Richard,
Now I understand. I suspected we might be talking about different things.
You were looking at Amy's documentary photographs in the art sense, and I
was not.
You are of course correct that works that are intended as art or contain
some substantial portion of another work of art have other copyright
issues, and would not fall into any work for hire category. Whether or not
the rights to the images are held by the museum or the photographer, the
creator of the works photographed would have to be consulted on publication
or reproduction. That is a given.
We are also using the term "work for hire" in different ways, but I will
let that sleeping dog lie. We will not be able to agree.
Thanks for all the info. Have a great day.
Mark Janzen
Registrar/Collections Manager
Edwin A. Ulrich Museum of Art
Martin H. Bush Outdoor Sculpture Collection
Wichita State University
(316)978-5850
Robert Panzer
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I am not sure under what circumstances both entities would "naturally
retain
copyrights". Based on the information provided, it seems pretty clear that
the independent photographer would have copyrights in his photos.
Furthermore, in this scenario the narrow categories are not referring to
paintings or sculpture, but to the photographs of the painting or
sculpture.
The art depicted in the photos may have its own copyright, and in all
likelihood, such copyrights would be owned by the creator of the art, not
the museum and certainly not the photographer, unless the artist
transferred
the copyrights in writing to the museum. So if the museum or another party
were to reproduce the photos into say, a book, then permission to do so
would need to come from the artist.
The photos of the works of art are either slavish copies without any real
copyright of their own(see Bridgeman v Corel)or are "derivative" copyrights
under the law. Derivatives are new copies that include other copyrighted
material. The creator of the derivative is beholden to the creator of the
original. But whatever new content the derivative creator added would be
under the new creator's copyright. For example, to make a movie of say,
the
latest Steven King novel, the movie producers would need to get permission
and pay fees to Steven King, the copyright holder in the book. When the
movie is made, it is clearly very different from the book, but it wouldn't
be the movie it is without the King contribution. The movie is a
"derivative" of the book. The producer owns the copyright in the movie but
not the content provided by King. Now let's say a TV cartoon producer
wanted to make a cartoon very much based on the movie, this producer would
need to get permission from both the movie producer and Steven King.
Mr. Janzen states, "There is plenty of case law to support the notion that
a
work for hire need not be supported by a specific contract." Not since the
passing of the 1976 (effective 1978) copyright act. Section 101 states
that
there may be a work made for hire "...if the parties expressly agree in a
written instrument signed by them that the work shall be considered a work
made for hire."
Mr. Janzen states, "You are right however in stating that a contract is
necessary for a "commission"." Actually, I did not say that. In fact,
there could be a verbal commission contract, even though it would be a very
bad idea to do it that way. But there CANNOT be a work for hire contract
(except for employees)that is not in writing and signed by both parties.
Sincerely,
Robert Panzer
VAGA (Visual Artists and Galleries Association)
350 Fifth Avenue
Suite 2820
New York, NY 10118
tel: 212 736 6666
fax: 212 736 6767
[log in to unmask]
-----Original Message-----
From: Museum discussion list [mailto:[log in to unmask]]On
Behalf Of Mark Janzen
Sent: Tuesday, January 11, 2005 2:55 PM
To: [log in to unmask]
Subject: Re: copyright release form
Robert, et al.,
A apologize for being too brief in my response, and not adding the standard
"not a copyright attorney"caveat. You are correct in that there are nuances
to the issue. The relationship of the photographer to the museum would
definitely make a difference.
By "joint copyright", I did not mean a legal contractual sharing of rights.
I meant that both entities(artist and museum) naturally maintain
copyrights under some circumstances. Perhaps you have better terms for it.
Your nine "narrow" categories can not be used verbatim in this
circumstance. The fact that paintings and sculpture do not appear on your
list does not preclude them from this concept either. At least I hope none
of the paintings and sculptures to which we assert copyright fall out of
that category as a result. The categories are in fact too narrow, and have
long since been loosened/updated to include other types of work and other
circumstances.
There is plenty of case law to support the notion that a work for hire need
not be supported by a specific contract. It is of course always best to
have such a contract, but it is not the only circumstance under which
something can be considered such. You are right however in stating that a
contract is necessary for a "commission". I should not have indicated to
Amy or anyone, that the assertion of such rights is easy or certain, even
with a contract. The lack of a contract does not preclude something being
considered a work for hire in the eyes of the law. It might however
necessitate legal action if it became an unresolveable or divisive issue.
Mark Janzen
Registrar/Collections Manager
Edwin A. Ulrich Museum of Art
Martin H. Bush Outdoor Sculpture Collection
Wichita State University
(316)978-5850
Robert Panzer
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I do not believe that Mr. Janzen has it right. For one, you cannot have a
work for hire and a joint copyright at the same time.
Amy Friend does not say in her email if the photographer is an employee or
not. If he is an employee, then by definition the photograph is a work
made
for hire(wmfh)and the museum owns the copyright outright. If the
photographer is not an employee, then the only way to have a wmfh is to
have
the photographer sign a contract, prior to producing the photos, stating
that the work is a wmfh and for the following to also be true:
the work must be "specially ordered" or "commissioned." What this means is
the independent contractor is paid to create something new (as opposed to
being paid for an already existing piece of work); and
the work must fall within at least one of the following nine narrow
statutory categories of commissioned works list in the Copyright Act:
(1) a translation, (2) a contribution to a motion picture or other
audiovisual work, (3) a contribution to a collective work (such as a
magazine), (4) as an atlas, (5) as a compilation, (6) as an instructional
text, (7) as a test, (8) as answer material for a test, (9) or a
supplementary work (i.e., "a secondary adjunct to a work by another author"
such as a foreword, afterword, chart, illustration, editorial note,
bibliography, appendix and index).
It is not clear to me that shooting photos for unspecified uses that will
be
made by museums, would fall into any of the 8 categories above.
The other option is to have the photographer transfer copyright in writing.
The difference between a wmfh and a transfer is that with the wmfh, the
museum owns the copyright for the full term of protection. With a
transfer,
the photographer (or heir) can reclaim the copyright by notifying the
museum
in the 35th through 40th year after the copyright was transferred.
Sincerely,
Robert Panzer
VAGA (Visual Artists and Galleries Association)
350 Fifth Avenue
Suite 2820
New York, NY 10118
tel: 212 736 6666
fax: 212 736 6767
[log in to unmask]
-----Original Message-----
From: Museum discussion list [mailto:[log in to unmask]]On
Behalf Of Mark Janzen
Sent: Tuesday, January 11, 2005 10:36 AM
To: [log in to unmask]
Subject: Re: copyright release form
Amy,
If you are paying this photographer to do the work then his images are
"works for hire", and you own joint copyright to them. The
artist/photographer maintains his own publication and reproduction rights,
but as the purchaser of the persons time and expertise, you own the same
rights to the images.
A simple form explaining that and how your institution might use the images
would be a nice courtesy, but the photographer has no rights over you in
that circumstance, and would not need to sign the form to legally give you
the copyrights.
Mark Janzen
Registrar/Collections Manager
Edwin A. Ulrich Museum of Art
Martin H. Bush Outdoor Sculpture Collection
Wichita State University
(316)978-5850
Amy Friend
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A photographer is taking pictures of the paintings in our collection for a
catalogue. He has agreed to transfer all copyright ownership to the
college
so that we can use the photographs as we wish. I would like to have him
sign
a form to be kept on file. Does anyone have a copyright release or
transfer
form that they use for this purpose and would be willing to share?
Sincerely,
Amy Friend
--
Amy Friend
Collections Curator/Registrar
Beard Gallery
Wheaton College
508-286-3319
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