Monday, October 22, 2012

The Legal Lens: Work For Hire

The Legal Lens
with Samuel Lewis

Q. Last time we discussed contracts generally.  Let’s get into some specifics.  One of the things I’ve noticed is that clients want to use what they’ll call a standard work for hire agreement.  What is a standard work for hire agreement and are they really standard?

A. Standard is a somewhat relative term, and I’ll address that in a moment.  First, let me address the concept of work for hire.

Ordinarily, the person who creates a copyrightable work—e.g., a photograph—owns the copyright.  The precise language under the current Copyright Act may be found in Section 201, and it provides that “Copyright in a work protected [under the Copyright Act] vests initially in the author or authors of the work.”  However, for a “work made for hire,” the employer or “other person for whom the work was prepared is considered the author….”

Under the Copyright Act, there are two ways a work can be considered a “work made for hire.”  One way is for the work to be “prepared by an employee within the scope of his or her employment.”  The other way for the work to be “specially ordered or commission for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.”

Let’s put this into context.  In your case Al, you are a full-time employee at The Miami Herald.  Since creating images for publication by the paper is within the scope of your employment, the images are considered works made for hire, and the Herald—not you—is the author, and therefore the initial owner, of the images.  While the issue is a relatively simple one when dealing with full-time employees, it becomes somewhat more complicated for independent contractors or independent artists who are commissioned for a specific assignment.

In 1989, the concept of work made for hire changed dramatically.  At that time, the U.S. Supreme Court handed down its decision in a case called Community for Creative Non-Violence v. Reid (the decision can be read at  In that case, CCNV entered into an oral agreement with sculptor James Earl Reid to create a statue dramatizing the plight of the homeless.  After Reid was paid for creating the statue, the CCNV filed a copyright registration for the statue.  The dispute over ownership of the copyright in the statue would up in court, and the court, reasoning that the statue was a work made for hire, ruled in favor of CCNV.  Reid appealed, and the appellate court determined that Reid, as an independent contractor, did not qualify as an “employee” under the definition of “work made for hire.”  The U.S. Supreme Court upheld the decision that Reid was not an “employee.”

While the Reid decision includes a lengthy discussion of the history of the work for hire issue, the most relevant discussion for most photographers appears in Section B of the decision.  There, the Supreme Court presents a series of factors to be considered when determining whether a person is an “employee” for purposes of the Copyright Act.  The factors to be considered include “the hiring party’s right to control the manner and means by which the product is accomplished, … the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.”  The Supreme Court also indicated that none of these factors is determinative.

As a result of the Supreme Court’s decision in Reid, the approach to contracting with independent contractors changed somewhat.  The approach has changed, but the effect is the same—the intention behind many “work for hire” agreements is to make the hiring party—not the photographer—the “author” and initial owner of the work, and to generally treat the images as works made for hire.  For a further discussion about this, see my article 5 Tips for Avoiding The Rights Grab (

Q. Are work for hire agreements really standard?

A. They are used frequently, but to call them standard is something of an overstatement.  Personally, whenever someone tells me that there is one approach to law that is “standard,” I tend to look more critically at what they claim is “standard.”  Outside of an employment context, there really is no “standard” approach, and it is really up to the contracting parties to decide what terms will govern the relationship.  Some photographers refuse to give up their copyrights, while others may be willing to do so under certain limited circumstances.  It is not surprising to find companies trying to use work for hire agreements, because it simplifies matters:  if they own the images, they can do what they want with them without having to worry about exceeding the terms of a license agreement or being sued by the photographer.  But there are alternatives that still give companies the rights that they believe they need without giving away ownership.

Samuel Lewis is a Board Certified Intellectual Property law specialist and partner at Feldman Gale, P.A. in Miami, Florida, and a professional photographer who has covered sporting events for more than twenty-five years.  He can be reached at or

Note:  The information appearing in this blog entry is not, nor is it intended to be, legal advice, and should not be construed as such.  Rather, the information is provided solely for educational purposes by providing general information about the law.  This blog is not a substitute for legal advice from an attorney licensed to practice in the state where your business is based or where you live.

