Whos Image Is It

Kevin,

There are many races to the top. There are a several people at the top.

The top is not a pet rock, but a master artist who also sells.

There are prints that can be mass produced. There are galleries for originals where the prices can soar.

You choose your avenue and your avenue might choose you. If you are not successful IN TIME that is because
your approach to your art and your approach to your avenue the venue you use do not match up well.

We make prints here. Any number can be sold.

There is an overarching third entity, museums. They do not necessary care what the price of your art is.
Museums have dealt with priceless art and disposable art. They deal with what they think will gain them community
support. Museums need traffic.

I have been at this for ten months now mapping it out for myself. I have a long road ahead. But for a seasoned person
to reject FAA based on vapors is ridiculous. Makes no sense.

Markets need images.

Dave

i think it depends on the terms of the contract. the photographer can't do anything with that image because the contents don't belong to them. technically they would belong to the photographer, just like if they did a wedding. but if they shot a wedding they couldn't use those images as something else.


---Mike Savad
MikeSavad.com

@dave.... i'm not sure how that pertains to the question asked, maybe you posted this to the wrong thread?


---Mike Savad
MikeSavad.com

I did not read the question carefully. I thought the original writer was ruling out using FAA.

So he or she is basically saying they can not photo their painting well.

Okay. Why is there a question about whose painting or image it is?

I guess if you have a pro photo it, the copyright goes to the pro? Not so.

The copyright would stay with the painter. Just my guess. Not a lawyer and had
no need to know this prior.

With PD works photos are not copyrighted.

Interesting can of worms.

Dave

I thought this would make for an interesting conversation. Hope it doesn't get heated.

the idea is, the person that shoots the image owns the image. so a person stating they would not use anything but their own stuff legally can't sell the image even if its their own work because its not their own photo. however if the photographer knows he's shooting it, so they can then resell the work, then it won't matter. but i don't think it matters anyway because there isn't any creative intent on the photographers part and he can't do anything else with the image.

the copyright does go to the painter, but the photo technically isn't theirs.

in the court of law, the photographer wouldn't have a leg to stand on if they tried suing, since they did it as a service. i would assume the same issue would happen if i had my images taken by a pro and i used those images to sell as stock some place... that's another one that may cause issues, but may favor the photographers side.

---Mike Savad
MikeSavad.com

this will only get heated if someone posts chairs we can throw.


---Mike Savad
MikeSavad.com

Not everyone can do everything well. Plenty of famous phototoghers farm out retouching or darkroom work. Some painters buy pre stretched canvases. Some farm out their marketing. Hiring a photographer to copy your painting falls under work for hire. Painter retains copyright.

In that case the artist is clearly the painter. The photographer here acts as a photocopy machine and cares technicaly to reproduse digital in high fidelity the original artwork.
There is a friend painter that sells his work here on FAA - I was the photographer and I believe I did a nice job - my name it is not credit anyware because this was a commissioned work - the art in that case is his paintings not my photographs.

With his permission here is an example



Grigorios Moraitis
ArtHellas.com

if that painter has a scanner this conversation would end and he or she has no needs of the photographer!

When I do art work I also give an exclusive non-transferable right to use the image forever. I still retain the copyright. It is a work for hire but I am not an employee,so I still retain the copyright of everything I do, unless of course I sell them the copyright.
The artist also understands that I can not license the image without their permission, because it is their art. I did a shoot for a clay artist and we carefully discussed her needs and uses. They were supposed to be used for her promotional materials. In the end an Art Feastival and a magazine used them. The magazine was going to visit her studio but in the end used my photos with my permission. I also let the Art Festival use them. I could have charged for those uses, but did not. But you have to draw a line somewhere.

Alfred, you cannot scan paintings on walls and large thick canvas' so you have limited your thinking to very small pieces of work, right? I cannot scan my work, it's too large and thick. You keep bringing up the scanner as if it's not digital work...why?

Only an original is a painting in my book.

I have had to learn photography and am still learning...there is so much more to it than what I can describe. Inside a building, just due to lighting, the painting can look very different after a photo is taken. My paintings are really large and unless there is a scanner that allows you to stick a wall under it or a large canvas, there is no way to scan.

