17 Replies Latest reply: Jul 29, 2008 2:10 AM by pbanks RSS

    Selling photos as art & copyright

    Cindy- Community Member
      I pretty well understand what I can and cannot sell for commercial purposes. But doesn't that all change when selling art? For instance, I cannot place a picture of a photo to sell at a stock agency of a car. But can I sell that same car as art?
        • 1. Re: Selling photos as art & copyright
          LRK 2 MeganK
          Good topic Cindy. I'm unclear about this as well. This should be interesting.
          • 2. Re: Selling photos as art & copyright
            Community Member
            I wonder if i ever decide to sell stock, how i handle amish shots. obviously they are in public view,but they would never sign a release so i assume i would be locked into just non commercial uses.
            • 3. Re: Selling photos as art & copyright
              Community Member
              Why can't you place a stock image of a car. There are scads of car images at stock houses everywhere. Cars are probaby the most prevalent manmade item in the world today- well, next to plastic grocery bags.

              If you have any questions, it's always best to ask a competent copyright attorney. When I wanted to sell posters of Willie Dixon, I couldn't get his family to sign off on the idea - well, not without giving them $50,000 up front. The copyright attorney I spoke with (another good reason to join APA or ASMP) told me that it was a gray area - I owned the image, but they owned the likeliness of Mr. Dixon. In the end, I printed posters and gave them away as promotional items, technically advertising myself, but receiving no direct money in the process.
              • 4. Re: Selling photos as art & copyright
                Wade S Zimmerman Community Member
                Editorial uses in most cases Donald and without the release it is questionable if you can even use it for that as the law allows for privacy issues to be considered in court cases concerning such issues. Even with a release it is still sometimes questionable if it is not made clear to the user that the images may used to ridicule them or to harm them in ways they might not expect it to.

                Even without a release though a court case would yield little if it was used in a way that would cause no harm to the person, although in the case of the Amish it is clear that they would be harmed by publication of the images depending on the individuals strength in their beliefs.

                One of the reasons I always ask permission or if I shoot first always ask if they mind and that I would be glad to delete the image if they had objections.

                In France if you photograph a new Building and you use it for commercial use the architects will insist that you give the a fee for each usage and can prevent you from further using the image that way.

                Their objection is to have corporation images of their work to express or suggest that their products relate to the esthetics of the design in some way, and as the design is their expression then it is protected by their copyright.

                There is I understand an organization that keeps track of what is published.

                That is so here as well actually if the building is built after 1991 but if you take the image from a public space then there is nothing one can do about it. Only if you take the photograph from the actual property that the building sits on would it be protected.

                So you have to understand what is protected and what is not and the best way to do that is get a release or make certain you asked and that you have no intentions of using it for anything other then editorial of a sound nature.

                Ask if they say no there will be other people and places that will say yes.

                And I know you will miss the shot but in most cases it probably wasn't worth anything in the first place.

                Of course there is a thing called Fair Use.

                Oh yes if you don't ask for a release then you are not going to get one.

                When you do ask permission and find out that you get just as many that say yes as say no, you will feel better about this approach.

                People take photographs of me all the time I never complain about it but not one person ever asked me if they could except in one case when two beautiful young ladies asked if they could have their photo taken with me in Venice. I would probably sue if they use it anywhere. All they have to do is ask, not very hard to do.
                • 5. Re: Selling photos as art & copyright
                  Cindy- Community Member
                  > Why can't you place a stock image of a car. There are scads of car images at stock houses everywhere.

                  Yes, I see them too. But technically you are not supposed to use a picture of a Rolls Royce logo for instance. I wrote a half dozen car companies trying to find out about this.

                  I would like to know how the rules apply to art. I would think that is quite different from commercial use.
                  • 6. Re: Selling photos as art & copyright
                    Ann Shelbourne Community Member
                    Fair reporting? Or using a Logo to advertise a brand or service?

                    You can sell any image you like if you own the copyright what the buyer then does with it (within the terms of your Licence) is surely his responsibility?
                    • 7. Re: Selling photos as art & copyright
                      Wade S Zimmerman Community Member
                      The logo of a Rolls Royce, I doubt that it is a problem after all there can only be few applications for the image if it is depicted in a way that the car is so prominent in the image.

                      In order to infringe on the trade mark or copyright one would have to do something extraordinary like claim that if you send in $999.99 you will receive a brand new Rolls Royce just like the one in the ad befor you would actually infringe on the companies rights.

                      Of coure if you reproduce the image say for an item for sale such as a poster or tee shirt and past it off as an official product licensed by Rolls Royce then that would also be infringement and Rolls Royce might have lots of issues with that type of usage.

                      Common sense does come into play here.
                      • 8. Re: Selling photos as art & copyright
                        Community Member
                        Why would art be any different? If you sell it, it is for commercial use.
                        Period.
                        You can take a picture of anyting you want and hang it in your living room
                        or put it in your photo album or use if for your screen saver.
                        There are no laws against that as long as you leagally took the picture
                        (didn't tresspass or otherwise break any laws to get it)
                        Same with a painting.

                        Once you sell it for money, you have made a capital gain from the use of
                        that image and that is exactly against all copyright laws unless you
                        obtained permission or a release.

                        And by the way, what exactly seperates phoptography from "art".
                        • 9. Re: Selling photos as art & copyright
                          Ann Shelbourne Community Member
                          If are selling a Print as a Work of Art and no transfer of Copyright is involved; then no reproduction can be made of it by the purchaser outside the terms of any licence that you may grant him.

