Copyright Question

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snafu

snafu

SGF, Supreme Grumble Framer
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Mar 2, 2003
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A customer (Georgia State University employee) commission one of the artists I work with to do a giclee.

The artist uses her photographs of GSU (buildings and property) along with her Photoshop techniques to create this piece.

My question is who has the copyright on this piece of art?



 
Whoever owns the right to copy, my assumption would be that the customer who commissioned the work also had the artist assign them the right to copy.
 
Has there been any documentation signed which may clarify this? In these parts the copyright would belong to the person commissioning the work (it is primarily sourced from a photo) under such circumstances but waivers are normally signed as a part of the commissioning process which assigns copyright back to the artist.
 
just cos they have been commissiobed, doesnt mean they have signed away their copyright

i am framing an exhibition at the moment of illustrations from 14 books, the illustrator owns the copyright, not the publisher, well apart from the first three books wher my client signed away copyright without knowing what he was doing
 
Nearly all colleges have protections in place that prevent the use of buildings, stadiums and other identifiable items from being used for any commercial purpose. I have had conversations with the local college here about the use of an image of a single structure which is not marked with a University logo or any other identifier to be framed with diplomas.

They will not license it without huge dollars being paid up front, extensive legal contracts and the ability to change their license at any given moment. Students who wish to use the image can do so if they take their own photo but I can not provide one or they will wipe me out financially. I am on very good terms with the college and provide framing to numerous departments, instructors, university president, athletic departments and students.

The bottom line is throw down a huge pile of cash, add attorneys to the mix and be prepared to receive a one sided contract or they will assure financial demise of any who violate their ownership of all rights.
 
This is a question for a copyright lawyer, not a bunch of framers.

The Rock and Roll Hall of Fame lost their copyright infringement suit against a man who took a picture of the building and made poster, partly because the building was paid for partly with public funds. Since this is a state university in question, the same reasoning might apply.
 
I'll have to agree with what 05 says. The question has variables involved that only an expert can advise.
 
Simple…….. The artist owns the copyright unless they have assigned it to someone else….. yes it has to be a written contract to assign the copyright to another.

I did a training secession on patents and copyright just a few weeks ago, conducted by a lawyer who specialise in copyright law globally from this company http://www.cruickshank.ie/ , the secession was sponsored by the Government Enterprise Development Body for where I’m located which is Wicklow Ireland….

I learned that there are all sorts of myths around about copyright law.

Copyright law is a global law which is respected by all countries around the world, the big surprise for me was that the USA are one of the biggest offenders when it comes to copyright law, East Texas has virtually zero respect for patent law, astonishingly China are one of the greatest defenders of patent and copyright law.

One of the myths is that you have to spend millions to obtain copyright, however if you need to defend copyright it could cost you quite a bit…

BTW the training secession I did was one of the best and most enjoyable that I did in a long time…… you can learn a huge amount about business by understanding the Intellectual Properties of a business….. Yes all businesses have intellectual property even a single person business has a value when it comes to intellectual property……. how much that value is worth if any value is the big question that a business, artist, designer, etc etc would need to answer.

BTW you cannot copyright a building….
 
I think the idea of making public property something that a photographer or artist may need permission to reproduce would be impossible. That would make most of the art and photos ever created subject to copyright and associated legal issues.
 
Framing: said:
Simple…….. The artist owns the copyright unless they have assigned it to someone else….. yes it has to be a written contract to assign the copyright to another.

Copyright law is a global law which is respected by all countries around the world, the big surprise for me was that the USA are one of the biggest offenders when it comes to copyright law, East Texas has virtually zero respect for patent law, astonishingly China are one of the greatest defenders of patent and copyright law.
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That's very interesting, law here complies for artists, however legislation differentiates for photographers and commissioned works belong to the person making the commission. The most popular agreement used by photographers for such "booking" situations also assigns ownership of copyright back to the photographer.

I would be very interested in reading further about the global law and how it overrides local legislation, do you have any references that I could refer to?
 
I should have said global agreements as there is really no such thing as global law.

This is a good article on global copyright agreements http://www.copyright.gov/fls/fl100.html

There is a huge amount of information out there about how copyright works a simple web search should find you most of what you need.

