, is not commercial use and falls under the 'fair use doctrine'.

 

[divgradcurl]

hexeliebe,

I am in complete agreement that copies for personal use would be a fair use. I just disagreed with the statement that this was a "work for hire."

Unless a work falls under the specific definitions of 17 U.S.C. 100 or 101, then it is not a "work for hire." However, as you correctly note, it is the first sale doctrine that allows the person who purchases a work or a service to do what they want with that work or service, as long as they don't violate the rights of the copyright holder.

Anyway, looks like were on the same page here. I enjoy reading your posts -- I like your style.

P.S. A district court decision isn't precedental anyway, and certainly not in another state, so I don't think we have a "new" definition of "work for hire"...

 

[hexeliebe]

The reason I stipulated a 'work for hire' is a recent (within the last few months) court decision here in Tennessee (Federal Court) where this exact thing happened.

Sorry Girl, it wasn't a district court. It was the federal court in Nashville. And yes, it is precidence.

 

[divgradcurl]

hexeliebe,

actually, I'm a dude, not a Girl!

Federal District Court rulings are not precedental, even in their own district, but can be used in a persuasive role. Federal Circuit Court (Appellate) rulings are precedental in their circuit, and can be persuasive in other circuits.

Do you have a link or cite to that case? I would be interested in reading it.

Thanks.