As far as who owns the work...everything Mike Savad said seems to be what I would think as well.

Alfred, just owning a scanner does not guarantee quality. To be blunt a lot of the work submitted here will not pass a basic quality inspection. And a lot of what passes is not up to professional reproduction standards of quality. It's not like you just shove the art in a scanner and out comes a file ready for a museum quality print.

You're absolutely right Mike. I am the artist whose quote from another thread inspired Kevin to create this thread --- thank you Kevin, I really appriciate you interest. I'm glad this was brought up because I have wresteled with the thought, especially in regard to pricing of prints, but that is a topic for another discussion.

From my persopective, however, I am a painter, but before I am a painter I am a creator of images. I paint ideas that have been developed somewhere deep within my tiny, grey brain, and to me it is no different than a writer who concieves of a story in his tiny, grey brain and puts it all on paper. His medium is the alphabet, my medium is paint.

I am a creator of images, those images are mine, they are my intellectual property, and they are copywrited. The photograper I use is a very trustworthy individual. He does have images of my work archived on his computer and I am okay with that, and he knows that he cannot make prints of my work and sell them without my permisson. I know the guy, I know his level of integrity, and I know he wouldn't do it. And to be quite honest, if he did breach that trust, I probably would not care a whole heck (or hell) of a lot. No one knows my name, no one knows my art even exists heck (or hell) even if they did he wouldn't be able to sell more than two copies --- maybe. What do I care. As far as I'm concerned it's advertisement.

So what happens if a photographer prints one of his images out on a large scale canvas and then another photographer takes a picture of the print and tries to sell it? If I was the photograper in this case I would be pretty irritated, Not because I was ripped off, but rather I'd be irritated with having to deal with the realization that the world was still populated with people that stupid. Really, you'd think that kind of idiocy would have have been sifted out of the gene pool by now,

If I took a photograph of someone's painting, I would consider the photograph mine... but would know my rights to it were limited. I know I could not do much with it and would have put it in fighting, but when I see the photo, I would consider it a piece of my work.

Same as when I worked on TV. I often shot, edited and sometimes wrote my own stories that then aired on the news. It was mine. Coworkers and bosses would refer to it that way. We all took ownership of our work, but not in a literal way. It belonged to the TV station. All of my work is in their archives. They own it.

There are 2 main issues here as there are 2 copyrights involved.
A photographer doing work for a client retains copyright. It is not considered a work for hire as concerns copyright
Here is a more detailed look at who owns a photographer’s work in client situation.

http://www.own-it.org/news/who-owns-the-copyright-the-photographer-or-the-client

“It is important to remember that, in the absence of any agreement to the contrary, a photographer that has been commissioned to take photographs will retain the copyright in the resulting work. The surest way to assign copyright is by way of a written agreement as a court will be hesitant to imply terms into an agreement where it is not clear that this was the parties' intention.”

So to be sure the artist would want that written agreement.
Now does the photographer have any rights? Well the law says if the law is clear that the artist owns any right to reproduction. This would seem to contradict the photographer’s rights. The photographer cl;early can do nothing withj the images without permission from the artist. But the artist still has no rights to the photo except what is agreed.
So neither party can do anything without a written agreement. Conclusion: Make a written agreement. Don’t guess at what a court would decide in the absence of one. Even if it is someone you trust. Trust has nothing to do with it. Being clear as to what rights are retained by who has everything to do with it. When the artist has sold the original and is about to make a licensing deal or some other use (s)he never thought of before it becomes important.

I guess I'll have to disagree. The photographer is providing a service and is not creating a "copyright" of anything. :

Which Images Can Be Copyrighted?

These things must be true in order to copyright your photo:

The image must be original (in the sense that it was not copied from someone else and represents your own creative expression). If you make an exact copy of something like a painting or another photo, your copy cannot be copyrighted because it is not original. (The FAQ has further discussion of this concept.

https://asmp.org/tutorials/which-images-can-be-copyrighted.html#.VX2tLZdZ0gp

Just because some photographer takes a photo, of someone else's work,that doesn't give the photographer ANY rights to use that image, as he would be able to do, if he/she owned the copyright,

Kevin, I hope this answers your initial question,

Rich

Ditto Rich,

All things being in order is the key to this equation.

