BetterPhoto Q&A
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Photography Question 
Marina K
 

Photographer Assistant


I am wedding photographer in the process of hiring an assistant . How do you handle a copyright and use of photographs? Who is the owner of the copyright? Can your assitant use photographs from the wedding? In private portfolio, in public ? website, some ads? How do you restrict it?

Please, describe how you handle this situation.


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11/6/2006 10:29:12 AM

 
Mark Feldstein
BetterPhoto Member Since: 3/17/2005
  Well, you could let them push the shutter release with you when you push the shutter release. But in reality, and whether it's fortunate or not, asssitants generally don't hold any right, title or interest in the copyright held by the photographer they work for. This applies whether they're shooting weddings, commercial work, or anything else for that matter.

As to commercial work, when I use an assistant (usually one who's an associate member of our local ASMP chapter) if they ask for a copy of a photograph they assisted on, then I allow them to do that so long as they specifically agree, in writing, that they will not in any way represent that they hold the copyright to the image and that any byline include my name as photographer and XYZ as assistant.

That applies to their web site, print media (say an article about them in a home town paper) or portfolio use. They may not use the ads for commercial purposes and certainly may not be paid for use of the image.

As ASMP associate members, they know the value of the copyright and if they're afforded that privilege by me or other photographers they work for and happen to abuse it in any way well.... let's just say it ain't pretty.

The problem you have Marina, is controlling whether the assistant will use the image for self-promotion and take credit for the work themselves, or whether they'll just say they assistant you in making the photograph but didn't record the image. That's an issue of trust between you and your assistant. In my view, in the wedding biz, I think opening the door to that potential for abuse is an unnecessarily risky proposition for you and for some assistants, too great a temptation. So, in your particular end of the trade, I wouldn't go there.
The restriction, of course, is not to allow them access to media that they can duplicate for their own use.

To avoid the whole problem (or potential for it) I'd make it clear to anyone assisting you BEFORE they actually sign on to do the gig and in writing, that they are being compensated as assistants; that they don't control the manner the work is performed but do so under your instruction; that you will report their annual earnings with you on a 1099 misc. income form; and (1) that they hold no right title or interest in the work created by your relationship; and (2) they may not, in any way, duplicate the work you create for any purpose, including, without limitation, for purposes of commercial or non-commercial self-promotion.

If that kind of wording or agreement scares them away, you either need to find another assistant to work with who acknowledges the work and the value of your offering to let them assist you or find another assistant. ;>)

Take it light.
Mark


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11/6/2006 1:00:34 PM

 
Sharon  Day
BetterPhoto Member Since: 6/27/2004
  Ok, I know nothing regarding this type of situation. With that said what I would suggest is providing the assistant the camera and film/digital media then after the shoot naturally it would be returned to you for processing. The assistant wouldn't have any way to duplicate any of the photos.

Mark always has sound advice, but it surprises me anyone is able to find an assistant under those terms. While I wouldn't mind giving the credit to the photographer and listing myself as the assistant I wouldn't like to give up copyright of a photo I took. If the pay is right I guess I could work around that ;)!


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11/6/2006 1:58:20 PM

 
Mark Feldstein
BetterPhoto Member Since: 3/17/2005
  Well, I don't know if it's quite as sound as the "I can be bought" philosophy, LOL !!! but it seems to work when your assistants are willing to be as professional as the photographer and essentially get hired out of the union hall. They also have some degree of training before they can be listed on the local roster and so they're familiar with the scope of their responsibilities and limits as well.

I have to disagree with you though, Sharon. If you're giving assistants access to the camera to shoot what you've been hired to shoot, at that point, they're really no longer assistants by definition, but rather actually photographers and THEY own their own copyright. In theory, the principal or primary photographer can't sell those images or do anything with them without the consent of that additional photographer. That's part and parcel of the copyright law UNLESS of course, it's "work for hire" and that has to be based on a written agreement acknowledging that's what it is.

