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Comment by baldgeek | Hacker News Reader

When I got married (20+ years ago), my dad painted (oil panting on canvas) of our engagement photo that our photographer took, and wanted to display it at our wedding reception. I asked our photographer at the time if it was ok, and he mentioned that his painting was considered "deriavitive work", so that he wasn't violating his copyright. Yea, I get he's not a lawyer, and this is just a single instance, but I hope the outcome for Kat Von D, especially since she didn't get paid for the tattoo comes out the same.

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That's not how it works. The copyright holder (the photographer your case) has exclusive rights to produce works that are 'derivative' of the original. So your Dad would likely be in violation of copyright law without permission of the photographer. Now one could argue your Dad's painting was fair use on the grounds that it was 'transformative'. But given case law as I understand it (IANAL), that would be unlikely to hold up on court. That said practically it seems unlikely the photographer would sue given the likely market for your wedding photo...

As far as I understand it, Derivative work is not exactly protected. The default is infringement, you have to prove to a judge that your derivative work is defensible because of some argument or the other (Fair use being one set of them).

> especially since she didn't get paid for the tattoo comes out the same.

If she paid forward every bit of money flowing too her due to social media attention decided by the share of engagement derived from the photo, the artist would be Extremely happy and the case would be over.

These days attention is money, and this already gave her a ton of attention, not it’s giving her even more.

Reasonably sure YOU PAYING a photographer for a photo of YOUR engagement would give you the copyright...

Emphasis on the important parts there, feel free to correct if I got one of them wrong.

You often don’t get the copyright to the photographers take of you, even if you are paying them. It depends on the contract you sign. I won’t hire photographers who won’t give me rights to the photos at the end. This has been an issue with a surprising number of them.

I don't know how common this is nowadays, but I'm pretty sure it used to be fairly common for wedding photographers to retain the copyright to all the photographs they take (even when you are paying them).

Often they would not share the negatives or full resolution images. That way if you decide you want enlargements, more prints, whatever, you have no choice but to buy them from the original photographer.

BTW, in the above scenario it's highly advisable to get whatever pictures you want soon after the event. No telling how good your photographer's backup practices are, or whether the basement where they keep all the negatives will get flooded..

This feels more like shady practice than anything founded in copyright...

Copyright on commisioned works is pretty clear and I'm pretty sure you would have to explicitly sign over your rights in that case.

I think its more a matter of the photographer not knowing the law or knowing you are unlikely to take then to court regarding it.

The photographer absolutely owns the rights to these images by default unless waiving them contractually and will win handily when you reproduce them without said rights.

So I looked into this more and again is not universally true.

The modern trend seems to be to follow the US law on this which is what you say but many signatories of the Berne convention in fact haven't changed their copyright law and commisioned works, specifically photographs, automatically belong to the commissioner in many jurisdictions.

Check your local laws.

I'm not going to go into much more but privacy protection laws likely apply here as well so that even if the photographer still owns the copyright they may not be able to make use of it since it contains your likeness,once again check your local laws.

I'm also reasonably sure it would be pretty hotly contested in an actual legal battle who owns the copyright to such works. There is most certianly prior cases regarding unfair license terms being removed or amended in contracts pertaining to copyright and this seems like one of those cases.

I standby my statement that the photographer is being shady and is assuming you won't take them to court over this.

Hacker News' hosting, YC, LLC, and myself are based in the United States.

One can obviously cherry pick a legal jurisdiction where the law is however they want it to appear.

The same applied to the us before and I would absolutely argue what I said is in the spirit of the law.

Also Hackernews has audiences from all over the globe.

Regarding the initial point I made. Even if the commenter didn't own the copyright, they absolutely would have an implicit license to have their father paint a picture of the photograph and wouldn't have needed to see the photographers permission.

Also every legal system looks at international laws to determine how a law is to be interpreted. There's a ton that goes into anything so take it all with a grain of salt but I'd be very very confident that should the photographer even have tried to claim damages or gotten any recourse legally in this instance they wouldn't have any legal footing to stand on.

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