Contracts question

[stacewyllie]

Hi all,

I've been given a pretty clear indication that I'll have a birth photography booking for January, so I'm trying to get myself organized early and have all bases covered.

I have a model release form (I'll be utilizing some images in my portfolio), but I was told my a photog. friend that I need a specific birth photography contract drawn up, as well as print releases and media releases. My understanding is that if I'm not intending to print any images myself (they'd be on my website/FB only) then I wouldn't have need for a release? I'm not shooting any video content so the media release would also be null and void, yes? Or am I completely dense and these releases have nothing whatsoever to do with what I'm talking about

My other query is whether I would find a birth photography (as well as maternity and newborn) contract template online somewhere? Or is it really something that I need to pay a lawyer for .. I'm really hoping I can get around that, as I don't want to be blowing a huge chunk of my set-up capital on exorbitant solicitor fees!

Thanks in advance for any advice.

[ricktas]

is this friend a professional photographer? cause to be frank, they are wrong!

Yes you need a contract and model release but you do not need one that is specific to your genre. You can have one that is, but it is not 'required'. Just get a generic one that covers minors, thus one that has to be signed by a parent or guardian, cause anyone under 18 cannot sign a contract, well they can but they cannot be held legally responsible and that could cause you issues in future.

and you do not own copyright, your client does, you need to read the copyright act regarding portraiture. posting to the Web or Facebook could be a copyright breach unless your contract covers it.

[William W]

You should ask your friend photographer who gave you this advice why specifically the advice was given to you.

It appears to me that the advice might have been given to you primarily in respect of copyright and in which case your “model release” might be inadequate.

I think also you should be fully abreast of Copyright Law in Australia, as it appears to me that these images will be commissioned and are intended for private and personal use, in which case the copyright will reside with the client.

This not legal advice, just a layman’s comment based upon reading This Question and Australian Law.

I would not use a template, which I found on the internet, for use in any legal matter.

WW

[vk2gwk]

I am not quite sure what sort of assignment you got... "birth photography"? Does that mean you are invited to a hospital room where a person is going to give birth to a baby and that you are going to record this with your camera?
If so... apart from a contract with the customer you'll have to make sure that the hospital or clinic where the event takes place agrees with your activities and you might need releases from the staff attending to the mother if they get in the shots.
If this is a private paying customer you would not need a release from the parents although such a release on behalf of the baby might cover your behind in 18 years time...

Re copyright: I always prefer to retain copyright also for private assignments and license the customer to use my photos. I think Rick put it a bit too absolute: yes, for paid portraits the client owns the copyright unless the photographer and the client agree otherwise.

[ricktas]

....Re copyright: I always prefer to retain copyright also for private assignments and license the customer to use my photos.

You cannot RETAIN copyright, it was not yours to retain. Copyright for 'domestic portraiture' in Australia belongs to the client. You would have to TRANSFER copyright to the photographer. Using the word 'retain' in a contract could see your contract voided if it was tested in court. One single word can have so much implication.

[vk2gwk]

We are getting rather technical here, Rick. I used the word "retain" in a general manner, meaning that I would prefer to own the copyright and license the customer, instead of having the customer own the copyright and have no rights myself. But you made me wonder... so I looked it up.

When we look at the Copyright Act 1968 it says in Part III section 35 par 3 :
The operation of any of the next three succeeding subsections in relation to copyright in a particular work may be excluded or modified by agreement.
(One of these succeeding subsections describes what happens when a paying client commissions a photograph for private or domestic use.)
This sections tells us that you can arrange things the way you want before you take the photos.


Then in Part X section 197 it says:
Where, by an agreement made in relation to a future copyright and signed by or on behalf of the person who would, apart from this section, be the owner of the copyright on its coming into existence, that person purports to assign the future copyright (wholly or partially) to another person (in this subsection referred to as the assignee), then if, on the coming into existence of the copyright, the assignee or a person claiming under him or her would, apart from this subsection, be entitled as against all other persons to have the copyright vested in him or her (wholly or partially, as the case may be), the copyright, on its coming into existence, vests in the assignee or his or her successor in title by force of this subsection.

I understand from this section that when you make sure you have things agreed in advance there is no need to "transfer" the copyright as it will be vested in the photographer the moment he takes the shot - the moment the copyright comes into existence.
BTW... I am not licensed in Australia to provide legal advice and this my personal interpretation of the law (however I have a Masters degree in Law). Maybe there is qualified Australian lawyer that can confirm or refute my interpretation.

[ricktas]

Photographs

A person who commissions a private or domestic photograph, or the making of a portrait or engraving, owns the copyright in the work, but the author can prevent the owner from dealing with the work other than for the purpose for which it was commissioned (s.35(5)).

So if you have someone commission you to take their portraits (weddings, parties, anything) the person who commissions the work owns copyright, not the photographer.

Yes it is getting technical, but the LAW is just that. Anyone taking portraits as part of their photography business needs to be made aware that copyright belongs to the client for domestic portaiture (non commercial). If you got a client to sign a contract that let copyright remain with the photographer, it could be deemed you were unethical in the contract if you failed to divulge to the commissioning party (the client) that they owned copyright to start with.

I am not trying to argue with you, but point out the LAW and how it stands.

[I @ M]

We are getting rather technical here, Rick.

Probably the BEST way to be when issues like that crop up ----

BTW... I am not licensed in Australia to provide legal advice and this my personal interpretation of the law (however I have a Masters degree in Law). Maybe there is qualified Australian lawyer that can confirm or refute my interpretation.

I will wager a heap of local legal beagles would be quite happy to take you to a court of law ( and relieve you of your life savings ) in Australia over YOUR interpretation of the copyright act ---

[vk2gwk]

I think we agree about the law then and how it stands. Isn't that amazing because one of my revered teachers in law school taught me: "words are never clear".

You are bringing a new element into the discussion: "is it ethical to deny the client the copyright". I can agree with you that this could be unethical ... unless you give the client something equivalent: a license to use the photo for the purpose it was taken for. It is not exactly the same as owning the copyright but for all practical purposes it is. And... as the law expressly provides for it in clause 35.3: this is perfectly legal to exclude or modify. We are not excluding but modifying.

One of the consequences of owning the copyright and licensing the client compared to having the client own the copyright outright is that in the license you can expressly restrict the use of the photograph to the purpose for which it was commissioned. This - when worded properly in the contract - can reverse onus in case of any infringement of your rights - like mentioned in 35.5 (where it is worded slightly more convoluted then in the paraphrase in your posting: "...but, if at the time the agreement was made that person made known, expressly or by implication, to the author of the work the purpose for which the work was required, the author is entitled to restrain the doing, otherwise than for that purpose, of any act comprised in the copyright in the work").

Re. "ethical": aren't we all supposed to know our laws - ignorance is bliss but not an excuse

[ricktas]

unethical may have not been a good choice of words. Misleading would probably have been a better choice. By using the words 'copyright remains with', most clients would assume that you as photographer owned copyright from the outset, whereas the law states differently. If a court case ensued over a particular shoot, a good lawyer is going to grasp onto 'copyright remains with' and show how that was misleading.

Semantics, but important, none the less. I would rather see a correctly worded contract, than see a photographer in court over a dispute.

All this should show the Original poster of this thread that the legalities around contracts need to be considered.