For freelance photographers used to licensing their photos, it’s always a shock to come across an editorial stock photography buyer who thinks that payment for a photo covers both present and future use. Unless a work-for-hire agreement is arranged in writing between the photo buyer and the photographer, payment for the use of a photo is for one-time rights only.
The 1976 revision of the Copyright Law, enacted into law in 1978, addressed this very point. Before 1978, it was assumed that the publisher (the buyer) owned the photo. The 1978 law declares that the photographer retains all rights to the photo unless it is otherwise stated in writing. In other words, unless a buyer gets you to actually sign a piece of paper that says the publisher owns the rights to the photo, any court of law will assume the photo belongs to the creator of that photo. It is illegal for a publisher to re-use a photo without your permission.
Some publishers are unaware of this work-for-hire provision of the Copyright Law. As a freelancer, you might encounter a clash with a publisher who assumes he can retain all rights to your photo. In the Digital Age, publishers are even more covetous of all rights — even of previously published photos. Here are some demands from publishers that you might encounter and some responses to offer:
Publisher: We want to retain all rights to the photos on this assignment.
You: My profits come from the re-sale of the photos in my file. After you have published the photos, they will go into my stock file. If you want to own further rights to those photos, we will have to work out an agreement as to which rights you want. The fee would be substantially higher than the contract we have presently worked out. Right now, you are buying one-time rights only.
Publisher: We need to retain rights to the photo because we want to be able to publish it elsewhere on the Web.
You: And I also need to retain those rights for Web publication.
Publisher: We need to have retroactive electronic rights for all the photos you have previously produced for us.
You: That would be a publisher’s dream. I would never sign a contract that says you own all of my pictures previously published with you. I licensed those pictures to you according to the prevailing agreements in the industry; in other words, for one-time use only. The Copyright Law says that unless I have signed a statement to the contrary, the photos belong to me, not to you.
Publisher: Our new contract states that we can publish electronically all of your pictures previously published with us. If you do not sign the contact, we will no longer require your photography services.
You: That is disrespectful of you, to attempt to require me to sign such a contract. I was able to produce those photos on the basis that they would belong in my file to preserve my business. I licensed them to you for one-time use in good faith.
Publisher: We are not asking you for the copyright, only the online rights.
You: You are asking me to give you unlimited usage rights to my photos. There’s no telling how the Digital Age will evolve. Maybe it will be the only way photos are disseminated in the future. These photos are part of my annuity; they are inheritance for my children, and grandchildren. Apart from that, to assign online rights to you would be inviting you to be in direct competition with me.
Publisher: We are dealing only with online permission here.
You: No, you are not. Your contract allows you to re-use and re-publish these and other creative derivative works almost without limit. My compliments to your attorney.
Publisher: We are not making much money from electronic publishing. In fact, we are losing money at present.
You: Some startup publications don’t make money for several years. Some never make money. But the suppliers along the way are paid, nevertheless. Any business startup is a risk, a gamble.
Publisher: Our contract says you are free to sell your photos to any other buyers.
You: I could sell you all rights to this photo for $2,500. But if I sell you this photo for $350, and the contract says I still retain the copyright but you have the right to use this photo any way and as often you wish, virtually an unlimited license, then I have in effect sold you all rights for $350, not $2,500.
Publisher: You get to retain the copyright in your picture and sell it to others.
You: I own the copyright, but you have blanket permission to use it, re-sell it, etc. — for you it’s an unlimited license, which undermines my livelihood, let alone makes my ownership in the photo essentially useless.
Publisher: Read this contract carefully. There are liability claims. We have included an indemnification clause. You will be responsible for legal fees if we are sued by some profit-seeking plaintiff with no case.
You: I’m a professional. That’s why you asked me to do this assignment. You have trust in me that I will do a good job. The liability issue is the risk you take. I’m not going to take on responsibility that is rightly, and historically, yours.
Publisher: We may use one or two of the photos from this assignment, but we expect to own all of the photos that you take.
You: If you’d like full control (ownership) of the photos from this shoot, I can offer you a work-for-hire arrangement, at a fee commensurate with that. Otherwise, I shoot the assignment, and you purchase one-time-use rights of the photos you want to use.
Publisher: What do I have to do to get you to sign this contract?
You: First, make electronic use of a photo payable at the same one-time-use rate as your print use, or pay five times that rate to own (unlimited) electronic rights to a photo. Secondly, I cannot sign a contract that turns over to you, at no additional compensation, electronic rights to all my photos previously published with you.
[tags]photography law, photography advice, copyright[/tags]