# We stole an image, now what? **URL:** \ **Category:** In My Humble Opinion\ **Created:** [May 13, 2012, 10:53pm UTC](https://boards.straightdope.com/t/we-stole-an-image-now-what/621811 "2012-05-13T22:53:34Z")\ **Posts on this page:** 15\ **Page:** 2
**Author:** ![pulykamell](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pulykamell/32/3166_2.png) [@pulykamell](https://boards.straightdope.com/u/pulykamell)\ **Post date:** [May 14, 2012, 1:07am UTC](https://boards.straightdope.com/t/we-stole-an-image-now-what/621811/21 "2012-05-14T01:07:16Z")
> [@mhendo](#): > > If the photographer is the creator of the image, then the photographer is also the copyright holder of the image. Really depends on the contract. A lot of photographers do work-for-hire where they give up copyright to their images. For example, if you’re a photographer working for the AP, you do not have the copyright to the images that go out on the wire. They’re all AP’s. It all depends on what agreement the photographer had. But, yes, I would look for some sort of proof that they hold the copyright to the images. Saying that you commissioned the shoot and therefore the copyright is yours is not the default. ---
**Author:** ![mhendo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mhendo/32/3159_2.png) [@mhendo](https://boards.straightdope.com/u/mhendo)\ **Post date:** [May 14, 2012, 1:12am UTC](https://boards.straightdope.com/t/we-stole-an-image-now-what/621811/22 "2012-05-14T01:12:56Z")
Right, but unless the contract explicitly specified that copyright would be transferred to the artist, this work does not sound like one in which copyright automatically transferred as a result of the work-for-hire section of copyright law. The photographer was not, as far as we know, an actual employee of the artist, so that part doesn’t apply. And even if the photographer was an independent contractor on a work for hire, the specific circumstances of this shoot do not suggest that copyright automatically remains with the employer. That happens under the [following circumstances](http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter0/0-c.html): > [@](#): > > If the work is created by an independent contractor and the independent contractor signs a written agreement stating that the work shall be “made for hire,” the commissioning person or organization owns the copyright only if the work is (1) a part of a larger literary work, such as an article in a magazine or a poem or story in an anthology; (2) part of a motion picture or other audiovisual work, such as a screenplay; (3) a translation; (4) a supplementary work such as an afterword, an introduction, chart, editorial note, bibliography, appendix or index; (5) a compilation; (6) an instructional text; (7) a test or answer material for a test; or (8) an atlas. Works that don’t fall within one of these eight categories constitute works made for hire only if created by an employee within the scope of his or her employment. So, as far as i can tell, the only way that the artist owns the copyright is if the photographer sold or actively transferred the copyright to the artist. ---
**Author:** ![Absolute](https://avatars.discourse-cdn.com/v4/letter/a/b2d939/32.png) [@Absolute](https://boards.straightdope.com/u/Absolute)\ **Post date:** [May 14, 2012, 1:15am UTC](https://boards.straightdope.com/t/we-stole-an-image-now-what/621811/23 "2012-05-14T01:15:47Z")
Yes, I was sloppy with my wording. If the photographer stills own the image, then only the photographer can come after you for unauthorized use. However, if the artist is allowed to sell licenses, then you can pay the artist and forget about it. Though it is certainly conceivable that the original photographer would be willing to sell you a license for less than the artist is asking. ---
**Author:** ![Colibri](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/colibri/32/1841_2.png) [@Colibri](https://boards.straightdope.com/u/Colibri)\ **Post date:** [May 14, 2012, 2:20am UTC](https://boards.straightdope.com/t/we-stole-an-image-now-what/621811/24 "2012-05-14T02:20:54Z")
Since this involves legal advice, let’s move it over to IMHO. Colibri General Questions Moderator ---
