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Author Topic: Sell someone other's pictures?  (Read 7578 times)

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« on: March 24, 2009, 11:04 »
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Hi,

I am new to the microstock scene and got a quick legal question:
Is it possible/legal to sell someone other's pictures with his consent? (Let's say I have a friend who wants to earn a little money but doesn't want to waste his time applying to agencies, keywording and uploading the images etc...)

Thank you for your help!

Jack


« Reply #1 on: March 24, 2009, 11:11 »
0
Hi,

I am new to the microstock scene and got a quick legal question:
Is it possible/legal to sell someone other's pictures with his consent? (Let's say I have a friend who wants to earn a little money but doesn't want to waste his time applying to agencies, keywording and uploading the images etc...)

Thank you for your help!

Jack

I think you would need to have your friend sign over the copyrights to yourself, because almost every site I know of asks if you are the copyright holder of the images you are uploading.


tan510jomast

« Reply #2 on: March 24, 2009, 12:07 »
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I think you would need to have your friend sign over the copyrights to yourself, because almost every site I know of asks if you are the copyright holder of the images you are uploading.

yes, in case those photos become million sellers. make sure your friend knows not to come back to say you owe 50% of your earnings.   ;D
no seriously.
still, not sure why you want to open a can of worms.  why not just tell them to join and be an affliate. you get commission on their sale if those photos are really that incredible.

« Last Edit: March 24, 2009, 12:13 by tan510jomast »

cmcderm1

  • Chad McDermott - Elite Image Photography
« Reply #3 on: March 24, 2009, 12:08 »
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Possible - yes.  Practical - no.  Way too many legal issues and paperwork hassles (IMHO) to make it worthwhile.

« Reply #4 on: March 24, 2009, 13:20 »
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Is your friend (or you) by any change already an exclusive photographer on istock?  :P

« Reply #5 on: March 24, 2009, 16:37 »
0
Hi,

I am new to the microstock scene and got a quick legal question:
Is it possible/legal to sell someone other's pictures with his consent? (Let's say I have a friend who wants to earn a little money but doesn't want to waste his time applying to agencies, keywording and uploading the images etc...)

Thank you for your help!

Jack

Legally this would be possible with a contract, but the sites that I have contacted do not allow it.  I inquired once because I wanted to buy someone's portfolio from them and sell their pictures online.  I was told that I was not allowed to upload pictures I did not take myself.  I forget which site it was that responded the first (either Dreamstime or Fotolia) but after I got an answer from the one I quite trying to get answers from the rest.

« Reply #6 on: March 24, 2009, 17:47 »
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I was told that I was not allowed to upload pictures I did not take myself.

That's the theory, but what about Nicemonkey and Iofoto? They are a group and there is only one account.

« Reply #7 on: March 25, 2009, 07:36 »
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Yes you can legal sell other artist images. You need to become educated on rights and contract law, If not hire an attorney to draft a good legal contract that is binding to all parties.
You can purchase by contract the rights to use image. You can purchase limited rights or exclusive rights.
It is call a license to the rights to sell, publish, distribute. It is a legal and binding contract that spells out what you are purchasing from the owner. Terms of sales, rights, length, payment, and etc.

Music, publishers, and marketing  companies use this form of contract to purchase from the artist.

I purchase limited rights to sell and publish on percentage basis or upfront one time only price.
It is just like any other agency that sells your images. If you legally purchase or share rights it is your image to use as bound by the contractual terms of the contract.

« Reply #8 on: March 30, 2009, 09:36 »
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FlemishDreams you have been misinformed, I am just a solo artist and not a group or collective.

Maybe you got that impression because of my chameleon like ability to produce a wide variety of illustration styles!  :P or more likely that I spend too much time on the forums and wouldn't have any spare time to produce work!  :)

Either way I am too greedy to share the small amount that I did get from the microstock industry!

helix7

« Reply #9 on: March 30, 2009, 09:43 »
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Why would you want to let your friend earn money under your name? You do realize that you will need to still claim your earnings from his images on your tax returns, right?

I certainly wouldn't advise you do this, but if you do, remember to keep at least 1/3 of his earnings to pay taxes. Really, if I were you and I were still considering doing this, I'd keep 50% or more of the earnings.



Microbius

« Reply #10 on: March 30, 2009, 09:55 »
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Yes but you'd also declare any money you give them as expenses surely (?)

« Reply #11 on: March 30, 2009, 10:07 »
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FlemishDreams you have been misinformed, I am just a solo artist and not a group or collective.
In that case, I bow very deep for your quality and production. Yes, the variety is amazing. There is still Iofoto that is a group, so there must be a way to handle it.
« Last Edit: March 30, 2009, 10:12 by FlemishDreams »

tan510jomast

« Reply #12 on: March 30, 2009, 10:25 »
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it's not only less complicated but better for you to just tell your friend(s) to join as themselves. this way, they become your affliate and you get some commissions for their sales . win win situation. the other way is like a marriage. not always ending happily, esp when divorce time comes.
 ;)

« Reply #13 on: March 30, 2009, 10:30 »
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the other way is like a marriage. not always ending happily, esp when divorce time comes.

