The previous post titled Who Owns the Photographic Image sparked many comments, including well researched and logical arguments, but so far there is no definitive answer. Check out the comments on the previous post. There were so many comments from Facebook, Crafthaus, Orchid/Ganoskin, I saved them all. If you want a copy, send me an email request.
What bothered me most about this issue is the confusion. Apparently it would be helpful to have a simple contract or letter of agreement for artists and makers needing to hire photographers to photograph the artwork. The contract is NOT intended to involve monetary compensation for the use of the images, but instead (as stated in a previous post) to support sharing images of our work for critical writing and lectures.
Andy Cooperman digests the diversity of opinions in his comment on ASK Harriete, "Yes, there is logic on both sides of the conversation. But what we are after, I think (speaking for the Professional Development Seminar Committee) is a definitive answer. Barring any negotiated contractual agreement between the artist or original maker of the work and the photographer who has been retained (hired) to document that work as closely as they can to its appearance in the real world, who owns the rights to the image? Who is the default owner of the rights? There must be an answer...."
Two Roses astutely points out on Crafthaus that the image of the artwork "is potentially as valuable, and perhaps more valuable than the work of art being photographed." "The emergence of on-line exhibitions will continue to place greater emphasis (and value) on the image of a piece rather than the piece itself.""
There is no doubt that superior photography of art or craft involves great skill from the photographer. However, the goal of the engagement between artist and photographer is to capture a faithful rendering of the artist's or maker's work. Most photographers do not consider that this type of photography reflects the artistic photographer inside them. It is their "day job."
In the past, when an artist hired a photographer there seemed to be an implicit understanding that the artist could use the photo in anyway they needed to promote their work. The original payment for the photos included permission for all future publication either in print or online. Photo Credit is a professional courtesy and obligation by all parties in both print and on line, but this isn't part of the question.
Marthe Le Van, editor at Lark Books and future speaker for the Professional Development Seminar says,"new platforms for content and its distribution are being developed at such a rapid pace (ie: rights for an electronic edition, a digital download). 'Real' answers are short lived. Laws are changed, language is changed, and everyone involved has to live with a continually evolving legal landscape. It is most frustrating that there is no definitive, set-in-stone agreement that one can 'know' beyond a shadow of a doubt. I don’t think frequent changes stem from paranoia, but rather a rapidly changing field."
I agree that drafting an agreement between artist and photographer could be a way to clear up a lot of the misunderstanding about who owns the image or who has permission to do what. Of course, as stated above, it would have to be frequently revised.
What we are looking for here is a very simple, non-confrontational contract for artists and photographers to use. Steven Brian Samuels states in a comment on the previous post: "To me, this discussion just highlights the need for an open dialog between artists and photographers. It also stresses the importance of the relationship artists and photographers must have with one another. Artists and photographers can even work hand in hand promoting each others talents."
Michael Eastman on Orchid/Ganoskin said in a comment,"It really depends on what kind of agreement you have with the photographer . Some photographers will negotiate the rights and demand that they retain the copyright of the photograph they made. Some don't care.... so it is a gray area when it's not discussed."
Stephen Walker comment on Orchid/Ganskin seems most relevant to our discussion.
“...a US Federal Court ruling that museums do not own the copyright to images simply because they own the originals. If the image is public domain because of antiquity or any other reason photographs, copies or reproductions of the art is not protected by copyright because the museum is not the author of the creative content, which is where copyright originates.”
In my experience when museums own my work, they still write to ask me to allow them permission to distribute the image of my work in print, online etc. This is even after I have either given them images of my artwork or they hire a photographer to photograph the work. I am looking for more information about this.
In the meantime...Does anyone have an example contract or letter of agreement with their clients or photographers?