Regardless of the models, I did not pay thousands for my photos. A few hundred
for the graduation photos, and a few hundred for the wedding photos 30 years
ago.
It is my understanding that the studio protects all photos by way of copyright
that are posted and accessed via its website services. That condition would
make sense, as it protects the clients as well as itself. However, that was a
service I wasn't interested in, and purchased one of their more traditional
packages.
How interesting that my experience was so unusual.
So, in your opinion, I retain copyright to the oil-on-canvas portraits I was
commissioned to do in the mid 1970's? Interesting. True, there aren't many
(seven) and I was paid cash, but I was able to eat and to put gas in my place
of lodging. Would I now be able to demand access to these works, photograph
them and use them in a portfolio?
I apologize to all, but I've had some disappointing experience with
intellectual property rights. A firm I worked for many years ago demanded that
I sign over rights to a R&D project I had worked on for two years, in exchange
for wages already paid. I had not been under such an agreement up until that
time. The license to that work was then sold to a high-profile client for an
amount in the low seven figures. The firm's attorney threatened me with legal
action if I did not sign off and accept the token $1. I did, and was terminated
three weeks later. My name remains on six of the patents, however. To me
they're worth exactly the value of the paper they're printed on.
I have been required to sign over intellectual property rights as a condition
of hire ever since. The conditions even include any items I might design or
invent on my own time that are unrelated to the company's business. Many people
I've worked with have also had to sign non-compete clauses, which have kept
talented (and well-paid) engineers out of work for years, effectively ending
their careers.
I therefore don't have a high regard for such laws.
More relevant to the topic, I think it is rather sad and pathetic that the work
of an artisan who mechanically produces work for hire is considered to be on
par with an artist who produces creative work. This lumps in and treats as
equals the neighborhood photographer with Annie Leibovitz and Ansel Adams.
Producing memorabilia is not art, it is a craft. I'm sure all present know the
difference, or should.
I understand what the laws say and have read the commentaries with great
interest. In my opinion mere competence with a camera is not art. Art, and
therefore speech is something else. I'm sure no one here will mind that I don't
repeat the obvious Dickensian reference.
Thanks for your patience.
-Z
----- Original Message -----
From: "Mark Scarberry" <mark.scarbe...@pepperdine.edu>
To: religionlaw@lists.ucla.edu
Sent: Sunday, August 25, 2013 6:11:09 PM
Subject: Re: A right not to be compelled to create expression?
My wife tells me there are now two models.
1. Photographer retains copyright, and you buy the photos you want.
2. You pay multi-thousands of dollars up front. Then the photographer takes
lots and lots of pictures and sends you the CD (or DVD), and you do what you
want with them. This approach would require an assignment of copyright from the
owner (the photographer) to you.
Mark Scarberry
Pepperdine University School of Law
Sent from my Verizon Wireless 4G LTE Smartphone
-------- Original message --------
From: Len <campquest...@comcast.net>
Date: 08/25/2013 10:28 AM (GMT-08:00)
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: A right not to be compelled to create expression?
You may be pretty sure, but I'm absolutely certain that the photos I purchased
from our wedding photographer, as well as all school and graduation photos, are
owned by me and not the photographer. I purchased them, and own the rights.
That's what I paid for. For the photographer to retain any rights to these
photos, I would have had to sign a model waiver, which I did not.
Thanks,
-Z
----- Original Message -----
From: "Alan Hurst" <alan.hu...@aya.yale.edu>
To: "Law & Religion issues for Law Academics" <religionlaw@lists.ucla.edu>
Sent: Sunday, August 25, 2013 12:33:30 PM
Subject: Re: A right not to be compelled to create expression?
I'm pretty sure that Eugene is correct--freelance wedding photographs
are generally protected under the category of pictorial, graphic, or
sculptural works, and as such are not eligible to be works for hire.
(Photographs submitted to magazines or newspapers are treated
differently, as they are contributions to a collective work.)
Ownership of the copyright may be assigned, but the author of the work
for purposes of copyright law remains the photographer regardless of
any prior agreement between the parties.
Eugene is also correct that it's hard to see what this has to do with
the photographer's Free Speech rights. Regardless of who the author is
for purposes of copyright law, the photographer is clearly creating
the expression contained in the photographs by selecting the shots,
composing and framing them, Photoshopping them, etc.
> On Sat, Aug 24, 2013 at 2:19 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote:
>> (1) A freelancer’s work can be treated as a “work for hire”
>> only if there’s an agreement and the work falls into one of several classes:
>> “a work specially ordered or commissioned for use as a contribution to a
>> collective work, as a part of a motion picture or other audiovisual work, as
>> a translation, as a supplementary work, as a compilation, as an
>> instructional text, as a test, as answer material for a test, or as 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.” 17 USC 101. A
>> press release would not be a work for hire, for instance.
