Client is asking for rejected files?

[Phil V]

To reiterate what I said in my previous post, it is what is actually written in the OP’s contract that is of importance. However, non of us know what that is as she hasn’t told us.


Regarding copyright in commissioned work, section 4, paragraph 3 applies.

View attachment 380891

You’re right insofar as we don’t know.

But would it make sense for the OP to be asking the question if she’d knowingly signed away copyright?

It’d be completely illogical wouldn’t it? And as plenty of us have been involved in the business, we know it’s exceptional to sign away copyright rather than the opposite.

 

[ecoleman]

I'm aghast at the complete lack of understanding shown by L320Rio.

DemiLion - you have been unusually polite!

Could I make a suggestion ?

A simple statement about copyright could be prepared and attached to the top of the business forum as a sticky along the lines of : "Copyright belongs to the photographer, not the client"

I think some of the problem is that this forum, whilst mostly populated with UK members, does have members from various parts of the world which may have different laws regarding copyright.

I have no idea where @L320Rio is from but his comments may be valid if he is from another country.

 

[jerry12953]

As I understand things, "copyright" is to be read literally - the right to make copies of a work.

By default, this right is stated to pass automatically to the "author" as defined in sections 9,10 and 11 of the 1988 act. Section 11.2 of the act specifies that work made in the course of employment, the copyright defaults to the "employer".

The two gotchas of this are...

1. Is a persion commisioning a work the "employer"?
2. Does contract law over-ride the copyright act in the case Erika outlines?

I don't know the answers to either of these questions and I suspect no one posting here is likely to either.

Why ever do you assume that? An employer is someone who pays a salary to an employee, or a wage, and there are national insurance, sick-pay , and paid holidays connotations, etc. For anyone with the scantiest knowledge of professional photography, the difference between that and commissioning a freelance is perfectly obvious.

 

[AndrewFlannigan]

I think there is considerable confusion here about what the legal situation might be.

To begin with, the original question appears to have nothing to do with copyright and I apologise for helping to bring a red herring to the party. It was actually a question about who owns the product of the work done and is therefor a matter of contract law.

What was the contract between customer and photographer - as seen from both sides? It may be that the customer considers every image created to be part of that contract. If so, it's possible that a court may take the view that, by erasing some of the images, the photographer has destroyed part of the customer's property.

Once again, not being a judge or a lawyer, I have no answer but I think it's a question that Erika should consider carefully and perhaps seek professional advice on.

 

[jerry12953]

Thank you everyone for all your help and advice, and for the kind comments about my work.

I have told the client that all the images that have not already been delivered on previous shoots have been deleted (which is the truth). I don't see the point in keeping RAW files of lighting test shots, set building, or the individual files that make up a focus stacked image. Storage space is expensive and I reserve it for high quality images.

I have asked them for clarification of what they mean by 'rejected shots' for the next shoot that is currently being negotiated.

I will take on all your advice and reject and delete anything under 4 star quality. Just in case.
I think what irks me most is that of the 200+ images I have supplied over the years they have maybe only used 5 in their social media campaigns. Why would they want poor versions of what they already possess!? I always supply for print and web usage, but typically the work I produce is used in magazines, and for in-store promotion such as video advertising boards, posters, coasters, that sort of thing. They already have numerous options to use, but are making quite an aggressive request for images that I don't think are representative of what I do.

I am also updating my T&Cs, and supplying them with a price list for requests that get bolted on to agreed jobs. You know the sort of thing I mean: "Can I just have black and white copies of these 40 images as well", "Can we just have six more...". "Can we just..." That way, everything is transparent, and expectations are being managed.

Could it be that your client wants to prevent you from using the "rejects" elsewhere? I had that years ago from the Wales Tourist Board, effectively part of the Welsh Government.

 

[AndrewFlannigan]

Why ever do you assume that?

Actually, employment law is much more complicated than that, what might be characterised as "PAYE" employment is only one part of it.

There are several other forms that employment might take, some of which are actionable in employment tribunals and others which are not. My knowledge of this is second hand from my sister, who served on employment tribunals for more than twenty years, following her career in the Department for Employment.

However, as I pointed out in my later post, this seems to me to be more properly a matter of contract law.

 

[jerry12953]

I think there is considerable confusion here about what the legal situation might be.

