[aslyfox]

If I take a photo, I own the copy right to it. That is generally true as I understand it

but if the subject of my photo is an artist who is working, in this case a person doing a caricature of a person, the subject of the caricature as well and you capture the process ending with the final product

who owns the copy right to your photo ?

if you want to post the photos, would you need permission of the artist

and the subjects

does it matter whether you intend on selling the photos

or not

any thoughts or help?

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any reader of this thread should obtain a legal opinion of an attorney from their area who specializes in copy right issues before taking any action of their own

none of the posts in this thread should be considered as legal advice

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Last edited by aslyfox; 10-13-2019 at 08:19 AM.

[35mmfilmfan]

I would tend to ask the subject and the artist if they had any objections to being photographed, then offer them each a print as thanks if they agreed.

[bigdavephoto]

You would still own the copy right to your photo.

Just like any other photo, if the photo you have taken is a street artist working on a caricature of his/her subject, your subject is not his artwork but the street artist themselves plus their subject and what they are doing.

If not for commercial use or contest use, I believe, you would not need permission to post your photo. If you intend to sell your photo, I think permission forms would be needed.

That is how I see it.

[aslyfox]

I would tend to ask the subject and the artist if they had any objections to being photographed, then offer them each a print as thanks if they agreed.

well

I like candid shots

so I stood in areas where I wasn't distracting

but I did know the subjects and showed them and the artist some of the photos, took a couple of them with the artist and finished work

right now I am processing the better ones and sending them to the people.

but again, that doesn't answer, at least to me, who " owns " the copy right

especially to the photos capturing the work of the artist as she progressed from her blank sheet to her finished work

as opposed to those which did not capture her work

My intent was to show the process of her work so the photos tried to capture it

if you catch what I am trying to describe

[aslyfox]

You would still own the copy right to your photo.

Just like any other photo, if the photo you have taken is a street artist working on a caricature of his/her subject, your subject is not his artwork but the street artist themselves plus their subject and what they are doing. . . . .

even if while doing so I capture her progress from blank sheet to finished work ?

The simple answer is, "yes". It does matter whether you intend to sell the pictures. Though not necessarily to you.

Starting with the work in progress that is the subject of your picture. No question that the artist making the work owns the copyright to whatever he's done at the time of the photograph. What you'd be doing is "making a derivative work" as to that object of art, assuming that it's visible in the picture. You definitely need permission from the artist to do that, regardless of whether the picture's for your own use and enjoyment or for commercial use.

Secondly, and as to the picture of the artist himself and of his workspace: generally, you don't need permission to photograph people in public places or in places that you control at all. In some places, architecture can be treated as a "performance" of a copyrighted work, namely the plans and elevations of the building. The artist's workspace may be artfully arranged but that doesn't make it a copyrightable work unless he's developed a written design constituting a "fixed expression in a tangible medium".

Third: any commercial use of the picture requires permission, both for the derivative work as well as the image of the human. Commercial use doesn't mean selling a copy of the picture, the copyright, or a license, it means the use of the picture to sell something else. There was a famous case that started this line of thinking, in which a sweet, chaste, and lovely young woman (those adjectives were considered appropriate and relevant at the time she was alive) was photographed in public without her prior permission, who subsequently saw her image being used in advertisements for a brand of bread. She sued the advertiser and won, not because of the photograph, but of the use of the image of her likeness had been used for commercial purposes.

Fourth: ANY use of a copyrighted work without ownership or licensure ("license" being legalese for "permission") is prohibited, and that would include the work in progress on the artists bench.

Evidentiary issues:

The first observation is that the whole point of having evidence (e.g., a written contract) is to be prepared for the legal battle when things come to blows. Ideally, that will never happen, but the time to create such evidence is contemporaneously with events, well before you need it. People have come to me wanting to take action against someone without any evidence at all, thinking that they can generate what they need on the day of trial because they know the truth and they're confident that once they tell the truth, everyone will immediately see that their cause is just. Ooops.

