who owns copyright in this situation?

[llung]

Craig, that's the second time you mentioned that the OP asked who owned the copyright to the image, and then offered no answer for it. You're accusing me of not responding to the OP's question, and you're right - I'm not. I'm responding to your erroneous assertion that if the photograph was taken in Japan then Japanese law applies. I pointed out that this is simply not how it works. You then pointed towards the Berne Convention. Your interpretation of the Berne Convention is that the law to be applied is the law of the country of origin. But that is only true if the person asserting copyright is doing so in the country of origin. This is clear from the language of paragraph 3 of article 5:

(3) Protection in the country of origin is governed by domestic law. However, when the author is not a national of the country of origin of the work for which he is protected under this Convention, he shall enjoy in that country the same rights as national authors.

So if the country of origin is Japan (I actually don't think that's the case here but I'll get to that in a second), and a person is seeking protection of his or her copyright in Japan - whether or not that person is a national of Japan - then that proteciton is governed by the laws of Japan.

Now this is not the same thing as you're saying. I am not simply making a wholesale statement that Japanese law will always apply to this image because it doesn't. It only applies insofar as copyright protection is being sought in Japan. If protection is being sought in another country - say Germany - then the laws of Germany would apply, regardless of whether the country of origin is Japan. This is clear from paragraph 2 of Article 5:

2) The enjoyment and the exercise of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work. Consequently, apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed.

But this is only to draw a distinction between your point and my point.

More significantly, you were simply wrong when you made the following statements:

If it was taken in Japan, then Japanese law would apply.

and

It was originated in Japan. Japanese law applies.

and

The OP pointed out the picture was taken in Japan. So, Japanese law applies. Period. End of discussion.

These statements are based on your erroneous interpretation of the term "country of origin" in article 5 of the Berne Convention. You appear to think that the country of origin is the place where the photograph is taken. But that is not how country of origin is determined. Paragraph 4 of article 5, which I had suggested that you read carefully, explains exactly how country of origin is determined:

(4) The country of origin shall be considered to be:

(a) in the case of works first published in a country of the Union, that country; in the case of works published simultaneously in several countries of the Union which grant different terms of protection, the country whose legislation grants the shortest term of protection;

(b) in the case of works published simultaneously in a country outside the Union and in a country of the Union, the latter country;

(c) in the case of unpublished works or of works first published in a country outside the Union, without simultaneous publication in a country of the Union, the country of the Union of which the author is a national, provided that:

(i) when these are cinematographic works the maker of which has his headquarters or his habitual residence in a country of the Union, the country of origin shall be that country, and

(ii) when these are works of architecture erected in a country of the Union or other artistic works incorporated in a building or other structure located in a country of the Union, the country of origin shall be that country.

It is clear that country of origin will generally be determined with reference to the place of publication or, in the case of unpublished works, the country of which the author is a national.

It is clear, however, that country of origin is NOT determined by where the photograph was taken.

That means that if the photographer is an American, and the image was first published in an American magazine or website, then the country of origin is actually the US, and it makes no difference whether the photograph was taken in Japan, France, Turkey or Russia.

It also means that if the photographer is an American and the image was never published, then the country of origin is the US, and, again, it matters not whether the photograph was taken in Japan, France, Turkey or Russia.

None of this really matters anyhow because the Berne Convention isn't intended to determine what copyright laws apply. (There is a distinction between what substantive copyright law applies - that is, choice of law - and whether a person is afforded protection under the domestic laws of a country.) It is intended to ensure that there is international recognition of copyright so when a Swedish magazine attempts to publish, in Sweden, the copyrighted works of a Canadian, that Canadian can trek over to Sweden and sue the Swedish magazine.

You are right, the issue of who owns copyright is a completely separate issue. It is not uncomplicated, and will largely depend on the extent to which the parties asserting copyright were involved in the creative process. I would think that the OP, by setting up the photograph, has at least a partial if not total claim to the copyright of the image.

But ownership was not an issue you addressed and, as I was responding to your comments, it is unsurprising that it is also not an issue that I addressed.

In any event, my only point was that your assertion that Japanese law applies simply because the photograph was taken in Japan is just dead wrong, and this is clear from the single authority you presented to support your assertion.

And this is why I asked you to read article 5 again, but this time, more carefully. It's not that complicated. Understanding article 5 doesn't require that you be a lawyer but it does require basic literacy...

[gillettecraig]

Still wrong. The Convention says what it says. When I pointed out that domestic laws applied, you then agreed. But it's hard for you to accept that I was right the first time. So you decided that having said Japanese law applies (as did I originally) that you've got to try to change things. So you offered up the Convention again. Except that, you are still wrong.

The convention defines published. Really. Read it. This isn't "published" as defined by the convention. Which means that, it's not published in the country of the author being from another nation (btw, you still don't know how Japanese law defines authorship), that means it isn't published simultaneously in different places. So it means that none of the clauses dealing with published works apply. Ah, so if you go to the discussion of "unpublished" items. Nope. It's not a movie and it's not architectural or sculptural details, etc.

Since it's unpublished, it is a matter of domestic, in this case Japanese law, to define ownership. (But you know that, you said so yourself. The problem you can't deal with was I said it first. And provided "your" reference first as well.)

BTW, I addressed copyright ownership, which was what the OP asked..

Get over it. I lived there. I've worked with law and contracts. I've dealt with the application of Japanese law to Americans in Japan. And I read the treaty, all that applies.

Incidentally, you can find the Japanese law translated here:
http://www.cric.or.jp/cric_e/clj/clj.html

[llung]

Sorry, Craig, but I'm tiring of this. Reading the law is what I do for a living and I was just trying to help you understand. I'm going to go back to interpreting the law for people who pay me to do so. I don't really know what to say except read the convention again.

[gillettecraig]

It's easy to tire when you are wrong. It's Japan. Japanese law applies. I've shown you in the international convention why it would. I've provided a translation of the Japanese law. "Belief" is an interesting thing. counts for nothing in court when wrong.

You have no reference that says I'm wrong. I have the law. I have the facts. So pound the table.

You might try refunding some of that money they've paid you.

[rogelio_hki]

Hi
Referring to doherty's original question:
"I have a picture that I composed and planned and was taken with my camera. I didn't actually take the picture though because I was in it. My friend took it.
Who owns the copyright in this instance?"

Well I'm not a lawyer, however I have been searching for answers to these sort of questions and came across:
http://www.lawdit.co.uk/reading_room/ro ... 0photo.htm

I dont know the validity of that source, however it sounds right. It describes that the ownership depends on when it was taken as well as multiple person contribution to a photo shot. So read it, it may answer your question.

However, I still have an bugging dilema. Consider this. A couple engaged or otherwise living together. They take pictures during their vacation using the camera that is owned by one of the them. Each take a few here and there. Very normal.
Who owns the pictures in this case when they separate? Supposing one vacation was photographed using a film camera and the cost of development was shared. However only one copy was developed and placed in an album. The negatives are lost.
What about if on the second vacation, the pictures were taken with a digital camera that again was owned by one of the partners?
You know, we dont think about these scenarios when we are married. It only comes to light, sadly, at devorce time.

[jazzmaster221]

i just search google for my los angeles skyline photo and found a newpaper and a travel agency using my photo without asking my permission...