Who owns the rights to the images?

[Cherry Pie]

A few years back I shot several weddings with my ex husband using one of HIS cameras.
He shot the color, I did the B&W.
My question is who owns the rights to the B&W images that I took?
I would like to start shooting weddings again and would like to use some of the images that I took, advice please!!!

[Cherry Pie]

wow all this is complicated!
1. Was there a written or implied agreement? None really
2. Were you under his direction and control? Nope, I actually arranged all the wedding parties on how to pose, height,etc
3. Does using his equipment create a principal/agent relationship? Well we were married and took pics of our friends weddings together and got paid a bit of money.
4. Could you be considered an author of a joint work for purposes of copyright? Well I would not take credit for his color and not expect him to take credit for my B&W
5. Were you given credit or acknowledgment for any of the work published? The work was never published

I guess I could just ask him but we are not on the best terms and since he is a photographer too I'm scared he will give me a hard time because he does not want the competiton!


sfphotojournal said:

Who Can Claim Copyright?

Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright.

In the case of works made for hire, the employer and not the employee is considered to be the author. Section 101 of the copyright law defines a “work made for hire” as:

1. work prepared by an employee within the scope of his or her employment; or

2. work specially ordered or commissioned for use as:
+ a contribution to a collective work
+ a part of a motion picture or other audiovisual work
+ a translation
+ a supplementary work
+ a compilation
+ an instructional text
+ a test
+ answer material for a test
+ an atlas

if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

The authors of a joint work are co-owners of the copyright in the work, unless there is an agreement to the contrary.

Copyright in each separate contribution to a periodical or other collective work is distinct from copyright in the collective work as a whole and vests initially with the author of the contribution.


http://www.copyright.gov/circs/circ1.html#wccc

____________________________


Here are the issues:

1. Was there a written or implied agreement?
2. Were you under his direction and control?
3. Does using his equipment create a principal/agent relationship?
4. Could you be considered an author of a joint work for purposes of copyright?
5. Were you given credit or acknowledgment for any of the work published?


SFPJ

[Edson Carlos]

Great info SF! Thx for coming to the assistance of a PLer!

[Cherry Pie]

Ok I just emailed him and he said he had no problem with me using the B&W images so I guess I can use that email as proof if anything ever were to happen.

I just want to use the pics temporarily until I get real wedding work cause the pics are like3-4 years old and I want more updated images!

Thanks for all your help!!!!!!

xoxo

sfphotojournal said:

By the way, this only pertains to US law. Like so much in that Bizaro World of Canada, Canadian law is sort of like the US but different. And for all you in the EU, why would you have laws written by the French and Germans and administered by Belgians?
__________

Cherry Pie,

It's complicated and it's serious. The courts may impose statutory damages from $200 to $150,000 for copyright violations. If laws weren't complicated how else would lawyer's make money?

Sorry about all the lawyerese, but some clarification.

1. Was there a written or implied agreement?

I feared there won't be. Promise that when you start using a second shooter, you'll have a written contract.

Did you ever use the images before for something? Did you show them to someone and say "This is my work"? Because if you did and your Ex knew about it, he's given you an implied agreement acknowledging the work as yours.

2. Were you under his direction and control?

The issue isn't what type of work you did. The question is was he the one commissioned to do the work and was what you did was supplemental work?

“Supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author. So was your EX considered by the wedding party as the photographer and you were his assistant? Who signed the contract? (Promise you'll always have a contract before you work.) Did you guys pass out business card at the wedding? Did it have just his or your name as well on it?

But here's an important rule. Just because he's the one paid, doesn't automatically mean you're his employee.

3. Does using his equipment create a principal/agent relationship?

The question of whether you used your EX's equipment is sort of important. If you are given equipment to use for work for the benefit of the person giving you the equipment, you might be considered the agent of that person.

4. Could you be considered an author of a joint work for purposes of copyright?

Ok here's the most important issue. If this wedding project is considered a joint work, both you and your Ex are considered equal owners.

Here's how to determine a joint work.

1. How was the money shared? Since you both were married, it's likely that both of you shared equally.
2. How was the workload divided? Who did what and if someone didn't do what they were suppose to do, what was the other person expected to do? Who was the one making the call on what and how and when to shoot?

It seems from the facts that this was a joint work since you took all the B&W and he took the colors. and you directed the wedding party.

By the way if it's a joint work, you have rights to all the images not just the B&W. Here's an example. You write the lyrics and your Ex writes the music to a song. The music is used in a Nike commercial, you both get paid as equal owners.

5. Were you given credit or acknowledgment for any of the work published?

What is meant by published is whether the work was distributed or was offered to be distributed to the public. If the photos were given to the wedding party - they're published.

Was you work acknowledged? Was your name on the pictures or in the albumn or CD or whatever given to the wedding party? Did you Ex ever say to anyone, "Hey wasn't Cherry's pictures great." or "Cherry took these pictures."? That's a credit or acknowledgement.

___________________

Ok so what does this all mean?

If the facts you gave are complete and correct, this was a joint work. You own not just the right to the B&W's but the rights to all the images.

There's an old adage in the law - "Only you can assert your own rights". Or put in another way, "You snooze. You loose." If you think you own the rights to the images, use them and make your Ex assert his rights. But you better make sure you're willing to defend yourself and potentially take the damages.


SFPJ