How much time and money you want to spend on copyright will depend on the value of the work covered by copyright, copyright is like any other assets a person or a business may have.... you need to be honest and accurate about how much that asset is actually worth.
 
I'm not so sure about how the various State laws work within the USA but our local legislation would still assign copyright to the person making the commission when it is primarily a photograph - art in it's more traditional mediums though automatically assigns copyright to the artist. If there is a likelihood that different States within the USA have different legislative definitions of photography and art then local research by the OP's customer would be beneficial.
 
Essentially copyright agreement is the same around the world with the odd local twists.

Remember it is virtually impossible to sign away your legal rights in law and in particular where copyright is involved…… where do you think the expression “it’s not worth the paper it is written on” came from.

The world abounds with all sorts of myths when it comes to copyright, when in fact it is one of the simplest pieces of asset management any person or business has to manage…… implementing copyright is extremely simple, however most people and businesses don’t bother and this is where the issues arise.

I agree, as I understand it the USA is a bit of a mine field, however that has more to do with I will take you to court attitude to prove an issue in the US rather than an issue with the international copyright agreement, in most countries you must be able to prove first that you actually have the copyright before the courts will allow the case to go forward.

Have a look at what happened to Apple in the UK when they tried to have a go at Samsung, it has proven to be very expensive for Apple and very very embarrassing…… the courts not only dumped the case against Samsung, the courts also ordered Apple to publicly make a real and genuine apologise to Samsung and if they did not do it within 48 hours ….. Tim Cook himself has to provide the reason why to the courts.

A similar situation happened to a major Irish retailer when they tried it on with Karen Miller the cloths designer….. it is estimated that this possibly cost the retailer over €100,000,000 Euro in a failed attempt to try and say they did not copy.
 
Framing: said:
...East Texas has virtually zero respect for patent law, astonishingly China are one of the greatest defenders of patent and copyright law...
Click to expand...

East Texas is not an entity with any juridiction over copyrights and patents. Of course China vigorously defends patents and copyrights - only their own!
 
To clarify, the only major difference here is that Photography is excluded specifically from copyright protection.
 
An artist can sketch anything and sell it, I see artist doing this all the time with university buildings. When they start borrowing trademarked symbols and catch phrases, or current college football players they are in trouble.
 
RParrish said:
An artist can sketch anything and sell it
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Copyright only really becomes an issue if someone wants to defend it, usually to be paid money or prevent others making money from what they own.
An artist really can not sketch anything and sell it. Celebrity likeness being an example.
 
Jeff Rodier said:
Nearly all colleges have protections in place that prevent the use of buildings, stadiums and other identifiable items from being used for any commercial purpose.
Click to expand...

Case in point...Here in Cornhusker Country, if you were to take a photo of UNL's Memorial Stadium make a print or poster of it and attempt to market it, you would have the University on your tale in a heart beat. I know several photographers who do this and they must get a Licence Agreement before pursuing.

Go Big Red!
 
Lance E said:
To clarify, the only major difference here is that Photography is excluded specifically from copyright protection.
Click to expand...

Whatever gave you THAT idea?! A photograph is an expression fixed in a tangible medium just like any other work of art.

The only time a photograph might not qualify for copyright protection is if it is what is called a "mechanical reproduction" of something else. In other words, a photograph of the Mona Lisa with NO background or surroundings is a mechanical reproduction. A photograph of the Mona Lisa in its gallery at the Louvre is an original work (you did pick the angle and composition and all that) that does qualify for copyright protection.

(I picked the Mona Lisa here because it's in the public domain, so there are no second-order copyright issues involved. If you were to photograph artwork in a museum setting of someone who is still alive, that's a whole extra can of worms to consider!)
 
jim_p said:
Whatever gave you THAT idea?!
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This is about commissioned works - almost everything that could be commissioned was originally listed as ownership of copyright belonging to the person who commissioned the work but most are now contradicted elsewhere. Recently there was (and I believe it is ongoing) a large number of professional photographers here that were petitioning for common sense to prevail.
 