To begin with, the original question appears to have nothing to do with copyright and I apologise for helping to bring a red herring to the party. It was actually a question about who owns the product of the work done and is therefor a matter of contract law.

What was the contract between customer and photographer - as seen from both sides? It may be that the customer considers every image created to be part of that contract. If so, it's possible that a court may take the view that, by erasing some of the images, the photographer has destroyed part of the customer's property.

Once again, not being a judge or a lawyer, I have no answer but I think it's a question that Erika should consider carefully and perhaps seek professional advice on.

I'd like to see a copyright lawyer have a look at that explanation.

 

[DemiLion]

To reiterate what I said in my previous post, it is what is actually written in the OP’s contract that is of importance. However, non of us know what that is as she hasn’t told us.


Regarding copyright in commissioned work, section 4, paragraph 3 applies.

View attachment 380891

Yes, very well done. Well presented.

Except for the minor point that you have copied an extract from The Copyright Act 1956.

We have rather moved on since then.


Can I suggest that if those are the rules that you are still working to that it might be time to retire?

As I hinted at in my previous comment, those rules changed in 1988 .

 

[AndrewFlannigan]

I'd like to see a copyright lawyer have a look at that explanation.

So would I.

It would be interesting to know if it is a matter of copyright or one of contract. It could be both or neither but I don't think anyone who has posted here so far could answer that.

 

[DemiLion]

I have no idea where @L320Rio is from but his comments may be valid if he is from another country.

There are a few ex-colonial countries that still employ elements of the Queen Anne copyright rather than Berne.

The main ones being NZ. Aus and SA.

However they generally only retain that for commissions made for private and domestic purposes, whereas commercial jobs follow the Berne pattern.

 

[DemiLion]

So would I.

It would be interesting to know if it is a matter of copyright or one of contract. It could be both or neither but I don't think anyone who has posted here so far could answer that.

Given the original post, it is nothing to do with copyright and all about the contract.

 

[Erika Tanith]

For clarification, I am a third party supplier and self employed.
My contract includes the relevant parts of English Copyright Law and lays it out quite clearly that all photographs and the copyright pertaining to them are owned by myself.

 

[Erika Tanith]

Could it be that your client wants to prevent you from using the "rejects" elsewhere? I had that years ago from the Wales Tourist Board, effectively part of the Welsh Government.

Okay, that's HILARIOUS! How did you manage that scenario?
I honestly don't think it's that. The individual in question has emailed "We are looking to get a bank of assets created to use across our social platforms", and while there may be more to it, she's thus far not struck me as someone capable of any degree of deep, critical, or Machiavellian thinking. Actually, thinking itself appears a challenge at times.

 

[TimHughes]

I think what irks me most is that of the 200+ images I have supplied over the years they have maybe only used 5 in their social media campaigns. Why would they want poor versions of what they already possess!?

Sounds like great progress overall! On this specific point, I would ask them. I doubt they do want poor versions of what they already possess. They probably want slightly different variations of the same quality (but lower resolution) and assume that is easy to obtain by asking for the other images. So they need some education and to provide a budget for the extra work. Maybe you can offer some of the 4* variants at a lower price if they can be produced with less retouching effort, adapting retouching from the main images or using a template for example.

 

[Erika Tanith]

Sounds like great progress overall! On this specific point, I would ask them. I doubt they do want poor versions of what they already possess. They probably want slightly different variations of the same quality (but lower resolution) and assume that is easy to obtain by asking for the other images. So they need some education and to provide a budget for the extra work. Maybe you can offer some of the 4* variants at a lower price if they can be produced with less retouching effort, adapting retouching from the main images or using a template for example.

I think you're right, it does sound like a matter of education. I'll see what they come back with and quote them accordingly.

 

[jerry12953]

Okay, that's HILARIOUS! How did you manage that scenario?
I honestly don't think it's that. The individual in question has emailed "We are looking to get a bank of assets created to use across our social platforms", and while there may be more to it, she's thus far not struck me as someone capable of any degree of deep, critical, or Machiavellian thinking. Actually, thinking itself appears a challenge at times.

I had to turn my back on them. It formed part of a total copyright grab which I just couldn't accept.

We are looking to get a bank of assets created to use across our social platforms"

Collecting your rejects could be a way of adding more "assets" to their collection.

