WHAT IS A "SECOND SHOOTER"?

What is a “Second Shooter”?

By Loftus Viljoen*

It is common practice for a photographer shooting a big event to have one or more photographers [usually called Second Shooters] to help him [or her, as the case may be] to photograph various segments of the event while he is busy concentrating one the main objective of his brief or commission.

*Being involved in photography for more than 40 years and practising law for more than 30 years [before I retired], having my own businesses and  doing freelance photo journalism and articles for various magazines I do meet many photographers and are involved in quite a number of photography related matters  which gives me a reasonable platform to make the comments and observations below. 

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.



Copyright info for this photo: Model Thuli Mkwananzi; MUA: Nolene Huisamen [Teach me Studios]; Fashion Fettishhh Lingerie; at Gabbato Lodge with Photo Hackers Workshop

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.

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