Lance E said:
This is about commissioned works - almost everything that could be commissioned was originally listed as ownership of copyright belonging to the person who commissioned the work but most are now contradicted elsewhere. Recently there was (and I believe it is ongoing) a large number of professional photographers here that were petitioning for common sense to prevail.
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I am not a lawyer, but my understanding is that unless a work is commissioned specifically as a "work for hire", the copyright remains with the original creator (i.e. the photographer). My understanding is that in the absence of a contract stating otherwise, this is what prevails.
 
jim_p said:
I am not a lawyer, but my understanding is that unless a work is commissioned specifically as a "work for hire", the copyright remains with the original creator (i.e. the photographer). My understanding is that in the absence of a contract stating otherwise, this is what prevails.
Click to expand...

agree with above, in fact thats what i said posts and posts ago :-)
 
jim_p said:
I am not a lawyer, but my understanding is that unless a work is commissioned specifically as a "work for hire", the copyright remains with the original creator (i.e. the photographer). My understanding is that in the absence of a contract stating otherwise, this is what prevails.
Click to expand...

I hunted out the first part of it - as I said this is contradicted by other legislation in many parts:


Ownership of copyright
21 First ownership of copyright

(1) Subject to the provisions of this section, the person who is the author of a work is the first owner of any copyright in the work.

(2) Where an employee makes, in the course of his or her employment, a literary, dramatic, musical, or artistic work, that person's employer is the first owner of any copyright in the work.

(3) Where—

(a) a person commissions, and pays or agrees to pay for, the taking of a photograph or the making of a computer program, painting, drawing, diagram, map, chart, plan, engraving, model, sculpture, film, or sound recording; and

(b) the work is made in pursuance of that commission,—

that person is the first owner of any copyright in the work.

(4) Subsections (2) and (3) apply subject to any agreement to the contrary.

(5) Subsections (1) to (4) apply subject to sections 26 and 28.

Compare: 1962 No 33 ss 9, 13(4), 14(4); Copyright, Designs and Patents Act 1988 s 11 (UK)


ref: Copyright Act 1994 no. 143(NZ)


Therefore - unless documentation to the contrary is signed when commissioning a work here, the buyer owns the copyright.



Further reference and explanation may be found here:
http://www.nzipp.org.nz/NzippWeb/LinkClick.aspx?fileticket=Op2kdxr4DOA=&tabid=153

You may notice that "made for hire" in the US is specifically mentioned in this discussion document, to me this implies that there may not be a Federal resolve and that individual States may have alternate variations which is why I suggested referring locally.
 
hangupsgallery said:
Case in point...Here in Cornhusker Country, if you were to take a photo of UNL's Memorial Stadium make a print or poster of it and attempt to market it, you would have the University on your tale in a heart beat. I know several photographers who do this and they must get a Licence Agreement before pursuing.

Go Big Red!
Click to expand...

Hmmmm.... I wonder on what the University would base it's case. If the building is visible from a public place and the photographer was standing in a public place then I would say there was no case to answer. He could say he was taking a picture of the sky. Not his fault that there was a big building in the way. No one can copyright a view as far as I know. Whether it's for commercial or purely private use. Although some have been known to try. It's quite acceptable for the Uni authorities to ban photography on the grounds premises, but they can't dictate what people photograph from a public street.
Then there are further issues. Say only a corner of the building was in a photo. Or a chunk of the hedge or fence. Infringement? Or the photo was used as a base for a painting. Infringement? If I did a painting of a street scene would all the owners of the buildings within it want to sue me? Or the cars? Or any people in the painting?
Different matter if a photo was used in a way as to bring the University into disrepute. But just an innocuous image? I'd like to be in court when it was all being thrashed out.

:smiley:
 
Many of the structures at the Universities are Trademark items. Trademark laws are much stronger than Copyright laws. You con not Copyright artwork that is in direct violation of Trademark law.

Many photographs that include questionable violations pass the test based on documentation of an historic event. Taking a photo of the Nike logo and mass producing it does not pass this test. Take a photo of a natural disaster which has a Nike logo somewhere in the scene and you have documented an event rather than violated a Trademark.
 
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