What is a “Second Shooter”?
By Loftus Viljoen*
Lately the issue of second shooters regularly pops up during
discussions and on social media and maybe it is now the opportune time to look
at the actions, rights and duties of Second
Shooters.
The relationship between a client [that is the legal persona who
commissions the shoot – note: the Copyright Act uses the description “commissions” as
the brief or contract for photography and for purposes hereof I will keep to
that expression] and photographer and between the photographer and his
employees is governed by the principles of the Common Law, including the Law of
Contract, as well as by Statutes like Copyright Act, Consumer Protection Act, Employment
legislation etc. Add to these matters like
respect, morals and ethical behaviour.
The Main Photographer uses his business acumen, skills,
experience and expertise to secure a commission by the client to shoot the
event. For this purpose the Main photographer enters into a formal agreement
with the client as to the scope of the commission and which or what photos must
be taken, where and when and obviously the contract price. At some events, like
for example shoot-and-print events,
the Main Photographer may be required to pay an exclusivity fee, and at certain
locations a location fee [which
actually is a copyright licence for the building
release]. In his contract the Main Photographer will cover matters like exclusivity, the Bill of Rights [and more
specifically privacy issues], Copyright [see more of this below], Designs &
Trademarks [where applicable] the location, safety and security etc…etc. He will
make sure that he will have the proper model releases and all other releases
that may be legally required from him. In some of his published photos the Main
photographer may also be required to credit the models, the makeup artists and/or
the fashion designers.
Throughout the world copyright © is a creation of
legislation and South Africa is not an exception. Our Copyright rights and
privileges [as protected throughout the world in terms of the Berne Convention
and other treaties] are governed by the Copyright Act of 1978. In photography terms the following are
important:
Section 1 it says that a ”author”
- in relation to a photograph means the person who is responsible for the
composition of the photograph. So
even though you may be the “author” or photographer it does not mean that you
are the copyright owner – I have seen arrogance amongst photographers who think
whatever they photograph it belongs to them – that is a short sighted approach
and can be dangerous and cost them plenty should they find themselves in any
court proceedings. If you include in your "composition" an item that may infringe somebody else's copyright, trademark or design you as "author" may find yourself cited in legal proceedings as the "infringer". If you want to be a professional photographer you should
know your rights, duties and obligations and make sure you know the relevant
law.
In Section 21 it says “Where a person commissions the taking of a
photograph… and pays or agrees to pay for it in money or money’s worth, and the
work is made in pursuance of that commission, such person shall be the owner of
the copyright”. It goes further to say that if it was done for a newspaper
etc. the newspaper will be the copyright owner or if you are employed by someone the employer will be the copyright owner. Per se a "Second Shooter" will always be in the employ of the Main Photographer.
If you want to use or publish any photos of a client you need to make sure that
you have the licence to do so and that the required copyright licence is
embedded in your photography contract with the client. If you, as Second
Shooter, use the photos that you have
taken for and on behalf of your employer without his explicit consent it
will be regarded that you have stolen from your employer and is criminally
punishable by law. This means you will have a criminal record for theft!
Section 23[1] states: “Copyright shall be infringed by any person,
not being the owner of the copyright, who, without the licence of such owner,
does or causes any other person to do, in the Republic, any act which the owner
has the exclusive right to do or to authorize”
This is the Law and ignorance of the Law is no excuse when
you are accused of copyright theft or infringements, theft from your employer, breach of trust
etc. Due to the above provisions many
Main photographers just assume that their second Shooters/employees knows the
law and therefore do not disclose the full particulars of his contract with the
client.
A Second Shooter, whether he/she is a novice learning from
the Main Photographer or whether he/she is an experienced photographer, has no
rights to any photograph he/she has taken in pursuance to his/her employment
with the Main Photographer. The
Copyright belongs to the Main Photographer or his client [as the case may
be]. In law there is a maxim that says
[translated from Latin]: “Nobody can have more rights to an object than what
the owner has”.