I think the really important thing when hiring (and I do mean hiring, wherein you pay them) assistants, is to make things clear at the outset before you actually work with them. In that sense I mean be clear on what their responsibilities are, what their obligations are to you, how to dress (I know that sounds dumb but trust me, they sometimes need to know); what the rules are on grazing at the buffet; what your responsibilities might be for teaching; who gets to shoot, copyright and all that; usage rights if any; and pay, particularly how much and when it starts when it's over.

It's amazing how getting this stuff out of the way with someone beforehand really leads to happier, more productive relationships with the folks who help us, whether they need the experience or not.
Whaddya think?
Mark


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11/6/2006 4:02:12 PM

 
Sharon  Day
BetterPhoto Member Since: 6/27/2004
  Mark, I am completely lost. I'm afraid I don't see what difference it makes what equipment the assistant uses as long as they willingly sign the paperwork to be nothing more than an assistant. I just figured if they used the photographer's equipment and returned everything at the end of the shoot there wouldn't be any images for them to try and lay claim to. Told ya I didn't know anything about it ;)! I find these topics interesting. I should just listen in rather than throw in 2 cents worth :o)!


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11/6/2006 5:42:01 PM

 
Mark Feldstein
BetterPhoto Member Since: 3/17/2005
  Well, now you're getting into an area that involves labor law and more specifically, who's providing the tools to do what work as part of which job. The problem is there is a distinction between an independent contractor and an employee. Independent contractors are hired to do a specific job but have the expertise (presumably) on how to do it and use their own tools, materials, etc., to do the work.

With employees, the employer provides the tools and specifically instructs the employee how to do the work to get the results the employer wants. Now, to make it even more complex, most states that I know of (in fact all states that I know of) require employers to have workers comp insurance. For some, that gets to be a really sticky issue and the states can get kind of ugly about enforcing that particular rule especially if someone happens to file for workers comp or unemployment benefits naming the photographer as one of their former employers. YIKES !!!

And...(since I knew you'd ask) if the photographer claims they were independent contractors, then the photographer had best have the paper work on hand to prove that because the presumption (at least under California, New York and Illinois law) is in favor of the individual being an employee (for obvious beneficial reasons to the employee).

And no. I will NOT take this any further than I already have. . Talk to a lawyer in your jurisdiction if you have specific questions about these issues which really can be a trap for the unwary photographer. BTW, this is just one out of a bunch of reasons why I encourage people starting a business, any business, to take at least an intro class in business law so they can start to recognize the issues in some of these things, like unemployment / workers comp, independent contractors work for hire agreements etc.

Photography....it's not just a career....it's an adventure !!!

Take it light.
Mark


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11/6/2006 5:55:45 PM

 
Sharon  Day
BetterPhoto Member Since: 6/27/2004
  Well, it is interesting, but I don't need to talk to an attorney. I never plan to get into portrait work or anything else where I'm not responsible for my own work on my own.

Ideally, if I could make money at photography it would be through stock, specifically nature and wildlife. People do not interest me, but the legal aspect are interesting.

Do you know I opened a fortune cookie a while back and it said I'd make a good attorney LOL! After reading that I knew better than to try and use the lottery numbers ;)!


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11/6/2006 6:07:19 PM

 
Samuel Smith
BetterPhoto Member Since: 1/21/2004
  so there is no honor sharon?well I would gladly become an understudy in that situation without credit just for the knowledge and or training.that is the concept.


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11/6/2006 7:38:23 PM

 
Samuel Smith
BetterPhoto Member Since: 1/21/2004
  so there is no honor sharon?well I would gladly become an understudy in that situation without credit just for the knowledge and or training.that is the concept.


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11/6/2006 7:38:25 PM

 
Sharon  Day
BetterPhoto Member Since: 6/27/2004
  Sam, I'm not sure where honor plays into things, but if I wanted to learn portraiture that would be a good way of going about it providing the photographer didn't mind having to tell the assistant every move to make.


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11/6/2006 7:50:05 PM

 
Samuel Smith
BetterPhoto Member Since: 1/21/2004
  so there is no honor sharon?well I would gladly become an understudy in that situation without credit just for the knowledge and or training.that is the concept.
people like marina should not have to ask such questions and the courts should have no jurisdiction over them.very clear.not for review.bs,that person has no rights to anything photographic.no.
so sharon,if someone accompanys you when you take a stock photo,they have a right to submit that same photo for their own personl use as you suggest.
you actually said why else would they be there if not to be able to use those images for their own purposes or not do it at all.hmm.


