my photo on someone else's page

[robw25]

i was going through some photo's a workmate has on betterphoto.com
and came across a photo that looked familiar, so i went into my work photo's and there was the same one ! i was a bit miffed that he had what i thought was my photo on his site.... anyway i met him in town and spoke about it and it turns out that i had asked him to take a photo of me
" burning the pipe " using my camera, he said that as he took the photo it was his, and of course i said it was my equipement etc etc, he said he would delete the image which wasnt what i wanted, but if we were not on speaking terms..... who would have the rights to the photo ? btw .....it gets bloody hot in that protective gear .. cheers rob

http://www.betterphoto.com/gallery/big. ... erID=26857

[birddog114]

I'm assuming your friend has the right to claim the photo which he shot as his copyrights.
I can loan you my camera and you shoot a beautiful scene, so you have its ownership same as copyrights.
If I hire you and you work for me under a signed contract or agreement which including the clause of your acceptance of my ownership or copyright then all your shots are my copyrights and you get the credits.
otherwise they're your copyrights.

[stubbsy]

birddog is correct, but I have another question. If he took the photo using your camera, how did he get a digital copy to upload?

[sirhc55]

So one would assume that if you are down in the Rocks with your girlfriend/wife etc., and ask a person to take a picture of the pair of you, with your camera, it would be their copyright

[Nnnnsic]

If you've asked them to, then probably no.

For instance, as an artist, if I get someone else to take a picture of me on my equipment and I've asked them to, it's my copyirhgt.

However, if they have decided to take a picture out of their own free will without any questioning from me, it is their copyright.

[fozzie]

Rob,

Here is some information for you:

http://www.austlii.edu.au/cgi-bin/disp. ... t%22%2B%29

PART XI--TRANSITIONAL

Division 1--Preliminary

208. Authorship of photographs

"author", in relation to a photograph, means the person who took the photograph.

Cheers,

[gstark]

Fozzie,

208. Authorship of photographs

"author", in relation to a photograph, means the person who took the photograph.

Be that as it may, Rob states in his first message that he hd asked this person to take this photo for him. Rob had therefore commissioned the photo, and would therefore have, I would expect, a reasonable claim to ownership of the copyright.

[birddog114]

If you've asked them to, then probably no.

For instance, as an artist, if I get someone else to take a picture of me on my equipment and I've asked them to, it's my copyirhgt.

However, if they have decided to take a picture out of their own free will without any questioning from me, it is their copyright.

Talk into it! Ok here's an example of my recently case:
We have a dispute about the construction of our holiday home.
I engaged a building inspector to do the building inspection report, he asked me to take photo for him all the defective works while he was on site with me.
Go to the Court, the judge asked him (He was in the witness box), who took the photos? he replied: Mr Ho and pointed to me, then the judge said: you have no right to present these photos as evidence and proofs in this case.
My turn was up in the witness box, and I used those photos as evidence and proofs, the judge and other side barrister accepted those photos instead of.
So, his camera and I took photo so I have responsibilities with my photos not the Building Inspector.
Another example: my car and you're in the driver seat, driving the car at that time, in an accident, who will be legally responsibility for the accident? of course: you're not me, even I asked you to drive.

[xorl]

This sounds like a good question for free legal advice service mentioned in another topic (http://www.artslaw.com.au/contact/)...

[phillipb]

That's very interesting Birddog,
Does that mean that if you had hired a photographer to take the photos, you would have had to bring him to court as well?

[birddog114]

That's very interesting Birddog,
Does that mean that if you had hired a photographer to take the photos, you would have had to bring him to court as well?

Yes, if I want to have all my witnesses to support my case! otherwise I can't show those photos to the judge as evidence or proof cos I didn't take it and someone else did.

[birddog114]

Fozzie,

208. Authorship of photographs

"author", in relation to a photograph, means the person who took the photograph.

Be that as it may, Rob states in his first message that he hd asked this person to take this photo for him. Rob had therefore commissioned the photo, and would therefore have, I would expect, a reasonable claim to ownership of the copyright.

Yes, Rob can ask him to share but his friend has the right to deny.

[Matt. K]

So I go to a Coke vending machine and put in the correct coinage...but the can jams on the way down. There is my legally purchased can of coke...but I can't get it. Along comes some yobbo...puts in his coins, and out comes MY can of Coke. I demand my Coke but yobbo refuses to hand it over and we begin fighting. I explain to the judge that I was protecting my property.....how will he rule?

What has this to do with copyright and ownership of imagery?.....I dunno! I forget.

[birddog114]

So I go to a Coke vending machine and put in the correct coinage...but the can jams on the way down. There is my legally purchased can of coke...but I can't get it. Along comes some yobbo...puts in his coins, and out comes MY can of Coke. I demand my Coke but yobbo refuses to hand it over and we begin fighting. I explain to the judge that I was protecting my property.....how will he rule?

What has this to do with copyright and ownership of imagery?.....I dunno! I forget.

