Photograher's copyright vs client preferences

[mattlock]

I think you're mistaken.
there's a big difference between "taking a photograph... of a portrait" and "taking of a photograph"

one means taking a portrait of a person in the form of a photograph, the other means taking a photograph, no matter what the photograph is about

 

[yqt]

OK, just my 2 cts before I go back to work from my lunch break :bsmilie:

The exception is found under Section 30(5) of the copyright act, which provides that copyrigth for commissiond works do not vest in the photographer, but the person whoc ommissioned the work.

If this is correct, than it should be applied in the absent of a contract stating otherwise. In other words, if you have a contract which stated that you still own the copyright or restrict the usage of the image, you have the say, according to the terms of the contract.

This comes from legal research into Singapore' laws, which to date, has not yielded any legal authority on the necessity of model releases. Of course I cannot prove a negative so I can't tell you where the law does not exist for this. If you think model releases are required, then perhaps you can share with us the specific law which provides so.

On the same coin which you mention "has not yielded any legal authority on the necessity of model releases" and "cannot prove a negative so I can't tell you where the law does not exist for this" most practising photographer will have a model release. Grey area, no law say must and no law say don't need so better cover backside first :bsmilie:

Property releases are even further out of this world - I'm not even sure they apply in the United States, much less in Singapore. In Singapore, the Copyright Act specifically provides that copyright in a building is not infringed by taking of a photograph of that builidng.

Copyright is not infringed by taking a photograph of a building ( ie; building is part of the AD ) but if you use the image of the building ie: Esplanade, as the main point or point of focus of your advertisment, than there MAY be a case for Esplanade to follow.


Just my 2 cts base on what I practise and I could be wrong legally, better consule lawyer if you want firm answers. :sweat:

 

[felix hug]

Hey Matt,

Now, I'm not sure I can follow you correctly. On one end we hear here that most likely is no MR or PR needed, but then you admit Big Libraries need the releases to cover themselves against legal cases??

That makes no sense,because if there is no case to begin with, there would be no need for it.

In fact Corbis is taking frequently people to court who use images of their photographers without permission.

Its another question, if its worthwhile doing it, cause in the most UK cases i heard, the abuse leads to paying the photography fee, initially not paid, but not to additional damage charges. Its not really scaring abusers, is it??

There was an interesting case two years ago in the UK, staff photographers sueing their paper for using their past photographs taken for the paper.. without permission... believe it or not, the photographers won. It was even to me a slight surprise i have to admit.

Would that happen here... most likely not. Is there legal ground, though? I don't know, but would be interesting to find out.

Thanks for the back up on the building story, Matt. I have no idea why the Esplanade is covered by a similar "landmark act". Would they get money paid in case of abusing it... no idea, don't think there has been a case yet. I just know for sure they asked us to pay for it. Unlikely they would take Mr. Tan to court, but if its Microsoft using the building for their advertising.. they might well do so.

Sometimes the true problem lies in the design. So actually what is protected is the Design of the architect, which is original... similar to the clothes of a designer.

So.. the answer might be not the obvious first one. its not really the building, but its still the building because of the architects design...:think:

Shuut!!.. and i though it was all easy.. just taking pictures

cheers

felix

actually it's been mentioned that the Copyright Act doesn't protect our copyrights...you have to go read it.
it's assumed that we own the copyright but when it goes to court, I have a feeling that we'll find we've been following a false presumption

Regarding releases from big libraries, they have to do that to protect themselves legally.

Property releases...that's interesting. A lawyer in NY gave a talk and mentioned how trademarked buildings enjoy special protection (Empire State Building, Transamerica Building), but I am not sure what kind of protection applies to non-trademarked buildings.
In this case, is the Esplanade a trademarked building, and do building owners have any legal rights in the first place if their building is part of an advertisement?

Experience in the industry is one thing (the way things have been done all this while), but does not necessarily equate to what is actually legally right, so when a situation occurs where you go to court you might find what the industry believes is right is actually wrong.

 

[Brett]

hey guys if was caught in a road rage event, and I happened to take a photo or a video of the aggressor can I post it on youtube? or on the Internet?

 

[yqt]

hey guys if was caught in a road rage event, and I happened to take a photo or a video of the aggressor can I post it on youtube? or on the Internet?

