Copyright Waiver

[T Paul]

Do you have any standard form you use to avoid copyright problems? Or is that even a problem?

[thomasgeorge]

Sure wish Chris W was back from galvanting all over Colorado, as I believe Chris would be the one to REALLY answer your question, AND include details I am sure I will miss. Thats a good question. I usually dont have my clients sign a formal waiver because the area I am in is so small everyone knows everyone elses business! However, in a more populated area I dont think I would even begin a scan without some sort of contract/waiver signed and in hand. Intellectual property rights( as in reproducing a photo from a scan which was taken by a studio or Pro who retained the negative), A persons right to their privacy etc., becomes a field of landmines as it were. Fortunatly I think Doug( WHERE ARE YOU??? HELP!!!!) can give you some specifics and when chris gets back theres a good resource.. I'm not much help on the specific points, proving once again, there are no stupid questions, just really dumb answers, and I fear you just got one!! Sorry, Tom

[T Paul]

Thanks Tom, you do make me laugh. You at least got me thinking in the right direction. I will look forward to other posts for more info. I am in a fairly small area, but you never know with lawsuits now-of-days. THANKS

[thomasgeorge]

My Dad had a picture on the wall of his office called " THE LAWSUIT" It depicted two farmers fighting over a cow. One was pulling on a rope around the critters neck. The other was pulling on the poor beasts tail. AND sitting on a stool milking the animal was...A....LAWYER!!! Tom

[T Paul]

Tom you are too funny!

[Doug Nelson]

Look on the closing flap of any photofinishing envelope and you'll find a standard liability waver. They usually limit their liability to replacing an equal quantity of unexposed film. But if our client's originals are somehow damaged, how could we offer anything similar?

[Ed_L]

Regardless what the waiver says, if you are incompetent, or just plain sloppy, I think you are asking for trouble in a court of law. You need good working habits to support the waiver, in my opinion.

Ed

[DJ Dubovsky]

I haven't done anything about it yet. I guess I don't know a graceful way of going about it. Too big a legal document may scare some potential customers away. Not enough might not be good coverage for you anyway.

I will definately check out the label on the photo developing envelopes. However, they are only dealing with film that probably could be retaken easier than the antiquities we deal with could be replaced.
DJ

[Jim Conway]

Consider another direction

Rather than looking for a waiver you might want to use the Copyright Laws to enhance your services. I think this may duplicate numerous other posts I've made in the past but the first step is to recognize that copyright is NOT meant to keep anyone from copying an artistic work - it is meant to further compensate the artist with a piece of the action when someone else is going to profit from the work.

I have no intent to allow my accumulation of many years of professional photographs to be sold by others for profit without compensation and I've been in substantial law suits to back that up (discussed in the archives here maybe) - but I don't want that to stop people from selling my work either. That would be dumb! Just pay a fair share of the profit and that is what copyright is really all about!

I am amazed at the amount of work we take in that we are told "someone", (usually a large store chain), will not copy this because it is "professional"
Our approach is different and yours can be too if you are "service oriented"
and can follow up on this.

We advise the client that there may be a "use fee" and we'll will let them know before the job is done. Do your homework and run down the studio involved and make a call and ask what they charge for their "use" fee - better than 9 time out of 10 it will be $10.00 or $15.00. If you make a sincere effort to find the owner and don't succeed, keep that record with the order. No lawyer will take a case to sue you if you can prove you were willing to pay user fees but his client did not cover his or her bases with the technicalities necessary to "protect" their end of the numerous regulations that constitute a major part of the rules in this complex issue.

Think service - Make it a positive - and enjoy the added profits.

Jim Conway
Timemark Photo Conservators

[grafx]

You know copyright has been a big issue with me as well. I've gotten to the point that I try to accept work from photographers only. This limits my client base, but it also limits the chance on being sued.

I have gotten all kinds of photos that are copies of originals or scans emailed to me. With these there is no way to track down the copyright holder. Most you know where done by a professional somewhere and most likely the holder of the photograph knows exactly who took the pic, but won't tell you because they know they don't have permission to copy, alter etc.

I made a clause on the bottom of my "order form/contract" that the client must sign that says something like this:

COPYRIGHT RELEASE: (IF APPLICABLE) Please respect your photographer’s copyrights and secure a release.

As Justice Graphic Art and Design cannot know in all cases whether or not supplied photographs are protected, you are responsible for securing releases for ANY materials submitted. Justice Graphic Art and Design assumes that all materials, marked or unmarked with copyrights, are submitted with the permission of the legal owner.

By signing below you agree that you understand Justice Graphic Art and Design’s copyright release policy and accept any and all responsibility in the event of copyright infringement, lawsuit, or any such legalities.

[Chip Hildreth]

This is a great discussion; copyright in action is just not as straightforward as the law makes out.

We don't use a standard form but need to. Most of the clearances I get are verbal by phone, in person or via email. It's one of those things we'll get to... someday... probably when we get burned.

JIM CONWAY -- "If you make a sincere effort to find the owner and don't succeed, keep that record with the order. No lawyer will take a case to sue you if you can prove you were willing to pay user fees but his client did not cover his or her bases with the technicalities necessary to "protect" their end of the numerous regulations that constitute a major part of the rules in this complex issue."

