Collaborating on Photographs May Create Ownership Issues





         Photographers who work collaboratively on photo shoots might be surprised to learn that even if they are the one who operates the camera, they are not necessarily the sole copyright owner of the resulting images. A person may become a co-
 
owner in the copyright in a photo -- not only by clicking the shutter -- but also by selecting and arranging the photo's subject matter, making decisions about composition and camera angles, or by determining the lighting.

         For example, the Federal Appeals Court in California recently ruled that the copyright in a group of photographs was jointly owned by both the photographer and the writer who collaborated with the photographer on the shoot. Brod v. General Publishing Group, Inc. 32 Fed. Appx. 231,, 2002 Copr. L. Dec. P 28. 396 (9th Cir. 2002).

         The writer, who was working on a book about vintage television sets, approached the photographer to take photos for the book. The writer arranged for the shoot and the parties collaborated in cleaning and setting up the televisions. Although the photographer triggered the shutter, the writer viewed preliminary Polaroid test photographs and made suggestions regarding composition. After the photographer developed the images, the writer incorporated, arranged and enhanced the photos for inclusion in the book.

         Several years later the writer found a publisher, the book was published, and the photographer received sole copyright credit for the photos. The writer never contacted the photographer about the book's publication, and when the photographer learned of the publication, he sued for copyright infringement

CO-OWNERS

         The Court found that the writer and the photographer were co-owners of the copyright and dismissed the complaint because co-owners cannot be sued for copyright infringement. Under the Copyright Act, copyright vests in more than one author
if: 1) each person makes an independently copyrightable contribution to the joint work; and 2) the parties intend to be co-authors where their contributions are merged into an inseparable or interdependent part of a unitary whole. The Court found that the writer's contributions -- his conception for the photos, his selection and location of the televisions and his decisions regarding composition -- were sufficiently original and expressive to constitute a copyrightable contribution. Even though the photographer was given copyright credit for the photos in the book, the Court found that the parties objectively intended to be co-authors of the work.

         The law concerning co-ownership is fact - specific and varies in different jurisdictions, but photographers can avoid this result by entering into appropriate agreements that specify ownership and royalty rates with their collaborators. Also, although a co-owner cannot be sued for infringement, co-owners do have an obligation to account to each other for profits. Copyright © 2003 Stephen Filler.

Stephen Filler is an attorney in New York City (www.nylawline.com) whose practice focuses on intellectual property, copyright, trademark, technology, media, contracts, corporate and photography law. His office is located at 400 Madison Avenue, Suite 14D, New York, NY 10017, 212-204-3508, sfiller@nylawline.com. This column is to be used for informational purposes only is not legal advice. For legal advice, please consult an attorney.


           


           

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