I haven't done any commissioned work for a long time but when I did I always specified the number of images the client could have.

 

[Erika Tanith]

I had to turn my back on them. It formed part of a total copyright grab which I just couldn't accept.


Collecting your rejects could be a way of adding more "assets" to their collection.

I haven't done any commissioned work for a long time but when I did I always specified the number of images the client could have.

I've sent them a job request so they can detail the number of dishes to be photographed, the number of photos of each dish, turnaround time, required image dimensions, file types etc. From that I'll guarantee a number of edited images and explain that no unedited files will be forthcoming. Unedited jpegs are not going to be assets for them, and will only be a liability for me.

 

[GreenNinja67]

Sometimes threads go off at a tangent and sometimes people find these slightly off or even way off topic things interesting and sometimes other people get snotty and accuse others of gloating. Such is daily life on internet forums.

Sometimes people have a beer or two as well

That may or may not have contributed.

 

[DemiLion]

The 1988 copyright act states the following, which is why I quoted the 1956 act.

View attachment 380923

Translated into English:

Work commissioned before this act falls under the 1956 legislation. Work commission afterwards falls under this one.

Also "The Photographer and the Law" written by Don Cassell and published by The Bureau of Freelance Photographers clearly states that in commissioned work the copyright belongs to the person who commissioned it.

I suspect that you are looking at one of the earlier editions published prior to 1989.

 

[Phil V]

The 1988 copyright act states the following, which is why I quoted the 1956 act.

View attachment 380923


Also "The Photographer and the Law" written by Don Cassell and published by The Bureau of Freelance Photographers clearly states that in commissioned work the copyright belongs to the person who commissioned it.

But we’re clearly not discussing works created before 1988

It’s time to step away and stop digging. You’re clearly already out of your depth.

The first principal of copyright is that copyright belongs to the creator unless it’s relinquished in a contract.

Once you appreciate that as a starting point this is easy.

 

[Pound Coin]

Sounds like great progress overall! On this specific point, I would ask them. I doubt they do want poor versions of what they already possess. They probably want slightly different variations of the same quality (but lower resolution) and assume that is easy to obtain by asking for the other images. So they need some education and to provide a budget for the extra work. Maybe you can offer some of the 4* variants at a lower price if they can be produced with less retouching effort, adapting retouching from the main images or using a template for example.

I did wonder if they just want lower resolution files for social media, but don't know how to do that, or ask for them!

 

[Erika Tanith]

I did wonder if they just want lower resolution files for social media, but don't know how to do that, or ask for them!

They've got them already!

 

[jerry12953]

I've sent them a job request so they can detail the number of dishes to be photographed, the number of photos of each dish, turnaround time, required image dimensions, file types etc. From that I'll guarantee a number of edited images and explain that no unedited files will be forthcoming. Unedited jpegs are not going to be assets for them, and will only be a liability for me.

Looks foolproof.....I hope it works.

 

[jerry12953]

The 1988 copyright act states the following, which is why I quoted the 1956 act.

View attachment 380923


Also "The Photographer and the Law" written by Don Cassell and published by The Bureau of Freelance Photographers clearly states that in commissioned work the copyright belongs to the person who commissioned it.

Why ever are we still discussing this?

 

[AndrewFlannigan]

Possibly, because some people hold different opinions to others and wish to share them?

 

[Box Brownie]

I absolutely love this analogy. Would it be okay to paraphrase this in explaining this to my client? Although if they don't understand this I don't think in all conscience I can continue to provide services for them.

Absolutely feel free.
TBH I’ve used the cooking analogy before when explaining what we deliver and why ‘having everything’ is worse than having the right thing.

Possibly best(?) done in a face to face meeting over a coffee???

 

[Phil V]

Possibly, because some people hold different opinions to others and wish to share them?

the law is not a matter of opinion though is it?

OTOH there might have been some useful opinions as an answer to the actual question in the OP but some morons decided to suggest it was a copyright issue.

 

[yzfmike]

I find that, on this thread and many others, I keep agreeing with Phil V. Should I change my medication?

 

[John_L]

Just for information - the UK Government position on photo copyright and t'interweb is well expounded here in an up-to-date guidance document.

