question on copyrighted photos in slideshow

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question on copyrighted photos in slideshow

Postby Patricia_C » Sun Mar 07, 2010 5:53 am

Maybe some of you professional photographers can chime in here...

Is it enough to have someone sign your contract to do a show and have a disclaimer that you (the client) need to hold a valid copyright or have permission to use any copyrighted photos provided to do the show, to protect myself from perhaps being sued by the copyright holder.

Or should a person refuse to use the photos unless we have a signed release from the copyright holder themselves?

This would pertain to say new graduation pictures & wedding pictures, but also what about the 50 year old professional photos taken way back when by who knows who?

Let me know your thoughts.

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Patty Cantu
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Re: question on copyrighted photos in slideshow

Postby moehler » Sun Mar 07, 2010 8:48 am

Obviously, having a signed release by the copyright holder is the best policy.

If you are concerned, I would always suggest you talk to a lawyer to get their opinion.

Robert Barnett

Re: question on copyrighted photos in slideshow

Postby Robert Barnett » Sun Mar 07, 2010 3:11 pm

If you look at this logically...

A parent has photos taken at school or at a studio of their children (as an example) you buy a set of prints for X number of dollars. The photographer either the one that came to the school or the one at the studio retains all copyrights of the images so that they can make money selling you prints.

Now say that parent comes to you with these images and wants a show done with them. Having the parent sign something giving you permission or whatever to use the images is no protection of any kind. The parent can not sign away rights to what they do not have and what they do not have is the owner ship of the images (aka the copyrights to the images.) What this means is the owner of the images (the person holding the copyrights) can come after you no matter what you had the parents sign.

Now after the copyright owner gets done taking you to court and wipping out your savings, you could using the agreement you had the parents sign try to go after the parents for what you are out. You may or may not get your money back it would depend on the judge or the jury or whatever.

To me this is just too big of a risk. Having to deal with the copyright owner and then hope and pray that you will find a sympathetic judge or jury to enforce the contract you have between the parents and yourself is risky. Especially considering that you would be going in to court with dirty hands. Dirty because both you and the parents knew that the images were copyrighted and the parents had no standing to give you permission to use them. Basically you have a contract with the parents to break the law and most judges don't enforce contracts that break the law.

This would be like going out to by illegal drugs and having your drug dealer sign a contract that should you get arrested and put in prison that he agrees to pay all of your legal fees. This is not enforable in court because it is a contract for something that is illegal.

Now all of this being said, the parents could contact the copyright owner and ask for permission. They will need to tell the copyright owner which images they want to use and how many people or who the show would be given to. He or she could then ask for payment for permission to do this. With luck it would be similar to the amount of buying a similar number of prints for each person you wanted to share the show with. Or he or she could tell you no way or price it so high that it wouldn't be worth it. This is up to the copyright owner.

You use the images illegally and I can promise the copyright owner will go for every cent the law allows.

Also, it should be mentioned that if the copyright owner does not register the images with the copyright office that they can not go after anyone for money. Only when you register and pay the copyright office their registration fee does the copyright owner have the ability to go after you for money. But, they can demand that you stop using the images and you would have to do so. The problem here is you really don't have any way to know if he or she did or didn't register the images. So it is Russian Roulette.

By the way this information was is a series of articles in Photoshop User Magazine over the last couple of years. Photoshop User is the National Association of Photoshop Professional magazine sent out to its members (of which I am one) and the information was provided by copyright lawyers.

To put it short and sweet. Your are playing a game that if you get caught will cost you dearly.

BTW I do register my images. I can send in a DVD or even a 50GB blu-ray with 200x200 pixel JPEGS of my images and the $35 fee covers the registration of every image on the disc. So it isn't expensive and now that you can do registrations online it is even easier and even cheaper because they don't have to deal with the media you send them.

Robert Barnett

Re: question on copyrighted photos in slideshow

Postby Robert Barnett » Sun Mar 07, 2010 3:13 pm

One more thing that I for got.

Have the parents read any paperwork that they had to provide to the school for the photographer or that was signed at the studio. Some photographers do allow limited digital use as long as it isn't for profit. So that would be worth checking out.

Also, parents should talk to their schools and insist that limited rights to use the images in not profit ways (personal use like a slide-show) is allowed and part of the deal. The school is in a better position to negotiate this than a single parent is.