Saturday, October 13, 2012

Secrets of Great Portrait Photography: Photographs of the Famous and Infamous

By Al Diaz
Throughout my photojournalism career I have been fortunate to work with many outstanding photographers in South Florida, several of them Pulitzer Prize winners including Brian Smith.  Drawing on their collective experience I’ve been able to work around many tough lighting situations with subjects having very little time.

Now Brian is sharing his 30 years of steller experiences and stories in his new book, 'Secrets of Great Portrait Photography: Photographs of the Famous and Infamous'.

From now on I’ll be using Brian’s book as a reference for those challenging moments and a bit of humor to go with it. If I had to start my career all over again, I would want this book. 

Order Your Book Here
By Brian Smith 
Brian Smith
'Secrets of Great Portrait Photography: Photographs of the Famous and Infamous' coming Fall 2012 from New Riders, an imprint of Peachpit, is a book 30+ years in the making, drawing upon the best lessons learned over the last three decades photographing portraits of the rich and famous, it blends lavish celebrity portraits of a coffee table book with technical how-to insights with a side dish of behind-the-scenes celebrity stories. 

The book is based on a talk that I’ve done everywhere from Brazil to Boise including the last two years at PhotoPlus Expo and WPPI, which takes you though all the stages of a portrait shoot from pre-production planning through posing
your portrait through perfecting your shot in post-production. 

Packed into this 264 page book, loaded with details about my last three decades of portrait photography, each chapter speaks to a different key to successful portrait photography broken down into spreads share the lessons learned from each shoot and details about the shoot itself. 

Featured on the cover of ‘Secrets of Great Portrait Photography’ is a portrait from one of my favorite assignments ever – a Time magazine shoot of Richard Branson on Necker Island in the Caribbean for a story on Virgin Galactic space flights. This book tells the story behind the shoot and all the details about how it came together from planning to production to post. 

Here are the sexy details from my publisher:

Leslie Nielsen: Photographed for Draft magazine

In this sexy, bold, beautiful book, photographer Brian Smith tells the stories behind the photos and lessons learned in 30 years of photographing celebrities and people in all walks of life. Throughout this juicy 264-page guide, you’ll stay inspired by the breathtaking images included of the famous and infamous-Venus and Serena Williams, Gene Hackman, Cindy Crawford, Donald Trump, Bill Gates, Richard Branson, The Bee Gees, Antonio Banderas, Dwayne Wade, Shaquille O’Neal, Anne Hathaway, Ben Stiller, Christopher Walken, Sylvester Stallone, William H. Macy and many more.

You'll get the inside scoop on what goes on at a celebrity photo shoot in this gorgeous guide to making professional portraits. Smith has mastered how to make a meaningful portrait on a magazine's budget and on a celebrity's schedule, which can sometimes be 15 minutes or less. Smith reveals his tips on connecting with people, finding the perfect location, telling a great story through portraiture, getting the ideal pose, capturing emotion and gestures, arranging unique group shots, and lighting the scene just right. You might not be photographing the rich and famous, but after reading Smith's tell-all guide, you'll know how to give everyone who makes their way in front of your camera the star treatment.

“In the course of 30 years, these are all the lessons I wish someone had told me when I got started and all the stuff I wish I learned in college,” says Smith “With every photograph you walk away with a learning experience, and this book is based on those experiences.” Brian Smith
Ms Redd, Cindy Margolis, The Bee Gees

Ellen Hollman
Gene Hackman
Donald Trump, Diago Luna and Dave Barry by Brian Smith
October 13, 2012: EXPOSURE PHOTO EXPO - Toronto - Keynote Speaker

October 16, 2012: PHOTOSHELTER WEBINAR: - 4pm ET "Secrets of Great Portrait Photography"  

October 22, 2012: SECRETS OF GREAT PORTRAIT PHOTOGRAPHY - 6pm SoHo Apple Store, 103 Prince St 

