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montysimmons
montysimmons, Patent Prosecutor
Category: Intellectual Property Law
Satisfied Customers: 233
Experience:  Electrical Engineer, South Carolina Attorney, Member of US Patent Bar
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Hi, I am commissioning a photo shoot with a paid professional

Customer Question

Hi, I am commissioning a photo shoot with a paid professional model, and a paid professional photographer. Both have been doing it for years, and both are putting down conditions on copyright, and what the images are used for.

 

As I am hiring them both, on an hourly rate, I feel that I am paying for their creative input, and so the images are mine to do as I wish, unless of course I use them in a defamatory way or even in a way not agreed if they desire.

 

Is there a standard form for this? I have found a model release form, but nothing regarding the photographer.

 

 

. I cannot find advice on the web for the small business owner paying for the shoot, only for the photographer. Can you direct me to where I might find an answer for my rights and what I can reasonably ask? Or even a standard contract for this kind of thing. It must be being used everywhere.

 

 

Thx

Rupert Bowling.

CEO Rupert The Tailor

Submitted: 1 year ago.
Category: Intellectual Property Law
Expert:  Wendy-Mod replied 1 year ago.
Hello,

I'm Wendy, and I’m a moderator for this Legal topic.

We have been working with our professionals to try to help you with your question. Sometimes it may take a bit of time to find the right fit.

I was checking to see if you had found your answer elsewhere or if you still needed assistance from one of our professionals.

Please let me know if you wish to continue waiting or if you would like for us to close your question.

Also remember that JustAnswer has a multitude of categories to help you with all your needs from Health, Pets, Computers, Cars, Finance, Tax, to Home Improvement, and more.

Thank you,
Wendy
Customer: replied 1 year ago.

Hi Wendy,


No nothing yet. The photographer has a contract for me to sign that says:


 


Red Square Photography may use any images included in this contract in their website, portfolio, literature, display areas, exhibitions, competitions, advertising, slide shows or commercially.




8. Copyright



Any images or copies of images whether stored digitally or otherwise and any computer program including any source or object code, computer files or printed documentation relating to such images are protected by the Copyright and Design Act 1988 and remain the copyright of Red Square Photography. It is contrary to the Act to copy or allow to be copied photographically, electronically or by any other means an image created as part of this contract without the written permission of Red Square Photography.




10. Reproduction Rights



Reproduction rights (if and when granted) are strictly limited to the use and period of time specified by Red Square Photography. An agreement must be reached with Red Square Photography before the pictures are used for a different purpose or after any agreed licence to use has expired. When reproduction rights are granted it is within the following limitations:



Any reproduction rights granted are by way of licence and no partial or other assignment of copyright shall be implied. Red Square Photography reserves the right to refuse to supply or grant a reproduction licence to a third party when requested to do so by the Client.




does that help? All seems unreasonable to me. I am paying for them, and so would like to be able to use them where I like. If the Model does not want his image in a particular place, then fair enough, I can respect that, but having the photographer controlling the use of the images seems unreasonable.




Rupert



Expert:  Fran-mod replied 1 year ago.

Thank you. We will continue to look for a professional to assist you. Please let me know if I can be of any further assistance while you wait.
Customer: replied 1 year ago.

Thx Fran. What are the timescales please?

Expert:  Fran-mod replied 1 year ago.
We can't predict time frames as their are too many variables. The difficulty level and area of law can make a difference along with the areas of expertise of the lawyers on line and their time constraints.

Thanks for your patience.
Customer: replied 1 year ago.

Ok Thanks :)

Expert:  Fran-mod replied 1 year ago.
You're very welcome.
Expert:  Wendy-Mod replied 1 year ago.
Hello again,

We are still working with our Legal professionals to find you the best possible match. I wanted to touch base to see if you still needed a professional’s assistance.

Please let me know if you would like to continue to wait or if you would like to cancel your question at this time. We sincerely XXXXX XXXXX the extended wait time.

Thank you,
Wendy
Customer: replied 1 year ago.

Hi I still need help with this I am afraid. I had not realised it would be such a difficult answer to find. So please keep going if you think you can find me an answer.


 


REGARDS Rupert

Expert:  Fran-mod replied 1 year ago.
Thanks for your patience while we continue to search.
Customer: replied 1 year ago.

