who owns copyright in this situation?

[doherty]

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?

[dougj]

I believe that your friend owns the copyright, unless there is an agreement that transfers this right.

[doherty]

hmm, i suspected that would be the case. I suppose its better to err on the side of caution.

I only asked because I submitted a photo to the show and tell competition and later realized that it wasn't me that actually hit the shutter, it was my friend. So I decided to just take that photo out of the contest and submit another one. It's a shame though cause I thought it fit the Perspective theme pretty well. The photo in question is here if you are interested.
http://www.pbase.com/doherty/image/66151741

anyways thanks for your response dougj!

[dougj]

Nice shot! I agree, although your friend may not care, it's better to be cautious. You could also ask him if he would mind.

[tuckeruk]

In my opinion, and based on my understanding of UK law, which in itself is based on common sense (or should that be 'uncommon sense' these days?), if you were responsible for all technical and artistic aspects of the photograph, including (but not limited to) framing, exposure, and focus, and all your friend did was press the shutter release for you because you didn't have a remote release, then you would own the copyright.

Hope that helps.

[dougj]

You might be right for UK copyright law. There are frequent discussions and debates on dpreview related to copyright in general. Most of the discussions revolve around US and UK law. I believe for the US he/she who presses the button owns the copyright, unless there is a written release. I don't have a clue about the UK.

An interesting twist to this one is where the photo was taken, I believe it was Japan and their law probably applies. Anyone current on Japanese copyright law?

[doherty]

Thanks all for your responses. I've decided to to re-enter in the competition with a note attached explaining my hesitation and the condition that if anyone feels that the situation violates the rules of the contest then I will withdraw the photo. I think that is pretty fair to all parties.

[pinemikey]

I needn't think we would have to stand on such formalities with the Show and Tell Competition as it is within the Pbase community. The sincerity of your intent is apparent.

In any case, if you had a falling out with your friend, with him claiming copyright, he wouldn't be able to do anything with the image unless he got you to sign a model release form.

[gummyb]

Who owns the camera?

[doherty]

I own the camera that the picture was taken with.

[gillettecraig]

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

[llung]

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

Craig, I'm not sure that's entirely correct. For property issues, choice of law will generally be determined according to ownership and infringement. If the owner lives in the US and the infringement occurred in the US, then US law would apply.

[gillettecraig]

"An interesting twist to this one is where the photo was taken, I believe it was Japan and their law probably applies. Anyone current on Japanese copyright law?"

The OP asked who owned copyright, not the legal issues of infringment. It was originated in Japan. Japanese law applies. That doesn't mean protection is not available in the US but US law pertaining to the automatic copyright afforded to an unpublished work originated in the US is not going to apply to an unpublished/unregistered work originated in another country.

Aticle 5 of the Berne convention should apply. Here's part of it:
"(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."

[llung]

Craig, with respect, that's not really the way it works. The question of "which law applies" implies (a) that a person is attempting to enforce a right of copyright, and (b) some judicial or administrative body is applying the law. Copyright isn't a "thing" that attaches to somebody; it is a legal right that is asserted by the person claiming copyright.

I had assumed, from his profile page, that the OP was from the US and would seek to enforce an infringement of his copyright in the US.

Read article 5 of the Berne Convention again in its entirety. Tell me whether you can envision ANY scenario in which the court of a member state is applying foreign copyright law. Just to be clear, I'm not saying that courts never apply foreign laws, I'm just saying that article 5 has nothing to do with this. Under article 5, US law applies in the US, French law applies in France, Canadian law applies in Canada, and Japanese law applies in Japan. Article 5 gives a foreign person the right to enforce his or her copyright in a foreign land. But it doesn't mean that the courts in that foreign land won't be applying its own domestic laws.

I also think that you're misunderstanding how country of origin is determined. See especially paragraph 4 of article 5.

Finally, consider the consequences of your interpretation to an action brought by National Geographic to enforce its copyright in the US.

Berne Convention (full text)
http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html

[gillettecraig]

Did you bother to read what I wrote? Don't try to lecture me on what I wrote, read, meant or said. And don't tell me my answers back claiming them as yours.

Get on track or butt out.

The OP asked who owned the copyright. All that other discussion of infringements is irrelevant - not responsive to the question. The OP pointed out the picture was taken in Japan. So, Japanese law applies. Period. End of discussion. But no, you (and apparently others) wandered off on a tangent and you suggested I was wrong. No way. I pointed out the applicable treaty clause. It is clear that domestic law applies on origin of a work. Period. Japanese law applies in Japan. (You know that, you repeated that back. duh.)

The treaty does not abrogate local laws and is not a national law on it's own. Each country has a sovereign right to enact their own laws and to incorporate the treaty. They have agreed to adhere to the treaty. So the treaty and the signing countries (etc.) recognize that Japanese copyright law applies to works originated in Japan. (Which is also why those people who complain that Canada's laws assigning copyright to the contracting party and not the photographer don't comply to the Berne convention are wrong. And why the US can have laws establishing assignments of copyright or "work for hire." Those are US and Canadian domestic laws - for locally originated works. As long as the countries apply the same rights and protections to nationals of their own and other countries (and the works), they are consistent with the requirements of the treaty.)

Incidentally, I've lived in Japan and stood essentially at the point of origin of the image and worked with application of Japanese law to American nationals in Japan. I am absolutely aware of what I said and what I meant and the accuracy of my statement and my reference. You are too. You quoted it back to me.