Matt,
Here's his judgement: the yoobo can have the liquid inside and you can have the alluminium can

[birddog114]

Matt,
you have to prove that your coin in the machine, you require to bring few witnesses with you and photo of the inserted coin

[phillipb]

No, the jobbo would rather have the can so that he can fill it up with methilated spirit and pretend it's coke.

[thaddeus]

robw25, as birdog and fozzie said: your friend took the photo, so he or she is the author of the work.

if he or she did not assign copyright to you in writing, then the copyright vests with them (section 196)

even if they did assign copyright to you, they can assert their moral right to be named as the photographer (section 193) and their right to make sure you are not named as the photographer (section 195AC)

gstark and nnnsic, i don't understand why you say that person A asking person B to take a photo makes it person A's copyright. can you please explain your logic?

birddog, the court situation you described is based on the rules of evidence, not copyright.

[birddog114]

birddog, the court situation you described is based on the rules of evidence, not copyright.

Yes, I understood, but I would like to raise a case to prove: the guy behind the viewfinder is the author of the photos, not me or my equipments loaned or asked to.

[jethro]

my god! how far and how much fear have the lawyers put into our society. VERY SAD dont you agree. i thought australia was a democracy not like the
states!

[robw25]

THANK YOU to all that commented on this issue, luckily its not a big deal in this case but ... makes you think eh ! what if we didn't like each other we would end up in court.... all for a pitcher...

again thanks ..cheers rob

[jethro]

had to add a bit rob. our society is very cautious these days who knows who and who sues who. cant even take pics of kids these days. what a joke!

[Nnnnsic]

Umm... right... Jethro....

Thaddeus,

If I commission someone to take a picture or make a sculpture based on my plans, my ideas, etc, I still retain copyright because while they have taken the picture, I have told them what to do to get that result.

Look at it from the point of historical art... much of the work you see painted in chapels or many of the massive paintings in Italy were made by apprentices of artists like Michelangelo or Raphael but we know them as being work of those artists and the apprentices get no credit.

Look at modern art. Say someone needs a sculpture made, but the sculpture is of a giant bunny and can only be made by a corporation. In that case, the person with the idea and plans for it is the artists and rightful owner of the work, while the company that actually made the physical object was just the entity commissioned for the work.

If I commission you to take a picture of me using equipment I either own or are renting (because it is essentially my property at the time), the copyright becomes mine. You may very well have taken the photo, but you did not take it without my authorisation or commission.

The moment you take it without my commissioning you to the picture no longer becomes my property and you become the owner of that work.

[thaddeus]

Nnnnsic,

If you are talking about commissioning work for valuable consideration, then section 213 will apply and ownership of copyright goes to the person who commissions the work.

However, in the original post there was no valuable consideration, so section 213 would not apply. I also interpreted your first post ("if I get someone else to...") as asking someone as opposed to paying them. Section 213 would not apply if you were merely asking someone.

Both your posts talk about who owns or rents the equipment. I don't think this is relevant at all. Can you please explain why you think this is relevant? Or is your last sentence saying that it's not relevant?

[gstark]

gstark and nnnsic, i don't understand why you say that person A asking person B to take a photo makes it person A's copyright. can you please explain your logic?

I didn't say that, but to expand, it's really very simple; it's a commissioned photo.

A client asks me to take some photos for them. Depending upon the arrangements (and that, of course, is a key point) the copyright might rest with me, as the lensman, or perhaps with them, as the commissioning party.

I see no difference between that scenario and the one originally posted, save for the absence of any formal arrangements as noted.

[gstark]

However, in the original post there was no valuable consideration,

There's an old chestnut - valuable consideration.

Under the law of contracts that can take many different forms, and needn't be "valuable" in any sort of traditional sense.

I might find value in using Birddog's 200-400mm lens for the photo, and (for argument's sake) my borrowing it for the purpose of making the image in question - or my borrowing the camera to make the image - might be enough to constitute "valuable consideration".

[Deano]

As an (almost) aside... Jeff Dykes has some great photos on his site including this one.

Cheers
Dean

[thaddeus]

my borrowing the camera to make the image - might be enough to constitute "valuable consideration".

thanks for your explanation, gstark. i can't say that i agree with it (it comes down to a definition of "valuable"), but at least i know where you are coming from!

[atencati]

Remeber the camera is just a tool. Such as the paintbrush. I hand you a paintbrush and you paint my picture. Do I have any legal claim to your painting. No. The value of the equipment, either sentimental or monetary holds no bearing over the authoring or copyright of the work. Unless you have a written contract (I assume you do not) regarding the commissioning of the portrait, the copyright is his legally.

The intent of the law is to protect the artist, not the equipment owner. Otherwise, if your rented any equipment all images taken with said equipment would be property of the lesser.

Andy

Oops, almost forgot. Verbal contract, implied consent, good intent. He would still come out on top if he claimed the rights.