Well if the images are minor, you can always press for alimony.

helix7

« Reply #14 on: March 30, 2009, 11:35 »
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Yes but you'd also declare any money you give them as expenses surely (?)

You could. But it's just yet another headache of bookkeeping to deal with. Seems like a lot of unnecessary steps to deal with just to pass along the earnings. As already mentioned above, the best thing is to just have the friend sign up themselves.


« Reply #15 on: March 30, 2009, 16:24 »
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FlemishDreams you have been misinformed, I am just a solo artist and not a group or collective.
In that case, I bow very deep for your quality and production. Yes, the variety is amazing. There is still Iofoto that is a group, so there must be a way to handle it.

For what I understood in a thread Ron took part a while ago, Iofoto is not a group, but a company whose owner is Ron and the work his employees do belongs to the company, although they are free to produce images on their own.

« Reply #16 on: March 31, 2009, 00:04 »
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Sort of a related question along the lines of the OP. Are you able to sell images that you have purchased say through an estate auction? I have seen some beautiful medium format negatives go up for sale at estate auctions and have often wondered if they did scan well enough would I be able to sell them (landscapes only of course) or would I only have them for personal use?


« Reply #17 on: March 31, 2009, 09:45 »
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Sorry to threaten to hijack this thread, but I have a similar question.

My mother (who is fairly computer illiterate) is crafty and makes greeting cards from scratch (kind of like scrapbooking). I suggested she try selling them as stock and see what happens. Since she can't be bothered with the computer, I thought about uploading a few to my portfolios (with her consent/release) to see how they do. That should be ok right? If a person can upload someone elses artwork with a release, this would be ok too right?

RT


« Reply #18 on: March 31, 2009, 12:10 »
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That's the theory, but what about Nicemonkey and Iofoto? They are a group and there is only one account.

I think you mean 'monkeybusinessimages' , which is indeed a similar set up to iofoto, it was founded by Cathy Yuelet a british woman who started BananaStock.

« Reply #19 on: March 31, 2009, 17:00 »
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Sort of a related question along the lines of the OP. Are you able to sell images that you have purchased say through an estate auction? I have seen some beautiful medium format negatives go up for sale at estate auctions and have often wondered if they did scan well enough would I be able to sell them (landscapes only of course) or would I only have them for personal use?

No, you cannot  sell these because you do not have a copyright interest in them.  Owning a physical item and obtaining the intellectual property for that item are two discrete and very different things.  Even if the item were in the public domain (because copyright had expired) you still could not claim that your were the copyright owner - which is what most agencies require.  In order to sell the image you would need to have the image licensed to you for that purpose or, preferably, have the copyright assigned or granted to you.

« Reply #20 on: March 31, 2009, 17:03 »
0
Sorry to threaten to hijack this thread, but I have a similar question.

My mother (who is fairly computer illiterate) is crafty and makes greeting cards from scratch (kind of like scrapbooking). I suggested she try selling them as stock and see what happens. Since she can't be bothered with the computer, I thought about uploading a few to my portfolios (with her consent/release) to see how they do. That should be ok right? If a person can upload someone elses artwork with a release, this would be ok too right?

You could do it, but it's not exactly the same as, say, a model release.  For most agencies (who require you to be the copyright holder) You would need an agreement that transferred (assigned) the copyright in your mother's cards to you.

« Reply #21 on: March 31, 2009, 21:14 »
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Directly from the BigStock website, as part of the check off list you agree to each time you upload.

This is a binding legal agreement. I understand that:

Photo MUST be taken by YOU, or artwork created by you personally! You must be the legal owner of copyright to the uploaded file. This is very important.


So even if you had a signed, witnessed, and notarized transfer of copyright agreement, you still would violate the Terms of the Agency

« Reply #22 on: April 01, 2009, 07:26 »
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Directly from the BigStock website, as part of the check off list you agree to each time you upload.

This is a binding legal agreement. I understand that:

Photo MUST be taken by YOU, or artwork created by you personally! You must be the legal owner of copyright to the uploaded file. This is very important.


So even if you had a signed, witnessed, and notarized transfer of copyright agreement, you still would violate the Terms of the Agency

You must be the legal owner of copyright to the uploaded file.

If you enter into contract and purchase the copyright, you are the legal owner of the copyright. It is your image/artwork and is subject only to the terms of said license. This occur everyday in the business world for agencies marketing, selling, and disturbing creative material.

« Reply #23 on: April 01, 2009, 07:39 »
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This is just one example of my licensing contract that I use for marketing images on my website. I use different license depending on the intended use. Every part of the license is negotiable by Assignor and /Assignee!