I think this is already being done almost on a daily basis, check with those who post to see if they kana sue or not lor :dunno:

 

[felix hug]

Thanks Matt,

That you see this also like me.

Thats exactly what I'm saying.. its a huge difference..
felix

I think you're mistaken.
there's a big difference between "taking a photograph... of a portrait" and "taking of a photograph"

one means taking a portrait of a person in the form of a photograph, the other means taking a photograph, no matter what the photograph is about

 

[Brett]

Thats one way to find out but I am lookin' for a more definitive answer

I think this is already being done almost on a daily basis, check with those who post to see if they kana sue or not lor :dunno:

 

[vince123123]

Ah my my, just one morning and so many new issues emerge. Will provide my views in a bit....

 

[vince123123]

Hmm, well that is what research is about - if you think its painful, you can always pay someone to do it for you.

There is no need to come to any agreement on this topic in a forum - eacn can just state your view and back it up with legal authority and then let the rest decide who to believe.

I don't recall suggesting contacting any legal authority (ie stat boards perhaps like AGC, IPOS, Ministry of Law etc), because I know that method will not work. The legal authorities is a term of art referring to either case law or statute law.

You can try PPAS if you wish . I'm not sure if they have already visited this issue with legal professionals before.

As for Esplanade, a real case doesn't always mean it is legally correct. I have first hand experience with many real cases where demans are all about positioning yourself in a negotiation. Just because Esplanade demands you have a property release may not necessarily mean that you need one under law. By analogy, jsut because someone takes someone to court for shoddy work doesn't mean the defendant needs to pay up upon demand.

If you had really experienced a real case, maybe you can share with us what Esplanade's grounds are for requiring a property release. A standard letter of demand will usually contain the legal grounds for the demand. A demand in vacuo merely asserting what the person wants, without any legal grounds to back that demand up, is usually the subject of the rubbish bin - have seen that before many times.

If you think I'm not correct, feel free to contradict me.

Interesting actually.

Every country I worked so far, its quite painful to find out what actually is law and what is just common believe.

I think the both of us will hardly come to an agreement on this topic in this forum. However for those of you who scratch their heads and have a real case at hand not knowing what to do?

One advice I think vince here gave was to contact the legal authority, maybe thats the way to go ;-)

However in the case of the Esplanade, I brought up, I talk about a real assignment we worked on, so Vince I'm not sure if you are really correct with your Property release issues. It may be an exception in Singapore, have no idea.

Another piece of advice I can give, which could be a solution is to contact the PPAS (Professional Photographer Association of Singapore).

They have some advice and legal issues on their pages and can be contacted through email and phone.

Btw... In their pages they mention that copyright belongs to the photographer in most cases, so.. here we go again.

cheers

felix

 

[vince123123]

As usual, waileong has said it in the most objective fashion - yes it does not matter if we agree or what you think is correct or feel should be correct, but to back up your assertions with fact, law or authority.

There are a lot of things I wish can be changed, but unfortunately, the current state of the law in Singapore is as such; hence its better to know what they are, than to blindly keey wishing they are what you want them to be. Ditch the rose tinted glasses.

IF you're not familar with Singapore law then I suggest you not make pronounciations... At least not when Vince is here.

I suppose you may not agree and really it's not that important what we think is correct but whether you can cite the law, chapter and verse, to back up any assertions. Because when we are talking about legal matters, not moral matters or other matters of opinion, one must have the correct backing to make statements.

The statutes website has the copyright act, so you can review it at leisure.

 

[vince123123]

I'm sorry, looking at the legal authorities (ie case and statute law) is not "book knowledge" as you claimed.

In fact, there are many things done in the industry that are legally incorrect. For example, in the "industry" people talk about suing another person when they have no model release. Yes, industry wise they all do that, but legally speaking, it is highly doubtful that they will succeed.

Your contracts are based with overseas parties who may operate under different laws. For example, stock agencies in the US will reuqire model releases for pictueres submitted. Why? Because in the US, there is specific legislation which provides a cause of action to sue if a model release is not obtained.

Hence, all those things in USA and Australia can be better confined to those countries. We are talking about the state of law in Singapore, not these countries.

I agree with what you say and have your point taken on the copyright act. I will look it up, as its ultimately important to us doing biz here.

