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03-26-2015, 06:36 AM   #1
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Contract clause

"...The Photographer understands that "......" has the moral right to be identified as the author of the photographs when copies of the photographs are presented to the public, and shall communicate this understanding to publishers, designers and other third parties."

I just got a contract for a shoot I'm supposed to do this coming Saturday (I'm asking for some help, please visit https://www.pentaxforums.com/forums/125-flashes-lighting-studio/291615-cry-help.html), but this clause is making me rethink... So this means they are the author of the images? So where am I in all this? I'm not sure I'm reading it right, as english isn't my first language...
Any thoughts? Should I ask them to remove the clause?
Thank you in advance.

Paul

03-26-2015, 06:47 AM   #2
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Yes, once you sell them they are not owned by you.
03-26-2015, 07:09 AM   #3
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So, can I even use them for my portfolio?
03-26-2015, 08:01 AM   #4
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In Canada you own your photos. period. you can use them for your portfolio.

I'll try and find the source on that.


edit: http://petapixel.com/2012/11/07/canadian-photogs-now-officially-own-the-copy...-their-photos/

03-26-2015, 08:02 AM   #5
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Not enough information. Who is "...........", you or the customer?

However, unusual terms such as "moral right" often have defined legal meanings that aren't obvious to the layman, for example, in US law, the term "without prejudice" is often very bad though it sounds like a good thing.

I'd ask them what it means but never accept vague reassurances like "oh, the lawyers make us put that in" or "we wouldn't do that". They should be able to give you a concise meaning that makes sense and if you are agreeable to that, have them rewrite the contract in plain language. It is always a good idea to ask a lawyer competent in Canadian intellectual property law, it won't cost more than an hour of his time.
03-26-2015, 08:25 AM   #6
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QuoteOriginally posted by owl Quote
Not enough information. Who is "...........", you or the customer?

However, unusual terms such as "moral right" often have defined legal meanings that aren't obvious to the layman, for example, in US law, the term "without prejudice" is often very bad though it sounds like a good thing.

I'd ask them what it means but never accept vague reassurances like "oh, the lawyers make us put that in" or "we wouldn't do that". They should be able to give you a concise meaning that makes sense and if you are agreeable to that, have them rewrite the contract in plain language. It is always a good idea to ask a lawyer competent in Canadian intellectual property law, it won't cost more than an hour of his time.
That space is indeed the client's firm name.

---------- Post added 03-26-15 at 08:29 AM ----------

QuoteOriginally posted by Wired Quote
In Canada you own your photos. period. you can use them for your portfolio.

I'll try and find the source on that.


edit: Canadian Photogs Now Officially Own the Copyright to All of Their Photos
Thank you.
In that case, I really don't understand why the inclusion of that clause... I have emailed them to inquire...
03-26-2015, 08:44 AM   #7
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In the U.S. Under the Federal Copyright Act of 1976, photographs are protected by copyright from the moment of creation, photographers have the exclusive right to reproduce their photographs (right to control the making of copies).
Now this doesn't mean you can't give up the copyright that is typically negotiated. However with the verbiage of that clause you are giving up the copyright to the customer and you would not be able to utilize the photographs unless you have permission from the photographer, you can’t copy, distribute (no scanning and sending them to others), publicly display (no putting them online), or create derivative works from photographs.
03-26-2015, 09:26 AM   #8
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QuoteOriginally posted by focusr3 Quote
In the U.S. Under the Federal Copyright Act of 1976, photographs are protected by copyright from the moment of creation, photographers have the exclusive right to reproduce their photographs (right to control the making of copies).
Now this doesn't mean you can't give up the copyright that is typically negotiated. However with the verbiage of that clause you are giving up the copyright to the customer and you would not be able to utilize the photographs unless you have permission from the photographer*, you canít copy, distribute (no scanning and sending them to others), publicly display (no putting them online), or create derivative works from photographs.
*I believe you meant customer?

You're right and that's what's worrying me...

03-26-2015, 09:39 AM   #9
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laws are very different in Canada vs the USA however. I don't think we can "legally" give up our rights to our images up here for use by the commissioner. We can however sell them/provide them tot he commissioner for exclusive rights. But you should still be able to use them on your website and portfolio. You may just not be able to resell them.