Licensing Contract to Merchandise Copyright Images


AGREEMENT, entered into as of the ______ day of ____________, 20_____, between ___________________________________________ (hereinafter referred to as the Assignor), located at______________________________________________________________________  and ______________________________________________________(hereinafter referred to as the Assignee)_________________________________________________________________
located at______________________________________________________________________ with respect to the use of a certain art, image, painting, drawing, or photograph created by the Assignor (hereinafter referred to as the Image) for manufactured products (hereinafter referred to as the Licensed Products). 
WHEREAS, the Assignor is a professional Assignor of good standing; and   
WHEREAS, the Assignor has created the image. Assignor wishes to license for purposes of manufacture, sale, and distribution.
WHEREAS, the Assignee wishes to use the Image to create a certain product or products for manufacture and sale; and 
WHEREAS, both parties want to achieve the best possible quality to generate maximum sales; 
NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants,  hereinafter set forth and other valuable consideration, the parties hereto agree as follows: 

1.   Grant of Merchandising Rights.  The Assignor grants to the Assignee the  [ ] exclusive  [ ] nonexclusive right  to use the Image, titled:
______________________________________________________________________ and

described as: ____________________________________________________________________________, which was created and is owned by the Assignor. Assignor shall convey to Assignee the following: the best possible quality duplicate image in the specified format.   ________________________________________________________________
for manufacture, distribution, and sale by the Assignee and for the following period of time: ____________________________________________________________________. 

   2. Ownership of Copyright.  The Assignor shall retain all copyrights in and to the Image.  The Assignee shall identify the Assignor as the creator of the Image on the Licensed Products and shall reproduce thereon a copyright notice for the Assignor which shall include the word Copyright or the symbol for copyright, the Assignors name, and the year date of first publication. 




   Page 2
3. Advance and Royalties. Assignee agrees to pay Assignor a nonrefundable advance in the amount of $___________ upon signing this Agreement, which advance shall be recouped from first royalties due hereunder. Assignee further agrees to pay Assignor a royalty of _______ ( _____ %) percent of the net sales of the Licensed Products. Net Sales as used herein shall mean sales to customers less prepaid freight and credits for lawful and customary volume rebates, actual returns, and allowances. Royalties shall be deemed to accrue when payment has been received from the sale of the Licensed Products.

   4. Payments and Statements of Account. Royalty payments shall be paid monthly on the tenth day of each month commencing __________, 20 ______, and Assignee shall with each payment furnish Assignor with a monthly statement of account showing the kinds and quantities of all Licensed Products sold, the prices received therefore, and all deductions for freight, volume rebates, returns, and allowances. The Assignor shall have the right to terminate this Agreement upon thirty (30) days notice if Assignee fails to make any payment required of it and does not cure this default within said thirty (30) days, whereupon all rights granted herein shall revert immediately to the Assignor.


   5. Inspection of Books and Records. Assignor shall have the right to inspect Assignees books and records concerning sales of the Licensed Products upon prior written notice. 

   6. Samples. Assignee shall give the Assignor _____________ samples of the Licensed Products for the Assignors personal use. The Assignor shall have the right to purchase additional samples of the Licensed Products from the Assignee.

   7. Quality of Reproductions. The Assignor shall have the right to review the quality of the reproduction of the Image on the Licensed Products, and the Assignor agrees not to withhold unreasonable approval. 

   8. Promotion. Assignee shall use its best efforts to promote, distribute, and sell the Licensed Products. 

   9. Reservation of Rights. All rights not specifically transferred by this Agreement are reserved to the Assignor. 

   10. Indemnification. The Assignor shall hold the Assignee harmless from and against any loss, expense, or damage occasioned by any claim, demand, suit, or recovery arising out of the use of the Image for the Licensed Products. 

Page 3
   11. Assignment. Neither party shall assign rights or obligations under this Agreement, except that the Assignor may assign the right to receive money due hereunder.

   12. Nature of Contract. Nothing herein shall be construed to constitute the parties hereto-joint venturers, nor shall any similar relationship be deemed to exist between them. 

   13. Governing Law. This Agreement shall be construed in accordance with the laws of ____________________________;
Assignee consents to the jurisdiction of the courts of ____________________________. 

   14. Addresses.  All notices, demands, payments, royalty payments, and statements shall be sent to the Assignor at the following address: ______________________________________________________________________________
and to the Assignee at: _____________________________________________________________________________. 

   15. Modifications in Writing.  This Agreement constitutes the entire agreement between the parties hereto and shall not be modified, amended, or changed in any way except by a written agreement signed by both parties hereto. 

IN WITNESS WHEREOF, the parties have signed this Agreement as of the date first set forth above. 

Assignor______________________________________      

Assignee_____________________________________
Company Name

By__________________________________________
Authorized Signatory, Title
                                   
                  



Page 4
Addendum Page
Grant of Merchandising Rights.  The Assignor grants to the Assignee the  [ ] exclusive  [ ] nonexclusive right  to use the Image, titled:
______________________________________________________________________ and
described as:______________________________________________________________


« Reply #24 on: April 02, 2009, 09:01 »
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I think you mean 'monkeybusinessimages' , which is indeed a similar set up to iofoto, it was founded by Cathy Yuelet a british woman who started BananaStock.

You're right, as usual. Blame the "monkey".
« Last Edit: April 02, 2009, 09:03 by FlemishDreams »


 

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