[pure-silver] Re: Uneasy Question From Nervous Uncle

Stein wrote:

>Dear Friends,
>
>     I have selected this list as the one likely to give a quick
>professional response. I have an uneasy question.
>
>     I recently took large format pictures of my friends dressed in fantasy
>gear up at a deserted railway tunel. All went well, we did not burn down the
>tunnel, the pictures are delightful.
>
>     No money charged for anything - film and photography my treat. I made
>up a quick batch of 12 8 x 10's and gave them to twelve of the participants
>a week ago. Everyone happy.
>
>     So happy that several of the recipients propose taking one of the
>pictures to a commercial firm that recopies it onto an A3 size digital
>paper, glues it onto composition board, and die cuts out a jigsaw puzzle of
>it. It is packaged and the customer is charged for it.
>
>     My images were gifts, and as I read it, while the recipients can
>display the prints in their homes, I own the copyright and unless I
>relinquish this further copying, publication, or commercial use of these
>images runs foul of some sort of law. But which law, and who in this chain
>is making themselves liable for complaint?
>
>     Before I make a fool of myself and/or alienate my friends, can some one
>clarify this for me? I hasten to add I write from Australia, not North
>America. But advice from anywhere is welcome....
>
>     Uncle Dick
>  
>
Ah, you tread into the murky land of photograph copyright.
In Canada as the owner of the negative when the photograph was made you 
own the copyright of the photograph. That restricts anyone from further 
reproduction of your work, and for photographs produced after 1988 
public display. No registration or copyright notice is required. Your 
copyright lasts for 50 years after the end of the calendar year the 
photograph was taken. Note, failure to register and provide copyright 
notice makes it harder to successfully undertake legal action.

However (and this is the big however), if the photograph was "was 
ordered by some other person and was made for valuable consideration, 
and the consideration was paid, in pursuance of that order, in the 
absence of any agreement to the contrary, the person by whom the plate 
or other original was ordered shall be the first owner of the 
copyright".  So if it can be construed that they ordered the photograph 
then they own the copyright. "Valuable consideration" is a legal term 
that has interesting meaning - money does not need to change hands. In 
this case you may own the negative, and can control use of the negative, 
but the orderer (who has provided the "valuable consideration") owns the 
image. Until they provide the "valuable consideration" the negative 
owner owns the copyright.

And to further murkify, the subject of your photograph can retain 
ownership of their image, restricting the photograph copyright holder's 
rights. In Canada the Copyright act explicitly removes copyright 
protection of some artistic works (architecture, engravings, sculture) 
for photographic reproduction. There is no explicit coverage for your 
image under Canadian law and the courts have been all over the map. Rule 
of thumb, get a release, have the people in the picture incidental or, 
be taking pictures of famous people who live in the public eye.

In Canada I cannot see any reason why a firm who makes photographic 
jig-saw puzzles for a retail consumer wouldn't assume the person in the 
photograph in their hand did not have rights to reproduce the 
photograph. Use of the image for general commercial reproduction would 
require any sensible firm to obtain evidence of copyright and ensure 
they had a clear copyright.

regards Dave
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