                          If you are "Selling AND Transferring Copyright" that is an entirely different transaction.

                          If you do that, you no longer have any control over, or responsibility for, that photograph and whatever usage should befall it. That control and responsibility devolves onto its new Owner.
                          • 10. Re: Selling photos as art & copyright
                            Cindy- Community Member
                            > And by the way, what exactly seperates phoptography from "art"

                            No one is separating photography from art. I am talking about usage. There is a difference in selling a photo to go in an magazine or an ad than putting it on someones wall. The rules are different and I was trying to establish just what they are. Period.

                            > If are selling a Print as a Work of Art and no transfer of Copyright is involved; then no reproduction can be made of it by the purchaser

                            In that case would you need to place the copyright on the photo itself? It has been my understanding you sign the mat not the photo. How would you control how someone used a print?
                            • 11. Re: Selling photos as art & copyright
                              Community Member
                              As I understand it (from reading postings), if I take a photo of you in the park, it falls under editorial type photography which doesn't need a release. If I sell that photo as art to someone I am still OK. If on the other hand I sell that photo for use in a Coke ad, then I need a release from you.

                              Jim
                              • 12. Re: Selling photos as art & copyright
                                John_Cornicello_Photo Community Member
                                Here is a place to start. Dan Heller has written a bit on releases (including a new book, but I have not looked at that yet)...

                                http://www.danheller.com/model-release-primer.html
                                • 13. Re: Selling photos as art & copyright
                                  Ann Shelbourne Community Member
                                  >In that case would you need to place the copyright on the photo itself? It has been my understanding you sign the mat not the photo. How would you control how someone used a print?

                                  With traditional photographic prints, most of us just rubber-stamped our Copyright Seal on the back of the print and/or the mount.
                                  Some portrait photographers were also wont to sign the front of the mount in pencil.

                                  You could do the same thing with matted inkjet/giclée prints today but might also add a discrete "©" in the bottom right hand corner.

                                  Basically, anyone should know that any photograph that has been created in the last 75 years is almost certainly protected under someone's Copyright and it is their duty to find out whose and to get the necessary permissions before attempting to reproduce the photograph.
                                  • 14. Re: Selling photos as art & copyright
                                    <shep> Community Member
                                    >If on the other hand I sell that photo for use in a Coke ad, then I need a release from you.

                                    That one absolutely, Jim. Otherwise it's gonna cost you and Coke a lot of money. And these things are sometimes found out in the most unusual ways.

                                    There was a photographer who used the same lab I used at one time. He shot a catalogue for a picture frame company. In one of the shots he put a family portrait that he had taken in one of the frames.

                                    Well lo' and behold, this family's cousin (or acquaintance of some sort) somewhere up in Wyoming happened to be looking through the catalogue and saw these people he knew.

                                    Next time he's talking to his cousin, he says, "Hey, I saw your family's pic in a frame catalogue". Well, I guess he chose to use the Litigious family portrait.

                                    Yadda, yadda, yadda...it ends up costing the photog and the frame company each about $7,500.00 all because the photog didn't have a release to use their likenesses in a commercial manner.
                                    • 15. Re: Selling photos as art & copyright
                                      Wade S Zimmerman Community Member
                                      You do not have to place a copyright on the image in any way because once it is created it is copyrighted.

                                      That is why everyone wanted everyone involved in photography to write their representative in the house and senate opposing the law that will change all of that protect.

                                      The law if passed will make it very difficult for a photographer to not be sued over and over again.

                                      Because under that law if someone makes a reasonable effort to contact the photographer before using an image and cannot they can go ahead and use it.

                                      So if someone uses it for commercial use and you don't have a release and they claimed they tried to contact you but could not then you get sued not them. After all why weren't you waiting by the phone waiting for them to call you? Huh!

                                      So the case in which shep posted will be more common place but this time the frame maker can say hey I didn't know, after all I saw it reproduce in a book.
                                      • 16. Re: Selling photos as art & copyright
                                        Community Member
                                        judges are usually educated people
                                        if you sell something (anything) as art, it better be Art : )

                                        and for the copyright, you can get a Library of Congress Registration Certificate even if the picture has previously (corporate?) copyrighted items in it, as long as the photo makes an original (yours) artistic statement
                                        (there will be a stipulation in the certificate about "stuff" that's not yours)

                                        [I have a Certificate for a photo of a pack of Pall Mall cigarettes and a Zippo lighter : ]
                                        • 17. Re: Selling photos as art & copyright
                                          Community Member
                                          If your in New Zealand you can sell photos of people as long as they are not <br />the sole purpose of the photo. eg. Your taking a photo of a mountain with <br />people in it.<br /><br /><Laurentius_Todie@adobeforums.com> wrote in message <br />news:59b5e7f0.15@webcrossing.la2eafNXanI...<br />> judges are usually educated people<br />> if you sell something (anything) as art, it better be Art : )<br />><br />> and for the copyright, you can get a Library of Congress Registration <br />> Certificate even if the picture has previously (corporate?) copyrighted <br />> items in it, as long as the photo makes an original (yours) artistic <br />> statement<br />> (there will be a stipulation in the certificate about "stuff" that's not <br />> yours)<br />><br />> [I have a Certificate for a photo of a pack of Pall Mall cigarettes and a <br />> Zippo lighter : ]