**Author:** ![PlainJain](https://avatars.discourse-cdn.com/v4/letter/p/5daacb/32.png) [@PlainJain](https://boards.straightdope.com/u/PlainJain)\ **Post date:** [May 14, 2012, 2:27am UTC](https://boards.straightdope.com/t/we-stole-an-image-now-what/621811/25 "2012-05-14T02:27:27Z")
> [@mhendo](#): > > The only way that the artist owns the copyright is if the photographer has transferred copyright to the artist. Which happens more than you might think. As a graphic artist, I have sold images both ways. Unless you are working with a large national company if often easier and no less profitable to sell the reproduction rights outright. Many images sold by clip art type companies were purchased this way. The only way to know in this case is to ask the photographer. . ---
**Author:** ![Banquet\_Bear](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/banquet_bear/32/373_2.png) [@Banquet\_Bear](https://boards.straightdope.com/u/Banquet_Bear)\ **Post date:** [May 14, 2012, 2:35am UTC](https://boards.straightdope.com/t/we-stole-an-image-now-what/621811/26 "2012-05-14T02:35:12Z")
> [@Absolute](#): > > The artist does not own the rights to the photograph just because she “commissioned” it. If the photographer has not licensed it to the artist for resale, then you owe the photographer money, not the artist. …of course, that depends on what country the artist and photographer are based. If they are based in Canada, New Zealand, Australia, or a number of other countries, the copyright is held by the commisioner unless otherwise contracted out of. The fact that the artist even used the word “commissioned” makes me think that they are not based in the US. But yeah, you need to confirm that they hold copyright on the images before you proceed, and $500.00 is not an unreasonable amount to be billed. ---
**Author:** ![NGC2024](https://avatars.discourse-cdn.com/v4/letter/n/f475e1/32.png) [@NGC2024](https://boards.straightdope.com/u/NGC2024)\ **Post date:** [May 14, 2012, 2:36am UTC](https://boards.straightdope.com/t/we-stole-an-image-now-what/621811/27 "2012-05-14T02:36:27Z")
It’s also worth finding out if the $500 is compensation for your prior use, or if the $500 allows you to continue use into the future. I’d also ask for a release indicating that the $500 settles the matter in full and neither the photographer nor the artist will pursue any other remedies against you after your payment. ---
**Author:** ![andrea\_green](https://avatars.discourse-cdn.com/v4/letter/a/ecccb3/32.png) [@andrea\_green](https://boards.straightdope.com/u/andrea_green)\ **Post date:** [May 14, 2012, 3:26am UTC](https://boards.straightdope.com/t/we-stole-an-image-now-what/621811/28 "2012-05-14T03:26:48Z")
> [@Banquet\_Bear](#): > > …of course, that depends on what country the artist and photographer are based. If they are based in Canada, New Zealand, Australia, or a number of other countries, the copyright is held by the commisioner unless otherwise contracted out of… In fact the artist (and her company) are based in New Zealand, I think it is a reasonably safe assumption the photographer is based there too, meanwhile we are a Paris-based startup. ---
**Author:** ![TokyoBayer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tokyobayer/32/13989_2.png) [@TokyoBayer](https://boards.straightdope.com/u/TokyoBayer)\ **Post date:** [May 14, 2012, 3:31am UTC](https://boards.straightdope.com/t/we-stole-an-image-now-what/621811/29 "2012-05-14T03:31:50Z")
I think that the artist is pretty smart at setting the amount for $500. Any more and you would have your attorney respond. You can try negotiating the price down, but it’s pretty tough when you are the party at fault. ---
**Author:** ![Banquet\_Bear](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/banquet_bear/32/373_2.png) [@Banquet\_Bear](https://boards.straightdope.com/u/Banquet_Bear)\ **Post date:** [May 14, 2012, 3:53am UTC](https://boards.straightdope.com/t/we-stole-an-image-now-what/621811/30 "2012-05-14T03:53:41Z")
> [@andrea\_green](#): > > In fact the artist (and her company) are based in New Zealand, I think it is a reasonably safe assumption the photographer is based there too, meanwhile we are a Paris-based startup. …I"m in New Zealand and unless the photographer has contracted out (I use the AIPA Standard Terms of Engagement, but many photographers do not) then she is correct that she holds the copyright, not the photographer. If you want to PM me the names of the companies involved I might be able to find out more information: I might even know the people involved! This is me: www.bigmark.co.nz ---
