« on: August 10, 2014, 09:54 AM »
The problem is that we are a bunch of engineers trying to define art.
Lots of art students spend many years studying this (paid by the government in a lot of places in the world) and none of them know either. (I have spent many hours listening to pretty girls who study art tell me all about it while I study 'natural art')
In the building trade, the problem is 'gentleman's agreements' all the time. If I draw the plans, I keep the copyright, if I design a unique (for example) timber floor artistic pattern which I simply ask "how about this?" and do then do the job, it's not clear. If I had said: "I'll design a custom flooring system" and drawn it up and the client signed that he had selected my design, then I keep it. Even if I was paid for the time I drew it, that's simply the cost of using my design.
However, the question is: did he make the overall finish by choosing the design, or did I design floor to make the overall finish?
Maybe consider the case of someone hanging a Picasso on the wall and that made the room look good. Who is the artist if the room is considered the artwork?
In the case of the holiday photo, if the person asking did not expect the person taking to do any more than just point and shoot (i.e. an amateur under instruction) then the tourist owns the picture. If the tourist asks a professional thinking that he/she is an amateur, then the professional can
a: take the photo and say nothing
b: first warn the people that this is his job and his work is copyright (kind of like if you ask a signed recording artist to play happy birthday and want to record it).
If the professional says nothing and then claims the photo, the tourist could claim that the photographer had the camera under false pretences and that would open up another can of worms.
If there is an accidental historic photobomb, the professional could claim the photo, but the tourist could countersue for lost revenue that the camera was borrowed under false pretences and the tourist could have made the shot and got the royalties.
That's my opinion.
Oh, and as for hobbyists: a lot of that comes back to licencing and liability. You can ask old Jim how to build a shed and he is not licenced to charge for his information, and if it falls down that was your fault. If you ask me, I can charge for it and I have to pay insurance because you can sue me if I told you wrong information.
A professional photographer would be one who could be reasonably expected to charge for such a service. e.g. has a history of working as such, has a lot of images sold under copyright etc.