Copyright question - Not for hire

[JohnnyD 0]

Yes, I read the link in the FAQs

Facts:
I have a picture that was taken in 1989 of a friend. The photographer thought it was a good picture and gave it to my friend - not a for hire situation. He was working on something else and just snapped the picture off and thought it was good, so he gave it to him.

Fast forward to today. I have another friend who owns a greeting card company. He saw the picture and wants to use it. The guy in the picture said no problem.

Obviously it's been more than 20 years since we've seen the original photographer. Just want to be sure there are no problems using the picture.

[dragon2 0]

The copyright on a photo not for hire lies with the photographer, it lasts for quite a while: AFAIK in the US it lasts 70 years after the death of the rights holder. So no, it's not okay to use that photo that way without the photographers permission. Friends who own greeting card companies could/should be expected to know that

ciel bleu,
Saskia

[JohnnyD 0]

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The copyright on a photo not for hire lies with the photographer, it lasts for quite a while: AFAIK in the US it lasts 70 years. So no, it's not okay to use that photo that way without the photographers permission. Friends who own greeting card companies could/should be expected to know that

The greeting card guy has never used a photograph before. Everything has been his own illustrations. He just thought the picture was really cool.

Thanks for your response.

[JohnnyD 0]

One point of clarification that may or may not make a difference. The picture wasn't handed to my friend by the photographer. It was pulled out of an "extras bin" by someone who recognized him. At the end of his assignment, the photographer threw all the randomly snapped pictures that weren't part of what he was contracted to photograph into the bin for anyone to take.

Any difference there?

[stratostar 5]

why take the risk? if your buddy wants skydiving images for cards I (along with a number of folks here) would be more then happy sell him a license on a number of great images.

you can't pay for kids schoolin' with love of skydiving! ~ Airtwardo

[skyjumpenfool 2]

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why take the risk?

........ because.... he wants it for free?

Birdshit & Fools Productions

"Son, only two things fall from the sky."

[PharmerPhil 0]

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... At the end of his assignment, the photographer threw all the randomly snapped pictures that weren't part of what he was contracted to photograph into the bin for anyone to take.

I know when I am hired by a newspaper for an assignment, my contract specifies that they own all the photos I take during that shoot (whether they use them or not). If the photographer was hired by someone else, good chance they own the copyright on the picture in question, not the photographer. At any rate, it certainly isn't owned by your friend.

Also, your friend saying "no problem" isn't a good enough safeguard for commercial work. Whoever wants to use the photo needs to get permission from the copyright holder, and a signed release from the person in the photo if he or she is recognizable.

[JohnnyD 0]

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why take the risk? if your buddy wants skydiving images for cards I (along with a number of folks here) would be more then happy sell him a license on a number of great images.

It doesn't have anything to do with skydiving. Just a good picture of a guy standing with his arms folded. I posted it here because I thought I would get some good info - and I have.

[JohnnyD 0]

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... At the end of his assignment, the photographer threw all the randomly snapped pictures that weren't part of what he was contracted to photograph into the bin for anyone to take.

I know when I am hired by a newspaper for an assignment, my contract specifies that they own all the photos I take during that shoot (whether they use them or not). If the photographer was hired by someone else, good chance they own the copyright on the picture in question, not the photographer. At any rate, it certainly isn't owned by your friend.

Also, your friend saying "no problem" isn't a good enough safeguard for commercial work. Whoever wants to use the photo needs to get permission from the copyright holder, and a signed release from the person in the photo if he or she is recognizable.

Thanks for the reply. Great info.

[stratostar 5]

Thats all good, I more then likely have some guy standing around lookng cool images in the files, or could get you some, for a normal fee of course......

you can't pay for kids schoolin' with love of skydiving! ~ Airtwardo

[FreeflyChile 0]

question...do you know if the photographer may have kept the negatives (or anything else that might prove that they actually were the photographer that took the photo)?

[Cueb 0]

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question...do you know if the photographer may have kept the negatives (or anything else that might prove that they actually were the photographer that took the photo)?

You seriously think it's ok in that case?

[DSE 3]

It doesn't make it OK, but it does significantly apply to proof of authorship. You could say "you" took it with a digital camera 6 months ago just as easily as he could say he took it with a silver camera 20 years ago.

Copyright law is cut/dried in this sort of instance. Ownership/Authorship lies with the photographer. If he handed over the neg, then it would be an implication that he handed over rights, but it's still a defensible case in his favor (IMO) in that situation too. Without explicit permission in writing, the implied ownership always lies with the author.

[antonija 0]

I don't understand why would handing over the negs mean he handed his copyright as well. Photo is the final product, and photo was handed to OP. If handing negatives means author gave away his right, then handing photo should mean the same.