>>
>>
>>
>> (2) A photographer’s work would generally not qualify for
>> being a work for hire, either.
>>
>>
>>
>> (3) Of course, even if a work isn’t a work for hire, the
>> copyright can be assigned by a signed writing. But I don’t see what that
>> has to do with the compelled-creation-of-expression issue. If I go into
>> freelance press release writing, I think I ought to be free to say to the
>> Church of Scientology, “No, I’m not going to write a press release for you
>> promoting your religious events, because I disapprove of your religion.”
>> And that is true regardless of who would own the copyright in the resulting
>> press release. My objection isn’t to being required to own a copyright. My
>> objection is to having to write things that I think it’s wrong for me to
>> write.
>>
>>
>>
>> Eugene
>>
>>
>>
>> From: religionlaw-boun...@lists.ucla.edu
>> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton
>> Sent: Saturday, August 24, 2013 10:26 AM
>>
>>
>> To: Law & Religion issues for Law Academics
>> Cc: Law & Religion issues for Law Academics
>> Subject: Re: A right not to be compelled to create expression?
>>
>>
>>
>> Point of law-- Most freelancers are subject to work for hire agreements
>> that divest copyright and make the purchaser the "owner" of the speech for
>> all purposes.
>>
>>
>> Marci A. Hamilton
>>
>> Verkuil Chair in Public Law
>>
>> Benjamin N. Cardozo Law School
>>
>> Yeshiva University
>>
>> @Marci_Hamilton
>>
>>
>>
>>
>>
>>
>> On Aug 24, 2013, at 12:37 PM, "Volokh, Eugene" <vol...@law.ucla.edu> wrote:
>>
>> Well, New Mexico law covers “any establishment that provides
>> or offers its services ... to the public, but does not include a[n] ...
>> establishment that is by its nature and use distinctly private.” That does
>> mean that a freelance writer who only writes on behalf of a limited set of
>> clients, rather than offering his services to the public at large, wouldn’t
>> be covered by this particular statute. But a freelance writer who does
>> promote his services to the public would qualify, even if he exercises some
>> selectivity. (Indeed, Huguenin says that there are other photography
>> commissions she won’t take, such as for pornography, horror films, and the
>> like, though chances are that she won’t even be approached for them in the
>> first place. Conversely, my sense is that many freelance writers who offer
>> to hire themselves out to the public will take the great majority of jobs
>> that come their way, even though they too would draw the line somewhere.)
>> So I can’t see how such freelance writers would be immune.
>>
>>
>>
>> But in any event, even if a freelance writer or photographer
>> is unselective, I can’t see how that person’s expression isn’t “her own.”
>> To be sure, the public might not see an unselective photographer’s/writer’s
>> speech as equally expressing her own ideology. But the writer or
>> photographer would still be creating the expression herself, using her own
>> artistic and literary creative judgment.
>>
>>
>>
>> The question, then, is: Should people have a right not to
>> be compelled to create expression they think is wrong, just as they have a
>> right not to be compelled to distribute expression they think is wrong? It
>> seems to me that the logic of Wooley should extend equally to both rights.
>> If Maynard can’t be required to carry the motto “Live Free or Die” on his
>> car, then a Maynard who is a generally will-take-most-commissions freelance
>> writer can’t be required to write a press release or organizational
>> newsletter that expresses the view “Scientology is good.” Indeed, the
>> requirement to actually create expression seems much more burdensome than
>> simply the requirement to carry a slogan on one’s car.
>>
>>
>>
>> Finally, note that the New Mexico Supreme Court expressly
>> disclaimed any argument that mere wedding photography is just too banal to
>> be expressive for purposes of this analysis (not that Eduardo so argued
>> below, but I’ve seen that argument elsewhere). “This determination [that
>> Elane Photography is subject to the public accommodations law] has no
>> relation to the artistic merit of photographs produced by Elane Photography.
>> If Annie Leibovitz or Peter Lindbergh worked as public accommodations in New
>> Mexico, they would be subject to the provisions of the NMHRA.”
>>
>>
>>
>> Eugene
>>
>>
>>
>>
>> _______________________________________________
>> To post, send message to Religionlaw@lists.ucla.edu
>> To subscribe, unsubscribe, change options, or get password, see
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>>
>> Please note that messages sent to this large list cannot be viewed as
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_______________________________________________
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To subscribe, unsubscribe, change options, or get password, see
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Please note that messages sent to this large list cannot be viewed as private.
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To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
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Please note that messages sent to this large list cannot be viewed as private.
Anyone can subscribe to the list and read messages that are posted; people can
read the Web archives; and list members can (rightly or wrongly) forward the
messages to others.
_______________________________________________
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Please note that messages sent to this large list cannot be viewed as private.
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