Forgotten in its old age

by Aditya

submit your photo


Hall of Fame
View past winners from this year

Please participate in Meta
and help us grow.

Take the 2-minute tour ×
Photography Stack Exchange is a question and answer site for professional, enthusiast and amateur photographers. It's 100% free, no registration required.

In a situation where Person A has a photograph idea/concept, an auto-portrait for example, sets up the scene, lighting, and instructs Person B how to compose the photograph, which leaves the Person B to focus and press the button.

Who owns rights to that photograph, Person A or Person B, or is it shared?

share|improve this question
    
related, possibly duplicate - photo.stackexchange.com/questions/26478/… –  MikeW Mar 4 '13 at 9:41
2  
Clarification 1: Ideas are not copyrightable (copyright.gov/help/faq/faq-protect.html true for most countries). So the question is between setup from A and focus+shutter release from B. –  Unapiedra Mar 4 '13 at 11:18
    
related: photo.stackexchange.com/questions/34364/… –  Pavlo Dyban Mar 5 '13 at 7:53

2 Answers 2

up vote 5 down vote accepted

Now this was fun to research. Good question!

Practical tips

For all sense and purposes legal battles are trouble, expensive and take time. So avoid them -- in this case a simple contract with details on who owns the copyright would help. Often a contract can be verbal.

Legal

Here are my thoughts on what the legal situation could be. I am not that well versed in law nor in copyright law in particular. Also these things are highly depending on the jurisdiction you are in. The following will apply to German law.

Relevant article in German Copyright Law

This site has details in German about copyright law for photographers. The linked to section says:

Können auch mehrere Menschen der Urheber eines Fotos sein? Ja, dieses ist nach § 8 UrhG möglich. Demnach liegt eine Miturheberschaft vor, wenn mehrere Urheber gemeinsam ein Werk erschaffen.


Can multiple persons be creators of a photo? Yes, this is possible under § 8 UrhG. Accordingly, a co-creation exists if multiple creators created a work.

The article (§8 UrhG) says that proceeds are split in accordance to the contribution of each photographer and that one author can give up the rights to the proceeds (you cannot give up copyright itself but that is a German peculiarity). So, my practical tips would actually work, even after the fact.

In detail look at the creation of the photo

Now, the first source says that mere assistant work does not make one a joint author! The question now is: Are either A or B just assisting? I would argue that B by pressing the shutter is the assistant! (Please put it on autofocus that makes the case more clear cut ;) ).

A is choosing the setup, location, composition and also setting up the lighting. These are all things that lift the photograph from being a "Lichtbild" to being a "Lichtbildwerk" (the former is a photograph, the latter a photograph with artistry). So, all A does is what makes the picture.

B is focusing and pressing the shutter. Focusing is somewhere between a skill and creativity. The situation could be a tilt-shift lens where focus is most definitely creative to automatic focus on pressing the shutter. Pressing the shutter has the creative element of "choosing the right moment". Although, B could always set it on continuous and A's using the spray-and-pray technique is definitely not creative. In portrait photography, one should also consider the interaction between photographer and subject.

Conclusion

This is not clear cut but I assume that B is classified as the assistant and thus not a copyright holder.

Discussion

  1. Just found this source. The author is a lawyer so his advice should be correct (believe that if you will). Here, the photographer is "A" and the assistant is "B". However, the assistant is assumed to be hired for this purpose and as such to be a subordinate of the photographer.

    Sofern dabei alle wesentlichen Einstellungen von dem Fotografen selbst oder nach seinen genauen Anweisungen von dem Assistenten vorgenommen werden, erwirbt der Assistent als weisungsabhängiger und damit untergeordneter Mitarbeiter keine eigenen Urheberrechte an den Bildern, selbst wenn er nach Abschluss der Vorbereitungen den Auslöser betätigt.

    _

    If all essential settings were made by the photographer or according to his specific instructions [...] then the assistant as a subordinate does not gain copyright on the pictures, even if he pressed the shutter [...].

The author then goes on that if the assistant did make creative decisions she will become a joint author! So, very similar to my take on things and now we got that problem solved and opened the can of worms of what is a creative decision.

share|improve this answer
    
I was just thinking that last paragraph as I read it! I'd expect it to ultimately come down to possession. Without the raw files the 'assistant' would be arguing from a weak position and without a direct admission of input from the 'photographer'. –  James Snell Mar 4 '13 at 19:29
1  
@JamesSnell No, who possesses the raw file does not matter. The assistant is actually in the possession of the raw file because she could just take the memory card out of the camera after taking the picture. –  Unapiedra Mar 4 '13 at 19:50
1  
+1 That was a nice read and must have taken some time to research. Anyways, it sheds light on something other than US copyright law with which most of these questions are answered. –  Linus Kleen Mar 5 '13 at 18:46

It depends, if this goes bad then out of the two probably the person with a better lawyer owns the copyright :-)

The actual answer depends on who is responsible for the shoot, who is paying who and any contracts and agreements between those people.

Questions like that are the reason:

  1. You should never work in any creative capacity without a contract specifying ownership, copyrights, moral rights and usage rights for the products.

  2. You should never hire (or otherwise except help on a job) anyone (including assistants, interns, second shooters, etc.) without a contract specifying ownership, copyrights, moral rights and usage rights for the products.

share|improve this answer
3  
3. Use the self timer/remote shutter release, and avoid the problem entirely! –  MikeW Mar 4 '13 at 9:43
4  
@MikeW - yes - also if you always work alone, never have clients (and preferably never show your work to anyone) all this copyright nonsense goes away –  Nir Mar 4 '13 at 9:52
    
@Nir: I guess you're right, but are there any rules/laws when no contract is signed? And can you give me an example in which I would need such a contract when working with an assistant? –  Miljenko Barbir Mar 4 '13 at 11:50
1  
@MiljenkoBarbir - the rules/laws change between countries/states (maybe even counties/cities) - but - in most places, with some exceptions that vary from place to place, the person pressing the shutter has the copyright and moral rights - unless he/she is employed by someone else (what's called "work for hire") and in this case the employer has copyright (but the photographer still has moral rights). and I can't give you a contract example, you need to talk to a local lawyer for a contract –  Nir Mar 4 '13 at 12:05

Your Answer

 
discard

By posting your answer, you agree to the privacy policy and terms of service.

Not the answer you're looking for? Browse other questions tagged or ask your own question.