Greetings, I wanted to stay out of this topic, but being a copyright attorney myself, I feel a need to set the record straight. Work for Hire is a very specific concept that can only apply under strict circumstances. The project must first be specially ordered or commissioned as previously stated and must fall within nine categories. In addition to those qualifications, the parties must expressly agree in a written instrument signed by them, that the work is a work made for hire. If a museum permits someone to photograph their collection, the photographer owns the copyright to them. The museum may of course, limit through contract and access, the use of the photos, but they do not own the copyright; just as a museum may own the artwork itself, yet the artist retains the copyright. In the eyes of the law, work for hire, must be specifically stated in a contract. For more information, check the copyright site. Terry Peeler, Esq -----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 <rpanzer@VAGARIGH TS.COM> To Sent by: Museum [log in to unmask] discussion list cc <[log in to unmask] SE.LSOFT.COM> Subject Re: copyright release form 01/11/2005 12:51 PM Please respond to Museum discussion list <[log in to unmask] SE.LSOFT.COM> 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 <afriend@WHEATONM A.EDU> To Sent by: Museum [log in to unmask] discussion list cc <[log in to unmask] SE.LSOFT.COM> Subject copyright release form 01/11/2005 08:17 AM Please respond to Museum discussion list <[log in to unmask] SE.LSOFT.COM> 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 ========================================================= Important Subscriber Information: The Museum-L FAQ file is located at http://www.finalchapter.com/museum-l-faq/ . You may obtain detailed information about the listserv commands by sending a one line e-mail message to [log in to unmask] . The body of the message should read "help" (without the quotes). If you decide to leave Museum-L, please send a one line e-mail message to [log in to unmask] . The body of the message should read "Signoff Museum-L" (without the quotes). ========================================================= Important Subscriber Information: The Museum-L FAQ file is located at http://www.finalchapter.com/museum-l-faq/ . 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