October 23, 2012: APA/EP ADVOCACY DAY - 11:30am-4pm School of Visual Arts - NYC  

October 26, 2012: SECRETS OF GREAT PORTRAIT LIGHTING - 4pm PhotoPlus Expo October 25-27, 2012: 

PHOTOPLUS EXPO NEW YORK – Sony Featured Speaker October 29, 2012:


November 1, 2012: SOUTH FLORIDA CAMERA CLUB - Art Serve - "Secrets of Great Portrait 

November 2, 2012: EXHIBIT OPENING: BOOKS & BOOKS - Coral Gables 7-10PM "Portraits of the Famous and Infamous" 

November 10-11, 2012: APA PHOTO ASSISTANT BASIC TRAINING - Miami 

November 17-18, 2012: MIAMI BOOK FAIR 'Secrets of Great Portrait Photography'

Monday, October 8, 2012

What Makes You Click? Photographer Acey Harper

Photographer Acey Harper in the New York City subway by Sandra Garcia.
By Al Diaz

This week, photographer Acey Harper is opening a solo exhibit in Paris, France of his work with acrobats at the Catherine and André Hug Gallery, (2 Rue de L'Echaudé/40 Rue de Sine). The exhibit of images, from his book, "Private Acts: The Acrobat Sublime", is a fantasy fulfilled.  Harper says, “Many people ask me how I got the book and exhibit. Besides hard work, the answer, quite simply, is that I changed the way I saw and photographed the world.”

Q. With all your collective experience, did the way you approached this subject, change how you preconceive an image? Do you see differently now?

A. Working on this project was so dramatic! I have changed my ways, transformed by unearthly visions: a trio of 25-year-old women, contortionists, bending their bodies into surreal shapes, each mimicking the other, in a silent, synchronized ballet of twisted beauty on the dry, cracked floor of a mile-high desert. I have witnessed two men pressing and balancing their bodies together, creating fulcrums of flesh and power between columns of stone. I stood, almost transfixed, under a pair of aerialists, hanging from the rafters of an abandoned nineteenth-century power plant, one bathed in angelic light pouring through the torn roof above, using all her strength and grace to hold the other in space. I know these visions were real: I photographed them, and they are in this book. As the old hymn says, “I once was blind, but now I see.” And I do see now. Differently. Working with acrobats, aerialists, and contortionists has changed me.

Q. Your background in photography started in photojournalism, tells us about your early experiences in Miami.

A. Al, like you, I learned at the University of Florida. The best classroom I ever had was working at the Independent Florida Alligator, My years and work as a photojournalist and later, a corporate photographer, began right there, took me to the paper in Ft. Myers, and then to Washington, DC for a few years before returning to live in work in Miami. Those were some of the most interesting years of my photojournalism career. Miami was (still, very much is) a great news town. Everything, news-wise, it seems, happened in Florida: Space Shuttle launches, Football Championships, Spring training and a new team called the Marlins. There was big, world-shaking news that often seemed to originate in Florida and usually, right in Miami. There was Mariel and 100,000 people came to Dade County in less than a month, all fleeing Cuba. There were violent riots when juries delivered controversial verdicts. There was music news, the Miami Sound Machine was teaching the world how to Conga and a kid named Vanilla Ice came to town with a back story that unraveled in weeks. I could not escape the drama of news in South Florida even when I tried to move away. The day before closing on my house in Coral Gables, Hurricane Andrew hit, taking five trees out of my yard, busting my roof and the sale of my house. 

Q. What inspired you to do this project?

A. Living just outside of San Francisco and shooting lots of Silicon Valley corporate assignments I felt uneasy, a malaise of creativity. I was not making photos that satisfied me. Then, I was approached to shoot portraits to accompany a book of essays about acrobats. Originally, I saw the acrobats as enticing subjects to photograph. But as I continued to work with them, I soon came to recognize them as partners and collaborators in creating unique images, which are part photography and part performance art. I worked with each acrobat to find his or her own personal stage. I sought a location or background that would complement the lines of their bodies and what they do, as well as conjure a feeling or an image. 

