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Question Art Reproduction - Who owns the digital file ?

Discussion in 'The Grumble' started by echavez123, Dec 18, 2018.

  1. echavez123

    echavez123 MGF, Master Grumble Framer

    We provide an Art Reproduction service, where artwork is reproduced on various mediums including - canvas, fine art paper, printing on metal and other papers. Anyone can take a picture or a scan of the artwork and use that for printing; however, you may not get the results you expect. There is some work and technique applied to correctly color balance and clean up an image so we can obtain the proper result. This results in a digital file that has much more value - this is the file we use for printing.

    In addition to printing, we offer the customer a low resolution jpeg file, suitable for emailing or for marketing on a website. We do not give the full resolution final file to the customer, but on occasion we offer a buyout, ie a premium charge for the full resolution final file - after all, the customer could take this file to anyone for printing, with the benefit of the value we provided to create the file.

    So, after a long-winded procedural explanation - who owns the final full resolution file - the customer, or us?

    Your response is appreciated.
    Ernesto-
     
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  2. snafu

    snafu MGF, Master Grumble Framer

    I think that you would own the full resolution file but you can't print it without the customers permission, if the customer provided it.
     
  3. Joe B

    Joe B SGF, Supreme Grumble Framer

    From what I understand, you cannot reproduce any art or photos that is originally owned by someone else without getting a written OK from the original owner (artist/photographer) - that is called the Copyright Law. It doesn't mater if you did some alterations, or in your opinion, to correct the color balance to the item as long as it is in it original condition.

    I could be wrong so I would sure check with an attorney or look at the Copyright Law. You may be surprised at how long someone owns something that they originally produced.
     
  4. echavez123

    echavez123 MGF, Master Grumble Framer

    Absolutely - I only print for the customer when they request a print. They own the copyright for the artwork. However, the file I created, I believe has added value. So, if a customer wants the full blown hi resolution digital file which I created, I will charge a premium, which I call a "buyout". With this file, the customer is free to take it to someone else for printing or another purpose. Normally, we just store the files for customer reprints.

    The reason I brought this up, is that someone may argue, "you were hired and paid to produce the file needed to reproduce the artwork, and therefore, any derivative made from the artwork belongs to the customer". Occasionally, an artist wants the full file, and I offer it with a premium charge. My logic is that I created a tool (a digital file) to render a reproduction accurately. Therefore, I am selling a tool I created. I tell the artist my policy, and offer to provide a jpeg file suitable for emailing and web display. But, if they want to take the file I created to Kinko's for printing, then I have an issue with this, unless they paid a premium for my work.
     
  5. echavez123

    echavez123 MGF, Master Grumble Framer


    To be clear, these files are used soley to reproduce images/artwork for the customer only. However, I store them in our database for future reprinting.
     
  6. Joe B

    Joe B SGF, Supreme Grumble Framer

    I understand you reasoning but I believe the customer owns the file, he contracted with you to do the work and paid to have you embellish it. My thoughts, and I could be wrong, you were paid for the file and the customer is the owner.
     
    IFGL likes this.
  7. Joe B

    Joe B SGF, Supreme Grumble Framer

    I believe it is acceptable to store but only with the customer's permission. They are still property of the owner of the art and your reproduction, which you did with the owners approval and was paid for, is also the owners property. I was kind of schooled on this by an attorney so I believe I have my facts right but I would speak to an attorney yourself to be sure.
     
    Last edited: Dec 19, 2018
  8. Joe B

    Joe B SGF, Supreme Grumble Framer

    Truthfully, I wouldn't want to keep a file of the art, there could be a liability issue there so check with your insurance company. If you were well paid you did your job, give them the file and send them on their way. When they want to again print them be sure to let the know that your will be more than happy to do it for them for a fee.
     
  9. shayla

    shayla WOW Framer

    Our best local printing guy charges plenty for scans, an hourly rate for photo-editing, around nine cents a square inch for printing, and between nothing and ten bucks for the image file. Used to be ten bucks; now, I think he does it for free if you bring in a device.
     
  10. CB Art & Framing

    CB Art & Framing SGF, Supreme Grumble Framer

    I'm sorry but I don't get the reasoning. This would be like saying any file edited using Photoshop belongs to Photoshop?
     
