I think there is a point you are missing. If I ask someone else to take a photo of me with my camera, then (if nothing is otherwise said) both of us normally assume that the photo and all its rights will be mine. Such a shared assumption can be considered an [[implicit contract]]. If so, an actual (not just imagined) transfer of copyright has occurred.
Zero (who knows nothing about it).
From: Anthony wikilegal@inbox.org On 9/11/06, Jason Potkanski electrawn@electrawn.com wrote:
Disclaimer: IANAL
Copyright in the US seems rather clear. Copyright is designed to protect ideas and to a limited extent the expression of those
ideas.
Follow the money.
As was pointed out, copyright protects creative expression, not ideas. However, I think you're on the right track here.
What is copyrightable in a photo? Assuming everything in the photo is public domain (or incidental fair use/fair dealing), what's copyrightable is the choice of a particular place, direction, zoom level, and moment in time. In more sophisticated photos (not point and shoot) there's the choice of F-stop, exposure, etc, but we'll ignore that as it doesn't really apply.
Who is the creator, who is the producer? The person owning the camera had the creative idea and the funds (by owning
the
camera and developing the film) to take the picture at that
location.
The random tourist just plays the role of the photographer, but has
no
claim to copyright.
In the case of a photographer who literally just presses the button, there would be almost no creative input (I suppose the exact moment in time was chosen), and therefore s/he would probably have no copyright interest. I say probably because there is of course that issue of moment in time.
More likely the photographer also chose to some extent the zoom and the framing of the photograph, so they'd probably have an argument that they have some copyright interest. But if you set the scene, posing with your friend in front of the Eiffel tower at 6 PM on a cloudy evening, then you put creative input into the photo too, and you probably have some copyright interest too.
I believe the preceding is fairly standard across different jurisdictions. The following is more likely to be US-specific.
Copyright law has rules for such situations where more than one person has put creative interest into a work. There are two possibilities - it is a work for hire or there is a joint copyright. I don't think such an unpaid scenario would qualify as a work for hire so more likely there would be a joint copyright.
What are the rules of a joint copyright situation? Any joint copyright holder can grant a non-exclusive license (such as CC-BY-SA or the GFDL) to anyone, for any reason, but the joint copyright holders must share any financial gain they derive from exclusive use of the work.
Of course, in conclusion, yes, this is sort of a long discussion in pointlessness, because the fact of the matter is that the person who pushed the button on your camera almost surely just doesn't care. But some Wikipedians like to cross their Ts and dot their Is, and they even like to force other Wikipedians to do so. So in some sense it is useful to think about this for the case of those Wikipedians, just to get them off our backs.
"my camera, my idea, but you held it and pushed the button." Your idea, you own it.
-jtp Electrawn
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On 9/12/06, zero 0000 nought_0000@yahoo.com wrote:
I think there is a point you are missing. If I ask someone else to take a photo of me with my camera, then (if nothing is otherwise said) both of us normally assume that the photo and all its rights will be mine. Such a shared assumption can be considered an [[implicit contract]]. If so, an actual (not just imagined) transfer of copyright has occurred.
Zero (who knows nothing about it).
The problem with that argument is that copyright transfers, other than by operation of law, have to be in writing.
Anthony
On 9/12/06, zero 0000 nought_0000@yahoo.com wrote:
I think there is a point you are missing. If I ask someone else to take a photo of me with my camera, then (if nothing is otherwise said) both of us normally assume that the photo and all its rights will be mine. Such a shared assumption can be considered an [[implicit contract]]. If so, an actual (not just imagined) transfer of copyright has occurred.
Zero, I think you're more or less on the right track: there's simply no
expectation on the part of the person pressing the button that they'll have any continued relationship to the photo.
However, if I remember my business law course correctly, in order for a contract to be valid, there must be an exchange of value (at least in the US). In this scenario, the kind stranger taking the photo receives nothing of value (a smile and a "thank you" doesn't count). Therefore, there is not a valid contract.
Not responding specifically to Zero, but in general... It seems to me that thinking about creative input isn't going to be useful here either. Imagine if the kind stranger happens to be a professional photographer, and "takes charge" to arrange the subjects of the photo, and perhaps even takes two steps to the left so as to include a very dramatic lighting effect. The pro then hands to camera back to the owner and walks away.
This is not work for hire; it's not any sort of contract arrangement. It's just a kind pro giving away services. I'm not any sort of lawyer, but it sure seems to be that, in handing the camera back to the owner and walking away, the photo-taker is almost literally handing away any rights to the photo.
-- Rich
[[W:en:User:Rholton]]
On 9/12/06, Richard Holton richholton@gmail.com wrote:
Not responding specifically to Zero, but in general... It seems to me that thinking about creative input isn't going to be useful here either. Imagine if the kind stranger happens to be a professional photographer, and "takes charge" to arrange the subjects of the photo, and perhaps even takes two steps to the left so as to include a very dramatic lighting effect. The pro then hands to camera back to the owner and walks away.
Obviously the stranger would have at least *some* copyright interest in that case, then.
I'd say that's more likely to be a rare corner case, though. And the point I was making, at least, is that the person who presses the button doesn't *necessarily* have any copyright interest in the photo. Obviously they *sometimes* do. In my opinion, although this part is debatable, *most* of the time when you hand someone a camera and tell them to take a picture of something for you the copyright in the resulting work is jointly held between you and the actual picture-taker.
This is not work for hire; it's not any sort of contract arrangement. It's just a kind pro giving away services. I'm not any sort of lawyer, but it sure seems to be that, in handing the camera back to the owner and walking away, the photo-taker is almost literally handing away any rights to the photo.
From a practical standpoint, this is certainly true. From a legal
standpoint this is much less clear.
For most purposes, the answer is "who cares". But as a project dedicated to producing a free work, I think you have to care at least a little. Of course, depending on the details sometimes I think even a project dedicated to producing a free work has to sometimes admit that the chances of someone actually suing over such a work are so small as to render the entire exercise of determining the true copyright owner pointless.
Anthony