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Topic: Santa Copywright |
John Cisco
From:
Alexandria Virginia, USA
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Posted 20 Dec 2006 4:17 pm |
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This is an example of copywights gone awry.
This is from Long Island.
Here is yet one more idiotic copyright issue that I am absolutely outraged by. I have just returned from taking my sons to have their photo taken with the mall Santa. Every year I take them, and I choose the least expensive photo package, so that I can then buy a CD with their picture on it. They won't let you just buy the disk. The picture packages begin at $13.99, and then the CD is an extra $6.99.
Fine. But this year, there's an additional item you can purchase: A Copyright Release for an extra $15.99! You don't have to buy it, but I suppose the implication is that if you use the photo of your child with Santa without buying it, they can come after you?
They also offer a package for $24.99 wherein you receive a 5x7, a CD and a copyright release. So, that's still more expensive than just going for Package A + a CD.
Frankly, I'm outraged by this. And tempted to see what happens if, you know, I decided to post the pictures of my sons on a personal website not having purchased the copyright release of my own children.
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Les Anderson
From:
The Great White North
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Posted 20 Dec 2006 4:33 pm
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I think I'd be the first one in line to challenge that one.
The next thing we will be hearing is that the Word "Christmas" has been copywrited by someone who will demand payment from millions upon millions of people and stores around the world. |
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Tom Olson
From:
Spokane, WA
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Posted 24 Dec 2006 2:28 pm
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The issue here is that the photos are "works" that were created by the photographer. This is the same as a sound recording created by musical artist.
Let's say you're a musician and you write a song and then you get a bunch of your friends together and record it. Let's say you print up a bunch of CD's and sell them on the Internet and in the local malls.
Then, you find out that someone has made a bunch of unauthorized copies of your CD and he is selling them himself without your knowledge.
Then, you also find out there's this band out there that is touring the region and playing all the songs on your CD to sold out shows.
Wouldn't you be somewhat P-O'd about this? |
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Dave Mudgett
From:
Central Pennsylvania and Gallatin, Tennessee
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Posted 24 Dec 2006 4:00 pm
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I have a simple solution. Get a simple Santa Claus outfit, and snap the pics yourself.
IMO, the issue isn't whether or not they have the right to copyright and protect their "works", but whether or not anybody should buy into that type of system for Santa Claus pix. I think it's just a matter of common sense to see this is absurd.
The potential problem Les refers to needs to be solved by overhauling the copyright system so only true "creators" can leverage copyright protection.
IMO, of course. |
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Tom Olson
From:
Spokane, WA
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Posted 25 Dec 2006 1:37 pm
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Dave, it seems like you're basically saying that copyright is good for some types of works, like music perhaps, but not for other types of works like photographs. That doesn't seem fair.
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Gary Lynch
From:
Creston, California, USA
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Posted 25 Dec 2006 1:45 pm
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| There is no real issue here unless you were going to publish the image and make a lot of money off it. The legal cost of going after someone for printing a photo, especially one like that would never make any sense. They have to prove you profited by using it. That's really all a big joke and a scam. Unless you intend to use in on TV or a major photo ad campaign, etc, print as many as you like and give them to your friends. You'll never get sued by these people, whoever they are. |
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Tom Olson
From:
Spokane, WA
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Posted 25 Dec 2006 2:13 pm
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| You may or may not get sued, but copyright infringement also carries criminal penalties. |
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Tom Olson
From:
Spokane, WA
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Posted 25 Dec 2006 2:17 pm
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I think the real issue being raised here is "where do you draw the line." Depending on how you define the meaning of "original work" the line could get very blurry. The copyright laws are intended to make the line as bright as possible. That is, they don't distinguish between $10 Santa photos and multi-million dollar feature films. Any "work" gets the same benefit of protection under the law. However, as a consequence of this, the laws sometimes seem a little rediculous.
