Advice on body art

[anarchicq.livejournal.com]

I'm posting this for a friend who does not have LJ.
Her boyfriend works in a tattoo shop and they recently gain a new piercer. This new piercer is using pictures of her work at her previous place of employment in her portfolio.

The owner of the place she used to work is complaining that he has IP over the photos of piercer's work and is requesting that she not use the pictures. But any artist uses work from previous employment/gigs/magazines they've worked on to get a job right? I don't see how peircing would be any different.

And technically the copyright of the photo would go to whoever snapped the photo but the actual peircing would be the work of the piercer, no?

Any help clearing this up would be great. Thanks.

Edit: corrected my spelling.

Comments

[mrst4nkr.livejournal.com]

Piercer.

I'm sorry if I'm being slow. What's "IP" stand for?

[shukivengeance.livejournal.com]

Intellectual Property

[mrst4nkr.livejournal.com]

Thanks!! :)

[shukivengeance.livejournal.com]

Generally, before a tattoo or piercing is done, the person being inked or pierced signs a waiver allowing their piercer to use any images taken as portfolio pieces. If not signed over like this, I think the copyright would be owned by the 'model' (correct me if I'm wrong) so since that's not the case here, I believe it would lie with the person who actually took the photo.

Although it's possible that the piercer had as part of their contract that images taken of their work would be owned by their employer. If that's the case then they can't use those portfolio pieces but if not, I don't see what claim the prior employer could have over them (unless they took the photo).

[ocelotish]

I have never heard of a case where copyright is held by the model, only the photographer. The model release form is a privacy thing, and is only an issue where the model can be identified or something like that and I doubt this would be the case with most piercings. Not to mention that this isn't a case of publication.

Personally I really doubt there's any issues because the piercer isn't publishing the photos or claiming photos as theirs. Also, I think unless otherwise determined at the time, you're allowed to put things in a portfolio, at least a physical book. The possible exception might be work for hire, but that's not the case here, and I know that animators put work for hire art in their demo reels (they have to), but I don't know that intricately.

[shukivengeance.livejournal.com]

So a person doesn't actually have any claim of ownership over something that depicts themselves? Good to know, although I find it kind of odd.

[ocelotish]

Nope. It makes more sense taken to an extreme: if you photograph a busy street, who should the copyright owner be? What about a photographer sets up a studio space, selects a background, determines lighting, chooses film, choose a model, and directs them how to pose, all while determining perspective, shutter speed, aperture, and focus?

Now you do have a right to privacy which that picture could potentially violate, but the copyright always belongs to the photographer unless otherwise determined by contract.

[kaputotter.livejournal.com]

As an aside and to complicate things just for the fun of it :D This is why Burning Man has an extremely long photography waiver in their Terms. They basically ask all photographers to not take any photos unless they explicitly ask any and all individuals for permission first.

Now, this is Burning Man. Such a concept is by no means alien in this environment, and there are a LOT of people who respect the general rule and ask/act accordingly. But this is not possible to enforce all across the board, not at all, especially in crowds, even crowds of naked people. There are a lot of people (proud Burners at that) who moan about this policy and call it draconian but it's really just BM covering its butt in case anyone is feeling litigious, and the organization can point to the photographer for blame instead. BM doesn't care who's taking pictures of what as long as they aren't brought to court for it.

I totally just convoluted this argument by showing how an organization displaced responsibility, but that shows you how much power the photographer has. Much like in illustration, if you're the artist, by default the copyright is yours unless you sign/sell it away.

[oceandezignz.livejournal.com]

If there was any waiver signed before the procedure regarding images taken to be used for portfolio work, it depends on the letter head of the waiver. If the waiver signed is under the shop the friend USE to work for, the photo is that shop's property essentially because it was taken FOR that shop.

Its doubly so if she signed any sort of employment contract detailing the terms of employment. There might have been a clause in the contract stating any work photoed on site - rights are retained to the shop.

[spiffystuff.livejournal.com]

But any artist uses work from previous employment/gigs/magazines they've worked on to get a job right?

Yes, but usually the rights to use the piece as part of their portfolio is in the contract. Should they want, commissioners could buy all the rights and forbid the artist from making copies for their portfolio, although the main reason I could think of anyone doing this is if there was a privacy issue, like concept art for a hush-hush project...

I believe the rights to the photo belong to the photographer, though if the shop has a policy about photos then that may limit things too. I think that's more the domain of privacy than copyright though. So I guess the relevant questions are a) who took the photos and b) was there an employment contract or other contract the piercer signed/agreed to that specified when photos could be taken?

[theblackdragon.livejournal.com]

it kinda depends. technically, as a piercer she'd be her own LLC, so if the pictures were taken on her own camera and any identifying stuff was cropped out (e.g. a sign in the background stating that particular shop's name or something), she'd be in the clear because technically she did not work _for_ the other shop. if they're not paying your taxes, they don't own your work.

