If the photographer is hired by a magazine to photograph the chef's prepared and plated food for an advertisement in the magazine, can the photographer later copyright those photographs, although they contain the chef's creations?Ok, I'm not the photographer, but the chef, who created and plated the food in the photographs, so can the photographer rightfully register a copyright of the photographs which I do not appear in, but my creations do. As an aside the photographer is not an employee of the magazine, and there is no written agreements between anyone. Do I have any intellectual property rights which prevent the photographer from registering a copyright as to the photographs?
Yes, but if your photos include the chef, the chef has "publicity" rights to their own image used in ads.
Also, if you were hired by the magazine, the magazine may have bought your labor, while retaining the copyright to the proceeds of your labor, with you assigning your copyright rights to them. This is something that's negotiable between you and the magazine and will be governed by your written contract with them.
Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship.
There are a series of questions that you would need to answer to enable an attorney to ascertain whether you hold a valid copyright in the photographs:
1) Were you an independent contractor as opposed to a regular employee of the magainze? (The answer would appear to be "Yes.")
2) Did you enter into a written agreement with the magazine regarding the assignment prior to taking the photographs? Assuming you did,
(a) did the agreement provide that you would be taking the photos on a "work-for-hire" basis - meaning that the magazine would own the copyright in them?
(b) Alternatively, did you at any time assign the magazine all right, title and interest to the photographs, either in the preliminary agreement itself or afterwards?
(3) "On whose behalf" was the advertisement placed in the magazine? In other words, what was being advertised: a restaurant, cooking school, culinary equipment company, food supplier, or the magazine itself? Did the advertisement carry its own copyright notice (separate from the copyright notice on the magazine)?
(4) When was the magazine published?
* * *
My preliminary take is that if you were an independent contractor and did NOT take the photos on a "work-for-hire" basis or assign the copyright in the photos to the magazine, then you were the author of the photos and probably still own the copyright today. In that event, you would have the right to register and exploit the copyright in the photographs. (Caution: As my colleague noted, if the chef is pictured in the photographs, he or she would have publicity and/or privacy rights that might be infringed by your exploitation of the copyright. If they are not pictured or you can cut them out of the frame, that problem is eliminated.)
If your agreement with the magazine purported to provide that you were working on a "work-for-hire" basis, the calculus is much more complicated. You need to consult with copyright counsel to determine whether the work qualified for that status under the law. It may not have qualified as "work-for-hire" for a variety of reasons.
Disclaimer: This answer does not establish an attorney-client relationship or constitute legal advice. It is for general informational purposes only.
Two things to note here. First, the photographs are not "later" copyrighted. Any copyright arises at the moment that the picture is fixed in any tangible medium of expression, which is basically instantly with digital pictures and at least by the time of development of traditional ones. What can be done later is to actually register the copyright that already exists.
As for who owns the copyright, my colleagues above are discussing issues affecting the "work for hire" doctrine. Works made by employees in the course of their employment are presumed to be works made for hire. Of course, the issue of whether or not a photographer is an "employee" hinges upon the questions raised above. A work can also be considered "for hire" where a contractor is specially commissioned for it, though this would require a contractual provision on the issue.
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NO. To claim copyright the photographer on its own must have captured a modicum of his/her own creativity. Just taking a photograph is not sufficient.
If whoever there is a creative arrangement before the photo, then copyright might be claimed.
Careful !!!!. The chef's creation belongs to the chef and a photograph of it is a derivative work of the chef's creation.
You should consult a copyright attorney, as there are too many traps in the situation you describe.
Wow. Lots of confusion created by my colleague's answers.
Q "Can a photographer copyright photographs taken of a chefs creations?"
R: The best, and right, answer was by Attorney Koslyn: Yes. That's it. Full stop, end of discussion.
My colleague who believes that "[t]he chef's creation belongs to the chef and a photograph of it is a derivative work of the chef's creation" is wholly INCORRECT. Neither the physical appearance of an actual plate of food nor its contents in that form are protectable under any body of intellectual property law.
A photograph of a plate of food is, however, protectable under copyright law.
The owner of that copyright is either (1) the person who took the photograph, (2) that person's employer, or (3) the person who hired the photographer so long as the two entered into a written assignment agreement [c'mon folks, a photograph is NOT one of the nine listed types of works that qualify under Section 101 as a work for hire -- unless it's part of a compilation. There is no work for hire analysis in this fact pattern].
So ... the owner of the copyright in the photograph falls into one [and only one] of those three categories.
The law does, however, give the chef some say in how the photograph is used [under the chef's right of publicity as ably explained by my colleagues and perhaps under the various business torts if the plate of food looks terrible and is published as if that dish is representative of the chef's skill].
There's obviously a back story to this situation that you should discuss with your own intellectual property attorney. Good luck.