I am a painter, too, BUT, my family had owned a couple of print shops, and out of college I worked selling 4 color process engraving plates for lithographers around my town... and as such I learned all about the process, the scanners, the desktop publishing, the whole nine yards from creating an original to make-ready pre-press to actual fine art lithography and finally to print on demand online. I do my own digitals, and often even photograph my own artwork if it is for standard presswork and I only use the digital if it passes my scrutiny which is only as good as my computer monitor and my software. I don't recommend it unless you know what you're doing :) At any rate, I DO recommend that artists read about the process of shooting the artworks for print so they at least have a basic understanding of it. Knowledge is power especially if something goes wrong. So often, it's a matter of knowing how things work.

As for copyrights, if you pay someone to shoot your artwork, then just make sure they know you want to OWN it. The few times I hired a photographer I made sure that was understood. The photos are mine, copyrights mine.

In the old days if you used a scanner, there was NO copyright question where fine art lithographs were concerned, it all belonged to the customer, not the printer or engraver or photographer. Never.

Holly Carmichael
http://www.holly-carmichael.artistwebsites.com

"Just because some photographer takes a photo, of someone else's work,that doesn't give the photographer ANY rights to use that image, as he would be able to do, if he/she owned the copyright,"

Of course. But just because an artist's work is the subject of a photo does not mean the artist owns all rights to use that digital file or negative for anything either. Maybe for an exact copy. How exact is exact? Its not so simple.

supposing you PAID the professional "digitizer"/photographer to photo it for you - its the artists image. You would have to give the photographer/digitizer the right to "use" it or sell it.
That's just like the wedding photo's don't belong to the photographer - if you pay that person for taking them - he hasn't the right - without asking to even use them to show others what kind of work he/she/it does.

Bradford,

I think we're both saying the same thing, just differently. Exact, is judged as a jury would decide if shown the original and then the "copy" of the original. The "average" person decides what is exact, not a board of scientists,measuring light,color,etc.

Rich

Photographs or scans made for the purposes of printing are considered "mechanical reproductions" which are specifically excluded from copyright protection.

Corbis lost a case in which they had asserted that the scans and color corrections they made of their contributors submissions produced a derivative work in which they had a stake.

From the moment when you as a photographer press the camera button on your camera with RAW file you are copyright owner of image.

But there is one word called "fair usage of your copyright file" .

For example 2 weeks ago I have done advertising campaign for one fashion company for their spring/summer collection for 2016.


They will publish files and campaign on web site , billboards and magazines somewhere in February 2016, next year.
Collection is hidden until they publish collection online .

Hypothetically speaking I am owner of my copyright photos and without problem I can publish them online tomorrow, and no one can say me one word.

But I will loose my integrity and confidence if I do that .

I will publish for example these files next year somewhere in autumn when they finish their spring/summer campaign .

This is "fair usage of files" .

If you don't play fair on the market no one will call you .


It is the same and with wedding photography , you as a photographer are copyright owner but it is really stupid to sell someone's wedding photos and their memories online without their permission .

Best

Work for hire

A work made for hire (sometimes abbreviated as work for hire or WFH) is a work created by an employee as part of his or her job, or a work created on behalf of a client where all parties agree in writing to the WFH designation. It is an exception to the general rule that the person who actually creates a work is the legally recognized author of that work. According to copyright law in the United States and certain other copyright jurisdictions, if a work is "made for hire", the employer—not the employee—is considered the legal author. In some countries, this is known as corporate authorship. The entity serving as an employer may be a corporation or other legal entity, an organization, or an individual.

- wikipedia

Find photographer who is not a scumbag who is not going to try to claim rights to the painters work or the photos taken of it who understands that (s)he is getting paid to photograph it and nothing more and claims no rights to the photographs.

