Wedding Photographer Contract?

[ponypony]

ooh that was a long post -- sorry. Going to leave this thread and head on over to the telly.

 

[Swa]

Not flaming you (possibly a bad choice of words in my previous comment) - I was just generally interested in why the OP would object to the copyright clause which would be a default in most countries. Is he famous? Is he worried that he might end up promoting soap products? Is he adopted/estranged from his parents and doesn't want them to come across a photo of him getting married. I had two cases in my career, one where the couple had a wedding some months after they claimed they had already gotten married (something to do with their green card) and one where the bride was worried her ex would use them. We just added a clause that we wouldn't publish any images without their written consent.

Ok, I think some clarification is in order. The OP didn't object to the clause but rather asked if he should be concerned about it. I gave my opinion on reasons he might be concerned. Under the clause he could rightly be prevented from having his own wedding album made if there wasn't a similar clause allowing him that right.

Two things - sorry if I'm dragging this thread along. Unrestricted exclusive licensing would indeed to some effect be similar, but ceding copyright would allow alterations to your work and remove your moral rights to the work. It is also extremely expensive - the industry is currently following the case of Shaun Earl Harris who is suing for R20million for a unlicensed publication of a photo - a photo which btw was shot on commission. Actual working photographers never sell their copyright, or give up their moral rights to an image.

Secondly when I say it's a standard, I've never personally met a wedding photographer in South Africa who doesn't have the copyright clause in their contract (admittedly a small sample size). I haven't been following it for a while but it's an issue which the PSSA and SAFREA have in petitioned to have change.

I think I get where you're coming from, but I also think that there is a subtle difference between licensing and granting copyright - so e.g. when you upload something to FB you grant them a worldwide license etc etc but you don't give them copyright - and I think that that is the grey area where most of the confusion comes in, an area where in my experience lawyers are the only ones that often make sense and money.

Aha, this is likely where the confusion lies. Under law there is not really a concept such as licensing. The law recognises copyright and the right to transfer it. A license is a formal agreement worded to facilitate this and a court would look at the wording of that to determine what usage rights were transfered.

You can either fully transfer those rights or partially. Partial transfer can take many forms like for specific periods, specific publications, exclusivity. It could also include unrestricted non-transferable usage rights for specified periods or parties. Unrestricted would imply the right to alter works and this is also explicitly mentioned in contracts to that effect.

Copyright transfer is not that expensive. A R20-million law suit seems massively overblown as he wouldn't get more than a lower 5 figure amount for selling his copyright.

So when you are saying it's standard you mean it's standard among wedding photographers? I haven't denied that but it's definitely not an industry standard. When you are commissioned a client will typically look for a lot more than their personal right to just keep the photos you took.

There is a lot of difference between commissioned work or "work for hire" and being employed. You previously mentioned that South Africa is the only country which has copyright laws like this. It's not so simply as that. The UK copyright, designs and patent act of 1988 is similar. Under that copyright goes to the creator of a photograph unless it was created during the course of employment. Many photographers are permanently employed and the copyright of their work goes to their employer by default. It may also be stated in their employment contract and it would be in countries where it wasn't automatic.

Also the creator isn't so clearly defined here. It's commonly assumed that the person pressing the button is the creator and the owner of the copyright. Not the case. A model may be entirely responsible for composing a shot without direction from the photographer who is merely there to press the button. In that case most of the creative process would be done by the model who would be the author and not the photographer. It may also be the case that multiple people were involved in the creative aspect of a photo where it can't be determined who was the major contributor and in that case it could be ruled that they share authorship and copyright.

Here is a case where there was confusion about the copyright. It was ultimately ruled that the photographer being commissioned was the first holder of copyright. From this case it's also evident that there is an industry expectation the publisher would hold the copyright. They could have saved themselves a lot of time and heart ache in the end had that been made clear in a contract.