THANK YOU JIM! The advice about keeping records of due diligence is good to know. I've been trying to track down a photographer, who I know is still around, but will not respond to my contact attempts. We are down to the wire and using his photo is crucial to the exhibit we're producing. We know he's released it before for a similar use and the project is a not-for-profit historical exhibit. We're gonna take our chances and use it.

This will be a first for me, I've always had good luck tracking down artists or their estates to clear copyrights and have yet to have even one of them ask for a royalty... Nope, wait, we had Duke University charge Duke Medical Center, through us, over $1100.00 in royalties for some photos taken by a staff medical photographer... at the Med center... for an exhibit in the hospital. Go figure that one. We marked it up!

We have been granted no charge clearances for photos owned by the Elvis Presley estate, Ernest C. Withers, the 82nd Airborne and several musicians including Eric Clapton. We've even gotten free clearance on one of the two existing photos of Robert Johnson. It should be noted that the free clearances were granted for promotional materials used in educational programs and political campaigns. For-profit purposes would have been treated differently.

I need help with a related issue.
I have faced a problem many times that I don't know how to handle. At least once or twice a week I have someone come in with an old photo they want restored and/or copied. When they are clearly family snapshots I give the quick litany on copyright and ask them for verbal clearance to reproduce. When it's not so clear, or obviously a professional portrait, I don't know what to do other than decline the much needed business. People almost never rember who did a portrait, like a sorority or debutante photo for instance. They are rarely marked with a studio name... unless it's Olan Mills and then you just say "Sorry, they won't clear it at any price". Any ideas on how we can legally take these jobs? I'm watching at least $50.00 walk away every time we turn one down.

Chip

By the way, if you haven't already, check out Ernest Withers, he is one of the true greats of journalistic photography. He's in the same class as Robert Capa. If you live in the US you've definitely seen his photos of the Memphis Music Scene and the Civil Rights struggle. He took the shot of Martin Luther King's companions pointing in the direction of the gunfire that killed King.

[Jim Conway]

Relax with copyright issues

Your comment on Olin Mills surprises me as I've never had a problem there - perhaps because our requests have been to print fiber base, make an oil portrait or perform some other service that they generally do not have available and all requests submitted to the local studios.

Legal expertise is not anything I'll claim but I have had a lot of hands on experience in court with copyright cases so I'll stick my neck out with a few thoughts that may help dispel some of the paranoia on this subject that seems to exist among this group.

In isolated cases involving restoration, it is important to know that an infringement (should there actually be one) involves civil - not criminal action. If you were consistently stealing work from one source, copying it or profiting from it while trying to avoid the copyright, it might be criminal but someone in a DA's office somewhere would have to make that decision and pursue it. Copying a piece of art work and mass distributing it would be another case where you could expect to get into trouble because it would be worth the effort for the owner to come after you and he or she would certainly be justified in doing so ...and, copying Olin Mills or anyone else's work if they already told you NO could also get you in trouble!

Other than that, with the type of work you are talking about and that most people in RetouchPro are involved with daily - (what I would call just an everyday beat up old photo that someone wants fixed up for their personal collection), and you have looked but can't find the "copyright owner" and the print or mount itself bears no markings or other evidence of a copyright. I'd say do the work - don't run scared!

In the event that an owner who has never attempted to protect his or her work by registering it or marking it in any way should come out of the woodwork - they would have to file a civil suit costing them 7K+ to bring to court. Their reward for this would probably run in the range of $200 if they can prove that you made that much profit on their work and that you intended to violate their copyright! Not a very likely - or for that matter even logical scenario!

So here is what I feel does apply. I've found the real courts are very fair and the Judges and Lawyers are not morons just making up a lot of garbage in spite of all the publicity that some of them get for a few weird decisions. If you do innocently violate someone's copyright and they get all upset over it, the first thing that will happen is that you will get a letter from their attorney and an opportunity to settle it. If it goes any further than that, a judge will use a little common sense in making a decision on your intent - how often you violate the law, how much you actually know about copyright - if you made any attempt to solve the issue and a whole lot more. - all of it just plain realistic logic.

My business interest is in helping people preserve their history - that requires doing the work you are talking about and going about my day without "legal concerns" and I do that. Anyone involved in "lifting" images for photo fakery - ill gotten gains by publishing things that they have no right to publish or selling an artists work as their own should be burned at the stake - there is difference and, it's one that - as Robert Fulghum might put this, "most of us learned in Kindergarden"!

Jim Conway

[Chip Hildreth]

Jim, I for one thank you for your wisdom and the objective, common sense perspective you bring to this subject.
I'm a commercial photographer, I've studied copyright until it made me weep and tried to share what I learned with my customers and business partners. I have never actually had to deal with an infringement from either side and I'm thankful. Having no practical experience has left me on the paranoid side... I've turned down good work and disappointed some people I really didn't want to disappoint. Your words have given me motivation to rethink those restoration copy/jobs. I know what you say about lawyers and judges to be true having survived a lawsuit some years ago.
The fact is, I'm sitting here with this really useful, really expensive Imacon scanner and those jobs can help me pay for it.

Again, thank you. ...I hope that rash has gotten better.

Chip

[mcmurma]

Jim,

Thanks very much for your no nonsense spin on copyright stuff and photo restoration! You have affirmed my initial thoughts on the matter and made me feel much better about doing this type of work. I am in the process of starting a little part-time retouching/restoration opertation and have been concerned about the copyright issue.

Not so worried about anymore

Thanks again,

-Michael