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11/6/2006 7:53:03 PM

 
Sharon  Day
BetterPhoto Member Since: 6/27/2004
  Whatever you say, Sam.


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11/6/2006 8:36:04 PM

 
Mark Feldstein
BetterPhoto Member Since: 3/17/2005
  Reminds me of the ole country classic:
"Mama, don't let your babies grow up to be lawyers. Lettem be doctors and photographers and such."

Atta girl Sharon. Do stock. You're absolutely right.

Speaking of doctors, did you guys hear about the ear, nose and throat doctor who decided to go into proctology? He was tired of people burping in his face all the time. :>0)
Ba dah boom ba dah bing!!!
M.


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11/6/2006 8:53:30 PM

 
Jerry Frazier   Warning: I have a fairly strong personal opinion on this.

If we, as photographers, feel that it is our right to own copyright by virtue of pressing the shutter, which most of us do, then why do we take that away from other photographers? Okay, that's kind of the basis for how I feel. I let all my assistants use any pic's they take at a wedding. They cannot sell them, but they can enter into contests, put them on their websites, create portfolio's, etc. The only thing I request verbally, is that they give me a call before the put something out there. The reason is in case I have a similar image from the same wedding in the same market. Other than that, I couldn't give two farts about the issue.

There are Work For Hire agreements that some around here use for their assistants. But, I feel that those are poop. These people that make their assistants sign those are using slave labor, IMO. An assistant, on average here, gets about $300 to $500 per day, DOE. That's not really full compensation for their work. Therefore, you have to compensate them some other way.

Anyway, my thoughts. Not that Mark is wrong. But, I am a wedding photographer, in the trenches, doing this day in and day out.


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11/7/2006 4:50:05 AM

 
Samuel Smith
BetterPhoto Member Since: 1/21/2004
  not a personal attack sharon.i was just saying that if your hired,getting paid by someone,that you would even think you have a right to that work.
I agree that with permission,that person may use them,but have no actual rights to them,as was mentioned here.
honor in general sharon,not you.
fyi,if you hit the enter key twice instead of the spacer bar,shazam,it's like hitting the submit button.
and I have never figured out how a student in medical school decides they want to study a-holes.why not just become a psychologist and study the whole person as one.
sam


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11/7/2006 11:21:01 AM

 
Jerry Frazier   Samuel, if you will take a moment and explain your position, I would appreciate. Why does another photographer have to ask for permission to use a photo they took? It doesn't make any sense. Also, you are assuming that assistants make a fair wage, they do not. Usually the avg is about $300. $100-200 for a beginner, up to $500 for a full-pro. Even at $500, it's a complete rip off for a days work, considering the main is getting paid thousands.

Anyway, if I snap, I keep and use.

I expect all photographers to respect eachothers copyrights.

But, then again, I am a rare case that actually 2nd shoots, and doesn't follow the main photog around. I get alternative shots and allow the main to do their job, while I do mine. So, our shots are different enough and have their own merit.


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11/7/2006 1:02:45 PM

 
Samuel Smith
BetterPhoto Member Since: 1/21/2004
  hey jerry,
if I was to hire an assistant I would make it very clear that I retain the rights to all images.because I went out,got the job and I invested in the equipment.
now if I knew I needed a second photograper to help me shoot a wedding or whatever,then surely since I was depending on their expertise,would allow them all the rights to the photos he/she shoots.
to me an assistant is someone who is still learning and needs guidance/instruction.
a 2nd photographer knows what they're doing and should be entitled to their work.
hire as such and compensate as such.
sounds fair to me,sam


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11/7/2006 1:38:33 PM

 
Jerry Frazier   Thanks for the clarification. I was confusing a 2nd shooter with an assistant because I call them the same thing. Since going digital, I have no need for an assitant. Although, I have recently been having fun with lights. An assistant could be handy during the reception.