Q. Often, people are unwilling to spend a lot of time posing in front of a camera. Was it like that with any of these performing artists?

A. First, I let them know they had a say in what we were doing. It was collaboration. I sought their feedback and advice. 

Next, both acrobats and photographers are used to working hard and in hardship for our respective crafts, and for this project, we shared the difficulties of bringing our visions to life. Depending on the venue, we rose before dawn, or stood in frigid water, or climbed down jagged rocky crevasses together. We often spent hours rigging equipment in unfamiliar places, or working tricks and poses to get the image we sought. We risked the unwanted attention of gawkers, police, park guards, junkyard dogs, and even a horde of scorpions. As my cover subject, Lauren Herley said, “It’s all just right here, right now.”

Q. So tell us Acey, what makes you click?

A. I am humbled and inspired by what I learned in the process of exploring these acrobat dreams. Many of the performers have said that working on this project—both creating these photos and looking at them afterward—has led them to see themselves and their art in a whole new way. The same is true for me: after thirty years behind the lens as a professional photographer, I feel transformed by the experience of working with these exceptional muses; my vision and my imagination have been liberated, the photographs I am making have more meaning to me personally. Best of all, I am having the most fun of my life!

Q. What’s in the bag?

A. When I began to work on this project, I changed the way I saw and photographed. An important part of that process was changing the tools in my bag. I gave up using zooms, with the exception of the 70-200 2.8, and returned to using what are now called "prime" lenses.

You remember, Al, when we were first shooting film, we carried two or three bodies with a fixed lens on each. Usually, in those days, we all used Nikon and it was a 24 mm, 85 mm and 180mm. 

Zoom Lenses are really great and suited for fast changing situations in photojournalism. Since I want the sharpest image I can get, I use the 35 1.4, 50 1.4, 85 1.8 and put them on two Canon 5D Mark ll bodies. I love those lenses particularly since i am shooting only available light. They are the sharpest, even at low wide-open apertures, which is how I often use them. 

I do not carry a flash and depend on the light meter in the camera bodies.  So, this is my kit:

Two Canon 5D Mark ll (Plan to move to 5D Mark lll)
Canon EF 35mm f1.4
Tripod Leitz Tiltall (had this one since the 70's)
Gitzo monopod (had this one since the 80's)
Really Right Stuff Quick Release mounting plates on Tripod and Monopod and matching Base Plates under each camera and under 70-200 zoom
Extra Canon battery for cameras
Canon Battery Charger
Microfiber lens cloth

Essay One By Acey Harper
She hangs by one hand in what they call a meat hook, an inelegant description of  a beautiful shape, which she does seemingly without thought or care, as you or I would lean against the post below, except that she has climbed that post and using nothing but the lines of her body, expresses with her strength and flexibility, creating twelve divine seconds of perfect form. 

The location is mundane, a street corner on a Sunday morning, not yet 7 AM. Her apparatus is the crosswalk signal. Even at this hour, cars gather, waiting for the stoplight change. When it does she ascends to her platform, an iron support bar. She is not noticed until I have walked into the protected crosswalk, quickly placed tripod and camera, begun my work. It is then that people look, usually from cars passing or the occasional pedestrian. They are baffled at her appearance.

"How do you, " many people ask, "get permission?"

I do not. The soul of these images is the sense of danger or the unexpected. Sometimes the danger is in what they are physically doing, other times it is in the place they are doing it. Usually, it is the two, together. I like that feeling, both within the photo and while creating it. The artist hangs from the light at a crosswalk. I have twelve seconds to get into street, set up tripod and make my image. 

It is a creation of artistry by her, the capturing of it by me, in that short time frame. I am looking for the essence of her as an artist. I am searching for the one moment that encapulates everything she is does. 

Thus, we create, make a photo and run. She did this twice, was on the street less than five minutes, and we were done. The onlookers had barely begun their convergence. We leave the baffled behind.

Essay Two by Acey Harper
She is floating, really. 