Permission may be given orally or in writing. But the whole point of the exercise is to first, avoid legal problems at all, and secondly, to be prepared to mount an effective defense, just in case. You could document permission by turning on video-mode on the camera and recording the artist saying, "Yes, it's ok with me if you take all the pictures you want, and I don't care what you do with them.", though it's best to have a written memorial of the agreement. Some folks carry forms around with all sorts of legal mumbo-jumbo, but in my opinion, that's usually not necessary (for "walking around" type pictures). Arbitration and indemnification clauses only create confusion in my view.

The one thing I would include beyond the foregoing would be something that clarifies that the picture could potentially be used to sell products and services. I've seen some that say, "including commercial use", but the reason for that clarification is that some folks have been successful in arguing, "It's true I gave 'plenary permission', but I didn't know that included commercial uses. I only gave permission to take the picture, not to sell stuff." I defined "commercial uses" above because I think most folks wouldn't immediately understand the legal distinction between selling a print and using the picture to sell stuff. So to completely eliminate that argument, I'd make it clear if you intend to sell pictures on Shutterstock that such permission has been granted by a phrase that makes it clear, like, "...including the right to use the picture in advertising".

Note the distinctions between "selling" (conveying all right, title, and interest) and "licensing" (a grant of permission, which can be exclusive, i.e., excluding even the author, or nonexclusive, and which can be limited by other terms and conditions) and between the copyright in the work (an intangible ownership interest) and the work itself.

Then, there's the documentation of permission from the artist as to his copyrighted work - "Should the resultant images reflect one or more works in which you claim ownership of copyrights, you also grant plenary permission to make derivative works thereof for any and all uses, including advertising." or something like that ought to work.

Documentation may also required for subjects under a certain age where body parts are exposed - modern "child pornography" laws aren't as limited as older anti-obscenity statutes, and now include any depiction of practially the entire ventral surface of anyone under the age of eighteen as well as any part of the buttocks. The average bathing suit typically worn by teenagers would prohibit their being photographed, since some part of "the breast" will be exposed. And because the word, "breast" is not defined by statute, it may be used in the original denotative sense of the entire ventral surface from neck to navel, or it may be used as colloquially to mean "a single teat". One case from a U.S. Court of Appeals said that "the inner thigh" was part of "the pubic region" and found a photographer guilty of child porn because he'd taken pictures of kids on a beach. Here's a couple of kickers - any parents who sign a permission slip to photograph their kids in bathing suits will be guilty of conspiracy to commit child porn, because there is no such thing as "permission" in that context; and also, there are documentation requirements for pictures of anyone who so much as looks like they may be under eighteen - there has to be a statement accompanying such pictures telling the name and address of the "custodian of the records" proving that the subject is over the age of eighteen years. Because the statutes are written to favor prosecution of "thought crimes", the can be very widely interpreted - I've seen photos on this website that could well have resulted in prosecutions if anyone had a reason to want to "get" the photographer for, say, political reasons.

And, all that having been said, keep in mind that I'm not an attorney where you live, so this is mere top-of-the-head personal opinion and pontification about U.S. law stimulated by your hypothetical issue, not legal advice.

Let me know if I've left anything out, please.

[aslyfox]

[ similar to my thoughts but I was looking for confirmation ]

sounds like I raised a test question for copy right and/or ethics law

very well reasoned and I have no basis to contest it

but I never practiced in that specific area of law ( copy right ) so I could be wrong

and since this is a hypothetical question, I have no intention of relying on your reasoned opinion and

any other reader of this thread should obtain a legal opinion of an attorney from their area who specializes in copy right issues before taking any action of their own

thanks

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Last edited by aslyfox; 10-13-2019 at 05:03 AM.

[aslyfox]

well I have permission from the " models " via email to post the photos

but I still need to get permission from the artist before I can post the photos

[35mmfilmfan]

It raises, to me, the interesting point of when the artist's work actually becomes an image to which copyright applies (leaving aside the photographic aspect for the moment). Is it when it is complete, when the subject matter is still recognisable but more work still needs to be done, when it is obvious that the marks on the paper are not just idle doodling, or when the artist draws the first line, or makes the first mark on an otherwise pristine sheet ? Anyone any thoughts ?

It raises, to me, the interesting point of when the artist's work actually becomes an image to which copyright applies (leaving aside the photographic aspect for the moment). Is it when it is complete, when the subject matter is still recognisable but more work still needs to be done, when it is obvious that the marks on the paper are not just idle doodling, or when the artist draws the first line, or makes the first mark on an otherwise pristine sheet ? Anyone any thoughts ?

