copy right question photographing artist working

**aslyfox** · 10-13-2019, 04:54 AM

in the photo I decided to post, you can clearly see the artist is not finished

now in one where the woman's image is complete and that is the only image on the paper, a stronger argument might be made that the drawing has been " fixed "

a photo showing the marker is touching the paper would even be stronger evidence that the artist was still in the creative process

_______________

I hope my photo is acceptable

still trying to figure out the SMC Pentax-DA 55mm F1.4 SDM

Last edited by aslyfox; 10-13-2019 at 05:00 AM.

Unregistered User · 10-13-2019, 05:27 AM

I'd say that whatever ink is on the paper is "fixed". I've given up looking up cases to illustrate that point, but here's a pretty good article on the question, I think:
What is the difference between a fixed work and a work that is not fixed? | Copyright Law | Mateo Aboy, PhD, MBA

Originally posted by aslyfox

in the photo I decided to post, you can clearly see the artist is not finished

now in one where the woman's image is complete and that is the only image on the paper, a stronger argument might be made that the drawing has been " fixed "

a photo showing the marker is touching the paper would even be stronger evidence that the artist was still in the creative process

_______________

I hope my photo is acceptable

still trying to figure out the SMC Pentax-DA 55mm F1.4 SDM

**aslyfox** · 10-13-2019, 05:30 AM - **1 Like**

Originally posted by dlh

I'd say that whatever ink is on the paper is "fixed". I've given up looking up cases to illustrate that point, but here's a pretty good article on the question, I think:
What is the difference between a fixed work and a work that is not fixed? | Copyright Law | Mateo Aboy, PhD, MBA

so one brush stroke on a blank sheet of paper is a copyrighted portrait ?

could be

that is why they call it horse racing

or alternatively

why they play the game

attorneys always have opinions, in person, in court and in law review articles

thanks for your input

**BarryE** · 10-13-2019, 05:36 AM

Things seem to be so much more complicated over your side of the pond.

Here in the UK if you take a photo of someone in a public place the copyright is yours. It would not matter if they were performing. Taking photos of children is legal too. A problem may arise if they were doing something indecent. The photographer can then freely sell the image for journalistic or artistic purposes without any agreement. Agreement is, however, best advised if the photo is then used, say for promoting a product.

Feels about right to me. Street photography in the US must be a nightmare ...

Unregistered User · 10-13-2019, 05:37 AM

Originally posted by aslyfox

...
attorneys always have opinions, in person, in court and in law review articles

...

Paraphrasing a line from "Dirty Harry"? ("Everybody's got one.")

**aslyfox** · 10-13-2019, 05:40 AM

Originally posted by dlh

Paraphrasing a line from "Dirty Harry"? ("Everybody's got one.")

not intentionally

Parallax · 10-13-2019, 05:43 AM

Originally posted by 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?

That would be a good question to ask of an attorney.

**aslyfox** · 10-13-2019, 05:51 AM

Originally posted by Parallax

That would be a good question to ask of an attorney.

do you answer questions?

Attorney - yes

can I rely on the answer?

Attorney - yes, if you have paid me for my time and effort in researching the matter in the necessary fashion to avoid a successful lawsuit against malpractice

otherwise NO

Unregistered User · 10-13-2019, 05:51 AM

Originally posted by Parallax

That would be a good question to ask of an attorney.

Hey! There's a thought!

**aslyfox** · 10-13-2019, 05:55 AM

Originally posted by Parallax

That would be a good question to ask of an attorney.

Originally posted by dlh

Hey! There's a thought!

I wonder if any are photographers and members of the forum who might be willing to post a response?

gatorguy · 10-13-2019, 06:00 AM - **1 Like**

Originally posted by dlh

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.

Gosh NO. I do think you covered it quite thoroughly.

FWIW I did have the exact same scenario as the OP. In my case they asked if I could sent them a couple of the best ones so they could do some self-promotion on Facebook . So they were asking MY permission to publish and I did of of course.

bigdavephoto · 10-13-2019, 07:29 AM - **1 Like**

Originally posted by aslyfox

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

As I understand the laws, yes. Unless you take a photo of the finished work alone, that is when questions can come up, as has already been seen in this thread.