For info for you, no other reason, as I think the software probably needs sorting.... Just been asked for feedback, I thing it was perhaps premature? Does that suggest most questions are answered sooner :)


 


Rupert

Expert:  Wendy-Mod replied 1 year ago.
Hello Rupert,

Legal professionals each tend to have in depth expertise in only one or two areas of the law. So how quickly a question gets answered depends in part upon the nature and complexity of the question and the particular expertise and schedules of the experts on line.

Your question is on the list and we're still searching. Thank you again for your patience.

Best,
Wendy
Expert:  replied 1 year ago.

Such photographs will be covered by copyright laws; more specifically, "work for hire" issues. (search the Internet use "work for hire" key words and you will find lots of info).

 

Works for Hire - If a work is made for hire within the meaning of the Copyright Act, the employer or other persons for whom the work was prepared is deemed the author for copyright purposes and is the initial owner of the copyright.

 

If you have a contract with the phrase "This is a work for hire" and employer retains all copyrights in any works created by the employee", (or something similar) then the issue is settled.

 

With no "work for hire" Contract . . . Two tests.

 

(1) Work prepared by an employee within the scope of his employment

 

IF the person doing the work is an employee within the meaning of the common law, and the work was done within the scope of the his/her employment, then the work is a work for hire and the employer owns the copyright. Lots of factors to consider to determine if a person is an employee under common law including:

 

(i) The level of skill required to do the work (more skill, more likely independent);

 

(ii) The source of the instrumentalities and tools used to do the work. (worker supplies tools, more likely independent);

 

(iii) The location of the work (if the work is done on the worker premises (not employer’s), (worker more likely independent);

 

(iv) Duration of the relationship;

 

(v) Whether the hiring party has the right to assign additional projects to the worker (if so, worker more likely to be an employee);

 

(vi) The extent of the worker’s discretion over when and how long to work (more discretion, more likely to be an independent);

 

(vii) The method of payment (is worker paid the same manner as employees);

 

(viii) The worker’s role in hiring and paying assistants.

 

 

(2) Specially ordered or commissioned works -

 

Works created by independent contractors may be works for hire only if two conditions are satisfied.

 

(i) the work must fit into one of nine enumerated categories of works.

 

(ii) the parties must expressly agree in a written, signed instrument that the work will be considered a work made for hire.

 

 

Your situation seems to fall under 2(ii).

 

Thus, if you want to retain ownership of the copyrights that attach to creative works such as photographs, you need a written contract that says the work will be considered a work made for hire.

 

If you sign the agreement you presented above, you will not own the copyrights in the works and you will not be able to legally make any material changes to the works (i.e. derivative works) and you can only use them for the purpose they were created.

 

In contrast, with a work for hire agreement, you own the copyrights in the images and you can modify them and use the in just about anyway you want and resale them.

 

IF there is nothing special about the model or the photographer, then I would insist on a "work for hire" contract or find models/photographers that will.

 

 

Otherwise you own little and you are at their mercy for any future use of the works.

 

 

 

 

 

 

montysimmons, Patent Prosecutor
Satisfied Customers: 233
Experience: Electrical Engineer, South Carolina Attorney, Member of US Patent Bar
montysimmons and 2 other Intellectual Property Law Specialists are ready to help you
Customer: replied 1 year ago.

Fantastic, many many thanks.


 


Rupert

Expert:  montysimmons replied 1 year ago.

You are welcome. Come back if you have more questions and please rate my service.

Thanks

Customer: replied 1 year ago.

rated of course.

Expert:  montysimmons replied 1 year ago.

Thanks.

Just note that the question is still appearing on my list as unrated and "open" so I was just verifying all issues have been resolved and my service has been rated so that the issue closes.

Lots of people believe they have rated and closed a question when they have not.

Thanks again and come back if you have more questions.
Customer: replied 1 year ago.

Well, I have no idea how to close it , sorry. Is there a moderator who can help?

Expert:  montysimmons replied 1 year ago.

I believe the question closes automatically after it is rated.

 

Don't worry, if the question remains open I will find the problem.

 

I mainly wanted to make sure the question is not "open" because I did not fully address your issues.

 

If I have addressed all your issues then all is well.

 

Thanks again.

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