Its true I don't have a law section to offer here, but my points come rather out of experience in the industry and not "book" knowledge. Which is also important i believe. Its not just a mere "opinion" and I like to get to the bottom of this.

Fact is that we have contracts with Corbis & the Lonely Planet Library, as well as other clients which require Model & Property Releases. I also worked on projects in Australia which required to check on this matter. In fact in Australia exists even a Landmark release for places like the Ayers Rock or the Sydney Foreshore Area. This things may not be stated in a "general" copyright act but special, sometimes local laws apply.

Again I'm not having the lawyer background on this, but in fact have been working on projects as a professional photographer in my career colliding with this requirements in Australia in this case. So, its not made up... or just a moral opinion. My statement might have given that impression earlier.

Some laws apply on the mere act of picture taking, others on the specific usage of the images.

EG. in Australia is also a Child Protection regulation in place, so although model release may not be require in specific usage situations, you would still be on slippery ground, because you are essentially not allowed to take the pictures... In fact I was questioned by police on this when I worked on a book project.

As for the USA and property releases required?

There is a reason that the big libraries (even in Singapore), ask for Model and Property releases. I agree however, that it could be because many images are used globally and the rights have to hold up in each country.

At last i like to say, its not about finger pointing here. The questions to this answers are essential to do successful business and its a big difference if you work as a wedding photographer here in Singapore where local law applies, or like we do, on commercial and library photography shot in the region, but with a world wide audience and its usage requirements.


cheers

felix

 

[vince123123]

Yes, it is Section 30(5).

In my view, you have interpreted the statute wrongly. This is, in my view, the preferred way to read Section 30(5):

(5) Subject to subsection (4), where —

(a) a person makes, for valuable consideration an agreement with another person for:
- the taking of a photograph,
- the painting or drawing of a portrait or
- the making of an engraving by the other person; and
(b) the work is made in pursuance of the agreement,

Hence, the reference to portrait is only confined to painting or drawing.

Is this is the section you talk about?

(5) Subject to subsection (4), where —
(a) a person makes, for valuable consideration, an agreement with another person for the taking of a photograph, the painting or drawing of a portrait or the making of an engraving by the other person

again I'm not a lawyer, but its like i said.. this only applies for portraitures and weddings as far as i can tell.

It reads .."taking a photograph... of a portrait"... for money, so unless you are a wedding or portraiture photographer it would not apply in most other cases, if I read this correctly.

It would be important to know for everybody if this is the case.. and if this applies even more so for the Portraiture/Wedding guys out-there.

Regards

felix

 

[vince123123]

I love the last statement the best, and am bolding it for Felix's attention:

actually it's been mentioned that the Copyright Act doesn't protect our copyrights...you have to go read it.
it's assumed that we own the copyright but when it goes to court, I have a feeling that we'll find we've been following a false presumption

Regarding releases from big libraries, they have to do that to protect themselves legally.

Property releases...that's interesting. A lawyer in NY gave a talk and mentioned how trademarked buildings enjoy special protection (Empire State Building, Transamerica Building), but I am not sure what kind of protection applies to non-trademarked buildings.
In this case, is the Esplanade a trademarked building, and do building owners have any legal rights in the first place if their building is part of an advertisement?

Experience in the industry is one thing (the way things have been done all this while), but does not necessarily equate to what is actually legally right, so when a situation occurs where you go to court you might find what the industry believes is right is actually wrong.

 

[vince123123]

Yes you are right, contract can override the applicability of Section 30(5).

As for model releases, yes you can choose to have it if you want to - there is nothing wrong with being kiasu.

If for example, a model charges me S$100 without MR and S$101 with MR, I may decide to pay S$1 and get over it and perhaps even use it in stock sales.

But if a model charges me S$100 without MR and S$200 with MR and I don't intend to sell it to stock agencies, I won't bother, because it simply isn't required and the legal risk of exposure is very low.

Hence, it is a balancing of risks. This applies not only to the issue of MRs, but any legal issue out there. If the exposure is high, then it is more important ot guard against it.

All I'm saying is that the exposure for MRs is very very low. If someone were to try to start a "test case" for MRs, he will face a very big uphill battle in trying to establish a new legal cause of action when none exists. He will have difficulty even bringing it based on analogy with existing established legal causes of action.

