Alley in Pisa, Italy

by Lars Kotthoff

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If you are at a social event, such as a party, and someone wants borrows your camera to take a couple of photos (which will typically be of the photographer!), are you concerned about copyright issues?

(Ignore for a second the many other issues, such as your fear for theft, damage, thumbprints on the lens, lost opportunities and your cynical doubt that anyone but you can actually take a reasonable photo.)

I spoke to one (amateur) photographer recently, who said he flatly refused to let others borrow his camera, due to two fears:

  • They would claim copyright on the photos they had taken. I assume that is a low risk, but a fair one: Without any other agreement in place, the copyright belongs to the person who composed the shot, not the person who owns the camera, right? I could see some shared copyright in situations where the lighting has been set-up by one person, the composition by another, the subject created by a third, etc.

  • They might (incorrectly) claim copyright on other photos that he had taken.

This sounds rather implausible to me. I would have thought the onus would be on the borrower to prove the photos were taken by them.

Am I being naive? Has this happened to you and/or are you concerned about it?

Update: I assume in this scenario, that there has been no agreement beforehand as to the disposition of the copyright.

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Ah yes, I see it now... Friend: "Can I try your camera?" You: "Sure, just sign this copyright waiver." Friend: "WTH?" –  Bernhard Hofmann Aug 23 '11 at 12:08
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5 Answers 5

up vote 16 down vote accepted

It is a regular occurance that someone insists on taking a photo of me at weddings, saying "you taking all these photos but I bet you never have any of you!" when in fact I have a photo of me at pretty much every one! Here are some of the best ones:

I find it impolite to refuse, so I simply don't use the photos (they are usually out of focus anyway). In fact I actually quite like to have the photos to remember the event by, but in any case they very rarely end up in the album unless the couple request it. In the occasions where I've given my camera to someone I trust I'll usually shoot a photo of the floor before and after, and then if I do anything with the photos I'll add an appropriate attribution.

The only tricky case I see is when a stranger uses your camera at an event and produces a good image that you want to be able to send to the client, but you have no idea who actually took it. In this case you could probably get away with using it under the orphaned works legislation, though if you really want to cover your back just don't use the image!

If someone does take a photo with your camera which turns out to be valuable that shouldn't be a difficult situation at all, you simply don't claim credit or profit from it! When I shoot with other people's cameras I will do my very best to obtain a copy of the photos on the day by whatever means possible. This prevents any disputes before they even start!

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Great idea to take the book-end shots to make attribution much harder to dispute. How do you get the photos of you without those someones being involved? –  Oddthinking Jan 17 '11 at 13:05
    
+1 for bookend idea. –  Omar Kooheji Jan 17 '11 at 18:32
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Possession of the raw file is 9/10 of the law? Definitely also +1 for the bookend idea. As a working artist, though, I think you might successfully argue that having someone operate your camera is a legitimate artistic action, and still be able to claim that you 'created' the work. –  atroon Jan 17 '11 at 20:18
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@atroon That's actually a very interesting point, if you set up the camera, choose the shutter speed aperture and ISO, program the flash and do all the post processing, what does it matter who actually pressed the shutter button? I know people like Gregory Crewdson regard themselves as photographers even though they don't operate the camera themselves. –  Matt Grum Jan 18 '11 at 0:50
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In my opinion, I think that amateur is being a little over paranoid here.

It seems like it's a contrived situation. I don't know if I would lend my camera to a stranger, and I don't think I would be friends with anyone who would attempt to claim ownership of my photographs.

As for proving who took the photographs, if they are (as you said) of the photographer, it would be pretty evident that the photographer didn't take them--plus there would be a room full of documented people who would attest to the lack of a tripod/self-timer setup.

Personally, I'm not concerned about who owns the photos; I let my gf use my spare body when we are on travel--she gets to learn more about photography, and I get some decent photos where I am in it. I do have an understanding with her that I am allowed to post the good photos she has taken on my photo page, with proper attribution. Aside from her however, I am pretty particular about my tools, and I'm not one to lend them to friends or family just because I feel like I'm the only one left on the planet who would properly replace something if it broke while in my possession.

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"I let my gf use my spare body when we are on travel" like! –  ysap Jan 17 '11 at 12:45
    
Agree that photographs of the photographer are unlikely to be disputed. It is the photo after that one, which is the concern. –  Oddthinking Jan 17 '11 at 12:54
    
I added an update to handle the situation where there is an agreement in place. Your girlfriend's situation is quite different to what I was thinking. As to people's personal responsibility for breakages, that comes under the "many other issues" that explicitly ignored. –  Oddthinking Jan 17 '11 at 12:58
    
@yasp: lol, well played good sir. Well played. –  Alan Jan 17 '11 at 16:51
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It might seem paranoid, but under certain circumstances it can be a real issue.

Imagine for a moment that your friend picks up your camera and takes a photo of a social scene. That evening you put all the photos on your camera through your workflow and out of curiosity examine your friend's photo. To your amazement, in the background, you see a married and very prominent politician intimately cuddling a pretty teenager.(no prizes for guessing who this is)

Outraged by his duplicity and poor judgement you forward the photo to various newspapers and publish it on social sites.

The next day you show it to your friend, telling him gleefully what you have done. To your astonishment he turns on you furiously, accusing you of stealing his copyright photo and costing him significant financial opportunities. Then he sues you for the loss of income.

The problem is that it is easy to assume that a photo on your camera is your property. I know because my wife took a photo on my camera and I used it, causing her to be less than happy.
The answer is simple, only ever use photos that you clearly know you own.

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Is that risk high enough to justify to yourself the refusal to lend your camera? (I appreciate this is a subjective question.) –  Oddthinking Jan 17 '11 at 13:00
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If you knew the photo was taken by the friend, I have to agree that his permission for the publication needs to be sought. Which doesn't mean you don't get a cut. After all, without your co-operation, he doesn't have any photo at all. One the tricky area is what if you think you took the picture? The other tricky area, it seems to me, is what permissions were implicitly given to you when the transaction was made. –  Oddthinking Jan 17 '11 at 13:03
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Yes, your friend would own the copyright but, it would be extremely hard for him to prove it. "Your honor, all these pictures are someone else, except for these 5 critical ones, they're mine!" Uh... good luck with that.

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If I lend someone my gear for a few moments, it does not make me an author of pictures they take. Similarly, if I use rented gear, the rental shop does not take its cut from everything I produce.

If I were shooting an event profesionally, I probably wouldn't let anyone borrow the camera because I'd be mostly busy using it myself. However, I still don't think it such a legal problem to let someone else take pictures, but I wouldn't deliver those to the client because then they might wonder why hire a pro when who gives them uncle Bob's pics. Matt's solution of shooting the floor before and after to identify such pictures is really helpful in this regard.

I don't think this would create any problem in amateur usage, and if I accidentally sold a picture from my archive that was shot by someone else, I'd try to reach some agreement about giving them appropriate part of the profit, provided they persuade me they really took the photo. Anyway, worrying about copyright when you're partying with your friends seems kind of awkward.

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