Anyway this example only shows how stupid and inefficient current copyright laws are. I agree it was reasonable to have 70 years after death copyrights when books were scarce and it took lots and lots of money, materials and man-hours to make them. They were expensive things and very valuable (as history has shown).
Today we don't live in that world anymore and we managed to change most of our obsolete laws (like racist one US had etc.) except for copyright. It will have to change soon(TM). If it doesn't we'll only see more "piracy" (not "yarr" piracy... copyright infringement).

I mean using the photo taken 20 years ago by a photographer who basically threw it away shouldn't pose a moral dilemma in anyone's mind (except some copyright nazis). It is however still illegal to use it for commercial purposes regardless of the fact that you will not be able to find out original author (ever) and ask him for permission (ever). It's down right silly.

I understand the need for conformity. Without a concise set of rules to follow we would probably all have to resort to common sense. -David Thorne

[FreeflyChile 0]

Not saying it's OK, but just asking from a strictly practical perspective because I was curious.

[FreeflyChile 0]

Actually, I wasn't implying that handing over the negatives would mean he handed over his copyright.

I was merely asking because if the original photographer did not have any record of having taken the photo (especially given how long ago it was), then the photographer would have a more difficult time proving copyright ownership (even before infringement).

Also, my guess is that because the photo was a 'throw-away', the photographer probably never registered it as well. This doesn't mean the photographer doesn't have CR on the photo, just that their ability to act on infringement is limited.

As far as your argument that current copyrights are less valuable than they used to be - I think that James Cameron, Michael Jackson's estate, Hugh Hefner, J.K. Rowling, etc... probably disagree with you.

[antonija 0]

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As far as your argument that current copyrights are less valuable than they used to be - I think that James Cameron, Michael Jackson's estate, Hugh Hefner, J.K. Rowling, etc... probably disagree with you.

I'm also sure that the few selected ones would like to keep copyright laws the way they are. Mostly people from show business and entertainment (like the ones you listed).

And I didn't say copyright is less valuable... if anything it's more valuable since we spend way more than we have in the past. But the value of original copyright laws was to protect intellectual property which was scarce at best in those days. There was some author music (you could probably list all authors on one sheet of paper), some paintings, some books. That was it. That was all human race had as far as authors went and we had to protect that at all cost.

Today copyright is not used for what it was designed, but only for making money. There's nothing wrong with making money but doing so and being protected much more than anyone else trying to make some money is wrong...

Also copyright does not stop at the theater door or bookstore entrance. It covers _everything_ that was made by humans. While it may seem like a good idea to have a copyright on your favorite picture (and not having others copy it or even making money from it) I'm pretty sure you'd be pissed if someone came up with super-duper-skydiving-safety-device-that-saves-you-no-matter-what, make one for himself and tell everyone else to f**k off. Under current laws he has every right to do so and no one can even attempt to copy him or else he'll sue you. So the thing that would save lives is not only invented and unavailable to anyone but the author, it will remain to be unavailable 70 years after the prick dies if his family is as nuts as he is. That is not cool and having laws that promote such behavior is wrong.

I understand this was extreme hypothetical case, but the same goes for a picture I shot and threw away. 70 years after my death? Really? If you can't make profit from your work while you're alive (and everyone you listed has done just that) than you probably shouldn't hold back those who could.

There will be change... and it will not be good for authors. Currently authors are treated like endangered species and are being protected more than any truly endangered species could even dream of. Of course we'll still need some kind of copyright (since there will always be people who will use others' work to make money) but the current form is bad for everyone except for selected few.

And this is coming from a guy whose career depends on authorship of his work.

I understand the need for conformity. Without a concise set of rules to follow we would probably all have to resort to common sense. -David Thorne

[FreeflyChile 0]

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As far as your argument that current copyrights are less valuable than they used to be - I think that James Cameron, Michael Jackson's estate, Hugh Hefner, J.K. Rowling, etc... probably disagree with you.

I'm also sure that the few selected ones would like to keep copyright laws the way they are. Mostly people from show business and entertainment (like the ones you listed).

And I didn't say copyright is less valuable... if anything it's more valuable since we spend way more than we have in the past. But the value of original copyright laws was to protect intellectual property which was scarce at best in those days. There was some author music (you could probably list all authors on one sheet of paper), some paintings, some books. That was it. That was all human race had as far as authors went and we had to protect that at all cost.

Today copyright is not used for what it was designed, but only for making money. There's nothing wrong with making money but doing so and being protected much more than anyone else trying to make some money is wrong...