  11. echavez123

    echavez123 MGF, Master Grumble Framer

    Yes, but what do you get when you pay "nothing to ten bucks for the image file? I give my customers the image file upon request for free, but they get an image suitable for the website or for their portfolio. I do not give them the full resolution, color balanced tiff or psd file.
     
  12. echavez123

    echavez123 MGF, Master Grumble Framer

    Anyone can take a picture of a piece of artwork, right? And when they try to print it at Kinko's or Costco, they get weird color shifts and the artwork does not look like the original. That is why the artists come to us - we are experts in the art of reproduction. There is a technical process which starts with the image capture. Then, post processing in Photoshop, followed by test prints to insure the reproduction is correct. The correct file is the product of machine calibration, image capture technique and critical evaluation. We charge a modest fee to enable our customers to have artwork reproduced. But the assumption is that we will provide their printing service. If they want to have the full benefits of the work we put into the reproduction file, then they pay a premium for this privilege.

    I do not own the copyright to a customer's artwork. I am providing a service for the customer. If the customer wants to take full control of the reproduction process including printing, then I will simply charge a premium for the full resolution master file I created. I am not selling them their "image", I am selling them my added value so they can reproduce the image.
     
  13. prospero

    prospero SPFG, Supreme Picture Framing God

    I've had a similar scenario. A publisher was going to reproduce some of my artwork and originated the work
    on 5x4" transparencies. (It was a while back....). As it transpired we had disagreements so I said forget it and
    would they sell me the trannies. Which they did. I later took them the another publisher. Same applies to digital
    files. It took time and effort to make them therefore they are of value.

    Fair enough. :D
     
  14. David Waldmann

    David Waldmann SGF, Supreme Grumble Framer

    I don't see this as a copyright issue (though there is that aspect as well), but more of a business/pricing issue.

    I would just charge the extra up front for all jobs. By not charging the "full amount" that it's worth you are presumably counting on profit from future printing that may or may not come to pass. By charging what you need for the manipulation it shouldn't matter where it gets printed, and you could charge a lesser (and maybe a more competitive?) rate for printing.
     
    Dave, shayla and CB Art & Framing like this.
  15. framah

    framah PFG, Picture Framing God

    All of the fine art printing services i know of keep the finished file in storage as it just makes sense. The customer is very, very likely to misplace the USB stick or CD and then what... there is no record anywhere. It is easiest for us to keep the file and the customer calls up and says I need 10 more prints and all they have to do is come in and pick them up.

    As for whether they own the file or not, my thinking is that, yes, they do. They paid $85 or more for the process which means I got paid for THAT job. I have never had anyone have me do that and then NOT have me make prints for them.

    If you feel like you want additional money if they ask for the file, then just charge more initially. Don't even offer any discount or anything.... just charge more till you feel comfortable handing it over if they want it. Also, I charge $15 for a CD but nothing if they bring in a USB stick.

    Seriously, you do NOT own anything in this matter. You were hired to do the work and got paid for same.

    It is only the artist who has comprehensive copy rights... you have nothing but a job that you got paid to do.
     
    tedh likes this.
  16. CB Art & Framing

    CB Art & Framing SGF, Supreme Grumble Framer

    Yes, I agree you should charge for your services and expertise, but this is not a copy right issue.
     
  17. echavez123

    echavez123 MGF, Master Grumble Framer

    I posted this topic because I wanted to initiate a discussion on this issue. Thank you everyone for your responses.

    I have been providing this service for years, and customers are very appreciative of the fact that I still have the files needed for reprints. Every once in a while, I run into a problem with an artist, as I have recently. In the old days, I had a similar issue with 4x5 film transparencies - the artist wanted them but did not want to pay a premium. Today, it is a digital file, and yes, I do charge a premium for the full blown file. The customer has always owned the copyright. As Framah pointed out, it makes good sense for most fine art printing services keep the files so they are available as needed.

    As Prospero pointed out with the example of the transparencies, the publisher was the keeper of the film until a buyout occurred. Then Prospero was free to take the trannies elsewhere.
    For me, the bottom line is that I am the "keeper" of the files unless a buyout occurs. The customer always owns the copyright.
     
