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Thread: Another Damned Copyright Question :)

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    Member FallingHorse's Avatar
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    Another Damned Copyright Question :)

    I've read all the documentation in the "Sticky Threads" in regards to copyright and I think I have a fairly good understanding of it but I woul like to offfer a story in the hope that I have it right...

    Party A = Race course photographer
    Party B = Sub-contractor to party A who also run her own photographic business, now is official Race course Photographer since Party A retired
    Party C = Free-lance to Party A (who has since retired) and now free-lances to Party B

    Party B has supplied photographs for Party A from race meets for the past couple years. Party A retires and Party B then takes on the role as the official Racecourse photographer. Party B gets and order from a race that she shot as sub-contractor to Party A but party A believes Party B doesn't have copyright ownership.

    Party C has shot for both Party A & B for th couple years. Party C makes it understood that she retains the copyright and although has no real interest in selling the same photos to other parties, maintains the right to use them for competitions and self-promotional activities. Party C receives payment as well as recieving on-going 'royalty' payment if images are used in sold products.

    From my understanding, both Party B & C retain ownership of their copyright as the photographs were made for commercial use not a domestic wedding/portrait commission unless an agreement was made in writing by the copyright owner (Party B), also Party A is not a newspaper or other journalistic type publication. . Party A believes they hold ownership of party B images as Party B was a business that was employed by Party A. Party A also believes that Party C retains copyright as they stated they would not give up ownership and never had an agreement in place.

    Party C is the proverbial meat in the sandwich but believes Party B still retains the copyright.
    Jodie

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    Arch-Σigmoid Ausphotography Regular ameerat42's Avatar
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    (Party animals! Hah! There's always some issue)

    For a start, did they sort out any such issues when Party Animal A retired?

    Am (being a of sorts).
    CC, Image editing OK.

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    Member kalley's Avatar
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    The Copyright Council of Australia has an informative fact sheet regarding Photography Copyright.

    Basically it appears that photo's taken after 30th July 1998 remain the copyright of the person who took them, unless an agreement was concluded in writing between the Contractor and the Sub Contractor stating otherwise.

    Prior to 30th July 1998 it appears that copyright was the ownership of the contractor and not the subcontractor again unles there was an agreement in writing.

    Do a google on the internet for the council.

    Not saying i'm correct just what i have interpreted.

    Copyright is retained by the owner until 70 years after death in the case of an individual.
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    Administrator ricktas's Avatar
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    Agree with Am. when A retired it should have all been sorted at that time. What B and C arrange between themselves, now that A has retired is nothing to with A.

    From what I understand B and A had an agreement, Party B and C had an agreement, and Party A and C had an agreement. This is way to complex and it needs to be dealt with. They need to go to Party A (now retired) and seek that any agreement with them is nul and void as at the date of retirement. So then only photos taken before that date are bound by those agreements. Then party B and C need to get together and arrange new agreements that suits them as they move forward.

    Party A's involvement at this time should only be with photos taken before they retired.

    Copyright depends on what each of these agreements has in it. It is not as simple as it not being domestic portraiture, as any agreements probably have ownership written into them. However, it also seems that there could exist a real conflict between all these agreements at present where so many different copyright ownership issues exist that one agreement might just negate out another.

    Considering Party A's retirement, they need to:

    Contact Party A and cancel that agreement as at date of retirement.
    Work out what happens to photos taken under that agreement (ie prior to retirement) and get a new agreement regarding those
    Then Party B and C need to create a new agreement that does not include Party A at all.

    It all just needs simplifying.
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    Lol - it is rather complicated I guess the main question is "Does party B still retain copyright of their images taken for Party A, given that no written agreement was in place and the terms of Party B's assignment was that of a contractor (free lance) rather than an employee" ? Party B kept the original files and gave Party A copies but now wishes to use one of those images.

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    Administrator ricktas's Avatar
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    I think the best way to proceed would be for party B would be to contact party A and ask them.