It is only a moment but, she is suspended for that briefest instant on the edge of rising, before the falling has begun, his arms having thrown her not carelessly, but easily, into the air above. She has surrendered completely to her body's movement, rising in an elegant, self-made arc that seems to signify an out of body experience, except that she is inhabiting that body more intensely, ten feet over the concrete with no wires, no net and no fear, than most of us do our own while simply walking the sidewalk.

He has a two-part job, give her flight and then save her from injury on her inevitable return downward. But, it is more than that, It is done with panache, so to speak. He is a man who does not just throw a woman heavenward, he gives her the opportunity to make thin air her personal arena, He raises her to the sky and she keeps going, he lets his arms drop, as if to fall into the same revery we are feellng, no longer a part of the theater they can create anywhere - even an alley on a day so cold, tiny snowflakes fell, melting as soon as they touched skin or concrete - but becoming, himself, another observer, distracted by the beauty of her flight. He is not, of course, because it is controlled in miniscule bits of timing between them, he has done this with her so many times he can affect an air of, "What the hell, a woman, floating over my head," his arms and his face portraying a surprise that is false. What is real is this: he will never let her fall, never has, never will. She knows this. 

The moment of floating is over, she reverses and falls rapidly, his arms come up to catch her, even more rapidly, yet done so smoothly, there is barely a sound of the catch. Hardly working, except that he is.

I am captivated by it but do not forget my role as I do what I am there to do, make the photo that says, "Look! Here she is, at the very brink, all control ceded to faith in her partner, herself and her art."

None betrays her.
_______________________________ Private Acts: Take the Journey from Private Acts on Vimeo.
[Private Acts] THE ACROBAT SUBLIME BTS Miguel & Angelo from Private Acts on Vimeo.
[Private Acts] Anna&Sara from Private Acts on Vimeo.
[Private Acts] THE ACROBAT SUBLIME BTS Morgaine Rosenthal from Private Acts on Vimeo.
[Private Acts] THE ACROBAT SUBLIME BTS Lauren Herley from Private Acts on Vimeo.

Tuesday, October 2, 2012

Al’s Think Tank Photo Pirate’s Booty Halloween Contest!

Self portrait using the ioShutter Canon Mark IV camera control from my iPhone while my Canon flash is mounted on a frio hotshoe mount. (NOTE: If all you see is this photo please update your Safari or try a different browser to see contest rules.)
By Al Diaz
Pullin’ into me driveway, I find pirates at the front door! A fine way for the little ones to welcome me to port and get me startin’ on another one of me wife’s crazy adventures. Stepping out of me land lubbers mode of transportation me shipmates quickly inform me that it’s Talk Like a Pirate Day and those who dress in full pirate regalia get a dozen free Donuts at Krispy Kreme!

The scoundrels pull out a pirate’s coat, captain’s hat and eye patch, which I’m forced to put on at the point of a plastic sword.  Embark we must, for a bounty of sugary substance.

Once there, me saucy wench plunders four-dozen “Hot Now” donuts. At once me crew be sailin’ fer homeport.

While on the high seas me first mate asks “Aarrr! What’s going on with this year’s Halloween contest on ye blog me hearty?”

Alas mateys, it be time fer Al’s Think Tank Photo Pirate’s Booty Halloween Contest!

This year’s treasure chest is over-flowing with prizes from Think Tank Photo, Costa Sunglasses and EnlightPhoto while we be spicin’ it up with Don Juan’s Argentinian Steak Sauce plus their trio of new flavors.

Yo ho ho me scurvy dogs, there be ONE rule in this here photography contest, submit a photographic self-portrait of ye in any kind of Halloween costume that suits ye fancy. Judged the winner and ye be the one to plunder the bounty.

Image Specifications: All images must be JPEG files, in RGB mode, measure no more than 600 pixels wide, or 450 pixels deep at 100 dpi. ( I changed the specifications on the measurements to allow for more options.)

Deadline to enter is the witching hour--midnight on Sunday October 28, 2012.
Shipping is free within the Continental US.
Email your entry to:

First place wins:
·     Costa Sunglasses

The Diaz family plunders four-dozen “Hot Now” donuts at Krispy Kreme