  18. Rick Granick

    Rick Granick SPFG, Supreme Picture Framing God

    I agree that this is a "payment for services rendered" situation, and not a copyright issue. As others have suggested, it is your skill, expertise, and time that you are selling, not actually the"physical" file.
    The provision of a usable low-res jpeg, and also the storage of the edited file (which entails some cost, risk of loss, etc. on your part) are essentially value-added services that you are offering along with the selling of your skill, expertise, and time. They are "deal sweeteners" to make your services more attractive to potential buyers. Charge what you feel you need to get to make your efforts worthwhile.
    :cool: Rick
     
    CB Art & Framing likes this.
  19. Joe B

    Joe B SGF, Supreme Grumble Framer

    It appears most people are missing the question - "who owns the final full resolution file" - if the customer/artist/photographer paid for the services done by echavez123 then the file is owned by the customer/artist/photographer, in plain words, yes he can reproduce the art photograph if owned by the customer for a fee but the final paid for file belongs to the customer. It may be a copyright issue if echavez123 reproduced a file that was not owned by the customer/artist/photographer without the permission of the person who originate the art or photo. It would even be more of a issue if echavez123 sold the file to a third party because then he is actually making a profit from the sale of property owned by the originator.

    That's the way it was explained to me a while back. I have no reason to believe that is wrong because it was an attorney who told me this. Maybe I misunderstood but I don't believe so.
     
    artfolio likes this.
  20. tedh

    tedh PFG, Picture Framing God

    Many years ago I entered into an agreement with a Chinese artist on Deviant Art. He emailed me a dozen images, and I paid him every time I made a sale. Actually, I paid him in advance, and made draw downs on the balance when I sold one of his prints. Then I advanced him another large payment.

    This system worked really well until the print shop lost my files and I couldn't continue the arrangement.

    I'm still working with this shop, but Ralph's idea got me thinking: why not ask the print shop to store my images, all my images, on a USB stick in their possession? Set up a simple filing system with customers' sticks in envelopes. If the shop has a "head crash" so what? My files are in a separate location.
     
  21. echavez123

    echavez123 MGF, Master Grumble Framer

    The question is ambiguous. Had I asked the question, "who owns the copyright", then it should be clear that the customer owns the copyright. I own the added value. The digital file can only be used on demand for the customer because they own the copyright. As a service provider, we have absolutely no rights to produce the artwork for any other reason. There is no ambiguity on copyright issue.

    The customer did hire us to employ a process utilizing our machines, technology and skill to reproduce the artwork. Just because we used our equipment doesnt mean they are entitled to it. The printers, scanners, monitors, software, computers and files are tools used to render the final product.
     
  22. Joe B

    Joe B SGF, Supreme Grumble Framer

    Check with an attorney. You were paid to do the work. Of course he doesn't own your equipment but you purchased that equipment to do your job which was to help your customer. Since the customer paid you to do the alterations those alterations within that file is now property of the customer...plain an simple...you do not own or have a right to those files unless the customer gives you the authority, and yes, IMO copyright does come into play because you are reproducing the customer's images but with the customer's authority so it is lawful.
     
    Last edited: Dec 20, 2018
  23. DVieau2

    DVieau2 PFG, Picture Framing God

    When I operated the photo business the scan, the print, photo editing and file transfer/storage were four different services and four separate charges. I never considered any of the services to be part of my copyright domain.

    There was one big project where the scan (a cruz scan@ $95.00) and a CD burn (@ $15.00) were done by one repro company. The Photoshop restoration ($125.00) was done by a second company, the big print was done by a third and the coordination and custom frame was done by me (finally $$$$$ for me :) )

    The original's size, the extensive restoration and the Big Canvas print were all beyond my capabilities.

    The original owner of the crumbling painting got it all. I even constructed a casket for the original and charged for that. :)

    Again, I never considered any part of this process to be within my copyright domain.

    IF.... one desired a copyright on the scan and edit I think you would need a written "work for hire" agreement, in writing, that spells everything out.
    https://en.wikipedia.org/wiki/Work_for_hire
     
    Last edited: Dec 20, 2018
  24. Jim Miller

    Jim Miller SPFG, Supreme Picture Framing God

    This seems to be a legal question. Although the opinions here may be well-taken, I doubt that any of us are actually lawyers.