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    I'm not really sure what you mean? Party A thinks they have copyright ownership of images taken by Party B even though Party B took the images for party A. Wouldn't party B have copyright ownership under Copyright law if they haven't sdigned their rights over in writing? I guess I am basically asking is have I interpreted the Copyright law correctly by saying that Party B would still maintain their copyright ownership

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    Member kalley's Avatar
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    Ok I think I might understand the tangled web now. No agreement between party A and B prior to 1998 and Photo's taken after this with no agreement then copyrighyt belongs to B. As long as Photo's where taken after 30th July 1998 and no agreement was signed then copyright is yours. If photo's originated from some else forget it. Regardless of circumstances from your point of view. If photo's were taken by C then forget it. Regardless of dates as it appears C had an agreement with A but not yourself B. Now it is Copyright to C unless agreement in place in which case belongs to A. If Photo was provided to A via a written agreement, Tell client to contact him.

    If the issue is an image taken by B whilst in a subcontract role with A and the client has requested a copy. Then you have to determine whether the photo was taken by you or C or A, or to really stuff it up you or C as a subcontractor with/without an agreement. Thats the problem.

    My point of view is the A B C is lacking a bit of info so can only suggest not advise.

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    Administrator ricktas's Avatar
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    Quote Originally Posted by FallingHorse View Post
    I'm not really sure what you mean? Party A thinks they have copyright ownership of images taken by Party B even though Party B took the images for party A. Wouldn't party B have copyright ownership under Copyright law if they haven't sdigned their rights over in writing? I guess I am basically asking is have I interpreted the Copyright law correctly by saying that Party B would still maintain their copyright ownership
    It depends, without seeing the wording of all these agreements, we cannot make that decision! If you take photos as part of your employment by another person, then it could well be that they own copyright. If I took photos at work, as part of my job, say I worked for the transport department and part of my job was to take drivers licence photos. I do not own copyright to any of those photos, my employer does. Now, to answer your original question properly, we need to know the wording of these agreements.

    The copyright act states:
    Photos taken in the course of employment
    If an employee takes a photo as part of his or her job, the first owner of copyright will be the
    employer, unless they have made an agreement to the contrary. This general rule is subject to two
    major exceptions, set out in the following paragraphs.

    Photos taken by employees of newspaper and magazine publishers
    For photos taken by employees of newspaper or magazine publishers, different rules apply,
    depending on when the photo was taken:

    • For photos taken before 1 May 1969, the publisher owns copyright.

    • For photos taken on or after 1 May 1969 and before 30 July 1998, the publisher owns the
    rights for newspaper and magazine publication and for broadcasting, and the photographer
    owns all other rights (including the right to put the photos online or in a book).

    • For photos taken on or after 30 July 1998, the photographer owns the rights to photocopy the
    photos and include them in books; the publisher owns all other rights.

    These rules do not apply to freelance photographers, who are covered by the general rule that the
    person who takes the photo owns copyright in it (unless they make an agreement to the contrary).


    So without knowing exactly what and how these agreements between the parties were undertaken, then we cannot give you a definitive answer. I assume that Party A was not a newspaper or magazine, so all the exceptions do not apply. But based on the sub-contractor (freelance) part, it could well be that party A as the employer, owns copyright. However, then we get into the law regarding sub-contractor, and if Party B ONLY sub-contracted to Party A (and Party B did not sub-contract to others), then the law does not see that as being a sub-contractor, rather an employee. It was realised that people were being setup as sub-contractors to others to alleviate the need to pay things like superannuation and workers compensation insurance, and it was ruled that if a person is sub-contracted to the same person, and no others, for an set length of time, then they were actually an employee. So then laws outside copyright come into play in this matter.

    Without the full disclosure of any agreements and time-frames etc, we cannot be more thorough and specific with our answers. But taken on face value, party B was employed by party A and therefore Party A owns copyright on the photos taken while that contract was in place.
    Last edited by ricktas; 29-10-2012 at 6:36am.

