I appreciate all the feedback that I have received. It is my understanding
that the photographer does own copyright to the photographs. He has agreed to
transfer copyright and I think that it is in our best interest to have a
written statement on file. Thank you to all who have shared your forms with
me.
Sincerely,
Amy Friend
--
Amy Friend
Collections Curator/Registrar
Beard Gallery
Wheaton College
508-286-3319
Quoting Robert Panzer <[log in to unmask]>:
> 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
> <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
>
> =========================================================
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