**Author:** ![astro](https://avatars.discourse-cdn.com/v4/letter/a/9dc877/32.png) [@astro](https://boards.straightdope.com/u/astro)\ **Post date:** [May 14, 2012, 3:58am UTC](https://boards.straightdope.com/t/we-stole-an-image-now-what/621811/31 "2012-05-14T03:58:06Z")
> [@Banquet\_Bear](#): > > …I"m in New Zealand and unless the photographer has contracted out (I use the AIPA Standard Terms of Engagement, but many photographers do not) then she is correct that she holds the copyright, not the photographer. If you want to PM me the names of the companies involved I might be able to find out more information: I might even know the people involved! This is me: > > www.bigmark.co.nz You _are_ the photographer. Oh the irony! [sub]Sorry.. couldn’t resist[/sub] ---
**Author:** ![Banquet\_Bear](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/banquet_bear/32/373_2.png) [@Banquet\_Bear](https://boards.straightdope.com/u/Banquet_Bear)\ **Post date:** [May 14, 2012, 3:59am UTC](https://boards.straightdope.com/t/we-stole-an-image-now-what/621811/32 "2012-05-14T03:59:39Z")
> [@astro](#): > > You _are_ the photographer. Oh the irony! …I’m a he, not a she, but that would be funny!!! ---
**Author:** ![pulykamell](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pulykamell/32/3166_2.png) [@pulykamell](https://boards.straightdope.com/u/pulykamell)\ **Post date:** [May 14, 2012, 7:46am UTC](https://boards.straightdope.com/t/we-stole-an-image-now-what/621811/33 "2012-05-14T07:46:07Z")
> [@PlainJain](#): > > Which happens more than you might think. (I’m just addressing this from a US perspective for the readers): Yes. It’s surprisingly common. I can’t tell you how many contracts I’ve looked over and had to either negotiate out the work-for-hire part, or dismiss the job. Like I said, wire services like AP and AFP generally require freelancers to give up their ownership of all images shot while working for them. And, of course, this is true of staffers at papers, magazines, and wires, but that’s not unexpected. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [May 14, 2012, 8:00am UTC](https://boards.straightdope.com/t/we-stole-an-image-now-what/621811/34 "2012-05-14T08:00:30Z")
IANAL, but I think it’s possible that the artist may have a legal claim even if he doesn’t own the copyright. You’d need to know the terms of his contract with the photographer. If he commissioned the photo for his exclusive commercial use then the photographer can’t sell you the rights for your commercial use. But that doesn’t mean you only have to deal with the artist - the photographer presumably didn’t sell all his rights so the artist can’t legally sell you the right to use the photo. So you may end up having to pay both of them. The photographer for the right to use the photo and the artist for the right to use it in a commercial setting. ---
**Author:** ![Alley\_Dweller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alley_dweller/32/430_2.png) [@Alley\_Dweller](https://boards.straightdope.com/u/Alley_Dweller)\ **Post date:** [May 14, 2012, 9:47am UTC](https://boards.straightdope.com/t/we-stole-an-image-now-what/621811/35 "2012-05-14T09:47:36Z")
The artist in his response has said that he will settle with the photographer. The way to cover yourself is to propose that you will pay him $500 if he provides releases from himself and the photographer saying that both will let you off the hook for any infringement. You shouldn’t have to figure out who owns it and you may never know definitively short of taking legal action. The artist says he is willing to work it out with the photographer, so if he is sincere, he should have no problem providing releases from both parties. That way, no matter who really owns the photograph, you aren’t getting stuck in some kind of dispute between them and you’ve covered all your bases. Of course, the releases should also contain some sort of representation that the alleged photographer actually took the picture, just in case the artist is BSing you. There should also be a hold harmless clause in case somebody else surfaces claiming ownership of the photograph. [Previous page](https://boards.straightdope.com/t/we-stole-an-image-now-what/621811.md?page=1)