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View Full Version : Thomas Hawk: Should Fair Use Apply to Your Family Portraits?


Suhit Gupta
09-18-2006, 03:00 PM
<div class='os_post_top_link'><a href='http://thomashawk.com/2006/09/should-fair-use-apply-to-your-family.html' target='_blank'>http://thomashawk.com/2006/09/should-fair-use-apply-to-your-family.html</a><br /><br /></div><i>"So I explain to the photographer about how I consume photography these days, on how it is of much more value to me to see my work as part of my Media Center PC than on a wall on a $1,000 print and ask if there is a way instead of buying prints, that I can just purchase the images digitally. I'd even happily pay the $2,000 for digital versions of my 5x7s rather than get prints which I don't really want to hang in my home anyways. And here she tells me no... So here's the question. Should or does a fair use right apply to photography? If I were to say buy a CD and then copy it over onto my laptop and listen to it in a form not originally intended, this would be fair use, correct? Heck, I could even make a mix CD of songs coming from my mp3s and give it to my brother, right? This sort of personal fair use would seem permissible. But would it actually be illegal for me to scan these family photographs for display in my home only for my own personal and non commercial use and enjoyment?"</i><br /><br />This anecdote by Thomas Hawk is an interesting read. Frankly, I agree with Thomas in that one should have the right to view photographs in any format they want once they have the picture. In fact, one point that he forgets to make, in order to solidify his point of view even more, is that if he had a digital copy of the image, would it be illegal to print out the images? Generally this article brings up a good question about fair use on different mediums of different media.

Felix Torres
09-18-2006, 03:27 PM
Sounds like a contract issue to me.

Interesting read and worth considering in other areas, too: what exactly are you buying? The physical print of the image or the content (composition, lighting, etc) embodied in that print?

With software it has always been the vendor's position that what you buy is the media and a usage license with restrictions. Like it or not, that is the model. And CDs and especially DVDs have followed up with it. This particular photographer apparently sees that as a default for *all* content mediums. Kinda like saying you buy a print but she owns the actual image and the negatives.

I like the follow-up post that pointed out that when hiring a photographer (for a wedding, in this case) it is a *good* idea to negotiate ownership of the content upfront. Make it a work for hire, photography services, rather than a content creation job.

jeffd
09-18-2006, 04:59 PM
Hmm, this dosnt seem like a fair use issue at all.. this seems like a mis understanding of what your paying for when you get your picture photographed. The photographer obviously wants to sell you prints, hes not charging money to take your picture (well, usually, I guess money grubbers could charge for both). If you had the digital copy, there would be no or little money to be made since you can take your pictures in their raw form, and get your prints else where.

This is fairly different then what we are fighting for on the net. We HAVE the raws we want, CD, DVD, thats all we need. Our problem is that after we have these "sources", they are making it illegal for us to do what we want with them in converting them to another medium. In the above situation, it would be like the photographer gave the guy the memory card, but then sued him if he tried to make any hard copy prints or burned a dvd of it.

Felix Torres
09-18-2006, 06:03 PM
This is fairly different then what we are fighting for on the net. We HAVE the raws we want, CD, DVD, thats all we need.

Ah, but you *don't* have those sources.
Not unless you recorded them yourself.
All the CD/DVD vendors are selling you is the media and the right to use that media, not the content that is inside.

That is where "fair use" comes into play; where does fair end?
Playing the physical media on multiple devices is agreed to by everybody to be fair use, ripping the content and publishing it on the internet to 10,000 of your closests friends is (generally) agreed to *not* being fair use.
In between?

Lots off debate; lots of gray.
And some of that gray applies to photography; there have been debates about who owns views of buildings, crowds, or even people walking down the street; who controls distribution of those images and who can make money off them.

Here's another case: he paid to get pictures taken of his family, right?
So, who owns the picture?
The family? The photographer?
Not the print, but the actual picture itself?
The photographer claims the deal was just for the prints...
Which means he can exhibit another print in a gallery, maybe even sell other prints to somebody else. Is that fair at all? Might be legal, but is it *fair*?

It all depends on the contract, apparently.
Legally, it seams the print and the image are not the same and buying one doesn't get you ownership of the other, just like buying a movie DVD doesn't actually buy you the movie.

jeffd
09-18-2006, 07:31 PM
felix, the dvd/cd fight is still grey area. They may claim you only pay for a liscense, but the fact is I pay cash..at best buy..for a dvd of the movie. No where am I signing anything nore presented a contract of any type informing me of a liscense. I buy.. a dvd. No where on the package does it say I am bound by a liscense by opening the dvd..thus no contract is made. the dvd is mine.

Unless the photographer says the "negatives" come with the session, then he owns the negatives. Now I dont go to photographers to get my picture taken much, but obviously Id find out what happens with the negatives if I was really concerened about em.

mcsouth
09-18-2006, 11:49 PM
They may claim you only pay for a liscense, but the fact is I pay cash..at best buy..for a dvd of the movie. No where am I signing anything nore presented a contract of any type informing me of a liscense. I buy.. a dvd. No where on the package does it say I am bound by a liscense by opening the dvd..thus no contract is made. the dvd is mine.

ahhh, but you forget about the Copyright logo that exists on the packaging. Under Copyright law, you are afforded only limited rights regarding your use of the content on the DVD. The DVD is just the medium - what you are really paying for is the use of the content on the DVD - without the content, the DVD itself has significantly less value.

Don't get me wrong, I am not siding with the RIAA &amp; MPAA consortiums, and I believe in Fair Use Rights for the consumers, but I also happen to work in a content creation job, and I routinely see people who assume that they can take our content, duplicate and resell it for profit. These people generally are looking for the easiest and fastest way to make bucks, and have no qualms about taking someone else's work and selling it for less than that person would - after all, they didn't incur the expense of creating that content.

I rip DVD's in order to back them up, and to reformat them to view on portable devices for my personal use - I firmly believe that is within my Fair Use rights. However, I will not share those files with others, and I will not burn a copy for anyone who asks - that is a violation of Copyright law, whether or not any money changes hands.

Neil Enns
09-19-2006, 02:41 AM
I fail to see what the big deal is here. When you go to a professional photographer for a session, they hand you a contract that stipulates the terms of the deal and the ownership of the photos, prints, etc. Anyone who's ever gone to a wedding photographer for pictures knows how this works.

If you aren't happy with the terms the photographer gives you, tell them to go to heck and find a different one. My wife and I found a wedding photographer who was more than happy to give us exclusive rights and ownership of the images he took for an extra $400 or something over his regular rate. We have them on CD and can do anything with them we darn well want.

Neil

Chris Gohlke
09-19-2006, 11:21 PM
Depending on what you are having photographed, you definitely need to work this out in advance with the photographer. When I got married, we made the following deal:

1. Paid a flat fee for the photographer
2. Photographer provided untouched digital copies and sold us and family prints at a set price.
3. After a year, he turned over the negatives and we could make whatever prints we wanted.

Suhit Gupta
09-19-2006, 11:33 PM
3. After a year, he turned over the negatives and we could make whatever prints we wanted.
Why after one year?

Suhit

Chris Gohlke
09-19-2006, 11:47 PM
Gave him a year to make money selling prints to friends and family. After that point in time chances are everyone who was going to buy from him already would have. I found it a good balance to give us final ownership of the content, but still give him a chance to make money selling prints.