Selling copies of commissioned images

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#1
Over the last couple of years i've been lucky enough to have gained a few private commissions for portrait work - mostly horses .... it seems horse owners can't get enough pictures of their four legged friends!! Recently, one of my images formed part of an exhibition at a local arts festival and I was then approached by a lady who saw it and happened to be the former owner of the subject of the image - an equine portrait - asking if she could purchase a copy, as she had never got a "decent" (her word) picture of it while she owned it.

The image was commissioned by the current owner, who bought a canvas print of it.

Do I sell on a copy of the work to the other party if the image was produced as a private commission from the current owner? I retain the copyright.

What would you do? Sell a further copy, or politely point out to the third party that the commissioner of the work has a reasonable expectation of exclusivity and turn down the sale. The sums involved are not huge - I'm just interested in others' take on this issue.
 

Nod

Krispy and Kremey
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Nod (NOT Ethel!!!)
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#3
I would ask the commissioner of the work.
 
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#5
Do you have a waiver for Section 85 of the CDPA 1988? If not you shouldn't even be exhibiting the work, let alone contemplating selling a copy.
Ok ... so just had a thrilling couple of minutes googling this. Do I have permission to exhibit? .... yes I do. I retain that right whenever I do a commission, along with other rights such as the right to enter images in competitions if I choose...... I didn’t know it had an actual name ....

This is a question about whether one would, as a copyright holder, re-sell copies of the work to parties other than the commissioner of the image. Would you/do you?
 
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Glenn
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#8
Common courtesy to ask the commissioner. What would their view be, rightly or wrongly, if they found out somehow? They may feel aggrieved and not book you for the next shoot or not recommend you to someone else.
This for me, even if you're within your rights to sell copies.
 
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Mark
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#9
Ok ... so just had a thrilling couple of minutes googling this. Do I have permission to exhibit? .... yes I do. I retain that right whenever I do a commission, along with other rights such as the right to enter images in competitions if I choose...... I didn’t know it had an actual name ....

This is a question about whether one would, as a copyright holder, re-sell copies of the work to parties other than the commissioner of the image. Would you/do you?

Unless you have a specific waiver for Section 85, all of those rights that you think you had don't exist. The right to not have an image published trumps them all.

So no, I wouldn't sell a copy because I'd be breaking the law.
 
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Peter
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#10
Do you have a waiver for Section 85 of the CDPA 1988? If not you shouldn't even be exhibiting the work, let alone contemplating selling a copy.
Having just read section 85, I wonder how (if at all) this would impact on a home owner commissioning images via an estate agent of a property the home owner wishes to sell?
 
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#11
Having just read section 85, I wonder how (if at all) this would impact on a home owner commissioning images via an estate agent of a property the home owner wishes to sell?
Good question. And what if I decided to show you all a copy of the image in question by putting it on this forum? Would that constitute a breach of section 85? (..... tempted to do it just to see if the world comes to an end ..... )
 
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#12
Having just read section 85, I wonder how (if at all) this would impact on a home owner commissioning images via an estate agent of a property the home owner wishes to sell?

The words 'for private and domestic purposes' make that fairly clear.
 
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Toni
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#14
The question you asked was a sensible one, and good that you did, since you've gained knowledge that may prevent you being sued in the future. As for posting images online causing the apocalypse, well it probably wouldn't at first because no-one who mattered would know, but if you're earning money doing this for others then it might well mean the end of doing something that you obviously are pleased to do.
 
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Richard
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#15
Just tell both parties what the situation is and ask the commissioner if she is happy for you to supply a print to the previous owner — likely she will be delighted that the former owner is keen to have a memento — unless there is bad blood between them in which case you are better off knowing about it.
 
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#16
So you asked a question and didn't like the answer?

Why bother to ask in the first place?
Oh dear .... no need to get tetchy about it! I asked out of interest. For the record, I have not (and have no intention of) selling a copy of the image. This was simply intended to raise a theoretical discussion and find out the views of other photographers on a matter of interest.
 
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Rob
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#17
Oh dear .... no need to get tetchy about it! I asked out of interest. For the record, I have not (and have no intention of) selling a copy of the image. This was simply intended to raise a theoretical discussion and find out the views of other photographers on a matter of interest.
To be fair to @DemiLion he’s given you quite sound advice highlighting a law you were unaware of (and potentially saving you from being sued). We are quite lucky to have someone like this on the forum give to sound factual advice rather an opinion.

To me CDPA section 85 is pretty clear for cases where you have been commissioned by a client for their private use you can’t sell it to others or exhibit that image in public displays.

https://www.legislation.gov.uk/ukpga/1988/48/section/85

The discussion may have been theoretical but the whole point of the post was whether it was possible to sell the image or not. Other photographers views don’t really matter once someone with knowledge of a specific law and the business aspect of photography comes along willing to share that knowledge. They pretty much trump anyone else’s own view/opinion because they have factual law rather than a personal opinion. Personally I would rather take advice from advice from someone like @DemiLion than using the opinion of someone like me who would be guessing.

There was no need for this response to @DemiLion when he was trying to help you. It’s responses like this that they may be unlikely to help others in the future if this is the response they get.

There is business section on here that you may be worth you looking at if you’re doing photography as a business. There are plenty of helpful people in there to give you sound advice.


Just tell both parties what the situation is and ask the commissioner if she is happy for you to supply a print to the previous owner — likely she will be delighted that the former owner is keen to have a memento — unless there is bad blood between them in which case you are better off knowing about it.
I think you are right most people are quite fair. I would get it in writing to protect myself as it’s likely to be an alteration of the initial contract and law that needs quite a specific waiver.
 
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#19
Just tell both parties what the situation is and ask the commissioner if she is happy for you to supply a print to the previous owner — likely she will be delighted that the former owner is keen to have a memento — unless there is bad blood between them in which case you are better off knowing about it.

That's a good plan but I'd just approach the original commissioner in the first place. If there is a problem between the two (not hugely unusual in the horse world) it would only make the situation worse if the previous owner knew that the current owner had blocked the sale.
 
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