This section is from the "Studio Light Incorporating The Aristo Eagle - The Artura Bulletin 1922 " book, by Aristo Motto. Also see Amazon: Studio Light Incorporating The Aristo Eagle - The Artura Bulletin 1922 .
THE question has been asked us recently by several photographers residing in various parts of the country as to whether the negative of a photograph taken for a customer is owned by the photographer or the customer. Our opinion has always been that in the absence of special agreement between the parties to the contrary, such negative is owned by the photographer. Our search, however, has not disclosed a case decided in this country by a court of record in which the point has been directly involved. The rights of photographer and customer as regards the use of the negative appear to have been pretty thoroughly worked out by the courts. A summary of some of the interesting points decided along that line appeared in a series of articles in these columns about two years ago. The question of the bare right of ownership or possession of the negative, that is, as to whether the photographer may properly and safely refuse to grant the customer's request to turn the negative over, is one which evidently has not often been litigated.
There are, however, one or two rather ancient English cases which appear to bear out the opinion stated above, and there are also a few American cases where the point has been mentioned in passing, but has not been directly involved in the decision of the case.
In one of the English cases, decided in 1888, known as Pollard vs. Photographic Company the customer had his photograph taken by a photographer and ordered a certain number of prints in the ordinary way. The photographer proceeded to have some prints put on Christmas post cards which he offered for sale. The Court granted the customer an injunction restraining the photographer from such use of the negatives on the ground that it was a breach of his implied contract with the customer. The court made the following remarks which seemed to admit that the ownership of the negative was in the photographer.
Portrait Film Negative, Artura Print By Frank Scott Clark Detroit, Mich.
"It may be said in the present case the property in the glass negative is in the defendant (the photographer) and that he is only using his own property for a lawful purpose. But it is not a lawful purpose to employ it either in breach of faith or in breach of contract."
In a later American case the court makes careful distinction between the mere right of ownership of the negative and the limitation of the photographer's rights to the use thereof. Marie Jansen, the actress, engaged a well-known New York photographer, to take various photographs of her in stage costume. The photographer copyrighted some of the photographs. The defendant in the case, a publishing company, published one of the copyrighted photographs in its Sunday edition without including the notice of copyright. The court decided that though as a general proposition the right of copyright lay in the subject of the photograph, yet when as in this case, the subject was photographed as a public character, and with the understanding that the photographer could make and sell copies, he alone had the right of copyright.
In discussing the general relationship between photographer and customer the court said: -
"When a person has a negative taken and photograph made, for pay, in the usual course, the work is done for the person so procuring it to be done, and the negative, so far as it is a picture, or capable of producing pictures, of that person, and all photographs so made from it, belong to that person; and neither the artist nor any one else has any right to make pictures from the negative, or to copy the photographs, if not otherwise published, for any one else.
It will be noted that the language last quoted appears at first reading to be contrary to the opinion that the negative is ordinarily owned by the photographer, but we believe the words "so far as it is a picture" are significant, and the court is speaking primarily of the copyright rights in the picture and not of the mere question of ownership of the negative. In none of the cases cited is the right to the possession of the original negative itself involved, and we do not believe the remarks of the courts are really contrary to the proposition enunciated by the earlier English cases that the photographer in the absence of special agreement to the contrary owns the negative though he cannot make any use of it without the customer's consent.
Portrait Film Negative, Artura Print By Frank Scott Clark-Detroit, Mich.
"My New Year deserves a record. I resolve to grow and it's only in a photograph that you can keep me as I am today."