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Could really use some help please .....

 
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Stylish1
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PostPosted: Fri Apr 03, 2015 7:15 pm    Post subject: Could really use some help please ..... Reply with quote

Hi,

I'm new to this forum but hoping you can help. I'm a stylist and I create a concept and feel for a styled shoot, organise the venue, pull the wardrobe etc. then hire a photographer to shoot those images for me.

The photographer invoices me direct irrespective of my client.

I've found that 'works for hire' exists in the US. If I contract someone to do the photography for me do I own the copyright? If not where can I get the details needed to draw up a simple contract to have photographers sign to give me all rights. In most cases even with this contract in place I will give photo credit as my work often is featured in magazines.

Thank you in advance.
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AndyJ
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PostPosted: Fri Apr 03, 2015 9:13 pm    Post subject: Reply with quote

Hi stylish

The US concept of Work for Hire is similar to section 11(2) of the UK Copyright Designs and Patents Act 1988 as far as employees are concerned, but s 11 doesn't also apply to certain narrow categories of commissioned work in the same way that Work for Hire does.

It used to be (prior to the 1988 CDPA) that in the specific circumstances where someone commissioned a photograph, painting, engraving or drawing of a portrait, that person would own the copyright in the work. But now all that remains of that historical relic is the moral right for a person who commissions a photograph or film for private and domestic purposes to retain the right for the commissioned work not to be published without his/her consent, notwithstanding the fact that the photographer retains the copyright. And in answer to your posting on an earlier thread on this subject elsewhere on the site, I don't think the sort of work you style would qualify as private and domestic in purpose, since it appears they are commissioned specifically for publication purposes.

The only way you can achieve the result you want is to agree beforehand with the photographer that you require the copyright to be assigned to you as part of the commission. Since an assignment must be done in writing, a verbal agreement is not sufficient. You should expect to pay more for an assigned copyright, than for an image just supplied with a licence.

You can get a boilerplate assignment document from a site called Own-It, but there are others who provide the same kind of thing. Just be sure that whatever you use, it conforms to the law in England and Wales, or Scotland, depending on where you live. Frequently it would be the case that the photographer would be expected to provide a warranty absolving the commissioner from liability for any infringement of someone else's intellectual property rights, or indeed their wider rights, for instance with regard to privacy. However, as you style the shoots and provide the necessary clothing and props, this is not relevant.

It is as well that you normally credit the photographers you work with, as this is a separate, moral, right which cannot be assigned along with the economic rights. So should the photographer assert his/her right to a credit, you are duty bound to provide this where it is reasonably possible.
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Last edited by AndyJ on Sat Apr 04, 2015 9:51 am; edited 1 time in total
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Stylish1
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PostPosted: Fri Apr 03, 2015 9:22 pm    Post subject: Reply with quote

Hi Andy,

Thanks for your response. To be honest I've never had a problem until my last shoot where the photographer and designer didn't deliver as per the contract to my client having already recieved full payment. I'm currently seeking reimbursement through small claims court.

The problem is they are now refusing to allow use of the photographs I styled or credit me for an earlier shoot, yet they continue to be credited. The photograph would have been unable to exist without my concept and pulling the entire wardrobe. I'm looking to put something in place so this doesn't happen again.

How as a stylist do I protect my work? Will this part of the legislation cover me under artistic work?

Thanks for this - this is a huge learning curve for me.
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AndyJ
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PostPosted: Fri Apr 03, 2015 10:12 pm    Post subject: Reply with quote

Hi stylish,
I am not entirely clear of the exact contractual / commissioning chain at work here, but if you initiated the process of the shoot, following a request from your client, then effectively the photographer, designer, model, makeup artist etc were all contracted to provide their services to you. Payments would then flow in the other direction. That is to say the photographer etc should invoice you for the work you have commissioned from him/her. It sounds as if you (or your client) have paid the photographer either in advance, or before final delivery of the edited images and licences, which is not ideal.

Where a photograph has been commissioned for a specific purpose, invariably a court would find there was an implied licence for the photograph to be used in that way once payment had been made to the photographer for his services. I am not quite clear in what way you have been cut out of the loop and who the photographer is preventing from using the photograph you set up. If it is your client rather than you who is being prevented from using the photograph but you were the one who engaged the photographer, then regrettably you may be liable for providing the service you contracted with the client to provide, even though the photographer appears to have defaulted on his contract with you.

Something I did not mention in my first answer, is that if you played a major role in setting up the shoot, and made the majority or a significant amount of the arrangements necessary for it to happen, then you may well qualify as a joint author of the resulting work. This would mean that you and the photographer would jointly own the copyright. The actual details will be important and only a court would be able to rule definitively on that, but it might be something to consider with regard to the problem you are having, should you all agree to try and settle the matter through arbitration.