Also copyright does not stop at the theater door or bookstore entrance. It covers _everything_ that was made by humans. While it may seem like a good idea to have a copyright on your favorite picture (and not having others copy it or even making money from it) I'm pretty sure you'd be pissed if someone came up with super-duper-skydiving-safety-device-that-saves-you-no-matter-what, make one for himself and tell everyone else to f**k off. Under current laws he has every right to do so and no one can even attempt to copy him or else he'll sue you. So the thing that would save lives is not only invented and unavailable to anyone but the author, it will remain to be unavailable 70 years after the prick dies if his family is as nuts as he is. That is not cool and having laws that promote such behavior is wrong.

I understand this was extreme hypothetical case, but the same goes for a picture I shot and threw away. 70 years after my death? Really? If you can't make profit from your work while you're alive (and everyone you listed has done just that) than you probably shouldn't hold back those who could.

There will be change... and it will not be good for authors. Currently authors are treated like endangered species and are being protected more than any truly endangered species could even dream of. Of course we'll still need some kind of copyright (since there will always be people who will use others' work to make money) but the current form is bad for everyone except for selected few.

And this is coming from a guy whose career depends on authorship of his work.

The AAD example you cited would be the scope of patent protection, not copyright, which has a duration of 20 years.

And why would I be pissed if I was excluded from using/selling/making his invention? I don't feel entitled to automatically freely enjoy the fruits of someone else's labor.

[DSE 3]

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Of course we'll still need some kind of copyright (since there will always be people who will use others' work to make money) but the current form is bad for everyone except for selected few.

First...you're mixing patent law and copyright law, and they're very different animals.

Second, your comment I quoted above sincerely intriques me. At the risk of this becoming a Speakers Corner discussion, I'd sure appreciate some insight as to exactly what you mean with that last statement as being a holder of hundreds of copyrights, I fail to see how anyone BUT me can generate revenue from my work without violating my rights.

[antonija 0]

The final product would fall under patent law, but the idea itself (or plans for it, the article the idea is published in, ...) would still be the matter of copyright law.

And I already said that before: there is nothing wrong with people making money of their (authored) work. The problem (IMO) is the ridiculously long period that copyright is valid for. If patents (which are the cornerstone of our current technological progress) "only" get 20 years (still too long in this time and age IMO) then copyright should probably get less than that, definitely not more.

I understand the need for conformity. Without a concise set of rules to follow we would probably all have to resort to common sense. -David Thorne

[FreeflyChile 0]

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The final product would fall under patent law, but the idea itself (or plans for it, the article the idea is published in, ...) would still be the matter of copyright law.

And I already said that before: there is nothing wrong with people making money of their (authored) work. The problem (IMO) is the ridiculously long period that copyright is valid for. If patents (which are the cornerstone of our current technological progress) "only" get 20 years (still too long in this time and age IMO) then copyright should probably get less than that, definitely not more.

First of all, copyright law protects EXPRESSION - not IDEAS. In fact, this is a factor used by courts to decide infringement - how close the expression is to the idea (i.e. how many different possible ways there is to express something...something that may come up in things like computer software, for example). The closer the expression is to a single way to express the idea, the narrower the protection afforded by the courts.

Nevertheless, the plans or article themselves could be the subject of copyright law - but the copyright would ONLY be for that SPECIFIC expression - so I could build the thing based on your plans - I wouldn't even have to draw up my own - and you would not have a copyright case against me. So again, not applicable.

As far as your second statement - I find that very interesting.

My opinion is that the current copyright term is too long, but I don't have a huge problem with it. I especially disagree with the notion that the copyright term should be less than the patent term.

In my opinion, patents (as you note) are meant to protect practical, scientific development. Therefore, denying the use of a technological development to society is FAR more harmful than denying the use of a work of art to the public.

If I am able to invent a new machine that can predict cancer and cure it before it happens, denying that to the public for an extended period of time is FAR more harmful than my inability to use songs in skydiving videos or make my own re-cut version of Avatar.

Not having access to the technical developments of society could kill (or at least fail to prevent deaths, prevent our development as a species, etc). Not having access to artistic works is simply an irritation in comparison. This is just my opinion.

Also, your comment on the current state of the patent term is interesting - can you provide more detail as to why you think that/what you'd prefer to see as far as patent terms?

I love talking about this stuff, so thanks for engaging in the discussion!

[antonija 0]

I can see why you'd like patents (or technology) become available sooner, but in fact the same thing should apply to copyright. While you will not (most likely) cure cancer or AIDS with songs and paintings, the mere presence of them in just about every human culture known should argument the need of people to use (enjoy) it. Without that humans generally become "less well" (not ill just their mental state degrades into more depressed one). Nothing wrong with selling them for money, but reproduction (by anyone) should be available sooner.
That is why I think that copyright should (with current ease of reproducing your work and making money of of it) be shorter or at least as short as patents (which probably make much more in total than copyrighted work). I like to be happy and feel good so I don't see the point in making laws that would make everyone (me included) less happy while only protecting selected few for ridiculous amount of time.