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11/7/2006 3:18:51 PM

 
Sharon  Day
BetterPhoto Member Since: 6/27/2004
  Sam, you explained what I was thinking better than I could. I would define an assistant as someone learning and needing guidance as well. I have to agree with Jerry if the 2nd shooter is an experienced pro they should be paid as such, BUT I don't want to rile anyone because I do not photograph people for a living and really know nothing about it so it's just an uneducated opinion on my part :o)! If I were the one doing it full time and making a living from it I might think differently. I need my own quote. Mark already has, "take it light" LOL.


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11/7/2006 3:43:20 PM

 
Mark Feldstein
BetterPhoto Member Since: 3/17/2005
  I don't get what all the hub bub is about. Like last night, I mentioned to Sharon: "[I]f you're giving assistants access to the camera to shoot what you've been hired to shoot, at that point, they're really no longer assistants by definition, but rather actually photographers and THEY own their own copyright. . ." (and have the right to use the image as they see fit (within the realm of their shooting agreement with the primary photographer).

Soooooooooooo aren't we actually all in agreement on this issue? Assistants work as assistants, not photographers. Secondary or back-up photographers work as photographers, (ok, so maybe someone has to hold a light pole or move a stand around or something) but they're still paid to shoot as photographers. Paid as a shooter implies more dough than an assistant, of course. And again, all this should be worked out in advance with whomever is assisting or accompanying the primary photographer as a secondary photographer. Right ??

I also agree with Jerry in that I think work for hire agreements are poopy. When AP tried to run those on staff photographers, they almost had a riot on their hands and in their offices, at least in San Francisco. Some brilliant assistant editor came up with that one and tried to enlist the whole company. Didn't work.

Whaddya think?

(Ok Sharon, try this one:)
"Keep in touch. Write if you find work." LOL !!!
Mark


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11/7/2006 6:45:22 PM

 
Justin G.
BetterPhoto Member Since: 7/13/2004
  Shoot the part where I'm confused is where someone said that $500 for a days work is a ripoff! lol. Shoot I'd hump 80 lbs. of equipment all day long for $500. That's a good amount of CASH!!!! lol. And if you think about it, if you're an assistant on the weekends (only 2 days a week), that's roughly $48,000 a year. That ain't bad at all.


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11/7/2006 7:12:59 PM

 
anonymous 
BetterPhoto Member Since: 2/7/2005
  I agree with Jerry...

I think an assistant should be allowed to use the photos that they "pushed the shutter for" in their own portfolios as long as they don't try and sell them.

What is the point of being an assistant if you can't build up a portfolio in the process. Helping out and getting the experience and money is great, but after awhile, you'd get pretty fed up that your porfolio wasn't growing.

Nat


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11/7/2006 8:26:57 PM

 
Samuel Smith
BetterPhoto Member Since: 1/21/2004
  first off mark,
legalities and court rulings aside.i put my equipment in someones hands and say do this,and they say it's their work?
no..
maybe I almost lost a friend in sharon because I spoke of honor.
you can't stand toe to toe with someone and say-i expect this for x amount of dollars,or since you know what your doing you get this amount,and yeah i'll give you the rights to your shots?
don't care for what the courts say or their ruling. bs.
marina,get it in writing.you make the call.but like mark says the lawyers will creep into your life and make it misearable.yeah .
justin,these people are making over 6 figures and still complaining.why not bump that up to 100 pounds.at least you gave yourself a month off.
and an fyi.it does not hurt to be escorted out of a town hall meeting,little frog,big pond.
rile eh.even a pimple on the butt of a hippo can cause problems.
oops,sam


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11/7/2006 9:19:38 PM

 
Sharon  Day
BetterPhoto Member Since: 6/27/2004
  We're good, Sam:)! I just didn't understand how honor played in to things.

Not to beat a dead horse, but I think the photographer can make any demands they want on an assistant and require them sign away their life if they choose (rightly or wrongly). The assistant can either agree to their terms or find other work OR after assisting to gain the experience they can go it on their own. Even though it's not likely to be my experience I still find it interesting.