To give an example, there is currently no privacy laws in Singapore. If someone is to try to start a new cause of action based on divulgence of one's personal particulars, he will face a similar upbill battle as in the case of MRs.

As for the building bit, yes Esplanade MAY have a case to follow, but what case exactly? Infringement is already struck out. What is left? You can't have a case without making one out, so the first step is to make out the case. That has yet to be done.

And yes, the final statement is best, if you think the risk is big, get a formal legal opinion to cover yourself. That is what lawyers are paid for.

OK, just my 2 cts before I go back to work from my lunch break :bsmilie:


If this is correct, than it should be applied in the absent of a contract stating otherwise. In other words, if you have a contract which stated that you still own the copyright or restrict the usage of the image, you have the say, according to the terms of the contract.



On the same coin which you mention "has not yielded any legal authority on the necessity of model releases" and "cannot prove a negative so I can't tell you where the law does not exist for this" most practising photographer will have a model release. Grey area, no law say must and no law say don't need so better cover backside first :bsmilie:




Copyright is not infringed by taking a photograph of a building ( ie; building is part of the AD ) but if you use the image of the building ie: Esplanade, as the main point or point of focus of your advertisment, than there MAY be a case for Esplanade to follow.


Just my 2 cts base on what I practise and I could be wrong legally, better consule lawyer if you want firm answers. :sweat:

 

[vince123123]

As stated, people cand emand all they want, whether what they want is grounded in law is another question.

Being the big bully I can just say "Hey, if you want to take photographs of my shop, you need to sign this 10 page document. Don't want to sign, then dont' take". Now, even if I don't sign and take, can he do anything to me?

These are what we call, crudely, scare tactics. The question is whether these scares, positioning, negotiating etc have legal basis.

No idea on your Corbis example - since you have not cited any case references. But from yoru single statement, it sounds like simple copyright infringement, nothign to do with MR or PR.

As for your UK case, again no case reference. But from what little there is, they are probably challenging whether copyright vests in the employer or the employee or the independent contractor - again nothing to do with MRs or PRs. In Singapore, copyright vests in the employer.

A building cannot be the subject of a registered design. Before you use the term "design", maybe you want to first determine the differences between copyright, registered design, trade mark, patents etc. It is quite common for most normal folks to confuse them up. IPOS' website has a good simple writeup for this purpose.

Hey Matt,

Now, I'm not sure I can follow you correctly. On one end we hear here that most likely is no MR or PR needed, but then you admit Big Libraries need the releases to cover themselves against legal cases??

That makes no sense,because if there is no case to begin with, there would be no need for it.

In fact Corbis is taking frequently people to court who use images of their photographers without permission.

Its another question, if its worthwhile doing it, cause in the most UK cases i heard, the abuse leads to paying the photography fee, initially not paid, but not to additional damage charges. Its not really scaring abusers, is it??

There was an interesting case two years ago in the UK, staff photographers sueing their paper for using their past photographs taken for the paper.. without permission... believe it or not, the photographers won. It was even to me a slight surprise i have to admit.

Would that happen here... most likely not. Is there legal ground, though? I don't know, but would be interesting to find out.

Thanks for the back up on the building story, Matt. I have no idea why the Esplanade is covered by a similar "landmark act". Would they get money paid in case of abusing it... no idea, don't think there has been a case yet. I just know for sure they asked us to pay for it. Unlikely they would take Mr. Tan to court, but if its Microsoft using the building for their advertising.. they might well do so.

Sometimes the true problem lies in the design. So actually what is protected is the Design of the architect, which is original... similar to the clothes of a designer.

So.. the answer might be not the obvious first one. its not really the building, but its still the building because of the architects design...:think:

Shuut!!.. and i though it was all easy.. just taking pictures

cheers

felix

 

[vince123123]

In my view, so long as the photograph is not defamatory or an outrage of modesty (the two usual causes of action trying to stop publication of a photograph), then in my view,you are free to post it anywhere you want.

hey guys if was caught in a road rage event, and I happened to take a photo or a video of the aggressor can I post it on youtube? or on the Internet?

 

[felix hug]

No offence Vince,

lets call it "case and statute law" knowledge then.