I try not to enter contracts like this whenever possible. If they want "exclusivity" I'll sell them the images based on a one or two year exclusivity agreement. By the time the agreement has ended they would have stopped using the images ages ago and your free to resell or use them however you see fit. I've done this a few times. I don't like it, but its better than other options. :P
03-26-2015, 09:44 AM   #10
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QuoteOriginally posted by Flugelbinder Quote
*I believe you meant customer?

You're right and that's what's worrying me...
You are correct.
03-26-2015, 09:45 AM   #11
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That makes sense.

---------- Post added 03-26-15 at 09:46 AM ----------



QuoteOriginally posted by Wired Quote
laws are very different in Canada vs the USA however. I don't think we can "legally" give up our rights to our images up here for use by the commissioner. We can however sell them/provide them tot he commissioner for exclusive rights. But you should still be able to use them on your website and portfolio. You may just not be able to resell them.

I try not to enter contracts like this whenever possible. If they want "exclusivity" I'll sell them the images based on a one or two year exclusivity agreement. By the time the agreement has ended they would have stopped using the images ages ago and your free to resell or use them however you see fit. I've done this a few times. I don't like it, but its better than other options. :P
03-26-2015, 10:36 AM   #12
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QuoteOriginally posted by Wired Quote
In Canada you own your photos. period. you can use them for your portfolio.

I'll try and find the source on that.


edit: Canadian Photogs Now Officially Own the Copyright to All of Their Photos
You'd have to read the law to know but from the article:

"Starting today, photographers will automatically become the first owners of photos created for someone else."

First owners........ which implies you own the photos but can sell them to the second owners. Really would have to research this to see what it actually means.

---------- Post added 03-26-15 at 10:40 AM ----------

From a few minutes of research....

https://cippic.ca/en/FAQ/Photography_Law#Who

"The person who is considered the author owns the copyright in photographs. The author becomes the first owner of copyright in the photograph and may assign the copyright to another person. "

"Also, you will not own the copyright in any photograph you take during employment or for commissioned works where the clients have paid in full for your service. For more details, click here."

"Who owns the copyright in photographs I take for commissioned works?
Commissioned works is another exception under the Act (s. 13(2)). If a photograph was ordered by a customer and paid for in full, in the absence of any agreement to the contrary, the customer is considered the author and owns the first copyright in the photograph. For example, if a bride or groom hired a photographer to take their wedding photos and has paid for the service in full, then the copyright may then be owned jointly by the spouses, and not by the photographer.

In the absent of an agreement to the contrary, a customer owns the copyright in any photographs he ordered and for which he paid for. The customer is free to copy and distribute these photographs. For a related Canadian decision, see Lorraine Lapierre Desmarais v. Edimag Inc. and Alys Robi, where the widow of a photographer tried to sue the person who commisioned the photographer on the grounds of illegal reproduction."
03-26-2015, 11:38 AM   #13
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Thanks for starting the thread Paul, this is matter that is always interesting to know. Now on the other hand you can always use the pictures from the commissioned work in your portfolio (This is what all the wedding photographer do now days), however you might not be able to sell them.
03-26-2015, 12:01 PM   #14
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QuoteOriginally posted by Pavel_Zhelev Quote
Thanks for starting the thread Paul, this is matter that is always interesting to know. Now on the other hand you can always use the pictures from the commissioned work in your portfolio (This is what all the wedding photographer do now days), however you might not be able to sell them.
Down here in the US Wedding photographer own the photo's and sell copies to the customer ie. bride and groom. The bride and groom may be able buy the rights but they aren't given up for free and many wedding photographers won't sell them. They keep the copyright to insure they can collect future monies for additional copies of the photo's in fact I have been looking for a wedding photographer and many of them won't even allow the pictures to be posted to social media sites without purchasing a "digital" license. They will however allow you to post a link so others can view the photo's but if you want a copy you buy it from them.
03-26-2015, 12:52 PM   #15
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I would like to add to the discussion. I believe that there is some confusion between intellectual copyright and commercial rights. When you sell a photograph, the customer buys some commercial rights; these rights might differ from country to country and from contract to contract. But the intellectual property (or ownership) remains with the photographer who took the photograph.

I regularly provide (commercially and freely) photographs to publishers (for educational books, scientific journals...). The publisher gains permission to use the photograph(s) for commercial purpose. But I retain the intellectual copyright of the shot(s) as the photographer who took the photograph, and I can list the photograph on my portofoilo and resume.

I fully appreciate that wedding photographs may be a different business....
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