Who among us?

Mike Edwards mike@KINGMUDDFISH.COM
Tue Mar 29 08:57:07 EST 2005

My comments on the photographer studio's rights to pictures come from
personal experience both as an artist having my pic taken and as someone
who produces copyrightable material.

I've been advised over and over, to make sure I have full release from the
photographer for me to use the photographs in any manner I please. I
actually argued with the attorney "no way, that is a picture of me, I own
it! I just hired somebody to click the button!" Then I got a lecture on
what a "work for hire" is what can happen if I use a photo without written
release from the photographer or a written agreement stating that the work
was produced as a "work for hire". Then he explained if I have the
photographer execute a "work for hire" agreement, given all the lingo is
correct, that I would own the full copyright. When ever I get the release
to use the photo as I please, the photographer still has copyright
ownership; however, in  most instances he would need a release from me to
use the picture.

The studios I've found who are least willing to give you written release to
use the photo's as you please seem to be the one's that specialize in
publicity and promotional photo's. The more reputable ones will
specifically include it in their price. The less reputable ones will not
mention it until you have your pics taken and you paid them. They will then
suggest to you that if you want to use any of the pics for publication or
public display, they will release the use of the photos for a price. Mind
you, the most they can demand is the cost for you to have new photo's taken.

I became acquainted with a famous artist (painter) who gave me permission
to use images of one of her paintings as I pleased in return for the same
use privlege of one of my songs. A while later, she was served with papers
to stop using images of her painting under threat of suit. She called me in
a panic because of our deal and warned me that they were going to come
after me if I used images of her painting. The short story was, in her
ignorance, she signed a "work for hire" agreement when she sold the
painting. They would not even let her use an image of the painting in her
promotional portfolio.

On another front, I produce copyrightable product for clients (database
architecture and computer code, planning and analyis commentary). Often
large companies include language in my contract that I have to catalogue
and document all copyrightable material I've produced prior to my hire. All
copyrightable material I've produced that is not included in that catalogue
belongs to them as a "work for hire". I was advised that every song and
article I've ever written could become theirs if I signed the agreement and
failed to list them in the catalogue. What was funny about the first time I
came up against this wording was the attorney advised me I was much like a
photographer, producing a product (computer programming vs a picture) where
the subject matter belonged to someone else (their proprietary business
systems and analytics vs someone's image).

The solution that has always worked to date is that I give them a release
to use for any purpose, all database architecture, computer code, and
writen articles concerning the same that was produced by or incorporated
into the work by me during my term of hire, but I still retain all
copyright ownership. If another company buys them, then they own the
release, not the copyright.

I was told the reason that the goofy language came up was that in the past,
employers of developers and analysts claimed that their clients were using
their work beyond its intended purpose and sought additional compensation
or the right to deny their former clients the use of their work (of course,
for the right amount of money, the developers' employers would grant a
release or sell the copyright).

If you guys think the Robert Johnson copyright issue is a big deal, you
should look at the multi-billion dollar copyright battles going on over
computer software and business systems. I'm not talking about piracy, I'm
talking about snippets of code burried deep inside some huge complex
program or some little step inside some complex business system. Some
analysts have predicted that copyright litigation serves to become more a
threat to western commerce than all other litigation combined.

If you produce copyrightable material, you are either a weed in someone's
garden or a crop to be harvested by some plaintiff and their attorney.
Either way, you can be pulled out of the ground by your roots. Sounds
fitting for a blues musician, don't it?

I'm no attorney and I don't give legal advice, but I'm sure someone out
there who is can provide some cogent commentary on these issues. I'm just
repeating what I've been told.

Mike Edwards

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