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From my point. Every photographer views his or her work differently. We are a profession that also has to make a living. Doctors and Lawyers can charge in upwards to $1000 or more per hour of time, and what do you get for it. Professional advise. The cost of photography is two fold. Creativity and capturing the photograph and all that goes into that. Second the printing of the photograph.
Just because you can get prints cheaper at Costco, Walmart, or Sam's Club doesn't mean you should get the same price at your photographer. When you print a photograph you do the work. When a photographer does the work he either has to take his time to do it, touch it up, send it to the Lab, and then pay for shipping, get the print back, put it in a folder, call you and have you pick it up.
About your contract issues- The copyright will always be held by the photographer who created it. If you request a copy of Hi-Resolution images that you can print at your disposal. That requires a Release to Print agreement. If you print the photographers without the permission of the photographer and he finds out, you could be liable for substantial damages. It is important that you get the written permission from the photographer to print the photographs.
Your photographer is not trying to gouge you. He needs to make a living to. This country is ruining itself by giving away everything for free!
In the end, however, there are a lot of choices out there. If you don't like the deal one is giving you...go find a different one. In the end you don't have the right to define your photographer's business model, but you do have the right to choose someone different if you're not happy with their practices.
From a non-IP perspective, however, I highly recommend that you focus first on the quality of work and reputation, and second on the rights you have to the pictures. If you have a thousand blurry, dark, and useless pictures in the end, who cares if you can reprint them in the next Cato corporate brochure??
As a software developer, I do not maintain the rights to code that I am contracted to write unless I get a license written into the contract. I see no reason why contracted photography is any different. I'm able to make a living without keeping the copyright on the code I write professionally.
Anyone who says I can't make a copy of a photograph that I am in and that I paid for can go screw themselves :)
As a consultant, I routinely performed works-for-hire which others now own. As an employee of a mega-corp, they own a good chunk of my work.
As the owner of the work, you won't have to worry about such issues as Brandon raises.
Congratulations!
My family recently hired a photographer who, at my request, simply assigned to me her copyrights in her photos. (I had her do so in a signed writing, of course, as the Copyright Act requires.) She took the shots on a digital camera and gave us a set of copies when she was done, to reproduce, modify, publish, etc., as we saw fit. She had no objections, and indeed told me that she generally did not assert copyrights in her work, finding it instead more workable and profitable to charge enough up-front to cover her costs and then let customers do what they wanted with the results.
If your photographer objects to that approach, and allows only a non-exclusive license, the one you propose doesn't look too bad. Personally, I'd skip the "the rights in all images to" bit--it risks a claim that the subsequent permissions cover only such rights as you might already have. Also, I'd think very carefully about whether you should use "or" in place of some of those "and"s; you want the broadest possible definition of your rights, after all. It makes for ugly prose, but "and/or" certainly does the trick.
Your proposed wording makes me wonder why there is no right to distribute and/or publicly display simply the images. What if you want to post a photo of you and your bride here on the blog? Lastly, of course, you will want to carefully define "images" as used in the agreement.
One option that we thought about was hiring a college student. Where we got married, we could have offered a contract to students at UVA, JMU, GMU or GWU. For $2,000, you could probably get the best photography student to come out and take a few hundred pictures.
A huge downside with buying the copyrights is that a lot of places will not develop them for you unless you have the contract with you. If you need extra prints on the cheap for family, I strongly recommend Target. In our experience, they don't really care about copyright issues with printing pictures, so you probably won't ever get asked for proof that you bought the pictures.
This issue is "bigger" than the photography business itself. It basically applies to all professionals who do "work for hire", for example architects. I don't know how this turned out, but over five years ago I was involved in a project where an architect had prepared some building plans. I don't remember all the details. The issue of copyright surfaced for whatever reason. From what I remember, these concepts were tossed out in the ensuing debate.
1. Can the new owner of the lot use the plans that were previously prepared for the old owner? The new owner may have claimed that the plans were a part of the lot purchase. The prior owner may have sold the lot as "ready to build".
2. Can the architect sell the same plans to a number of other potential builders? If the architect sells the plans, would the person who commissioned the work be entitled to a rebate?
Obviously, these issues (in a free market system) are open for negotiation. Nevertheless, logic would seem to imply that when you hire someone to prepare a "creative work", the person who did the hiring should be entitled to all the ownership privileges. Without being hired the "creator" probably would never have developed the work.
Fortunately, you have the option of not hiring them if they are unwilling to negotiate. Wish you the best in your upcoming marriage.
I got married last November, and the copyright release for our images is as follows:
"This letter certifies that you have purchased unlimited usage rights to all original photographs created by [photographer] on [date]
As the rightful owners of these photographs, you may reproduce and re-distribute your photos as you see fit, and without restriction
[Photographer] hereby surrenders all further claims to the intellectual property rights for theses photos with the exception of the marketing usage release you signed in conjunction with your service contract with us, incorporated herein by reference."
Simple and straightforward. This is pretty much the language I've been using for any of my shoots ever since, and then I just make sure to charge an appropriate fee for my work. I can't imagine that this isn't the direction such event photography is headed in given that so much of the distribution is likely to happen via media other than photographic prints.
Mulnix's claim that he'd be giving away stuff for "free" by releasing the copyright is nonsense. If he's factoring the small chance of commercial exploitation into his anticipated revenues, he can just raise his fee by the small amount needed to offset that.
Great post, it show how problematic current copyright law is. Copyrights should not adding transactional cost where they are not needed. People should not have to hire a lawyer to make a simple transaction like this. There is a need for simple HOW TO's and standard legal forms for helping people use CC licenses with works. I know CC is working on this for film projects and may be presenting some of the work at SXSW this year.