Given the additional facts the person making the inquiry has provided, it is now clear: The photographer was an independent contractor. He didn't have a written contract with the magazine - so he didn't assign the magazine his rights and the works couldn't have been works-for-hire. The photographer and the photographer alone owned the copyright in the photographs at the time he took them and, unless he subsequently transferred his rights, he still owns the copyrights today. As the copyright owner, he is free to exploit the photographs and register the copyrights if he wishes.
Could the situation have been different? Could there have been a written agreement under which the magazine commissioned the photographs as "works for hire"? Of course. My colleague's skepticism aside, the plain text of the Copyright Act leaves no doubt on that score.
It defines a "work made for hire" as either of two things: (1) "a work prepared by an employee with the scope of his or her employment," [which doesn't apply in this instance because the photographer was not an employee] or (2) a work specially ordered or commissioned and satisfying one or another of nine (9) categories. The Copyright Act enumerates these nine categories as follows:
A "work made for hire" is--
(2) a work specially ordered or commissioned for use [i] as a contribution to a collective work, [ii] as a part of a motion picture or other audiovisual work, [iii] as a translation, [iv] as a supplementary work, [v] as a compilation, [vi] as an instructional text, [vii] as a test, [viii] as answer material for a test, or [ix] as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.
17 U.S.C. sec. 101 (numbers added for clarification).
The very first category is the one that is relevant here: a work specially ordered or commissioned as "a contribution to a collective work."
A magazine qualifies as a "collective work," and any number of things - including a photograph - qualify as a "contribution": e.g., a story, article, commentary, op-ed, photograph, cartoon, drawing, etc. There is absolutely nothing in the Act that restricts the meaning of the term "contribution" to editorial or narrative works or excludes photographs or visual works from its orbit.
So, the bottom line is this: IF the magazine had specially ordered or commissioned the photographs in this instance for use in the magazine AND the parties had expressly agreed in a signed writing, executed prior to their being taken, that the photographs would constitute "works for hire," they would have qualified for that status under the Act. In that event, the magazine would have owned the copyright in the photographs.
To reiterate, however, as the facts now appear, there was NO agreement - regarding either an assignment or "work for hire" - and, consequently, the photographer owned the copyrights.
Further Note: The fact that the photographs were to appear as part of an advertisement added an interesting - but now clearly irrelevant - wrinkle.
Disclaimer: This answer does not establish an attorney-client relationship. It is for general informational purposes only.
Great analysis by Attorney Bass. One factual tidbit however: the photograph was taken "for an advertisement in the magazine." The "work" for which the photograph was taken was NOT, therefore, the magazine but rather a particular advertisement [which could be published anywhere]. One advertisement is NOT a collective work -- which means that the photograph is most certainly NOT a work for hire. Which means, in turn, that unless the photographer signed an ASSIGNMENT agreement -- not a work for hire agreement -- the photographer owns the copyright in the photograph.
With all due respect to my colleague, the limited facts we were given suggest the opposite of what he has asserted. The photographer was not retained by a third-party advertiser (e.g., restaurant, cooking school, catering service, etc.) to take photographs for an advertisement that would appear ANYWHERE - i.e., in a display ad at the point-of-sale, in direct mail advertising or on a billboard. He was retained BY THE MAGAZINE to take photographs that would appear IN THE MAGAZINE. Under the facts as stated, a work-for-hire arrangement would have been perfectly appropriate if the magazine and photographer had entered into one. They didn't. They didn't even have a written agreement.
It is not infrequently the case that works created as contributions to a collective work are suitable for other uses. (That is generally true of stories, articles, commentaries, cartoons, photographs, etc.) The fact is, however, they have been commissioned FOR USE IN THE COLLECTIVE WORK. They only constitute a work-for-hire ("WFH"), in my view, if they are put to a legitimate WFH use. If a magazine attempts to use a work commissioned as a WFH and put it to a non-WFH use, it might find it didn't have the rights. An interesting question for another day.
The marketing departments of magazines routinely design advertisements for those who buy ads in the magazine and, as part of that process, they hire photographers to create photographs that are then inserted into those ads. The ad is bought and paid for -- and owned by -- the client and so the ad can be published anywhere the client chooses.
The collective work copyright that attaches to the magazine does NOT attach to advertisements within the magazine. See 17 USC 404 (expressly excluding advertisements from the scope of protection afforded to the works that comprise a collective work).
Though all the other contributed works are protected by the collective work's copyright, Congress specifically excluded advertisements because -- just as I've been arguing -- advertisements can be published anywhere [they are not a "contribution" to a collective work. See H.R.Rep. No. 1476, 94th Cong., 2d Sess. 143, 146 reprinted in 1976 U.S.Code Cong. & Ad.News 5659, 5759.
To my mind the rule is clear: a photograph displayed in an advertisement in a magazine is not "a work specially ordered or commissioned for use as a contribution to a collective work" because the advertisement itself is not a contribution to a collective work [under Section 404 and common sense] -- the ad is there merely fortuitously and if published in any other magazine would have the same effect and leave the same impression.
Under this fact pattern, the photograph cannot be a work for hire. Though reasonable minds can disagree. Stimulating discussion, thank you.
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