As you seem more concerned about avoiding this situation in the future, it might be wise to seek legal advice from you own solicitor on how best to set things in place. You need to consider your legal position. Do you wish to be someone who is trading on their own account, or do you want to act as an agent or 'middleman'? Both have their advantages and disadvantages, legally and financially. From that decision will flow the construction of the right type of contract you need to enter into with your 'suppliers' as well as with your clients. Copyright will form but one part of a much more detailed agreement about who does what, when and for how much.

Lastly on the subject of what protection might be available for your work, separate from the photographs themselves, I don't think this would qualify as a work of artistic craftsmanship. The main reason for this is Mr Justice Lloyd's analysis in a case called Creation Records Ltd v News Group Newspapers [1997] EWHC Ch 370. That was an interlocutory hearing which had to decide, amongst other things, whether copyright existed in the arrangement of a number of objects which were to form the cover image for the Oasis album Be Here Now. To that extent it has some similarities with your situation.
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Last edited by AndyJ on Fri Apr 03, 2015 10:35 pm; edited 1 time in total
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Stylish1
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PostPosted: Fri Apr 03, 2015 10:29 pm    Post subject: Reply with quote

Hi Andy,

So this is how I work ... I land a job and then bring on board a team. I'm responsible for paying them etc. It's entirely my fault for paying the photographer before the completed work but a lesson learned. She needed money - I gave in. I organised everything and kept the photographer informed, so perhaps joint copyright is an option? How does that work?

Because of this horrendous experience (still ongoing) I would rather own outright and retain the control. Currently I am being dictated to what I can and can't use - worse still the photographer is crediting the work themselves even though they were a subcontractor and had none of the contacts to be able to create or replicate the shoot.

I already have a MOU drawn up for future use and will add copyright terms to it as and when required.
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AndyJ
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PostPosted: Fri Apr 03, 2015 11:45 pm    Post subject: Reply with quote

Hi stylish,
Thanks for the additional information. While you were composing your post, I added some extra details to my last posting.

I can't really advise on your current problem beyond what I have already said. The issue seems to lie in what was, or was not agreed beforehand, and since this was all verbal, it will be difficult to resolve if the parties all remember different accounts of what was said. I think you would have great difficulty invoking the idea of joint ownership of the copyright now as this was not discussed or considered beforehand. As I mentioned, it sounds as if mediation might be a good way forward. You can find out details of services available in your area from your local Citizens Advice Bureau, most high street firms of solicitors or the local County Court.

For the future, you need to set out in writing an outline agreement you wish others to work to. This can be in the form of a brief for a shoot, on which the photographer can then base her written estimate. Once you have this early agreement sorted out, it can be formalised in a short contract which should cover what both parties have agreed during the initial stages with no surprises and from there on the likelihood of disputes is reduced. Beyond the obvious main objectives, the key to a successful contract is to try and foresee all the things which might go wrong and make some provision for them. So for instance, if the agreement is that the photographer will use her own studio and lights etc, what should happen if there is a power cut on the day of the shoot? Is she to be responsible for finding and paying for an alternative venue? Should the shoot be postponed? What happens if the photographer uses a faulty memory card and can't recover the images? Who would bear the cost of the re-shoot? I'm sure you can think of several other possible glitches which could affect the whole process, some of which will be your responsibility and some the photographer's. As many as possible need to be considered and discussed even if it is impractical to include every eventuality in the contract. Once everyone is clear about his or her role and responsibilities, the project can be much more collaborative. If during the shoot, after the contract has been signed, changes need to be made to what has previously been agreed, make written notes of the changes and get anyone concerned to countersign the note as an acknowledgement of the variation in the contractual terms. That way everyone's obligations continue to be clear and understood. This is especially important if something will incur additional payments or other financial implications. If the client is to be present at the shoot, say as an art director, you also need to be clear about the extent to which they can demand/request changes to the original agreement and also any financial implications of this. Keep all the documents (brief, estimate, contract, follow up notes etc) filed away for as long as necessary in case a dispute arises much later. For example if the photographer thinks she is supplying an image for a particular one-off publication, she may feel aggrieved if the same image appears in syndicated form elsewhere 2 years later, and may try and negotiate an additional fee, having forgotten that she in fact signed away all rights for a period of 10 years.

I hope that is of some help. I don't think I can go into much more detail because it really is some way from the copyright issue we started with. You may find it helpful to contact a trade body for stylists in your particular field. You could try the Advertsing Producers Association. There appears to have been an Association of Stylists and Image Professionals, but as their website is dead, it's not clear if it still exists.
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Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
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