On to the legal issues:
1. You may want to add something about the license being transferable. If you die you want your children or family to be able to use the photos. CC licenses do not address this issue because they are apply to everyone not just you.
Here is some language that includes transfer rights rewitten in YouTube's ToS:
I hereby grant XXXXX a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the images in connection with any business or personal use in any media formats and through any media channels. (personally this is a little bit of an ugly sentence, I would add sublicenseable and transferable license to the CC wording)
I would then recommend defining "the images" explicitly. I am not sure what happens to a transferable license when you die it may follow your estate it may not. There is one other issue with taking CC language out of context, the CC licenses define terms like adaptation explicitly within the four corners of the agreement and you might lose some of that meaning.
2. "allowing us to commercially exploit the photos won’t prevent our photographer from doing so as well (which is fine by me)"
The photographer who owns the copyright generally can NOT use your wedding photos commercially as you and the other people in the photos have a right of publicity that prevents use without your permission. Retaining commercial rights is just a way to charge you more for another type of use later.
3. Another option would be to have the photographer post the images to an image hosting site like Flicker or Picasa and choose a CC license for the work. The downside is that this grants a CC like license to the whole world not just you, although this helps your family and children long term and gets the photographer notice if they have an account.
Good luck.
3L Seattle Univeristy Law
Former CC Legal Intern
Not Legal Advice just things to think about.
This gets to my "Theory of How Fun is Drained From a Man's Life":
First, you buy a house. That's a major set-back to the fun life. Suddenly you have to take care of a bunch of BS that you used to just sweep under the rug and leave for the landlord or the next tenant.
Second, you get married. A little bit more of the fun in your life evaporates from life thanks to these vampires we call wives. Oh, and they are bloodsuckers, my friend.
Third, you have kids. Having kids is the OJ cut to the jugular of fun. I mean, it's all over at that point. Case in point, it is 7:00 on a Friday night as I write this and my kids are screaming at me about some stupid Hannah Montana video not working. What happened to my life?
Hold on to your youth and independence Man! Do not give in !!
rememer all wives are not bloodsuckers like yours
My other recommendation is a more creative one: put one or two disposable instant cameras (ones with a flash) on every table at the reception and ask that, as a present to you, everybody take as many pics as possible. I guarantee that more than half of your favorite pics from the event will come from those crappy cameras.
YOUR jab at homeownership is where things go off the rails. Owning a house RULEZ! Provided you don't put a wife and kids in it. Put a big huge hot tub in the bedroom, and a monster stereo system and a disco ball. We're talkin' ladeeeez, my man. The ladeeeeeeeze!!
Um, anyway.
In answer to this problem here, use the "work for hire" doctrine. As I recall - and Tom said so too - you have to get an agreement in writing that the works produced by your photographer are works for hire. Then you own the copyright and all the licensing mumbo jumbo is gone.
As an attorney, I must note to you that this does not constitute legal advice. Would you like mustard with this pretzel?
"a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities. " 17 USC 101.
So a work for hire agreement might well not effectively cause copyright to end up in Tim's hands. Assignment is what's needed instead.
Photographers may say - we spend a lot of time post wedding processing the photos to make albums for you. First, how much time do the spend post processing - no one seems to want to give me a real number and, under their agreements, they are not obligated to spend any time. Second, they are compensated for this time through insane amounts they charge for the albums. $1,500 per album? Those 20 pages of pictures should look perfectly edited at that price.
As for contracts - I review commercial contracts for a living and the standard contracts for most wedding vendors suck. They are drafted solely to give the vendor max rights, min liability, and stick you with little rights and all liability. And the answer you get when you comment that this clause seams unreasonable is - this is standard. So because it's standard for vendors to screw over customers, we should accept it because it's standard. Most of these agreements would not be signed if they were between two sophisticated commercial parties. [DISCLAIMER - DO NOT RELY ON THIS FOR LEGAL ADVICE]
Regarding rights for the photos - ideally the photographer would assign the copyright to the customer and the customer can grant a LIMITED non-exclusive license back to the photographer. Why grant a license back to the photographer? It seems reasonable for the photographer to want to use his/her photos to promote his/her work on her website. How else would be attract the next customers. But other than that, I don't see why they should have the right to sell your photos to third parties for a profit. I don't see why they can put you into an ad without your consent. That just seems like a serious personal violation.
Lastly. Back in the days of actual negatives, photographers charged customers $500 for the negatives because essentially after this sale, the photographer could no longer make profit off selling pictures to the customer and the photographer could no longer use or sell photos for the photographer's commercial use (to promote his/her self or sell to third parties). The $500 compensated him/her for the lost negatives profits and the loss of using the photos for commercial use. However, now, even when you pay $500 for the DIGITAL negatives, the photographer wants to be able to continue to reap these other benefits (sell you photos and use your photos for commercial purposes). It's like they want two bites of the apple. That is not cool in my opinion.
I guess we can safely say... you're not happily married?
My wife-to-be and I are allowing access in order for the professional to acture moments for our enjoyment only. We hire him/her for all their skill and expertise. It is to the artist/photographer to set a rate which which fairly compensate for the effort.
The only reasons I can think of for the artist/photographer to vigorously insist is 1) marketing and 2) profit.
1) marketing - easily solved by a request to use certain pictures with permission. If there is some objection by the client...then there is some reason the client does not want publicity for that moment captured. Is having a private concern an unreasonable request to honor? Since we paid for the work, I think not.
2) proft - The artist/photographer has already been fully paid for the work and all touch-ups, enhancements, effects put into it. Why should I allow the artist to make any more profit (without me) on work involving me as a subject on commissioned work?
Those are my thoughts.
Karl