Copyright notice: digital images, photographs and the internet

www.gov.uk

 

[AndrewFlannigan]

I find that, on this thread and many others, I keep agreeing with Phil V. Should I change my medication?

Possibly...

 

[jerry12953]

Just for information - the UK Government position on photo copyright and t'interweb is well expounded here in an up-to-date guidance document.

Copyright notice: digital images, photographs and the internet

www.gov.uk

On the face of it that looks like a very good introduction to copyright, although I'm not an expert.

I was serious when I suggested having a summary like this as a "sticky" on the Business forum and possibly also on the Talk Photography forum. What do you think, mods?

 

[swanseamale47]

Actually, employment law is much more complicated than that, what might be characterised as "PAYE" employment is only one part of it.

There are several other forms that employment might take, some of which are actionable in employment tribunals and others which are not. My knowledge of this is second hand from my sister, who served on employment tribunals for more than twenty years, following her career in the Department for Employment.

However, as I pointed out in my later post, this seems to me to be more properly a matter of contract law.

I sem to remember a charity being legally classed as an employer as regards to H&S law, even no pay or PAYE being involved.

 

[Phil V]

I sem to remember a charity being legally classed as an employer as regards to H&S law, even no pay or PAYE being involved.

That’d be a duty of care issue. As a business you’re obliged to look after people ‘working’ for you whether they are paid or not.
And that’d be a million miles away from a contractor producing commissioned work.

 

[lindsay]

I sem to remember a charity being legally classed as an employer as regards to H&S law, even no pay or PAYE being involved.

This is something I do feel qualified to comment on having run a charity both without then with paid employees. If volunteers are working on behalf of a charity, the charity has certain responsibilities such as insurance and H&S as Wayne says. Like Phil says too. But irrelevant to the thread of course.

As an Admin, I am wary of putting a TP advisory up about copyright that might be considered to be authoritative, as we Admins do not have that expertise and do not want any concomitant and consequent liability should someone take our published advice and get it wrong. Sorry @jerry12953 . We do though usually pull in the likes of @DemiLion when the subject comes up, if he's not already spotted it.

 

[DemiLion]

As an Admin, I am wary of putting a TP advisory up about copyright that might be considered to be authoritative, as we Admins do not have that expertise and do not want any concomitant and consequent liability should someone take our published advice and get it wrong. Sorry @jerry12953 . We do though usually pull in the likes of @DemiLion when the subject comes up, if he's not already spotted it.

I 100% agree. Any 'official' statement would have to be very carefully worded and verified.

The thing is that basic copyright is not very complicated at all. Just reading the Govt guidelines would be a start.

As for the PAYE thing, I feel that has been somewhat misread. I mentioned because it is usually viewed as an indicator of employment, not a qualifier.
That (the qualifier) is still a contract of employment.

 

[jerry12953]

The thing is that basic copyright is not very complicated at all. Just reading the Govt guidelines would be a start.

This is the point - copyright basically is not complicated at all. It may GET complicated in some cases - and I wouldn't like to get involved in difficult cases. But the basic principle which so many photographers just don't seem to understand is that copyright belongs to them as soon as the shutter button is pressed.

 

[Terrywoodenpic]

Even under the old copyright law all negatives positives and inter mediate work belonged to the photographer as stock in trade,,( as it was called.)
The copy right belonged to the commissioner as did what ever was offered under the terms of the contract.. I do not know any photographer who released negatives.
Photographs taken at the same time but not part of the contract were owned by the photographer, including their copyright, unless agreed otherwise.
Photographs taken on spec ,without contract, belonged to the photographer including the copyright.

The old way worked well, but was out of line with other art work, so had to be revised. UK Copyright law has always differed to that in the USA.

 

[Terrywoodenpic]

This is the point - copyright basically is not complicated at all. It may GET complicated in some cases - and I wouldn't like to get involved in difficult cases. But the basic principle which so many photographers just don't seem to understand is that copyright belongs to them as soon as the shutter button is pressed.

Not so, copyright begins from the time the image is processed. With digital this might be almost instantaneously.

 

[andyscott]

just tell them you dont have such thing as rejected files.

Simples.

 

[jerry12953]

Not so, copyright begins from the time the image is processed. With digital this might be almost instantaneously.

So are you saying that raw files are not covered by copyright? I find that difficult to believe.