[This message was edited by Tom Olson on 25 December 2006 at 02:17 PM.] |
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Gary Lynch
From:
Creston, California, USA
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Posted 25 Dec 2006 2:58 pm
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| Unless you profit from using the image, or try to profit from using the image, there is no court case. It's absurd to even think so. The City, State, US Government (copyright police) or anyone else does not simply come after you. It would be the photographer and/or his agents. You honestly think someone will arrest you or pursue a criminal case against you for making copies for your friends and family that were not being sold but only given away. NO WAY! The people who get in trouble use the image, the art, or whatever to make money dishonestly by infringement and that's a different legal situation. |
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Tom Olson
From:
Spokane, WA
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Posted 25 Dec 2006 3:55 pm
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Gary, you've heard of the Knapster case haven't you? I don't know a lot about that case, but I believe there were lots of little guys targeted by law enforcement or at least lots of little guys were sued. All these people did was to illegally download music files for their personal use.
I'm not saying that there's a high likelihood that someone will get hauled in to criminal court because they made unauthorized copies of their kid's Santa picture -- but it's possible.
Also, although I'm not positive, I don't think it's correct that you have to profit in order to be liable under copyright penalties. It's my understanding that wilful infringement is all that is needed.[This message was edited by Tom Olson on 25 December 2006 at 03:57 PM.] |
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Dean Dobbins
From:
Rome, Ilinois, U.S.A. * R.I.P.
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Posted 25 Dec 2006 4:09 pm
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My kids are grown, now, but my thoughts on this (however erroneous they may be), is I paid the guy to take the picture, so the "copyright" should be mine, to do with whatever I want. Could that argument hold up in court???
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Dino
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Fred Jack
From:
Bastrop, Texas 78602
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Posted 25 Dec 2006 4:16 pm
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| Nothing more than a "hired laborer" in my opinion. I hire a person to dig a ditch,wire a house,buy a refrig or etc & etd... when they are finished I own the ditch or whatever. I hire them to take a pic and he is paid at that time. Just my opinion but .. |
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Tom Olson
From:
Spokane, WA
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Posted 25 Dec 2006 4:22 pm
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Dean, if you agreed to that ahead of time it might hold up in court.
But, the way the law is -- usually the creator of the work automatically has ownership in the work (unless prior agreements were willingly entered into). |
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Dave Mudgett
From:
Central Pennsylvania and Gallatin, Tennessee
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Posted 25 Dec 2006 5:48 pm
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Tom - In my post, I acknowledged that they have the right to copyright their "original work" and then enjoin me from distributing copies to my family and friends. But if they do that, then I don't see much value in the service they offer, and would just do it myself. Really, a digital point-and-shoot of a kid with a guy in a Santa Claus suit isn't very tough to do yourself. I've done the Santa Claus getup to do some "visitations" for friends with small kids at their request.
I think what annoys me about this type of legal wrangling over copyrights and Santa Claus pix is that it's not in the spirit of this particular holiday - it is a celebration of the birth of Jesus Christ. Of course, this goes to many other aspects of the commercialization of Christmas, to me. |
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Wayne Morgan
From:
Rutledge, TN, USA
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Posted 25 Dec 2006 7:41 pm
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If you take your kids to have their picture made with Santa,,Is he copywriting each pic,,,,no,, just trying to scam a few bucks
Wayne |
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basilh
From:
United Kingdom
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Posted 25 Dec 2006 7:52 pm
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| Quote: |
| But, the way the law is -- usually the creator of the work automatically has ownership in the work (unless prior agreements were willingly entered into). |
so the player who dreams up the definitive lick, intro or turnaround has a claim to the copyright of the work ?
Baz
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[This message was edited by basilh on 26 December 2006 at 04:42 AM.] |
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Tom Olson
From:
Spokane, WA
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Posted 25 Dec 2006 8:34 pm
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Actually, the way copyright law is written -- anyone who creates a "work" is the owner of the copyright in that work. It doesn't matter whether someone is paying the person to create the work or not. It doesn't matter if the person creating the work in an employee or a contractor. The person creating the "work" is the owner of the work.
