second photographer copyright question

second photographer copyright question

18 posts
5 Oct 2014
rob25881
Photographer
rob25881
I recently helped another photographer out by acting as a second photographer at a wedding they were shooting, the understanding was that they would help me out as a second photographer at a later date.
I've since been sent a flyer by this photographer advertising their business with a lot of the photos that I took on the day -at the very least I feel this is a bit cheeky of them as the photos don't show their ability etc and were taken by someone else but the question I have is  - who owns the copyright on photos where you have acted as a second photographer at a wedding?
Are you classed as being "employed" by the main photographer even though no money exchanges hands for services, or is it a case of you still own the copyright of the photos you have taken?


Posted 5 Oct 2014
Pict
Photographer
Pict
I'm sure someone will have the legal interpretation for you (which is really the important one) however my take on it from a practical point of view would be that you were tasked with providing a service to the other photographer. You wouldn't have been there otherwise and as such you have no claim unless you have something in writing to the contrary.
I also wouldn't see it as "cheeky" to use photos you took in their marketing material. It's not an advert to show their abilities rather what a bride might expect to receive on her wedding day.

Not really sure what you expected them to do when you handed over the photos????

Posted 5 Oct 2014
Plymjack
Photographer
Plymjack
Well I would agree you have no rights regarding copyright, as you were working for him, but I also agree its cheeky of the photographer to use your images and pass them off as his own, unless he is very clearly advertising as a "company" rather than as a photographer.
Posted 5 Oct 2014
photomane9
Photographer
photomane9
You own the copyright. As you had no contract of employment you were not an employee so s 11(2) of the CDPA does not apply, and from your posting I assume you signed no agreement to transfer your right to the main photographer, so since assignments need to be in writing, the copyright remains yours. An argument which is sometimes made (and I think Pict may have had this in mind in his reply) is that the person who makes the arrangements for a shoot can sometimes be said to be the first owner of copyright. This argument was used extensiively in the Macaque monkey photograph debate. But the sort of decisions which make a photograph different from a photocopy, and therefore worthy of copyright  - the choice of angle, viewpoint, framing, lighting, focal distance, decisive moment etc - are all choices made by you, the photographer, in this case, not the person who got the commission from the client.
All of that being said, while I maintain that you own the copyright here, the circumstances of the agreement for you to act as second shooter make it likely that there was an implicit licence for the first shooter to use your images as part of the overall submission to the bride and groom. I suspect that you have not asserted your right under s 77 CDPA to be identified as the photographer, and so as long as the other photographer has not actually claimed that your images were taken by him (which would be contrary to s 84) then he has probably done anything which is actionable.
Posted 5 Oct 2014
Edited by photomane9 5 Oct 2014
Bob
Photographer
Bob
Pict

you have no claim unless you have something in writing to the contrary.

Wrong!
Plymjack

Well I would agree you have no rights regarding copyright

Wrong!
photomane9

You own the copyright. As you had...... then he has probably not done anything which is actionable.

Correct, except for the typo which I have corrected.

Bob


Posted 5 Oct 2014
Edited by Bob 5 Oct 2014
photomane9
Photographer
photomane9
Bob


Correct, except for the typo which I have corrected.

Bob




Whoops! Thanks Bob. My omissions checker isn't working properly today. 
Posted 5 Oct 2014
Bob
Photographer
Bob
photomane9

Whoops! Thanks Bob.

You're welcome.

Posted 5 Oct 2014
Plymjack
Photographer
Plymjack

Without details of the reciprocal arrangements outlined by the OP it is hard to know for sure, but given the OP clearly knew the "other photographer" was going to be selling them (as presumably you are going to be selling the ones he takes as your second photographer), you have given him the rights to do as he wishes (so yes you still have the copyright but since you have given him a "licence" to do as he wishes it serves no purpose to you).

Posted 5 Oct 2014
Bob
Photographer
Bob
Plymjack

Without details of the reciprocal arrangements ...

Stop digging a hole and trying to muddy the waters at the bottom.
Andy (photomane9) has answered Rob's question about who owns the copyright both succinctly and accurately.
Bob


Posted 5 Oct 2014
rob25881
Photographer
rob25881
Thank you all for your answers.
I have told the other photographer I wasn't too impressed to see them using my photo advertising their business (they are a self employed photographer) and the arrangement we had was that the photos could be issued to the bride and groom as coverage of their day and nothing more.
Whilst I don't plan on taking any action regarding the copyright question, it was just something that I had at the back of my mind and wondered if someone could shed any light on it (which they have). Well aware of my position when I take photos myself and copyright etc but wasn't sure about this when acting as a second shooter.


