[BCMA] an archives question - Copyright on photos where sitter paid for photos
Moderated BCMA subscriber listserv.
bcma at lists.vvv.com
Wed Feb 10 14:13:56 PST 2010
On 9-Feb-10, at 5:08 PM, Moderated BCMA subscriber listserv. wrote:
>
> The good news is that you the subject, own copyright to your
> graduation, wedding and portrait photos because you paid for them,
> in spite of what the photographers usually say. You may scan them
> and share them with family, friends etc.
>
> Casual photos (i.e. those not paid for by the sitter) are not
> included in this. They would be copyrighted by the creator.
>
It seems that the interpretation of the wealth of a person whose
portrait was commissioned, may not be the main issue, more likely that
the idea stems from the 'consideration' of copyright itself, a
consideration which must be actually paid for. (ie: would a
photographer who photographed school classes every year, retain
copyright because it was the school that arranged for the
photographer's work and did not pay for copyright as a consideration,
or did the pupil's and their parents pay for copyright in each print
'copy' received? Doubtful that in this case, the photographer, as
originator of the works, would be paid for copyright. If you have a
grad photo that you paid for, do you have the 'original' (negatives,
positives, original digital form). Copyright is for the original
work, isn't it?
The photographer who has donated his original materials to the
Chilliwack Museum, would know whether he or she legally has the right
to transfer copyright of the original photographic images and prints
or whether any were given to the sitters for portraits or school
photos etc and whether copyright was paid for in any of these
instances. If the photographer retained the originals, the copyright
for those images would have remained with the photographer as author
of the works, wouldn't it?
Always an interesting and important issue. For this photographer/
donor, the issue should also include 'Moral Rights' to credit this
photographer as creator for the images when reproduced.
Barbara
A useful resource is available on the Canadian Intellectual Property
Office (cipo.ic.gc.ca). http://www.cipo.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/wr00506.html#no
A Guide to Copyrights: Copyright Protection
A Guide To Copyrights (PDF - 3.1 KB - 25 pages)
Please note : The publication A Guide to Copyrights is currently being
updated to reflect recent changes to the regulations. A new version of
this guide will soon be available. For more information and to receive
these updates, please contact us. We apologize for the inconvenience.
What is a copyright?
What is covered by copyright?
Copyrights vs trade-marks, patents, industrial designs and integrated
circuit topographies
When copyright does not apply
Infringement
Fair dealing and exceptions
Examples of infringement
Automatic protection for Canadian and foreign works
Authorship
Ownership
Duration
Moral rights
----------------
Authorship
The author is normally the person who creates the work. See the
discussion "Authorship" later in this guide under "Registration of
copyright."
Ownership
Generally, if you are the creator of the work, you own the copyright.
However, if you create a work in the course of employment, the
copyright belongs to your employer unless there is an agreement to the
contrary. Similarly, if a person commissions a photograph, portrait,
engraving, or print, the person ordering the work for valuable
consideration is the first owner of copyright unless there is an
agreement to the contrary. The consideration must actually be paid for
the copyright to belong to the person commissioning the photograph,
portrait, engraving, or print. Also, you may legally transfer your
rights to someone else, in which case, that person owns the copyright.
General rule
The general rule is that copyright lasts for the life of the author,
the remainder of the calendar year in which the author dies, and for
50 years following the end of the calendar year. Therefore, protection
will expire on December 31 of the 50th year. After that, the work
becomes part of the public domain and anyone can use it. For example,
Shakespeare's plays are part of the public domain; everyone has an
equal right to produce or publish them. This rule applies to all
categories of works except those to which special rules apply. Some of
the more important special rules are listed below.
Photographs
There are three possible terms of copyright protection for a photograph:
First, where the author is a natural person, the term of protection is
the remainder of the calendar year in which the author dies, and for
50 years following the end of the calendar year.
Second, if the author of the photograph is a corporation in which the
majority of voting shares are owned by a natural person who is the
author of the photograph (e.g. a commissioned photograph), then the
term of copyright protection is the remainder of the calendar year in
which the author dies, and for 50 years following the end of the
calendar year.
Third, if the author of the photograph is a corporation in which the
majority of voting shares are not owned by a natural person who is the
author of the photograph (e.g. a commissioned photograph), then the
term of copyright protection is the remainder of the year of the
making of the initial negative or plate from which the photograph was
derived or, if there is no negative or plate, the remainder of the
initial photograph, plus 50 years.
Moral rights
Even if you sell your copyright to someone else, you still retain what
are called "moral rights." This means that no one, including the
person who owns the copyright, is allowed to distort, mutilate or
otherwise modify your work in a way that is prejudicial to your honour
or reputation. Your name must also be associated with the work as its
author, if reasonable in the circumstances. In addition, your work may
not be used in association with a product, service, cause or
institution in a way that is prejudicial to your honour or reputation
without your permission.
Following are some situations which may infringe the author's moral
rights.
Example 1: You've sold the copyright of a song to a certain publisher
who converts your music into a commercial jingle without your
permission.
Example 2: You've sold the copyright for your novel to a publisher who
decides to give it a happy ending, instead of the tragedy youwrote.
You cannot sell or transfer your moral rights to anyone else, but you
can waive them when you sell or transfer your copyright at a later
date. A contract of sale or transfer may include a waiver clause.
Moral rights exist for the same length of time as copyright, that is,
usually for the lifetime of the author plus 50 years more, and passed
to the heirs of the author, even if they do not inherit ownership of
the copyright itself.
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-----------------------
>
> The good news is that you the subject, own copyright to your
> graduation, wedding and portrait photos because you paid for them,
> in spite of what the photographers usually say. You may scan them
> and share them with family, friends etc.
>
> Casual photos (i.e. those not paid for by the sitter) are not
> included in this. They would be copyrighted by the creator.
>
> If the images & portraits are pre-1948 then I believe that copyright
> does not apply.
>
> The above are the words of the student, not the master. I welcome
> someone more knowledgeable on the subject to provide quotes and
> references.
> J
>
> COLIN
>
> Colin MacGregor Stevens,
> Manager,
> New Westminster Museum and Archives,
> 302 Royal Avenue,
> New Westminster, BC,
> V3L 1H7
>
> Phone Office: 604-527-4639
> Work Cellular : 604-830-6965
> Fax: 604-527-4641
> E-mail: cstevens at newwestcity.ca
> Web Site: www.newwestminster.ca
> -----Original Message-----
> From: Moderated BCMA subscriber listserv. [mailto:bcma at lists.vvv.com]
> Sent: Tuesday, February 09, 2010 1:35 PM
> To: bcma at lists.vvv.com
> Subject: [BCMA] an archives question
>
> Hello all:
> A local town photographer donated over 50 years of photographs and
> negatives to our archives. Copyright of the collection was assigned
> to the archives at the time of donation. But a question has arisen.
> Some of the photographs are portraits of local residents. These are
> people who paid to have their photographs taken. In these cases who
> owns the rights to the photographs? Is it the archives, photographer
> or purchaser?
>
> Thanks for your thoughts in advance.
>
> Ron Denman
> Director
> Chilliwack Museum and Archives
> 45820 Spadina Avenue
> Chilliwack, BC V2P 1T3
> Phone: 604-795-5210; Fax: 604-795-5291
> www.chilliwack.museum.bc.ca
>
> _______________________________________________
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> BCMA at lists.vvv.com
> http://lists.vvv.com/mailman/listinfo/bcma
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