Robert

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Re: question on copyrighted photos in slideshow

Postby Patricia_C » Sun Mar 07, 2010 3:54 pm

Mark and Robert,

Thank you for thoughts on this.

Robert, of course, I wasn't implying to have the client sign something that we both knew was not a fact, or to sign away anyones rights. But instead, do we leave in the clients hands to obtain that permission and trust it to be true. Only to learn they didn't go though the proper channels. And then ka-pow, be served and have to defend what you thought to be legal.

So, in retrospect, I'm thinking the "legal" slideshow business as almost impossible unless you, yourself are the photographer, as well as a famous recording artist. :)
Regards,
Patty Cantu
Digital Heirloom Studios
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Robert Barnett

Re: question on copyrighted photos in slideshow

Postby Robert Barnett » Sun Mar 07, 2010 6:43 pm

You can leave it to the client with no problems as long as before you use any of the images they show you written, signed and dated proof that permission has been given for the images that are to be used. I would want a list of file-names on the agreement between the copyright holder and the customer.

I certainly would not take the clients word for it. Written proof with file names giving permission is what I would want. It is the only thing that will protect you.

Robert

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Re: question on copyrighted photos in slideshow

Postby DickK » Sun Mar 07, 2010 9:33 pm

If this is important to you, speak to an attorney. Get help writing the contract. Do not count on anything you see here, including my comments, to hold up in court.

As has been pointed out, it is completely true that the client can't transfer rights to you that they don't have. However, there are lots of folks out there who believe their contract with the client protects them entirely or at least from a damages claim. They ask few questions and want few answers about the issue of rights held by the client. Whether they are, in fact, protected is an issue which may depend on the language of the contract and, ultimately, the opinion of a judge if it comes to that. I'm not a lawyer but when I looked, I could find few citations to directly relevant case law--I was told that few of these cases ever get to court because a settlement is reached before it ever gets that far. (If you're curious, there are a couple books published on the legal issues of the photography business and things like this are covered. And there's this that you should look at: http://www.photoattorney.com/ )

People like you also know that the client is likely to be confused and completely ignorant of the issues. They believe the client will simply go to someone who is more "cooperative" or at least ignorant, which is probably true.

Personally, I don't do any of this as a business. For my own use, I'll use these photos in shows I make. Whenever I can, I credit the photographer or studio in the show--despite the fact no one but my family will probably ever see it. Yeah, it may infringe someone's copyright but I have no way to find them, so they'll need to find out and bother to take action. I turn the situation around--if I'm the photographer for pictures being using that way, what's going to my reaction or my lawyer's advice in these circumstances?

However, I don't do for-profit slideshow work and I'm not posting it in public so my risk is lower.

Aside: In fact, I've had some photographs infringed much more blatantly which made me mad but the price to take action would exceed anything I could get. If the magazine had just bothered to credit me, I would have been pleased to see them. I did a self-generated "cease and desist" letter and got on with life.

Dick
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Robert Barnett

Re: question on copyrighted photos in slideshow

Postby Robert Barnett » Mon Mar 08, 2010 8:22 am

You are correct the contract between the photographer and the consumer may very well protect the consumer. However, that does not mean that the consumer can transfer those rights to someone else or that the contract the consumer has will protect the person doing the slide show.

If it were me I would deal directly with the photographer in getting permission. I would not rely on the consumer for my protection not one little bit.

Also, if you deal directly with the photographer and you have written permission and that permission is signed by the photographer and lists the images that can be used then there is no need to waste money on a blood sucking lawyer. The only way one really needs the blood sucker is if one goes in to murky copyright waters. Dealing with the photographer and getting written permission for the images takes care of all of that. Also, you never know it could lead to more work if the photographer likes what you have done.

And, remember the images in a slide show maybe copyrighted by the photographer but then so is your slide show. So he can't turn around and use it without your permission.

Robert

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Re: question on copyrighted photos in slideshow

Postby rdurga » Mon Mar 08, 2010 8:24 am

Robert Barnett wrote:
BTW I do register my images. I can send in a DVD or even a 50GB blu-ray with 200x200 pixel JPEGS of my images and the $35 fee covers the registration of every image on the disc. So it isn't expensive and now that you can do registrations online it is even easier and even cheaper because they don't have to deal with the media you send them.