I love that kind of question. The simple answer is, "it depends." Law isn't like, say, programming a computer, such that a rule applies strictly, now, forever, and always. It's like the pirate's code, "It's more like guide-lines." More a set of general principles that acquire their shape in the real world by conforming to a set of practical facts. So, as a matter of general principles, a copyright attaches when some "author" creates "a work". Whether that can be said to have occurred at a particular stage of completion, from a single brush-stroke on a blank canvas up to just prior to the last, is, as the lawyers say, "a jury question".

And there's the central thorny point in any legal analysis: the system is owned, operated, and staffed with humans. And the humans who do "law" may be smart enough to have gotten through law school, and they may have certain personality characteristics (or neuroses) that made them suitable for that kind of work, but they're as varied as humans anywhere. Some of them are really good, some are really bad, and most are average.

So you get a particular judge (and since copyright infringement cases sound in equity rather than law, you don't get a jury, but if you did) and a set of good folk and true from the surrounding bailiwick to decide what the facts are, which ones are relevant, what the law is as applied to this particular case, and an ultimate decision about who's right and who's wrong.

It's not really a crap-shoot, but with "close questions of law and fact", it can be pretty nearly the same thing. That's why people go overboard with documentary evidence up front in order to try to bring some certainty to their future. That's why people buy insurance. (Which, if you make money doing photography would be a wise investment, by the way.)

[aslyfox]

great question and one I hadn't thought of

working backwards

certainly upon completion

but before that, I think there could be an very strong argument that copy right protection wouldn't be applicable

think of a building [ not the blue print ] design, I believe that can be claimed as being copy righted,

it wouldn't be capable of being protected while the building was under construction but only when completed

a sculpture might be another example

it has to be the finished product, not the blows of the instrument that releases the inner beauty from a block of stone

but that is just my WAG

perhaps . someone else might be willing to comment

[aslyfox]

Copyright Registration for Pictorial, Graphic, and Sculptural Works

Copyright is a form of protection provided by U.S. law to authors of “original works of authorship,” including “pictorial, graphic, and sculptural works.” The
owner of copyright in a work has the exclusive right to make copies, prepare derivative works, sell or distribute copies, and display the work publicly.

Anyone else wishing to use the work in these ways must have the permission of the author or someone who has derived rights through the author.


A work is automatically protected by copyright when it is created, that is,“fixed” in a copy or phonorecord for the first time. Neither registration in the Copyright Office nor publication is required for copyright protection. . . .

- https://www.copyright.gov/circs/circ40.pdf

[aslyfox]

[ note, the drawing is clearly not completed or " fixed " and the face of the artist is not seen ]

[ note, the drawing is not complete or " fixed " ]

I see a "jury question". You'd have to know what's in the mind of the artist - and since he's likely to be the plaintiff, he's not likely to offer much support. On the other hand, can you imagine a world in which a barely-begun work would be the subject of litigation? I'd be afraid of being hit with Rule 11 sanctions.

Gives me another idea - I had an issue come up over "permission to photograph" slips which were treated as void because there was no consideration sufficient to turn them into any kind of contract. You could have something in a permission slip that says that "The subject agrees that a pictorial representation of his activities would promote his exposure in the relevant market for his art, and on the basis of that consideration, agrees to the following: ..."

[aslyfox]

I see a "jury question". You'd have to know what's in the mind of the artist - and since he's likely to be the plaintiff, he's not likely to offer much support. On the other hand, can you imagine a world in which a barely-begun work would be the subject of litigation? I'd be afraid of being hit with Rule 11 sanctions.

Gives me another idea - I had an issue come up over "permission to photograph" slips which were treated as void because there was no consideration sufficient to turn them into any kind of contract. You could have something in a permission slip that says that "The subject agrees that a pictorial representation of his activities would promote his exposure in the relevant market for his art, and on the basis of that consideration, agrees to the following: ..."

a contract is an agreement, written or oral, when a court determines " consideration " was exchanged.

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any question of fact can be a " jury question " but " fixed " might be a legal question in this context ??


now we are getting down in the legal weeds