Edward,

This isn't a WFH issue,since there is no "employer" in this case. When I had my big studio and had 20 employees, when we were shooting, I sometimes had 2 other photographers working for me. That is work for hire, they show up when I schedule them, use my camera and lighting and shoot what I decide for that day.

Adam, HUH?

Rich

Yes Adam. It's such a sad thing that rights of this kind even have to be discussed. We seem to have to parse everything these days...

When I read that guys post I was quite puzzled, I really don't know what he was getting at. I'm a painter, I scan my art to post it on FAA. If the image is high enough quality for making prints from it how does it matter who takes it?

Legally speaking the original artist retains reproduction rights and photographing it does not transfer those rights, but I guess you have to spell everything out in a contract these days to protect yourself.

Better to err on the safe side with a contract:

http://www.copylaw.com/forms/Workhire.html

David K,

Excellent point of no transfer.

Dave

David Smith had the correct answer. I have no idea how such things get to the discussion stage. There is nothing to discuss.

"Photographs or scans made for the purposes of printing are considered "mechanical reproductions" which are specifically excluded from copyright protection."


Dan Turner
Dan Turner's Seven Keys to Selling Art Online

Karl

"I am a creator of images, those images are mine,"

Images already exist. A sunset, a woman, a tree a lake. All a painter does is to capture those images on canvas as he or she envisions them. Most images belong to nature or to someone else (an old church, boat, train, etc.). Artists capture those images. They do not own them. They do not belong to the artists.

Ding Ding Dave Smith, mechanical reproductions are not covered by copyright......and thats pretty much it.

OK I totally agree something akin to a mechanical copy of artwork is not subject to copyright and as such cannot be licensed by the photographer to the artist, so no agreement is needed. But that is a pretty narrow and special situation. And it has nothing to do with work for hire exception to copyright ownership. When you hire a photographer for a project , the default copyright is to the photographer, unless there is an agreement in writing to the contrary. I covered that in my first post. To avoid misunderstanding it would be be wise to just make a written agreement as would normally be done. At the very least the artist should make sure the photographer understands who owns what.

I do a lot of work for artists. Not all is exact copy. Mysessions are long and personal. They include artist at work photos and portraits. So there has to be an agreement anyway. The amount of rights I allow affects the price. And I can tell you that the photos get used and published and redistributed and licensed again, etc.

I also do a lot of three dimensional art. At what point is that a mechanical reproduction?

And I do art in public places, where I know for sure I own the copyright. Yet I have a situation where a person claims they licensed copyright to the sculpture, so they own the rights to use my photo for t-shirts and products and to redistribute my image. And my image is a one of a kind.

if a photographer indeed complained or sued about selling an image of an image they took - they probably wouldn't be in business for that long.

---Mike Savad
MikeSavad.com

When I hire a professional, I pay that person to create files. That process includes, but it not limited to, taking photographs.
If said person ever suggested that he/she owned those photographs, I'd be very tempted to reply " In yer dreams, sweetheart." and then contact an attorney.

This may well be the silliest question posted in my many years here. BUT Marlene I really like your new avatar.

Well, considering that printers have been making photo plates (photo engraving) for printing since the French did it back in 1820, this is hardly a new subject. The relationship between the artist and the photo engraver or the digital file maker has not changed.

The art belongs to the artist. Always has, always will. Unless the artist conveys that ownership in some fashion.

"This may well be the silliest question posted in my many years here." I second that.

" If said person ever suggested that he/she owned those photographs, I'd be very tempted to reply " In yer dreams, sweetheart." and then contact an attorney.."

You know I am usually the first to suggest one uses an attorney for legal problems.

However, in this case a slap up aside the head for being stupid, may jar enough of his brain cells back in line to where the law dogs will not be necessary.

Not a hard slap, just one of those little "Gibbs" love taps that he hands out on NCIS every week. lol

LOL. Floyd!
Thanks Keevin...another will be on the way when I finally get back to blond....

For those that are not familiar with the specific laws dealing with the copyright of one dimensional art may want to read up on it.