**aslyfox** · 10-13-2019, 08:17 AM

I have been advised the word is spelled

Copyright

Not copy right

Unregistered User · 10-13-2019, 02:31 PM

Originally posted by BarryE

Things seem to be so much more complicated over your side of the pond.

Here in the UK if you take a photo of someone in a public place the copyright is yours. It would not matter if they were performing. Taking photos of children is legal too. A problem may arise if they were doing something indecent. The photographer can then freely sell the image for journalistic or artistic purposes without any agreement. Agreement is, however, best advised if the photo is then used, say for promoting a product.

Feels about right to me. Street photography in the US must be a nightmare ...

Only if you intend to use the pictures to sell stuff in advertising.

I note further, that you fail to distinguish between permission needed to photograph people and the permission needed to make a "derivative work" that violates a copyright by taking a picture of someone else's "fixed expression in a tangible medium". I believe the UK is a signatory to the Berne Convention on Copyrights, so I think the law on that point is the same on both sides of the Big Water.

**Lowell Goudge** · 10-15-2019, 04:31 AM - **1 Like**

Originally posted by 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?

_____________________________________________

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

I think there are 2 points to address

You own the photo and the copy write, no question.

The subjects who are clearly identified should sign a release, this prevents you from legal action if they do not like what you do with the photo, and how their image is used.

10-13-2019, 05:55 AM	#25
aslyfox Seeker of Knowledge Join Date: Aug 2016 Location: Topeka, Kansas Photos: Gallery \| Albums Posts: 24,576 Original Poster	Originally posted by Parallax That would be a good question to ask of an attorney. Originally posted by dlh Hey! There's a thought! I wonder if any are photographers and members of the forum who might be willing to post a response? Last edited by aslyfox; 10-13-2019 at 06:08 AM.

10-13-2019, 06:00 AM - 1 Like	#26
gatorguy Moderator Join Date: Feb 2015 Location: Central Florida Photos: Gallery Posts: 6,089	Originally posted by dlh 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. Gosh NO. I do think you covered it quite thoroughly. FWIW I did have the exact same scenario as the OP. In my case they asked if I could sent them a couple of the best ones so they could do some self-promotion on Facebook . So they were asking MY permission to publish and I did of of course. Last edited by gatorguy; 10-13-2019 at 07:32 AM.

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10-13-2019, 04:54 AM	#16
aslyfox Seeker of Knowledge Join Date: Aug 2016 Location: Topeka, Kansas Photos: Gallery \| Albums Posts: 24,576 Original Poster	in the photo I decided to post, you can clearly see the artist is not finished now in one where the woman's image is complete and that is the only image on the paper, a stronger argument might be made that the drawing has been " fixed " a photo showing the marker is touching the paper would even be stronger evidence that the artist was still in the creative process _______________ I hope my photo is acceptable still trying to figure out the SMC Pentax-DA 55mm F1.4 SDM Last edited by aslyfox; 10-13-2019 at 05:00 AM.

10-13-2019, 05:27 AM	#17
Unregistered User Guest	I'd say that whatever ink is on the paper is "fixed". I've given up looking up cases to illustrate that point, but here's a pretty good article on the question, I think: What is the difference between a fixed work and a work that is not fixed? \| Copyright Law \| Mateo Aboy, PhD, MBA Originally posted by aslyfox in the photo I decided to post, you can clearly see the artist is not finished now in one where the woman's image is complete and that is the only image on the paper, a stronger argument might be made that the drawing has been " fixed " a photo showing the marker is touching the paper would even be stronger evidence that the artist was still in the creative process _______________ I hope my photo is acceptable still trying to figure out the SMC Pentax-DA 55mm F1.4 SDM

10-13-2019, 05:30 AM - 1 Like	#18
aslyfox Seeker of Knowledge Join Date: Aug 2016 Location: Topeka, Kansas Photos: Gallery \| Albums Posts: 24,576 Original Poster	Originally posted by dlh I'd say that whatever ink is on the paper is "fixed". I've given up looking up cases to illustrate that point, but here's a pretty good article on the question, I think: What is the difference between a fixed work and a work that is not fixed? \| Copyright Law \| Mateo Aboy, PhD, MBA so one brush stroke on a blank sheet of paper is a copyrighted portrait ? could be that is why they call it horse racing or alternatively why they play the game attorneys always have opinions, in person, in court and in law review articles thanks for your input