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    Quote Originally Posted by ricktas View Post
    But based on the sub-contractor (freelance) part, it could well be that party A as the employer, owns copyright. However, then we get into the law regarding sub-contractor, and if Party B ONLY sub-contracted to Party A (and Party B did not sub-contract to others), then the law does not see that as being a sub-contractor, rather an employee. It was realised that people were being setup as sub-contractors to others to alleviate the need to pay things like superannuation and workers compensation insurance, and it was ruled that if a person is sub-contracted to the same person, and no others, for an set length of time, then they were actually an employee. So then laws outside copyright come into play in this matter.
    This is one area which I also picked up upon as being quite important.

    Pursuant to this point, I note that the OP states that Party B is:

    "Sub-contractor to party A who also run her own photographic business"

    Therefore it would be relevant to clarify which ENTITY was paid by Party A.

    i.e. Did "Party A" pay:
    > "Party B" or
    > "Party B's Business".

    WW

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    Quote Originally Posted by kalley View Post
    Ok I think I might understand the tangled web now. No agreement between party A and B prior to 1998 and Photo's taken after this with no agreement then copyrighyt belongs to B. As long as Photo's where taken after 30th July 1998 and no agreement was signed then copyright is yours. If photo's originated from some else forget it. Regardless of circumstances from your point of view. If photo's were taken by C then forget it. Regardless of dates as it appears C had an agreement with A but not yourself B. Now it is Copyright to C unless agreement in place in which case belongs to A. If Photo was provided to A via a written agreement, Tell client to contact him.
    Thanks - that's pretty much what I told Party B but really just wanted to confirm that I was interpreting it correctly (Party B by the way, is not me lol - I just didn't want to name the Parties )

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    Hmmm!!! Considering this site forbids the giving of legal or accounting advice (unless qualified) I would be more concerned about having my professional indemnity insurance updated than worrying about a copyright issue that affects a third party. Members on this thread are more likely to be sued (if they use the advice) than the persons debating copyright. Just a thought.
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    Member kalley's Avatar
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    Quote Originally Posted by Redgum View Post
    Hmmm!!! Considering this site forbids the giving of legal or accounting advice (unless qualified) I would be more concerned about having my professional indemnity insurance updated than worrying about a copyright issue that affects a third party. Members on this thread are more likely to be sued (if they use the advice) than the persons debating copyright. Just a thought.
    Redgum, are you sure you don't mean Public Liability Insurance.

    Indemity is usualy for professional Companies such as Engineers that get paid to advise clients. I hope no photographer tells their client where to get photo's taken and get's paid for that advice, then the client turns around and say's it was a waste of time. Hear too many stories in my industry about bad advice given which was paid for.
    You can advise a client as much as you want as long as you do not get paid for that advice.

    Public Liability is for when you cause damage in the course of your bussiness. I.e. you light a candle and the clients house burns down.

    I might be petty on it, but there is a big difference.

    There is nothing I see in these posts that go against the rules of the forum.

    They are only suggestions and opinions.

    Kevin

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    @Redgum...
    [30] Requesting/Providing Financial, Medical or Legal Advice on Ausphotography:

    Australian Photography is a website with broad topic coverage. However, when it comes to medical, financial and legal advice, it's always recommended to seek advice from a qualified professional, rather than asking about it on Australian Photography. As such, Australian Photography takes no legal responsibility for posts seeking or providing Medical, Financial or Legal advice. Members use any advice provided via Ausphotography at their own risk. The site owner, moderators or members cannot be held liable for any Medical, Financial or Legal advice posted on the site.
    Basically treat all 'advice' as opinion and seek professional advice when needed.
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    Hi Kalley, in the course of my photographic/television work I more often get called on to render advice to clients for which I hold significant professional indemnity insurance. No, public liability is a different issue altogether.

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    Member kalley's Avatar
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    Quote Originally Posted by Redgum View Post
    Hi Kalley, in the course of my photographic/television work I more often get called on to render advice to clients for which I hold significant professional indemnity insurance. No, public liability is a different issue altogether.
    I provide advice every day of the week with my national, private and goverment clients. Not in Photography but in other fields.
    Yet I do not hold P/I insurance. I don't want to be sued.

    Provide advice and don't asked for payment. No need for P/I.

    Just my opinion thats all and every situation is different.

    Better still work under a contractual arrangement. No need for P/I. We want this, You provide it. You can't, then don't bother.

    Kevin

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