I'm glad that you retreat to Singapore now, as you were wrong about most of your overseas assumptions. There is still the "Esplanade" case to solve though.

You assuming again when you are saying that its doubtful that a case for a Model Release abuse would go anywhere.

So lets not assume, lets ask if there is anybody outthere reading this forum who knows a case that happen here in Singapore with either outcome, a negative or positive one?

Maybe somebody in the Model, or Commercial industry?

I'm sure that would prove of interest to all of us and help to know where we are standing in Singapore with this.

Regards

felix

I'm sorry, looking at the legal authorities (ie case and statute law) is not "book knowledge" as you claimed.

In fact, there are many things done in the industry that are legally incorrect. For example, in the "industry" people talk about suing another person when they have no model release. Yes, industry wise they all do that, but legally speaking, it is highly doubtful that they will succeed.

Your contracts are based with overseas parties who may operate under different laws. For example, stock agencies in the US will reuqire model releases for pictueres submitted. Why? Because in the US, there is specific legislation which provides a cause of action to sue if a model release is not obtained.

Hence, all those things in USA and Australia can be better confined to those countries. We are talking about the state of law in Singapore, not these countries.

 

[vince123123]

No offence Felix,

Excuse me, since when did I retreat to Singapore and since when I made assumptions about oversease laws? All along in this forum, I have been discussing about the state of law in Singapore, and not foreign law. You are the one who is wrong.

There is no Esplanade case to solve because there is no reported case in court on this.

I've asked you for details on the grounds on which they made their demand but this was met with silence. This is to further discussion but since you did not provide details and there is no court case, then it counts for nothing.

The reason for no one being able to tell you is because there is no case law or statute law in Singapore on MRs. If you think you're that garang, you can try starting a new cause of action. I'll sit by the sidelines waiting for you to fail.

Finally, you do not ask someone in the "Model or Commercial Industry" on the state of law. Ideally, you check the court records, the statute records or at least, get a formal legal opinion.

No offence Vince,

lets call it "case and statute law" knowledge then.

I'm glad that you retreat to Singapore now, as you were wrong about most of your overseas assumptions. There is still the "Esplanade" case to solve though.

You assuming again when you are saying that its doubtful that a case for a Model Release abuse would go anywhere.

So lets not assume, lets ask if there is anybody outthere reading this forum who knows a case that happen here in Singapore with either outcome, a negative or positive one?

Maybe somebody in the Model, or Commercial industry?

I'm sure that would prove of interest to all of us and help to know where we are standing in Singapore with this.

Regards

felix

 

[Brett]

Many thanks! Just so happened my friend a victim of road rage an aunty pointed a middle finger at me I was so furious I got out with my phone video camera and filmed her posted it on youtube next thing I knew her face was all over the shin min papers, so my guess is if the papers published her photo on the papers the person posting the video on the internet has done no wrong.

Now I know what to do when confronted just take videos of the aggressor! LoL

In my view, so long as the photograph is not defamatory or an outrage of modesty (the two usual causes of action trying to stop publication of a photograph), then in my view,you are free to post it anywhere you want.

 

[felix hug]

Ok, i have seen and read enough...

Thanks Matt for some appreciated input

enjoy Vince its all yours, make sure you stop not forgetting your own posts and misquoting the law.

For those of you, who need to look up 30 (5) themselves and make their own take on it:

http://statutes.agc.gov.sg/non_vers...e=COPYRIGHT ACT &date=latest&method=part&sl=1

No offence Felix,

Excuse me, since when did I retreat to Singapore and since when I made assumptions about oversease laws? All along in this forum, I have been discussing about the state of law in Singapore, and not foreign law. You are the one who is wrong.

There is no Esplanade case to solve because there is no reported case in court on this.

I've asked you for details on the grounds on which they made their demand but this was met with silence. This is to further discussion but since you did not provide details and there is no court case, then it counts for nothing.

The reason for no one being able to tell you is because there is no case law or statute law in Singapore on MRs. If you think you're that garang, you can try starting a new cause of action. I'll sit by the sidelines waiting for you to fail.

Finally, you do not ask someone in the "Model or Commercial Industry" on the state of law. Ideally, you check the court records, the statute records or at least, get a formal legal opinion.