However, some jurisdictions have laws that say if the creator is an employee and the work was created as an obligation or duty of employment, then the creator of the work is obligated to assign ownership of the work to the employer.
Most employers have their employees and/or contractors sign contracts that say the creators of the works are obligated to assign or otherwise convey all ownership in the works created during the term of employment or contract to the employer.
This also brings up the question of what is a "work." Of course, this is subject to interpretation. However, I would argue that most people would say that if someone writes a song so that the song is complete with melody, chorus, chord structure, etc., then the work has been completed and if some musician is brought in to record the song, then regardless of what the musician plays, the musician does not partake in "creating" the song because before the musician ever started working on the recording, the song had already been created to completion.
Thus, the musician has no ownership in the copyright of the song because the song had already been created and the musician (technically speaking) was not involved in creating the work. Perhaps the musician may have claim to copyright in the sound recording. But, most of the time, the musician has signed a contract to convey any ownership in whatever he creates to the recording producer or owner anyhow.
In the case at hand here, if the photographer was a legal employee of the guy who paid to have the photograph made, then maybe there's an argument to be made that the photographer is under an obligation to convey copyright ownership of the photo to the guy who paid for the photo.
Otherwise, the photographer is the owner of the copyright in the photo because the photographer created the photograph. It doesn't matter if somebody buys the photo or whether someone requests that the photo be made. Afterall, copyright owners of songs can sell "copies" (e.g. CD's)of music and still retain ownership of the copyright in the work. Why should it be different for photographs? [This message was edited by Tom Olson on 25 December 2006 at 08:44 PM.] |
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basilh
From:
United Kingdom
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Posted 26 Dec 2006 4:42 am
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Tom, I only argue for the fun of it so please don't take this to heart, BUT, you say
| Quote: |
| Thus, the musician has no ownership in the copyright of the song because the song had already been created and the musician (technically speaking) was not involved in creating the work. |
I don't think so because :-
Definitive intros, hooks and solos, by the very nature of them being compositions "WITHIN" a composition are at the least a contributing factor to the overall product, and in some cases (As below) a MAJOR part of the composition.
quote:
Procol Harum Organist Wins Court Case
Dec 20, 11:44 AM EST
A judge awarded a 40 percent share in the copyright of "A Whiter Shade of Pale," one of the most famous pop songs of all time, to a former organist for Procol Harum.
Lead singer Gary Brooker and lyricist Keith Reid always claimed credit for the hit, which became part of the soundtrack for the hippy "summer of love" of 1967.
But in his ruling, the judge decided that organist Matthew Fisher was entitled to both credit and royalties.
"I have come to the view that Mr. Fisher's interest in the work should be reflected by according him a 40 percent share of the musical copyright," the written judgment said. "His contribution to the overall work was on any view substantial but not, in my judgment, as substantial as that of Mr. Brooker."
The judge said the song's organ solo "is a distinctive and significant contribution to the overall composition and quite obviously the product of skill and labor on the part of the person who created it."
The judge said Fisher, 60, was entitled to royalties from May 2005, when he began court proceedings.
"A Whiter Shade of Pale," famous for its cryptic lyrics — "We skipped the light fandango, turned cartwheels 'cross the floor" — topped the British charts for five weeks in 1967 and was a Top 5 hit in the U.S.
Rolling Stone magazine has ranked it 57th in a list of the 500 greatest songs of all time.
Brooker says he and Reid wrote the song before Fisher joined the band in March 1967. It was released in May.
Fisher, now a computer programmer living in south London, left the band in 1969. Brooker, 61, still tours with Procol Harum.
In a statement, Brooker and Reid said Fisher's court victory created a dangerous precedent because it meant any musician who had played on any recording in the past 40 years could claim joint authorship.
"It is effectively open season on the songwriter," they said. "It will mean that unless all musicians' parts are written for them, no publisher or songwriter will be able to risk making a recording for fear of a possible claim of songwriting credit."