That said, if she borrowed a shop camera or something to take those pictures, that's more of a gray area and she could indeed be in the wrong in this situation. it would be one thing if it were her in-shop portfolio, but if the other shop owner is complaining i'm assuming we're talking about a digital portfolio or the website of her new shop.

idk, politics in the tattooing/piercing world is pretty dramariffic anyway. your friend would probably be better off tracking down her clients if possible (hope she was able to get/copy down a list before she switched shops!) and taking new pictures so the previous shop owner can't say shit. healed pics are sometimes better anyway. :3

[theblackdragon.livejournal.com]

i should probably clarify my first paragraph because out of context it sounds somewhat odd, especially that last line -- what i meant is that, if you are an artist working for a company, anything done on company time can be argued to belong to the _company_ and not the artist. doesn't matter if it's a doodle on a napkin between clients or what, if you're being claimed as an employee by someone (e.g. they're paying half your income tax for you), they kinda own you and everything you do while you're on the clock. tattooers and piercers, though -- i haven't met one yet that isn't their own company/LLC, so technically the only clock they'd be on is their own.

... i hope i'm not just digging myself deeper D:

[ocelotish]

The owner of the camera isn't relevant, it's the photographer who owns copyright even if shot on a another person's camera.

Generally speaking I think she'd be in the clear 99% of the time if it's just her printed portfolio. Another way to avoid it might be really cropping the photos down so it's only of the piercing and enough detail to show where it is. She's reproducing so little of the actual photograph that it would be unlikely to get her in any legal trouble, but she could still show her work.

[theblackdragon.livejournal.com]

i just looked it up, and you're probably right -- i had always been told that whoever owned the negatives/the original photos held the copyright, so my bad on that. you're preaching to the choir with the second paragraph, though. :3

[stormslegacy.livejournal.com]

I'm not so sure about that, my friend's father works for a newspaper as the head photographer and anything shot with the equipment that they've loaned him is considered their property. The idea being, he wouldn't have had access to the equipment (often super expensive) otherwise. I don't know if that varies by state/country/contract or what, but he was telling us all about it.

I know it's anecdotal but I don't know where I'd look up the actual laws.

[ocelotish]

I'd imagine that he's in a work-for-hire contract, and their equipment is the boundaries on it, but that's just my guess. There's just always that classic question of "If a monkey takes a photo, who owns the copyright on it?" and if it were just the equipment owner there'd be no question.

This article talks about it a little in very broad terms: http://www.copyright.gov/help/faq/faq-fairuse.html

[silvertales.livejournal.com]

In this case, I think it depends on the contract and conditions of her employment at her previous shop. IF she was an employee, and not renting space, then the images technically belong to the shop, particularly if the standard waiver signed for having any kind of modification done belong to that shop.

IF she's working as a contractor, that is to say, she paid rent for the booth space, then the photos are hers free and clear.

[snippetchick.livejournal.com]

THIS.

Also, if IP information wasn't built into her employment contract I think she could still maintain the IP, although I'm not sure on that.

[thaily.livejournal.com]

If his previous employer took the photos then he technically owns the photos and the piercer would not be able to use the photos even if he did the work in the photo, but if the ex-employer wants to get all technical, ask him for the model waivers signed by the people in the photos. Oh he doesn't have those? Then he's not allowed to use them either, oops!

Sounds like said ex-employer is just trying to screw over the piercer, I'd suggest he uses the photos and just keeps his head down. Hopefully the ex-employer will eventually learn to put on his big girl panties and deal.

[theblackdragon.livejournal.com]

the waiver for photos is usually a part of the release form signed at a shop whenever tattooing or piercing is done, and the client has the option of signing off on it or not. depending on jurisdiction, the shop has to keep those release forms on file for years (it's 5 years where I'm at iirc). i'm sure the previous shop-owner would gleefully allow her to look through her prior clients' release forms on demand if he thought it would shut her up and get her to comply with his wishes, lol.

[thaily.livejournal.com]

I think a lot of photography is done under a sort of mutual understanding, but it's worth looking into for the piercer either way.

[ariakitty.livejournal.com]

My boyfriend used to work in this line of business as a tattoo artist, so I asked him about this. Basically, those are her photos (assuming she took them herself) of her own work. It belongs to her, and the owner really can't do anything except attempt to make life hard for her. I don't think he could use her work as advertisement since she no longer works there, anyway.

However, it is entirely possibly that she might have signed her work over to her previous employer in her employment contract?

[ariakitty.livejournal.com]

Also, as mentioned above. It would also depend on what kind of waiver the client would have signed. But I would think she could use those photos in her portfolio as long as her previous employer has copies for legal purposes?