Posted 5 Oct 2014
Astphoto
Photographer
Astphoto
The correct answer is this.

You own copyright in all your work unless you are an actual employee. TFP, help out a friend, mutual arrangement do not count. The only way you waive copyright is

A. A written waiver.
B. A proper employment contract and receipt of ACTUAL payment.

I know this because I have tested it with a major publisher, I won they lost.



Posted 5 Oct 2014
photomane9
Photographer
photomane9
Astphoto

The only way you waive copyright is
A. A written waiver.
B. A proper employment contract and receipt of ACTUAL payment. 


Mention of a waiver here only serves to confuse.
A waiver is an informed decision to abandon or not enforce, wholly or in part, a right or entitlement. That is not the same as either an assignment or a licence. For example where section 11(2) of the Copyright Designs and Patents Act 1988 applies (works made in the course of employment) the author has no copyright or moral rights in the work in the first place through the operation of the law, therefore there is nothing to waive in such cases.
An assignment or a licence both involve the formal transfer of all or part of the rights held by a copyright owner, either on a permanent or temporary/limited basis.  An assignment must be done in writing, and for the avoidance of doubt, licences should ideally also be given in writing.
 
Posted 6 Oct 2014
OldMaster
Photographer
OldMaster
Doesn't matter whether you were working for him or not IT'S STILL YOUR COPYRIGHT..you took the pictures!! Because he paid you or "employed you" he should have some small print somewhere saying he may use your images for his purposes.

Don't know why so many people find this so hard to understand!! You pressed the button..you were author of the pictures..its your copyright! You would have to sign away your rights for you not to be able to use your pictures which may be the case. If someone pays you may have to sign an agreement that you may not use your pictures and you in effect offer in return for remuneration a license for them to use them..but they can't change the legal definition of "Copyright"!

Posted 6 Oct 2014
Plymjack
Photographer
Plymjack
photomane9

Mention of a waiver here only serves to confuse.
A waiver is an informed decision to abandon or not enforce, wholly or in part, a right or entitlement. That is not the same as either an assignment or a licence. For example where section 11(2) of the Copyright Designs and Patents Act 1988 applies (works made in the course of employment) the author has no copyright or moral rights in the work in the first place through the operation of the law, therefore there is nothing to waive in such cases.
An assignment or a licence both involve the formal transfer of all or part of the rights held by a copyright owner, either on a permanent or temporary/limited basis.  An assignment must be done in writing, and for the avoidance of doubt, licences should ideally also be given in writing.
 




OldMaster

Doesn't matter whether you were working for him or not IT'S STILL YOUR COPYRIGHT..you took the pictures!! Because he paid you or "employed you" he should have some small print somewhere saying he may use your images for his purposes. Don't know why so many people find this so hard to understand!! You pressed the button..you were author of the pictures..its your copyright! You would have to sign away your rights for you not to be able to use your pictures which may be the case. If someone pays you may have to sign an agreement that you may not use your pictures and you in effect offer in return for remuneration a license for them to use them..but they can't change the legal definition of "Copyright"!


Bob will no doubt tell us who is wrong...
Posted 6 Oct 2014
photomane9
Photographer
photomane9
Plymjack

Bob will no doubt tell us who is wrong...

There is no disagreement between the two posts you quoted. I refered to section 11(2) which clearly talks about things done in the course of employment.Elsewhere (Section 178) in the Act employment is defined as follows:
“employed”, “employee”, “employer”, and “employment” refer to employment under a contract of service or of apprenticeship;

Old Master put his reference in quotes:  "employed you". I assume this was to deliberately indicate that he was referring to the non-legal use of the word 'employ' such as when one might say they employed a builder to come round and fix some guttering. Most normal people would not take that to mean that the householder had entered into a contract of employment and was paying the builder's NI contributions, with pension rights and holiday pay etc.
When read like that - as I am guessing Old Master meant it to read - then there is no discrepancy between what he and I said. It probably won't be necessary to get Bob out of the pub to adjudicate. 

Posted 6 Oct 2014
Edited by photomane9 6 Oct 2014
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