They intend to file an appeal.
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Tom Olson
From:
Spokane, WA
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Posted 26 Dec 2006 7:37 am
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Basil -- not problem at all. I enjoy a good debate as well, especially if I have no real stake in it! 
| Quote: |
| Definitive intros, hooks and solos, by the very nature of them being compositions "WITHIN" a composition are at the least a contributing factor to the overall product |
I agree that this can at least in some cases be true. But, in tun, this begs the question: what is "the product"?
I would argue that if the song has already been written in completed form as I've described above, then "the product" as defined in your statement above could be a version, or an interpretation of the song, such as for example a sound recording.
That is, if you take a song that has been completed (as described), and you give it to several different groups of musicians for each group to record, then you will end up with as many different versions of the song as you have groups of musicians.
In such a case, you will end up with copyrights in several different sound recordings, but you will still have only one copyright of a song.
Here's an example. I can't think of very many specific situations at the moment to describe what I'm trying to illustrate other than the song, "Lucille" by Little Richard.
If you take a group of average people and play Little Richard's original version of that song, then a few days later play Waylon Jennings recorded version of that song, I would bet that most would not recognize it as the same song.
Waylon Jennings version is certainly distinctive and is certainly a creative interpretation of the song. In fact, I prefer it to Little Richard's version. But, however creative Waylon Jennings input was to the song, he did not contribute to the creation of the song. What he did was to create a copyrightable version of the song. So, there are at least two sound recording copyrights of Lucille, but only one copyright of the song itself.
In the case of WSOP, my personal feeling is that, yes, the organ part is instantly recognizable, but if it is true that the authors of the song completed the song in its final form before recording it, then the organ part, although distinctive and instantly recognizable, is in fact not a contributing factor to the structure of the song (or whatever language the judge used, which I don't recall).
If one would listen with unbiased objectivity to the melody of WSOP and to the chord structure, I think one would almost always conclude that the organ part followed the melody and chord structure to such a degree that if you would have substituted any of a number of accomplished organ players of that era, then there's a very good chance that any of them would have come up with a similar organ part.
Getting back to the question of "what is the product", my feeling is that the product, in cases where musicians are brought in to record a song after the song is written, is the sound recording, not the song itself. Accordingly, in such cases the musicians provide no creative input into the song, although they do arguably provide creative input into the sound recording version of the song.
So, looking at it purely from a copyright law standpoint, I would argue that musicians who play on recordings of songs that they don't write arguably have an interest in the copyright of the sound recording, but not in the copyright of the song itself.
For all these reasons, I would conclude that the organist in WSOP did not contribute to the creation of the song itself. He may have made a significant contribution to the sound recording, but that is another issue. I believe the judge screwed up royally (no pun intended).
For what it's worth, I believe that in most cases, the musicians are obligated to convey their interest in such sound recording copyrights to the producer of the sound recording either under statutory or case law, or by way of actual contract. But that is yet another matter as well.
[This message was edited by Tom Olson on 26 December 2006 at 07:52 AM.] |
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Jack Shults
From:
Canadian, Oklahoma U.S.A.
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Posted 27 Dec 2006 8:09 am
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As someone who had a photography business for almost 40 years; I can tell you that Tom knows what he is talking about.
Unless it is spacifically stated otherwise, the creator of the work owns all rights to the work. That's why, in the days of real photography rather than digital prints, you surely didn't come away from the studio with the negatives.
As far as it not being likely that you will be sued. That may be true, but it has happened thousands of times and the customer seldom to never wins. Most people shooting at malls and stores aren't professional photographers and don't usually know much about the law, but in this case, if they know enough to know that they can sell you the rights, they know that they can sue you, and quite likely would.
As far as the expense to go to court; I had free legal representation through the Professional Photographers' Association, so that would never have been a problem.
Too, before you dispute Tom's statements, you might want to look at his profile and see what his prfession is.
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