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11/8/2006 7:45:31 AM

 
Samuel Smith
BetterPhoto Member Since: 1/21/2004
  well sharon,
I work for you and get paid by you.
simple.
yet tomorrow I sue you in court because after the fact I didn't like what I got.
wrong,i just need to take what I got and then,next time,don't do it.
but I am not going to take you to court.
which is basically what you wrote.
the courts have no honor.i do.
sam


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11/8/2006 8:20:08 PM

 
Sharon  Day
BetterPhoto Member Since: 6/27/2004
  Wow, I had no idea I wrote that LOL. I think you misunderstood what I meant, Sam. Put it in quotes so I can explain it. I'm pretty lost about now.


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11/8/2006 9:06:52 PM

 
Samuel Smith
BetterPhoto Member Since: 1/21/2004
  geeez.
(i see black and white)
(the courts see a grey area)
sure I agreed to do the job for a fair pay,until I realized that my employer was getting paid thousands.i am entitled to more.(no)
sam?


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11/9/2006 8:34:55 PM

 
Mark Feldstein
BetterPhoto Member Since: 3/17/2005
  No Sam. In this regard, the courts see black and white (maybe color) as well, but it sure isn't a gray area of law. The reason is the copyright laws. If someone creates an image and its reduced to any tangible means of reproduction, film (including a polaroid), pixels, or electronically THEY own the copyright. Not the guy who hired them (unless there is a written agreement to the contrary), not the lab, not the client, the equipment manufacturer or the guy who supplied the equipment. The guy who pushed the button owns the rights to the image. That's it. Plain and simple. And the purpose of that amendment to the 1976 copyright act, was to prevent precisely these kinds of disputes between individuals. The clarification is in the work for hire agreements, which I hate, btw, among other photographers.

Now, speaking of honor, if one is hired to do a particular job for a particular amount of pay, agreed to in advance, of course, then notwithstanding how much the employer stands to make off employees labor, they've ostensibly got a contract to perform services in exchange for money and unless they agree after-the-fact to modify it, they're both under an affirmative duty to honor their respective obligations to each other.

Insofar as I'm aware, there's not any after-the-fact "we'll modify your pay to a fair rate later if we decide that we're getting a lot of money for this job." That's an equitable argument that fails under contract law. If circumstances change substantially and they weren't contemplated by either employer or employee, then yes, they can modify their agreement after the fact to adapt to the new circumstances. But that's not what's being described here.

No one is being unjustly enriched by performing under the original terms of the agreement, i.e., "I want you to "assist me but you do NOT take photographs at the xyz wedding" and for that I'll pay you abc bucks." OR "I want you to "assist me AND that includes taking photographs at the Widget wedding and I will NOW pay you bigger bucks to do that, and although you own the rights to the photos to do with as you want, the clients are my own and part of my business and I retain the right to sell them the images you take on MY behalf as part of my contract with the Widget family."
And if you agree to that, sign here please.

IMO, I think the fundamental laws that apply here are pretty clear, pretty much in black and white. :>)
Mark


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11/11/2006 10:21:58 AM

 
Raymond H. Kemp
BetterPhoto Member Since: 4/2/2004
  Wow Sam, you won’t believe this, but this is one time (only one mind you) that I agree with Mark. It appears that if you hire someone say an assistant for a wedding job, the assistant would be considered a “contractor” and that would require a work for hire agreement for you to maintain the copyright of the assistant’s work. But if you hire someone as an employee whereby they are working part or full time with you and it is clearly stated as such in their job description that he/she is to take photographs at weddings then that would fall into their “scope of employment” and therefore the employer would typically retain the copyright of the employees work. (Bar Bulletin, November 15, 2004).

Just thought I would jump in with this supporting thought…

Ray


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11/11/2006 11:29:11 AM

 
Samuel Smith
BetterPhoto Member Since: 1/21/2004
  boy marina,i hope you and me have that in the essence of the law.do not allow your assistant to photograph anything.
I am ashamed the courts have such a controlling ruling.
I guess I got lost in a different set of values and morality.my fault.
I never want the courts to decide what's right in my life.
the courts have also decided that suicide is against the law..who they gonna prosecute.
I guess since we can't regulate our own sense of values and honor,a court ruling is necessary?
I missed that class.i have taken note.
sam


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11/11/2006 5:30:42 PM

 
Raymond H. Kemp
BetterPhoto Member Since: 4/2/2004
  Just where is Marina? Not a peep since this whole thread started!