Could you pl give the web address for the registration of photos.

When you register your photos, do they check that these photos have not been registered earlier under someone's name?
From the client's perspective, they know these photos have been registered under your name. There is no assurance for them that someone would not claim these photos as theirs. Just a thought!!!!!

ram

Robert Barnett

Re: question on copyrighted photos in slideshow

Postby Robert Barnett » Mon Mar 08, 2010 8:24 pm

Here you go...

http://www.copyright.gov/

I have no idea if the copyright office does a check. I doubt it. I would bet that they just wait and let the true owner sort it out by legal means.

Robert

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Re: question on copyrighted photos in slideshow

Postby BarbaraC » Wed Mar 10, 2010 9:18 am

I have no advice or words of wisdom on this subject, but I do wonder if somehow the law will ever get around to considering the growing number of slide shows being produced. It's so difficult for people to create shows as a business unless they themselves are professional photographers and musicians so that all photos and soundtracks are their own. Royalty-free music is getting better and better, but in most cases it just doesn't come up to the commercial level. And as this thread has pointed out, photos can be a big fat problem.

One thing I'm not understanding, Robert, is that I've been given to understand that a person need not register a copyright to actually own a copyright. Yes, it's easier to sue some poor slob if you've got the proof of formal registration, but you aren't giving up legal ownership if you haven't paid the fee.

Barbara
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Re: question on copyrighted photos in slideshow

Postby rdurga » Wed Mar 10, 2010 10:20 am

Excerpts from USCopyright website:

When is my work protected?
Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.

Do I have to register with your office to be protected?
No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work. See Circular 1, Copyright Basics, section “Copyright Registration.”

Why should I register my work if copyright protection is automatic?
Registration is recommended for a number of reasons. Many choose to register their works because they wish to have the facts of their copyright on the public record and have a certificate of registration. Registered works may be eligible for statutory damages and attorney's fees in successful litigation. Finally, if registration occurs within 5 years of publication, it is considered prima facie evidence in a court of law. See Circular 1, Copyright Basics, section “Copyright Registration” and Circular 38b, Highlights of Copyright Amendments Contained in the Uruguay Round Agreements Act (URAA), on non-U.S. works.

I’ve heard about a “poor man’s copyright.” What is it?
The practice of sending a copy of your own work to yourself is sometimes called a “poor man’s copyright.” There is no provision in the copyright law regarding any such type of protection, and it is not a substitute for registration.

---------

Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.

Copyright law protects the original photograph, not the subject of the photograph.

You can register copyright in the diary only if you own the rights to the work, for example, by will or by inheritance. Copyright is the right of the author of the work or the author's heirs or assignees, not of the one who only owns or possesses the physical work itself.

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Re: question on copyrighted photos in slideshow

Postby bellzerr » Wed Mar 10, 2010 10:26 am

Barbara,
You're understanding agrees with mine. At least in years past, you only needed to register your material in order to file suit. So you can do nothing and retain copyrights all along. But if someone infringes on your copyrights and you want to sue, you must file in order to do that.

Likewise, the government does nothing to insure ownership - they leave that to the courts. Filing simply records who is claiming the copyrights and on what material.
Mark

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Re: question on copyrighted photos in slideshow

Postby Debra » Tue May 18, 2010 6:12 am

Actually there are many good locations on the web for royality free music. Some you must pay for the usage and other are free. The "free" ones usually have stipulations to credit the artist in your work or on your website.

Just a while back, not sure if the special is offered but Stock20.com had a special on their library. A real good deal and if you are PPA member you can use your PPA member account for additional savings. I purchased the full library and there is a lot of good music.

Now Stock20.com has a sister site (not sure of name but it is given on the website) that offers royality free music with lyrics. This is just one good place. Many more out there.

Thank you for clarifying the copyright info to the ProShow members. I appreciate that as a photographer.

Deb
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Re: question on copyrighted photos in slideshow

Postby web_bruin » Sat Nov 24, 2012 1:27 pm

So, say for instance, someone comes to me with their own wedding photos taken 5 years before, or maybe 25 years earlier, by a professional photographer. Would I need a release from the photographer in order to create a show for the clients?

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