A Second Shoot has no right to self-promote him/herself at
an event/shoot where the Main Photographer is contractually bound to perform –
in fact it is unethical and immoral to pilfer a Main Photographer's
client or prospective clients when you are in his employ. It is morally unacceptable and a breach of trust
for a Second Shooter to dish out his/her business cards at such an event –
whether you like it or not you are infringing on the rights of your Employer. The
Courts are harsh in sentencing when they find an employee guilty of stealing
from their employers or being dishonest to them. The Second Shooter is obliged to refer any enquiries from
a prospective client at such event to the Main Photographer – this is a
standard employee to employer obligation and it is also a legal
obligation.
I have seen Second Shooters posting a portfolio of a shoot
on the internet showing the photos he/she took at the event without
acknowledging the Main Photographer/client as the copyright owner [in other
words he/she has stolen the photos he/she took from his/her employer] or having
the proper copyright licence to do so and secondly fraudulently purport or give
the impression that he/she was the sole shooter at the specific event. First of
all the Second Shooter is not only defrauding his/her employer but is also
“passing on” and misleading/defrauding the public that the shoot was theirs.
Second Shooters, if you are guilty of this type of behaviour your reputation
will be ruined and your business be in tatters. If you do not have a copyright
licence to use and publish any photos [even those that you have taken!!!] you are in trouble.
I had the opportunity to be a Second Shooter for the High School Superstar production in the State theatre, Pretoria on the 16th March 2013 for Deon van Wyk of Out of Africa Photography and although I have taken the above photo the logos of both the production as well as the Main Photographer must appear on the photo if I want to use it for my portfolio or publish it somewhere - this is a limited copyright licence to me as Second Shooter.
When you receive compensation or remuneration or money’s worth [as the Copyright Act says] for
taking photographs you are a professional and you should act accordingly, even
if you are a second Shooter. The best way of sorting out all problems relating
to Second Shooting is to have it in writing and which authorizes you how and
when or where to use the photos. It is astonishing to see how few photographers
use a formal Second Shooter agreement to regulate their rights and obligations,
especially the copyright licence of what to use and how to use it. There is, in my opinion, also a duty by the
Main photographer [in the absence of a written formal Second Shooter agreement],
to inform the second shooter who owner will be of the copyright involved with the
shoot, however, my advice to Second Shooters is not to take a chance - get a written copyright licence.
Even as Second Shooter you need to know the principles of copyright, what pictures to take and make sure that you do not infringement any copyright. You need to now what copyright information you should disclose with your photo - for the Fashion Shoot photo above the copyright licence required all photographers to disclose the name of the model, the makeup artist, the fashion designer, the location and the "Workshop"details.
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| Copyright info for this photo: Model Thuli Mkwananzi; MUA: Nolene Huisamen [Teach me Studios]; Fashion Fettishhh Lingerie; at Gabbato Lodge with Photo Hackers Workshop |
Copyright falls under Immaterial Property rights and is
capable of being sold or transferred by the legal copyright owner. To protect
their copyright and other rights I have seen many professional photographers
when employing Second shooters is that they supply the memory cards to the
Second Shooters and after every 30 minutes or so download the memory card onto
a laptop or similar device and format the cards before giving it back to the
second Shooter, or they simply download the Second Shooter’s cards onto the
device and then format it. This is a very popular practice at shoot-and-print
events, but in the end the Second Shoot has a duty of care and diligence, bona
fides, honesty, loyalty and integrity
towards his/her Employer.
The reason why a Second Shooter would normally agree to act
as a second shooter is to gain experience in a certain genre of photography and
to obtain the right to use some of the photos he/she has taken during the shoot
to build their portfolio, even although those images belongs to the Main
Photographer as I have described earlier.
If you have not specifically made it a term or condition of your
agreement you would not have a leg to stand on in court – you should include
this in your Second Shooter agreement and make sure that you have the proper written
licences to publish the photos. In conclusion I will strongly advise photographers to have properly drafted Second Shooter agreements by their lawyers to stipulate the rights, duties and obligations of the parties.
Lastly remember you, as second shooter, cannot have more rights to a photo [even if you have taken it] than your employer i.e. the Main Photographer or the Client. For example if there is a limitation on the Main Photographer that ony certain photos may be used you, as Second Shooter will have the same limitations. I have shot a series of photos with a well-known singer and of the 50 photos I have taken I am allowed only to publish 5 of them - what do I with the rest? I have to discard them as they cannot be published.
©2013 Loftus Viljoen