Ray


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11/11/2006 6:46:19 PM

 
Jerry Frazier   Sam, WFH agreements are popular in my area, for this reason. Also, there is a little side issue that I never worry about, but the issue is this...the client signed an agreement with ME to use their images for promotion, advertising, etc. They didn't sign anything saying that my assistant can do that. So, I think it can get into a weird area if something were to happen along those lines. Also, the higher up the food chain you go, the more certain people are into privacy.


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11/11/2006 8:46:12 PM

 
Marina K   I have read all the posts here....looks like everyone has their own way of doing this...I will have to make a decision on my own I guess..


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11/12/2006 8:28:25 AM

 
Mark Feldstein
BetterPhoto Member Since: 3/17/2005
  Well Sam, not to be entirely argumentative here, but I think you've got a misperception on courts and the right of terminally ill, mentally competent adults to receive physician assisted suicide. That issue has been laid to rest, errrr, so-to-speak, by the U.S. Supreme Court twice now and the voters of Oregon and their state law makers have enacted legislation allowing physician assisted suicide.

As to the courts, the flap over this issue began in about 1994 in Seattle in a case called Compassion in Dying v. State of Washington, 850 F.Supp. 1454 (WD Wash. 1994). The U.S. district judge in that case issued an injunction against the State to prohibit them from enforcing a ban against doctor-assisted suicide. The state appealed to the Ninth Circuit where a 3 judge panel reversed the district court and found for the state. A few months later, all of the Ninth Circuit judges reheard the arguments and reversed the 3 judge panel. Judge Reinhardt, writing for a clear majority of the court held: The U.S. Constitution encompasses a liberty interest, found in the 14th Amendment to the U.S. Constitution and combined with the due process clause, that allows terminally ill, mentally competent adults, to chose the time and manner of their death. Compassion in Dying v. State of Washington, 79 F.3d 790 (9th Cir. 1996).

The Supremes overturned that ruling along with one from the 2nd U.S. Court of Appeals in New York in a case called Washington v. Glucksburg., 521 U.S., 702 (1997). In that case, the court said leave it up to the voters. The State of Oregon did, and shortly after the court decision enacted "The Death With Dignity Act [Or. Rev. Statute 127.800, Sec. 1.01(12).

Then in State of Oregon v. Ashcroft, the atty. gen. tried to railroad a ruling through Congress making it a violation for a physician to prescribe narcotics to aid in someones suicide. This, Ashcroft charged, was a violation of the CSA (controlled substances act) 21 U.S.C. Sec. 824(a)(4) (As Amended). Ashcroft claimed that ". . .physician assisted suicide serves no legitimate medical purpose." [66 Fed. Reg.@56.608]. When the administrative decision was challenged again in the Supreme Court, they reversed Ashcroft, citing the Oregon Statute, that under at least Oregon law, there WAS a legitimate medical purpose to physician assisted suicide, [citing reasons], and found that Ashcroft's directive violated the plain language of the CSA and exceeded the scope of his authority.

So Sam, the courts have ruled that there is a liberty interest to physician assisted suicide in states wherein voters enact legislation to that effect and the Supremes have soundly defended that ruling since Glucksburg in 1997.

Just thought I'd mention it buddy.
Take it light.
Mark


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11/12/2006 12:17:46 PM

 
Samuel Smith
BetterPhoto Member Since: 1/21/2004
  many thanks for sharing that,although just a start and one state that recoginizes a persons dignity to pass.a start.
sometimes I think there is a bit of pontification in your responses,and my very close friends often glare at me for openly saying what I think.yet I say it anyway.now they say,can I ask you a question.suuure.and with a smirk on my face I still say what I think.
more than likely it's what you think and know.i thank you for your contributions here.
your preface that parents should have to take a class before having children was an insight.
hope we're ok,sam


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11/12/2006 6:12:49 PM

 
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