In the previous blog, I have written what the lawyer answered and provided facts that supported what he expressed. In this blog, I am going to provide my argument and opinion to the answers from the lawyer, such as: the money for a lawyer, who owns the copyrighted work, how to copyright, and the importance of a written documentation.
The lawyer said the average cost to keep an attorney on a retainer is $1,000 to $5,000 depending on the hourly rate. That is a large amount of money especially for a newcomer like me. Also, I read that I should “expect the defendant will do everything in his or her power to diminish [my] claim, attack [my] credibility, seek a pre-trial dismissal of the suit, and, usually at the 11th hour, seek a settlement” (Best Business Practices for Photographers, John Harrington, Ch 16, pg 230). Therefore I get to choose my battles carefully, or else my reputation would be down the drain and my wallet would be empty. Another upside to my newly found knowledge, I have a better understanding what is worth fighting for and what is not.
To know who has the rights to the work is very important. The lawyer said salaried employees do not hold any rights to a finished product because they are not the creators, they would only hold rights if the has a direct idea or impact other than what they were hired and paid to do. I agree with the lawyer; however there are different situations that may occur that contradicts what he said. There could be many other authors. If there are two different authors, it is called coauthors. Coauthors are “where authors intent that their separate contributions be merged into a unified whole” (Patent, Copyright & Trademark, Richard Stim, Copyright Law: Definitions, pg 211), then the coauthors have rights to the work. Also, if the employer, or photographer, “assigns all of his or her copyright ownership rights to another party before the work is created” (Patent, Copyright & Trademark, Richard Stim, Copyright Law: Definitions, pg 205). The lawyer also said if the client does not pay for the designs, the client has no rights. I also agree with this, especially if the client does not provide me a work made for hire. “The importance of the work made for hire concept is that copyright of a work made for hire belongs either to the party who commissioned it or the employer, not the party who created it” (Patent, Copyright & Trademark, Richard Stim, Copyright Law: Definitions, pg 305). Therefore if my client did not provide it for me, then they left a door open for me.
The questions about when is point of creation, what to copyright, and if infringement is present surrounds me when I think of copyright. When is point of creation, rough or the finalized work? The lawyer said point of creation is both at roughs and the finalized work. Unpublished work can be point of creation. “An original work of authorship that is fixed in a tangible medium of expression but has not yet been published automatically qualifies for copyright protection” (Patent, Copyright & Trademark, Richard Stim, Copyright Law: Definitions, pg 303). An example of finalized work would be if an “idea becomes fixed in tangible form, whether on paper, programmed on a computer, or constructed out of plastic or other materials, [you] created a work of authorship” (Patent, Copyright & Trademark, Richard Stim, Copyright Law: Definitions, pg 228). What to copyright, series or individually? The lawyer said it is probably best to copyright each individual photo in the event that a photo is removed from the series. I completely agree with the lawyer. If I copyright just the series, it does not close close that door 100%. If someone picked one photo out of the series, they are not infringing any rights. They would be infringing my copyrights. They would be infringing my rights if they used my whole series. However, if I copyrighted my series of individually, then the door is 100% closed, and no one can take my photos without my consent. The other question I had was if I took a scene from a movie and used that scene as a reference and did a photo shoot from that reference, am I infringing any laws? The lawyers said 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. To have a better understanding, “a photographer could potentially infringe the famous photo of servicemen installing the flag at Iwo Jima by recreating the photographic elements using models” (Patent, Copyright & Trademark, Richard Stim, Copyright Law: Definitions, pg 285).
Written documentation is important in photography. There are contracts, release documentation, paperwork that will keep anyone from infringing any laws. The lawyer said I would be held liable if someone gets hurt, unless I had them sign a waiver or some sort of contract stating that they are liable for any occurrences that were to happen while on set, and that I should create a contract or some kind of model release statement either before or after the shoot so I would not be liable and cannot be sued. I entirely agree with him. You never know what may happen. Therefore being extra carefully can save my business and me. Release documentation; such as model and location release documentation are the main written documentation that photographers encounters. The question is do I need release documentation for my portfolio and for a published book? The lawyer said I do not need release documentation for my portfolio because my intention is to sell myself. With a published book I do need release documentation because I am selling my art. Another situation that release documentation is not needed is when “taking personal snapshots of your friends and family, shooting a picture of your house or business for your own advertising, etc, or if you are in the middle of a news story and your photograph is used in the local newspaper or on national television” (http://www.bobpardue.com/model/school/model-release.htm). However, “if you're going to sell an image of a person (or sometimes pets and property, as well) for commercial use, then you definitely need a Release” (http://www.nyip.com/ezine/techtips/model-release.html#ixzz10HSZdMn6). I completely agree with the lawyer. Then again I would provide release documentation everywhere I go. “Play it safe: ask for releases on any photograph that have been made where the person is clearly the subject of the image, and that might be able to use commercially” (http://www.betterphoto.com/article.asp?id=37). I just never know when someone would cause me trouble, when they initially said it was okay, then back out last minute.