Some are here are dancing all around it but not quite getting it as I understand it. But wait, here we are again in a discussion of a legal matter and once again there are no lawyers here. lol

"Photographs or scans made for the purposes of printing are considered "mechanical reproductions" which are specifically excluded from copyright protection." ... is a statement that Dan T. attributed to "David Smith".

This does not answer the question, "Whose image is it?", however. Instead, I think that it confuses the question.

So, to clear the confusion, I would add that a "mechanical reproduction" is the same thing as a "slavish reproduction", which means that there is NOT any attempt to add anything new to the image or transform the image in a new creative context. Consequently, as a "mechanical" or "slavish" reproduction of the art work, the rights to control this reproduction lie with the original artist of the work slavishly reproduced.

In other words, the image is NOT the photographer's, even though the photographer produced the image. The photographer merely copied the image to be as close to the appearance of the original as possible. The photographer, thus, does NOT have any claim to copyright on the "mechanically reproduced" or "slavishly reproduced" image.

"For those that are not familiar with the specific laws dealing with the copyright of one dimensional art may want to read up on it. "

I thought we were talking about 2 dimensional art here.

... one dimensional art ...

That would be superstring theory, I believe, ... where you take a dimensionless point and extend it into a length that has no thickness.

Mathematical physics IS an art, indeed.

Silly to some perhaps. To others a conversation about the art business.

For some, discussions about artists that make posts to brag about there kids is silly.

To some that say threads are silly but keep writing about the thread just likes to hear oneself.

The answer to this dilemma is easy! CYA.

Make sure you protect yourself because others are not too concerned about your rights... or time.

Nothing new.

So, let's have a discussion about "what art really is!"

Glenn, feel free to start that discussion

I'd rather talk about the "value" of certain artwork Kevin. Love to bother the Peter Lik and Thomas Kinkade haters. LOL

P.S. Both subjects play right into the reason for copyrights and who owns what though...

...coffee over here Syd!

I'm a big fan of Peter Liks marketing strategy, and have always like Thomas Kinkade. I'm sure a lot of others as you say, hate both, lol.

Feel free to give it a whirl.

We're called "thorns" around here Kevin!

...Syd... forgot the cream!

"I thought we were talking about 2 dimensional art here.'

You are correct, I stand corrected.

I think there is member here on FAA that was part of a lawsuit that dealt with this same issue not all that far back. I would give the case law but I think that that may fall under the name and shame, although they were really not shamed.

I read in another post it was the Wall-of-Shame Glenn

Who owns the photo.....there is not photo, only a mechanical reproduction.

I saw one off campus ( a wall of shame ) and I was glad not to be found on that one. Ha, ha.

Anyhow, as Paul McCartney used to say with his English accent..."Carry on!"

Who owns the photo.....there is not photo, only a mechanical reproduction.

The photo IS the mechanical reproduction. A photo is the TYPE of mechanical reproduction. A PHOTOGRAHPER made this mechanical reproduction. The photographer does NOT have any copyrights on this mechanical reproduction. The photographer's aim in making this mechanical reproduction is to produce as exact a copy of the original as possible. The photographer is NOT trying to make any new creative statement. The photographer does NOT have an intentional creative stake in making the mechanical reproduction. The photographer here is merely using a machine to make an exact copy or as close to an exact copy as this mechanical procedure allows. The INTENT is to copy, NOT to create.

Hence, NO copy rights go to the photographer, because rights to copy require some sort of original creative stake or original creative intent in the action. Somebody else has created (and has the copy rights) to the entity copied. The photographer is merely copying that to which somebody else already has the copyright, and this person has given permission to the photographer to copy the image, as is the copyright holder's privilege.

Issuing a one-time permission to make an exact copy is NOT issuing any right to the entity copied.

The photographer owns the film or digital file on which the copy is made, but the photographer does NOT own the right to further reproduce or display what is on the film or digital file.

The creator of the original image owns the image. The photographer merely owns the material on which the image is imbedded. Materials ownership does NOT equate to image ownership. The image is separate from the substrate on which the image is embedded.

YES, the film or the digital file is the photographer's
NO, the image ON the film or the digital file is NOT the photographer's.

The image IS the image maker's, by way of the original material in which the image maker imbedded the original image.