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[doug vagedes]

I am in the process of launching a new product.  I hired a photographer to come to my place and take photos of the product for marketing and packaging purposes.  I setup the product display and instructed him how I wanted the shots.  He is now claiming that he owns the copyrights of the pics and after one year I will need to pay him to continue using them.  Is this correct? 

Doug

[jacobusjay]

NO!

Does a musician own the copyright to your song that he plays and tapes for you?

Does Staples own the copyright of the article you copied at Staples?

Does the forum own the idea you posted on their website?

[mactheknife]

I disagree with jacobusjay.  The owner of a work is, at least initially, its author.  The author of a photo is often the photographer.  However, if you contributed enough of the creative expression in the photograph, you may also be an author and therefore a co-owner.  Even if he is the sole owner, that doesn't mean you can't use it after a year... it might be that you can establish an implied, perpetual, non-exclusive license to use the pics in the way you described, and he is reneging on this implied license (which he may not be able to do legally).  If you are seriously concerned about this, I would contact an attorney who can go over your specific circumstances.

[jacobusjay]

If design is a part of the photographer's work, then he is adding creativity to his photos.

An architect who designs elements of a building may claim authorship, but a plumber who designs (lays out) pipe in a construction project is paid for his work alone.

The photographer as a artist is different then the photographer as a journeyman.

The artist can sell his photos for their content.  The journeyman sells his services.  There is a big difference.

[doug vagedes]

Thank you both for the reply.  I can not imagine that the photographer would have any rights whatsoever to the photos in this case.  If he were to take photos of images in the public that he was not hired to do, then I can see where he would own the rights to those shots. BUT I own this product, filed patents and trademarks and developed the marketing behind it.  I set up the photo shoot, told him how I wanted the shots, the angles, close-ups, everything.  He added no creativity.  And he has rights? If that is the case, there is something flawed about ownership of rights.  Then I guess the graphic designer who I also hired to do work on the packaging, would have rights as well?

Look forward to hearing more thoughts.

[mactheknife]

You and jacobusjay are correct in that creativity is the cornerstone of authorship.  It seems like you have done a lot creatively to contribute to the outcome of the photograph, so you're most likely an author of the photograph.  The photographer would not be an author if (1) s/he contributed no creativity whatsoever, or (2) the photo was a "work made for hire" with respect to the photographer's contribution.  "Work made for hire" has a special meaning in copyright law (not just "I paid him money"); I won't go into a full analysis here but most likely these photographs wouldn't qualify.  Also, the amount of creativity needed to constitute copyrightable authorship is very slight.  One court has described elements of photography that could constitute copyrightable authorship as including "posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression, and almost any other variant involved."  So, when asking yourself if you are the sole author, ask yourself if you controlled every possible variable.  Did you select the photographer's camera or lens?  To what degree did you control the angle of the shot?  If there is any variable that could produce an expressive difference (even a slight variation in brightness, contrast, or the like) that is under the control of the photographer, then that photographer could be deemed an author.  Again, I suggest you find an attorney to go over your specific situation.  In any event, you can make a strong case that you are also an author, which makes you an owner of the photo.

Even if the photographer is an author, you can obtain his/her ownership stake, however, the transfer must be in writing.  That means, even if you pay the photographer handsomely, this doesn't automatically award you his interest in the copyright.  There must be some form of written agreement to the effect of "I transfer my copyright to you."  Your attorney can evaluate whether such a transfer is necessary.

[JSonnabend]

Doug -

First and foremost, be careful who you take advice from here.  There are several knowledgeable individuals who will steer you right.  Mack the Knife is one of those.  On the other hand, there are some completely clueless individuals here who post based on their personal senses of "right and wrong," not on the law.

Unfortunately, some of the advice you've received in this thread falls squarely into the second category of advice. 

Copyright law is fairly clear that photographers own the authorship rights in their photographs (even of your product) absent certain specific facts.  One way to alter the default rights is by written agreement, and to fully transfer authorship rights, the agreement would have to be executed prior to the photographs being created.

- Jeff

[jacobusjay]

Common sense and the law apparently don't always track.

A long explanation does not solve the problem of the manipulative photgrapher.  Surely, common sense will win out most of the time.

This must be one rare occassion where the law has been interpretted to wrongly penalize the consumer.

[doug vagedes]

Thank you all for the input.

[jacobusjay]

So what do you think you will do?

[still_studying]

Worst case, you could always hire another photographer and do it all again, this time explicitly stating in the contract that the photographer grants you ownership of the negatives, images, photos, holographs, and anything else, and is doing the whole thing solely as a work for hire, having received compensation of ten dollars and so on and so forth.

[doug vagedes]

We have agreed to a price for him to sell me all rights and waiting for legal document.

Thanks for the help. 

[jacobusjay]

You are a good sport.

I would have preferred that you were a good role model, but perhaps the battle was not worth fighting.

I imagine the lawyers are cheering your defeat.

[doug vagedes]

As much as I believe the copyright laws are flawed in a situation like this, giving the photographer my rights to photos that he otherwise would not have taken had I not hired him.  Sometimes you do have to pick your battles.  This certainly wasn't one.

I think the photographers are the ones cheering.

[Isaac]

As much as I believe the copyright laws are flawed in a situation like this, giving the photographer my rights to photos that he otherwise would not have taken had I not hired him.  Sometimes you do have to pick your battles.  This certainly wasn't one.

The client's position is stronger before the photos get taken, because if the client can simply not use the particular photographer if the price for getting the rights to the photographs is too high.  Negotiating after the shoot creates the situation where the photographer's legal position provides increased bargaining leverage against the client.