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Old November 4th, 2015, 01:51 PM
FedericaS FedericaS is offline
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Copyrights, I need your opinion

Hi everyone, I need your opinion.
Let me explain the situation.
My friend is a musician and an amateur photographer. He's finishing his new album and he is working on the cover.
He asked a professional photographer to "translate" his idea into an image and he is waiting for her estimate of the costs.
He asked for a blooming flower before a white background in b&w. Simple and straight forward.
We decided to give it a try and make the photo ourselves following his idea.

Now, if we recreate the same exact image that the other photographer sent him we know it can be consider copyright infringement and we don't want that.

But if we change the angle of the flower, the way the petals looks etc, we are not in fault, correct? In the end, it all started with his idea, each can interpret it in different ways.

I'm just double checking with you guys to make sure that we are not going to offend anybody. He is concerned because he asked the photographer first and now we are trying our own thing, he doesn't want the photographer to come after him later if he decides to choose his own photo.

Thank you so much for taking the time to read this, I hope you can help me reassure him.
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Old November 4th, 2015, 04:30 PM
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cygnusstudios cygnusstudios is offline
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Re: Copyrights, I need your opinion

You and the musician are good...

Hiring or asking a photographer to do a job doesn't guarantee that the image will be used. Happens all the time. The client always has the right to choose which image(s) are used.

Now with that said, paying that photographer for their time is the right thing to do (in my opinion) because they were asked. Depending on how the shoot/money was discussed.

If this was just a "spec" shoot, then do what you feel is right, just consider that the photographer didn't come to you. But that's just my personal opinion as a photographer.

As far as copying goes, there is so much "talk" about this type of thing, but unless you have the exact same equipment, lighting, shooting style, it is almost impossible to copy an image. Yes you can create a similar image, but if you as the photographer are any good, you'll want to put your own mark on it anyway.
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Old November 4th, 2015, 04:44 PM
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agiledogs agiledogs is offline
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Re: Copyrights, I need your opinion

I agree with what's been said. Its amazing though when 2 photographers are given the same subject, the same lighting and even standing in the same spot with the same f-stop, ISO, and shutter speed.....how different the images produced can be.
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Old November 5th, 2015, 12:24 AM
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MannyC MannyC is offline
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Re: Copyrights, I need your opinion

I agree with the replies and If you look here, no 2 shots are alike
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Old November 5th, 2015, 10:48 AM
Russ Russ is offline
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Re: Copyrights, I need your opinion

"The devil is in the details". Are you trying to avoid offending them OR are you trying to avoid a copyright infringement lawsuit....2 different things. Has there been general discussion but no final agreement, let alone actual receipt/acceptance of a final product (ie photo) OR is there an agreement (verbally or written) OR has the photog submitted a photo and price per previous discussion(s)? Is the concept exclusively or at least principally your friend's?

The issues here include whether or not you've breached a contract (ie not accepted/paid for a photo meeting conditions agreed upon) and/or whether use of a separately produced photo infringes on the original photog's rights. A lot of this uncertainty could/should be avoided by merely at the end of the discussion summarizing and confirming what everyone's understanding is....AND getting it in writing. It certainly should include consideration of who owns the photo and what, if any, constraints are placed on the use of the photo by either party. The vast majority of the time it'll be a "no blood, no foul" issue and because of that perception and the small amount of inconvenience of doing it right, up front.....nothing formal is ever done, the album never realizes commercial success and therefore there's nothing to squabble over. But should it go big, there will inevitably be severe regrets on someone's part for not being business like about things when it was nickel/dime stuff.

Few, if any, of us are lawyers and fewer are copyright attorneys. Advice from us may be well intended but could be inadvertently disastrously misleading.....but probably isn't. Take your chances!

B & H recently published a link to their sponsored video of The Copyright Zone Guys Once Again, 2 guys (one a NYC lawyer, the other a NYC photog). Another take on these issues (in a less ruthlessly brutal day-to-day environ) is by Carolyn Wright, aka Photo Attorney (and renowned photographer herself), legal counsel to NatureScapes website. She also has a book (of course!). Note the Excuses, Excuses article.
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Old November 5th, 2015, 12:23 PM
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cygnusstudios cygnusstudios is offline
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Re: Copyrights, I need your opinion

Quote:
Originally Posted by Russ View Post
"The devil is in the details". Are you trying to avoid offending them OR are you trying to avoid a copyright infringement lawsuit....2 different things.
You bring up incredibly good points, and a ton of photographers (especially those breaking into the business) ignore regularly. Most lawsuits related to photography are contract related versus copyright violations.

The original question without a ton of explicit details hinged on "He asked a professional photographer to "translate" his idea into an image and he is waiting for her estimate of the costs."

There is no mention of contracts, which is a great learning opportunity for every photographer who wants to get into the business of taking images.

If a potential client simply asks for a quote; hourly, daily, per item, per contract, etc, that is a quick and simple request and there is nothing more to it.

If the potential client wants to sit down and discuss the possible shoot in detail, this is when the photographer needs to start being a business person and charging for that time.

Once the concept phase is completed, a contract needs to be written up. Sometimes it can be the client that offers the contract, sometimes it is the photographer, and on a very rare exception it can be a third party contract.

A lot of photographers love to grab these generic forms on the internet, but this is such a bad idea. It is best to have your lawyer draw up every single contract or at least read it, because should a violation happen, it will be your lawyer who defends or fights the contract.

As Russ brought up, there are potential long term considerations such as licensing and transfers, should the album become a success. Who has the rights to use the image and how are they able to use them.

I understand it is exciting for many starting out to get a paying gig, it's a cool thing. However, there are so many potential pitfalls that can ruin your budding career in a heartbeat.

Most newbies begin with what should I charge, when they should be asking (qualified individuals) about legal liabilities, copyrights, trademarks, usages, licenses, and transfers, etc.

By qualified, I mean lawyers, accountants, insurance reps, etc. These are the ones that defend you.

Once you really dig deep into all the "mess", you may re-evaluate that decision to be a working photographer


EDIT: When you do seek out a lawyer, do not go to your local yokel guy, go to one that specializes in copyright/contracts.
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Last edited by cygnusstudios; November 5th, 2015 at 12:30 PM.
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Old November 6th, 2015, 10:47 AM
FedericaS FedericaS is offline
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Re: Copyrights, I need your opinion

First of all, thanks for getting the time to give me your opinions and advises.

As far as I know, no contract was signed or proposed. I'm sure that if a payment was agreed for the photographer time, he will respect that.

When we talked about the photo he said that he doesn't want any exclusivity in either cases (if she does the job or we do it), so the image can be used when and where the photographer wants. He has also predetermined that the photographer name will be on the front cover.

As for "copying" the photo, we've already talked about things that we will do differently. Her photo was a starting point, we are moving on different directions. Sometimes you need a "first draft" and then you change or trying something different, and as you said, we definitely don't have the same equipment.

We will go for it and see what happens.


I couldn't agree more on the need of a contract.... unfortunately I'm paying for it. This is another story altogether, but let me just say that even if you are working with a "friend", when time comes for the work to be recognized, you need that piece of paper... I'm pretty sure that if I would ask a lawyer, he will tell me I'm "right", but who has the money for a lawsuit?
Anyway.. sorry for my last vent!
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