After speaking to the lawyer, I have gained a large amount of knowledge that will support me in the future. Most of his answers will forever be engraved in my head such as: who owns the work, if any laws would be infringed if a rendition was made the importance of release documentation, and when exactly is point of creation.
In photography, the author of the work is the photographer. To be the author you must be “the person who creates the work, the person or business that pays another to create the work in the employment context, or the person or business that commissions the work under a valid work made for hire contract” (Patent, Copyright & Trademark, Richard Stim, Copyright Law: Definitions, pg 204). Therefore, if the client does not pay for the design he has no rights to it. If the client does not make or provide you a work made for hire, you have the rights to the work. Work made for hire articulates that the work “belongs either to the party who commissioned it or the employer [depending on the situation], not the party who created it” (Patent, Copyright & Trademark, Richard Stim, Copyright Law: Definitions, pg 305).
“When a work is created by an employee in the course of employment or as a commissioned work under a valid written work made for hire contract, the employer/commissioning party is considered the author” (Patent, Copyright & Trademark, Richard Stim, Copyright Law: Definitions, pg 205). Salaried employees do not hold any rights to a finished product because they are not the creators of said item, they would only hold rights if they had a direct idea or impact other than what they were hired and paid to do.
“A district court judge ruled that photographic elements such as rendition and timing a picture at the right time and place-may be original and protectable elements in some photographs” (Patent, Copyright & Trademark, Richard Stim, Copyright Law: Definitions, pg 284). If you use the reference exactly in your photo, just use different models, then you are potentially infringing the law. If you use it just as to be inspired, you are not infringing any laws.
Portfolio and a published book are two different things. You do not need release documentation for your portfolio because your intention is to sell yourself. With a published book you do need release documentation because you are selling your art. The reason being is because the “Person who is the subject of the photograph may be able to prevent its reproduction under legal theories such as the right of publicity, defamation, or invasion of privacy” (Patent, Copyright & Trademark, Richard Stim, Copyright Law: Definitions, pg 284). Providing release documentation is a safe route to take, especially “If you think that your pictures might be commercially used, make the effort to get a release, and be prepared to give something for that permission” (http://www.betterphoto.com/article.asp?id=37) If the viewer cannot recognize the person, or better yet, if the model cannot recognize themselves in the photograph then you do not need a release documentation. For candids of streets, or travel scenes, you do not need release documentation.
Point of creation is at both rough and final product. There are three rules to determine when the point of creation occurs. "Rule 1: Creation of a work occurs when it is first becomes 'fixed' in some form, Rule 2: Drafts and other intermediate forms in development of work receive copyright protection just like in the underlying work does, Rule 3: Each new version of an original work is separate creation" (Patent, Copyright & Trademark, Richard Stim, Copyright Law: Definitions, pg 228). Therefore, the work or the rough can be copyright even though it has not been finalized. Also, if you made a new version of the photograph or changed some aspects, then that is also copyrighted.
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