10-13-2019, 05:36 AM	#19
BarryE Site Supporter Join Date: Jan 2013 Location: Hampshire, UK Posts: 1,653	Things seem to be so much more complicated over your side of the pond. Here in the UK if you take a photo of someone in a public place the copyright is yours. It would not matter if they were performing. Taking photos of children is legal too. A problem may arise if they were doing something indecent. The photographer can then freely sell the image for journalistic or artistic purposes without any agreement. Agreement is, however, best advised if the photo is then used, say for promoting a product. Feels about right to me. Street photography in the US must be a nightmare ...

10-13-2019, 05:37 AM	#20
Unregistered User Guest	Originally posted by aslyfox ... attorneys always have opinions, in person, in court and in law review articles ... Paraphrasing a line from "Dirty Harry"? ("Everybody's got one.")

10-13-2019, 05:40 AM	#21
aslyfox Seeker of Knowledge Join Date: Aug 2016 Location: Topeka, Kansas Photos: Gallery \| Albums Posts: 24,576 Original Poster	Originally posted by dlh Paraphrasing a line from "Dirty Harry"? ("Everybody's got one.") not intentionally

10-13-2019, 05:43 AM	#22
Parallax Senior Moderator Loyal Site Supporter Join Date: Apr 2008 Location: South Dakota Photos: Gallery Posts: 19,332	Originally posted by 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? That would be a good question to ask of an attorney.

10-13-2019, 05:51 AM	#23
aslyfox Seeker of Knowledge Join Date: Aug 2016 Location: Topeka, Kansas Photos: Gallery \| Albums Posts: 24,576 Original Poster	Originally posted by Parallax That would be a good question to ask of an attorney. do you answer questions? Attorney - yes can I rely on the answer? Attorney - yes, if you have paid me for my time and effort in researching the matter in the necessary fashion to avoid a successful lawsuit against malpractice otherwise NO

10-13-2019, 05:51 AM	#24
Unregistered User Guest	Originally posted by Parallax That would be a good question to ask of an attorney. Hey! There's a thought!

10-13-2019, 07:29 AM - 1 Like	#27
bigdavephoto Pentaxian Join Date: Nov 2011 Location: East central Indiana Photos: Gallery Posts: 893	Originally posted by aslyfox even if while doing so I capture her progress from blank sheet to finished work ? As I understand the laws, yes. Unless you take a photo of the finished work alone, that is when questions can come up, as has already been seen in this thread.

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10-13-2019, 08:17 AM	#28
aslyfox Seeker of Knowledge Join Date: Aug 2016 Location: Topeka, Kansas Photos: Gallery \| Albums Posts: 24,576 Original Poster	I have been advised the word is spelled Copyright Not copy right

10-13-2019, 02:31 PM	#29
Unregistered User Guest	Originally posted by BarryE Things seem to be so much more complicated over your side of the pond. Here in the UK if you take a photo of someone in a public place the copyright is yours. It would not matter if they were performing. Taking photos of children is legal too. A problem may arise if they were doing something indecent. The photographer can then freely sell the image for journalistic or artistic purposes without any agreement. Agreement is, however, best advised if the photo is then used, say for promoting a product. Feels about right to me. Street photography in the US must be a nightmare ... Only if you intend to use the pictures to sell stuff in advertising. I note further, that you fail to distinguish between permission needed to photograph people and the permission needed to make a "derivative work" that violates a copyright by taking a picture of someone else's "fixed expression in a tangible medium". I believe the UK is a signatory to the Berne Convention on Copyrights, so I think the law on that point is the same on both sides of the Big Water.

10-15-2019, 04:31 AM - 1 Like	#30
Lowell Goudge Site Supporter Join Date: Jan 2007 Location: Toronto Photos: Gallery \| Albums Posts: 17,886	Originally posted by 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? _____________________________________________ 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 I think there are 2 points to address You own the photo and the copy write, no question. The subjects who are clearly identified should sign a release, this prevents you from legal action if they do not like what you do with the photo, and how their image is used.