Let’s say I’m wandering about with a friend. We want to memorialize our outing with a nice photo. I ask a stranger walking by if they’d take a picture of me and my friend. The stranger agrees, and my friend gives their camera to the stranger. The stranger moves around to frame a nice photo, snaps a picture, hands the camera back, and departs.
Who owns the copyright of the photograph?
The Stranger: they used their artistic skills to take a good picture, so they have the copyright. The fact that they abandon any claim to it by walking away doesn’t change that.
Me: I asked the stranger to take the photograph. The photo is effectively made for hire because there was an informal contract between me and the stranger.
My Friend: they own the camera. In lieu of any stronger claim, they have the copyright. The fact that they initially control the distribution settles it.
- The Stranger
- The Original Poster
- The Friend
I vote for the stranger. They ‘created’ the photo. You two were the subjects of the photo.
IMHO. Without a contract it would be your property since you requested it be created for you, it would not exist without you asking for it.
The stranger had the opportunity to tell you he was a professional photographer and did not, he just agreed to take the picture without compensation.
The friend just owned the equipment, don’t believe that gave him extra rights as he agreed to let you use it without asking for compensation. What if an artist “borrowed” a blank canvas from a friend, that friend would not own what he created. He might owe the friend a blank canvas in return.
But the camera belongs to friend.
It’s their property.
But the friend freely gave use of it without stipulations. Like friends do. In the past did the friend freely share the pictures with the other friend?
The Wikipedia article on the story about a “selfie” taken by a macaque in Indonesia seems relevant.
I am not a lawyer but it doesn’t seem to be a contract. What was the consideration? Where was your input to the artistic vision? If you gave the photographer $5 and said, “Do it so Lady Liberty’s torch is right between our heads.” you might have a point.
ETA: I just found it as per the Copyright Office
To be a work for hire they need to be your employee performing their regular duties or an express written agreement
Not even close unless you are an attorney for Nikon.
Ding. Ding. Look up Naruto v. David Slater. It addressed the issues you bring up.
IANAL but I thought it was always the taker of the photo that was the artist who owns the copyright in most jurisdictions. I guess there could be an implied transfer of copyright by handing the camera back and never indicating they were claiming copyright?
Nope Must (almost) always be in writing and a transfer is never implied, it must be explicit.
That is exactly the “monkey selfie” case I mentioned.
The input to the artistic vision is “take a picture of me and my friend at this location”. The consideration is “will you take a picture?” with an implied social convention that there’s no remuneration for taking the picture of a stranger with the stranger’s camera in public areas.
(To be clear, I think the stranger does have the copyright, at least in the U.S., because of the strict rules about made for hire contracts. But I do think there is a verbal contract in this situation.)
But as I found out, ain’t none of that matters if not written.
In Law School, the one who took the photograph owns the copyright. In real life:
The copyright (like all IP) doesn’t practically exist until it is sold or litigated.
Let’s say the stranger takes the picture, your friend sends you a copy, and you put it on Facebook.
An ad agency spots the photo and offers you (sticks pinky in the corner of his mouth) a million dollars.
You agree to sell it, you and your friend sign model releases and the sales documents and split the million dollars.
The stranger sees the photo, calls the ad agency and demands payment. The ad agency asks for proof. The original of the photo? The camera that was used? Model releases? Witnesses?
None of that. The stranger contacts you and you say “You weren’t the one that took are picture. We paid a kid a buck to take it.”
Who owns the copyright? The ad agency.
Who gets the money? You and your friend.
Who gets to waste a substantial sum pursuing a civil claims with zero factual evidence? The stranger.
If it’s not documented, it (effectively) didn’t happen.
That’s precisely what consideration isn’t.
I’m a photographer. Everything I’ve always been taught about this says the stranger gets copyright.
My understanding, based mostly on Wikipedia discussions about photo copyright, is
- If someone takes a photo, they own the copyright, regardless of whose camera they use.
- If you ask someone to take a photo, with any camera, the photographer still owns the copyright.
- If you pay someone to take a photo, they still own the copyright.
- If you sign a contract with someone, agreeing that you will pay them to take a photo and give it to you, they STILL own the copyright (although you own the photo).
The only way the photographer gives up the copyright is if they sign a contract that specifically states that they are relinquishing the copyright.
That all sounds correct to me. I’ve always owned the copyright to my photos, even if someone was paying me to take them, except in the case of work-for-hire contracts. It must be specified contractually that I relinquish copyright. I own all my work/copyright except for a handful of shoots I did for AFP (Agence France-Presse) back in the late 90s, and I’ve made almost all my income since them through photography. What they pay me for is not my copyright – it’s for usage rights to the photos. And I didn’t always shoot it on my own camera. I’ve shot it on other cameras. I’ve shot it on cameras other people have set up and all I had to do was fire a remote trigger. Those were my photos. Like would you lose the copyright to a painting just because someone else supplied you with the paints? That sounds silly to me.
For the second question, is your point that the Bean is reflective, or that it is a work of art? The latter is tricky. The US has “freedom of panorama”, which means you can take photographs of buildings and works of art which are permanently displayed in a public space, but the details are complicated and I by no means understand all the intricacies. The photographer’s rights vary depending on whether the photo is primarily of the art work or whether the work’s presence in the photo is “incidental”, on whether the art work is itself copyrighted, on whether the photo is “transformative” or just a simple image of the work, and even whether the work is 3-dimensional, like a sculpture, or 2-dimensional, like a painting.