    My suggestion is to pay a lawyer (Maybe $100?) to get a proper legal answer, which might save you considerably more money in legal expenses, just in case the advice you have received here is insufficient.
     
  25. framah

    framah PFG, Picture Framing God

    Also, realize that those customers to whom you have charged "extra" for the file that you think you own, will eventually go to someone else as soon as they call another company and find out that they DON'T charge extra for the file.

    Seriously, it's better overall to just let it go and realize that it will cost you more in the long run to insist that you "own " the final file. They PAID you for exactly THAT service... to create a file of their original for the purpose of future reproduction. The fact that to create that file entails you using digital wizardry as well as many thousands of dollars worth of specialized equipment is irrelevant.
    One of the main things to consider when deciding how much to charge is covering the cost of that equipment and expertise, and THEN a profit.

    Like i posted earlier, if you want to be paid for the file, incorporate it into the overall charge and the customer will never know and you will feel like you got paid. Do not offer the info that they paid for the file, just that if they ASK for it, give it to them.

    You can pretend that you are just being generous, and they can pretend that you are a nice guy.
     
    Kirstie likes this.
  26. wpfay

    wpfay Angry Badger

    When we work on images for a print job, Photoshop/Lightroom stuff, the customer pays for that service up front along with any printing we may do. We keep a copy of the enhanced digital file, and offer them a download at full size onto a travel drive they provide. We do this because that seems to be the default process for most of the businesses in this area that offer those services. It also helps keep us clear of any grey area dealing with intellectual property and copyright law, and we don't feel compelled to pay an attorney for their opinion on the matter.
     
    shayla likes this.
  27. David Waldmann

    David Waldmann SGF, Supreme Grumble Framer

    :D
     
  28. josephforthill

    josephforthill MGF, Master Grumble Framer

    This appears to be a situation where you might start by getting some legal advice, then putting in your work contract who owns what.

    It might be akin to photographers who keep the negatives of the shoot (unless their contract states otherwise), or akin to a project where you retain the notes and sketches, etc. you used during production.

    But my non-attorney feeling is that if they bought the service of having prints made, they get the prints they pay for. If they didn't want to pay for the digital file as well, then you can keep it (or if this is a problem for them, delete the file).
     
  29. JFeig

    JFeig SGF, Supreme Grumble Framer

    OK one and all, I have the answer from an IP attorney.
    • The data file from a person or company that takes your copyrighted art and digitizes and enhances the art for the purposes of making copies is a "derivative" of the original work of art and is copyrighted under the original creator of the art.
    • The person who does the digitizing and enhancement is paid under the auspices of "work for hire". The exception is when there is a specific contract the expressly overrules default rule of "work for hire".
    • So the poster who only gives the client a reduced quality data file has no right to that enhanced file unless he is upfront with that when the customer comes in or via any other means (Ex: website upload site). Contract law is in force for the sales transaction. So the poster cannot charge extra for the data file to be released unless the sales order, invoice, etc. specifically state that..... if you want the primary data file there will be a charge of $xx.xx. That additional charge has to be specifically written in the initial order documents.
     
  30. echavez123

    echavez123 MGF, Master Grumble Framer

    Thank you, you saved me $$$ from having to pay an attorney. May I have the name of the attorney and contact info? This looks like a workable solution.
     
  31. JFeig

    JFeig SGF, Supreme Grumble Framer

  32. IFGL

    IFGL SGF, Supreme Grumble Framer

    This ^^^^^^^^^^^^^^^^^^^^^^^ unless you have fully explained this to the customer in the first place, I am not as familiar with US copyright law as I am UK law but I believe in the USA scanning a painting doesn't give you any additional right's (it does in the UK) so you would probably need a signed document containing your terms and conditions, I have watched enough Judge Judy to know if you do that all will be fine and dandy :).
     
    Joe B likes this.
  33. Daniel Smith

    Daniel Smith Grumbler

    Why not just list what the client gets at different price points? Upfront - and saves them some dollars if they don't want the full sized file while knowing you have it should they later want to purchase it. Your having it on file assures you will have it for future prints - as well as available if they need the higher quality. No copyright worries - and you state upfront the pricing and business relationship.
     
  34. echavez123

    echavez123 MGF, Master Grumble Framer

    Works for me! This will help clarify why and what we are doing.
     
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