I'd like to see shorter patent and copyright protections. I agree there is a need for both, but the length has not changed (AFAIK) for very long time (ever?), while our ability to research, produce, innovate, publish, ..., has decreased significantly.

Also English is not my first language, so I might have used wrong terms in this (well defined) discussion.

P.S.: Software patents (in their current form in US) suck monkey balls big time and should never be implemented the way they are (like most of current copyright law).

I understand the need for conformity. Without a concise set of rules to follow we would probably all have to resort to common sense. -David Thorne

[FreeflyChile 0]

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I can see why you'd like patents (or technology) become available sooner, but in fact the same thing should apply to copyright. While you will not (most likely) cure cancer or AIDS with songs and paintings, the mere presence of them in just about every human culture known should argument the need of people to use (enjoy) it. Without that humans generally become "less well" (not ill just their mental state degrades into more depressed one). Nothing wrong with selling them for money, but reproduction (by anyone) should be available sooner.
That is why I think that copyright should (with current ease of reproducing your work and making money of of it) be shorter or at least as short as patents (which probably make much more in total than copyrighted work). I like to be happy and feel good so I don't see the point in making laws that would make everyone (me included) less happy while only protecting selected few for ridiculous amount of time.

I'd like to see shorter patent and copyright protections. I agree there is a need for both, but the length has not changed (AFAIK) for very long time (ever?), while our ability to research, produce, innovate, publish, ..., has decreased significantly.

Also English is not my first language, so I might have used wrong terms in this (well defined) discussion.

P.S.: Software patents (in their current form in US) suck monkey balls big time and should never be implemented the way they are (like most of current copyright law).

While I don't dispute the effect of the arts and culture on the human psyche, or that music, literature, etc greatly enriches a person's life and therefore, contributes to happiness, I think that - when broken down to a basic level - copyright is about 'want' and patent protection is about 'need'.

That's why I think that the patent term length is a more critical subject than copyright terms.

I also think copyright term should be shorter. I just don't think it should be shorter than patents. Also, my opinion is that if patent terms are to be changed, it should be broken down into the subject matter/science area of the patent - but that's another discussion entirely.

As far as the ease of reproduction and making money off of your work - I may be generalizing here but the term 'starving artist' exists for a reason. Also, I'd argue that our ability to research, produce, innovate and publish has INCREASED significantly during the recent past. Digital photography and video, increase in computing power for cheaper than ever before, internet outlets such as youtube, flickr, etc. have made it much easier than ever before for anyone that has a creative eye, ear, etc. to bring their idea to fruition without requiring help from middlemen, record companies, film developers, etc.

The (US) patent term length changed in 1992. Copyright term length changed in 1976 and, most recently, in 1998.

I also think that while patents and copyright are both under the intellectual property umbrella, they are really apples and oranges so using one as a benchmark for the other does not work very well.

However - I would love to hear more specifics as to what you think the terms should be for each (patents or copyrights) should be, and why.

[antonija 0]

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The (US) patent term length changed in 1992. Copyright term length changed in 1976 and, most recently, in 1998.

However - I would love to hear more specifics as to what you think the terms should be for each (patents or copyrights) should be, and why.

How were the duration changed? Or how long was copyright protected before said changes??

I do not have more specific terms for each one... That I will leave to the properly trained people. However I would love to see patent and copyright terms specified according to field it applies to ("short lasting" (like software) patents shorted duration, patents for "longer lasting" technology longer, etc.), perhaps to the "usefulness to humans" (patent cure for cancer should have shorter duration or different limitations for other producers) and others.

I'd like to see both (patent and copyright) duration changed from "making money for ages to come" to "making money for the "active" duration" (the duration a technology/work is able to produce high revenues). This is of course a bit tricky to define, but a manual for photoshop 5.0 should have it's copyright length changed to the time interval Adobe provides support for it, or until they declare this version obsolete. It's a tricky situation and would need a lot of thinking to make it work, but it would be better for us (whole human race) and still allow people to make money and for few to become filthy rich just like today (their grand kids would probably hate it ).

That said this is definitely not trivial enough topic to conjure up next patent/copyright wording on internet forum

I understand the need for conformity. Without a concise set of rules to follow we would probably all have to resort to common sense. -David Thorne

[tonyhathaway 0]

I think it's time to redistrubute the wealth of those music copyrights there Douglas. It's not fair that you have musical talant that some people are willing to pay for, and some of us don't. We all should be making money off of YOUR music........ (it's amazing that some people actually think this way)

My O.C.D. has me chasing a dream my A.D.D. won't let me catch.