Re: [d@DCC] Who should own your wedding pictures?

From: "Wallace J.McLean" <ag737 _-at-_ freenet.carleton.ca>
To: General Copyright Discussions <discuss (at) list.digital-copyright.ca>
Date: Wed, 03 Nov 2004 19:55:54 -0500

----- Original Message -----
From: Jon-o Addleman <jonathan.addleman@mail.mcgill.ca>
Date: Wednesday, November 3, 2004 5:30 pm
Subject: Re: [d@DCC] Who should own your wedding pictures?

> Maybe I misread you - I just meant that 'interest to use' shouldn't
> determine the author.

Of course it shouldn't.

But authorship and first owner of copyright, even if the same in MOST 
instances, are not, and should not, of necessity, be the same in ALL 
instances. The Copyright Act has to recognize where it's appropriate to 
divide the two, and divide them.

> I don't really think that it is irrelevant. The whole point of
> copyright, in a simplified form, is that a creator is granted a 
> limited monopoly over their creation.

No, that a copyright owner is granted a limited monopoly over their 
creation. Again, the same thing in MOST instance; but not all, and 
aiming for "ALL" is not a desirable goal.

> To divorce copyright from the creator entirely is really quite a
> fundamental change, as I see it.

No, it isn't. The general rule applies in the vast majority of cases: 
creator = first owner. The exceptions to that rule have sound reasons 
behind them.

> copyright, and secondly, perhaps the portrait's copyright should be
> either transfered to the subject, or else made less restrictive 
> througha contract signed at the time.

The photographers won't allow the latter; Berne the former.

> Maybe it could be best handled by calling a portrait a special case,
> with its own rules?

Already done. That's what the existing provision is there for.

> > And the poor-blighted creator -- God, I'm sick of this rhetoric -
> - in 
> > the case of commissioned domestic photography, only creates this 
> work 
> > in the first place because he is paid to do so.
> 
> This doesn't matter at all, IMHO. The creator is the creator. Any
> professional 'creator' does what he does for money. Is the only 
> way to get a copyright on your creation to do it for free?

No. In the VAST majority of cases, a photographer has the same 
copyright in his or her photo that he does in his or her poetry or 
computer programs or opera librettos.

> Part of my reasoning is that I really do want a simple system that 
> works for all kinds of creation. I see that you're against that. 

I don't believe in one-size-fits-all, no. The law has to respond to 
nuances, and should respond to nuances. A lot of the trouble we've been 
in the past (C-36, for example) comes from a lack of nuance.

> The main
> reason is that forms of creativity change - more and more rapidly in
> recent years. And it because difficult to say what exactly constitutes
> 'a photograph' or 'a computer program' or a 'musical composition'. The
> lines get very blurry, especially with the kind of multimedia displays
> that have become commonplace on the internet, featuring all three of
> those aforementioned categories blurred together.

There's a can of worms!

> the law. We see that now, with a law designed around print materials
> that doesn't define the author of, for example, a movie very well at
> all.

That's a problem that I'd like to see more pressure applied on solving. 
I was looking at a report from the 1950s that made recommendations on 
this front; half a century later there's still no action. I think that 
has to do with the authorities not wanting to have to chop the baby; I 
say friggit, if the directors and cinematographers and producers can't 
kiss and make up, give 'em fifty years, published or unpublished. 
(There should be no copyright term reward for keeping a film in the 
can.)

> But then, I don't really speak legalese...

Sometimes even the native legalese-speakers, esp. at Heritage, get 
their grammar wrong; don't worry!

> Copyright, to most people that have
> considered it, is the right an author has to control his works. You're
> describing someone who pays for a work to be able to control it.

No, someone who pays for a work ***to come into existence*** to, 
subject to agreement to contrary, be the first owner of copyright.

This gives rights to the person who goes into a studio and plunks down 
to have a photo taken.

It is of NO benefit to someone who buys a Karsh or Malak print; they 
would get, and should get, no ability to "control" it.

> Perhaps part of the problem is that your examples focus solely on
> photography, and I don't see that as being so exceptional. Maybe you
> could explain your views regarding (just as another example) a 
> composer hired by an advertising firm to write a tune to use in a 
> tv/radio ad?

My examples focus on *commissioned* *domestic* photography. This is not 
about "artistic" photography, photojournalism, etc.

Advertising firms have a wider selection of composers to choose from, 
including active ones and (very) inactive ones. If you want, you can 
get Beethoven to write your jingle. The commercial relationship between 
the parties in your example is fundamentally very different, as is the 
future economic and cultural value, and the "ownership" of that value, 
of the work.

> What about a programmer who, as I have done, writes a little 
> script for a web page by agreement with the site owner, again for 
money? Is this
> the same?
> What about any other kind of work?

The future value of the work is, again, very different from domestic 
photographs.

> Also, I'm curious what Lessig says on this subject - where does he
> discuss it?

Not sure. I meant Lessig in general, not in particular.


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