The irony is the opponents are in agreement on goals and realize each needs the other to achieve success. What could possibly cause a clash between people with mutual interests? This struggle pits photographers against client. The bounty – ownership.
In the struggle over a photograph’s usage rights, the primary cause is different interpretations of the central issue. It’s not so much a battle over ownership—that’s spelled out in the United States Copyright Law—as it is one for determining how that photo will be used in the future.
Put yourself in the shoes of the photo’s end user. You’ve hired an ad agency or designer to conceive something which informs the world about your company’s product or service. After being consulted to ascertain your specific needs and paying a considerable sum for these creative services, you feel as if you’re entitled to use the art for any purpose you choose for as long as you want. After all, it’s your money.
On the other side of the coin, you’re the photographer hired to shoot the image. Although the ad agency or designer has provided you with a layout, you’ve been chosen for your creative input. Rather than produce an exact rendering of that layout, you’re expected to contribute your talent and expertise to the project to transform the agency’s rough idea into an eye-catching visual and deliver a unique photo. In addition to your fee, you feel as if you’re entitled to ownership of the photo. After all, it’s the product of your hard work.
In the middle, being attacked from both fronts, you are an agency creative or designer. You’ve listened to your client’s wishes and devised a visual concept which you believe will effectively spread the advertiser’s message. You’ve inspected dozens of photographers’ books until you found one with the skills and discerning eye to produce an image sure to appeal to the target audience. But, for all your effort, your agency has no further stake in the image. Shouldn’t you be acknowledged for your contributions? After all, it’s the result of your imagination.
The definition of who has the right to control the image is often in the mind of the beholder. “Copyright is primarily a legal concept, “ explains William R. Gignilliat III, an Atlanta attorney specializing in copyright and other creative-related issues. “ What’s interesting is how on every occasion, the facts and circumstances [of a dispute over usage] involve an end user getting hold of the image and thinking they have rights they don’t and not knowing what they should be doing with it. “
Federal law defines copyright as protection provided to published and unpublished “original works of authorship” (Title 17, U. S. Code), including photography and other creative endeavors. Copyright protection begins from the time the work is created in fixed form, and immediately becomes the possession of the work’s creator. Along with other provisions regarding how the work can be used, Section 106 of the Copyright Act gives the owner of copyright the exclusive right to license the work to others.
A component of the Copyright Act deals with “works made for hire, “ i. e. , where an employer is deemed the owner of copyright. This is where things get murky. The law defines a work for hire as that “prepared by an employee within the scope of his or her employment; or work especially commissioned or ordered for use as a contribution to a collective work. If the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. “ Many of the problems stem from confusion over work for hire.
A good way to avoid a problem, according to Ken Hawkins, who shoots editorial and corporate assignments, is to have the paperwork in order. “Our paperwork states all images are copyrighted prior to publication, and infringement brings full brunt of the law, “ he explains. “Most clients don’t read it, but I send letters out to clients explaining in plain English what can and cannot be done. We also have a letter for new clients wanting to learn about licensing and usage fees. It tells them they don’t need to own copyright, that a deal can be structured to get them exactly what they need. “
The nature of the commercial photography industry exacerbates problems. Photographers by and large are sole proprietors with a strong independent streak. What one shooter feels are appropriate business practices, another believes are unnecessary hindrances to making a living. Without universal standards, definitions vary from shooter to shooters.
“There are set rules, and then there are no set rules, “states Photographer Lynda Green. “One of the problems in our industry is that we don’t have set standards that everyone follows. Figuring out what to charge for usage can be a total nightmare. The art buyers are just as confused. They know the words and terms, but they look at the number and determine if it fits their budget. They hate to have to keep up on how long they have [use of an image] and where they can use it. “
While the situation is far from resolution, Photographer Mark Anderson feels the climate has improved. “A lot of my design and higher-end corporate clients understand what copyright is and appreciate what the photographer is doing, what he brings to the table and how he arrives at prices, “ he explains.
Anderson, President of the local chapter of the Advertising Photographers of America (APA), says budget cuts have fueled new concerns over usage rights. “A few years ago, “ he states, “ there were fewer conversations about usage because the budget was there for photo shoots. Photographers weren’t concerned about the usage they were giving clients. With budgets getting smaller, it became important to price jobs so the photographer could still make money. “
Speaking for the other side, veteran agency Art Buyer Kathy Dalager says, “I’m a huge advocate of photographers’ rights, and at the same time, I do believe in a fair approach. “ Dalager has experience on both sides of the dispute. A former Art Buyer for The Martin Agency in Richmond, Virginia, she serves now in similar capacity with Target Corp. in Minneapolis. Prior to that, she was an agent and photo studio manager.
“ Twenty years ago, “ Dalager continues, “the pendulum was all on the clients’ side, and there were a lot of unfair issues for photographers. Currently, the pendulum has swung too far in favor of photographers. I think it needs to be somewhere in the middle. It doesn’t mean photographers sacrifice anything. The idea is fair compensation for fair work. “
The confusion infiltrates other disciplines. Says Lee Ann Else, President of Signal, a design firm, “ The design community in general knows less about copyright issues than they should in terms of setting up contracts with clients and protecting our rights and the rights of photographers we contract. “
Else says designers are often caught in the struggle between vendor and client, a struggle intensified when ambiguous terms are established. “When a contract doesn’t clearly spell out usage rights for both the design and creative services we purchase, “ she explains, “ the client, being uneducated [about copyright], might infringe on the copyrights of the photographers and/or designers. A photographer’s work might end up in an unrelated piece that has nothing to do with the usage we negotiated. “
On the other hand, Jeff Hipp, Design Director, Melia Design Group, says he’s never, “ had any confusion or conflict. I know it’s the photographer’s intellectual artistic property. As an artist and designer, I understand they have full rights over usage and how it will be used. “
Green says dealing with corporate clients is not only different than ad shops, but also that size matters. “ On a higher end corporate level, you can negotiate usage, but on the lower end, they don’t want to pay usage at all.“ says Green. “ They want to pay a flat fee and be able to use it for whatever purpose they want. “
The one term that photographers never want to hear is “ buyout, “ meaning that the end user client pays for and retains copyright. Because that image may be valuable as stock once the licensing agreement expires, most photographers outright refuse to accept buyouts.
Green says requests for buyouts come from all varieties of clients. “Atlanta is very client driven and that’s part of the problem, “ she explains. “When a bigger client here gets a buyout from a photographer, they think everybody does that and they ask for it the next time. I don’t do that, but if they want a complete usage, we can talk about that. If photographers are accepting buyouts and giving away copyright, it makes it more difficult for everybody else to maintain the copyright scenario. “
“We can construct an agreement and licensing deal any way they need to have it done, “ says Hawkins, “ but if they want to buy the copyright, that costs a lot of money because I don’t sell copyright. Usually a client wants copyright because they’re misinformed. They want to use an image in a number of things from their annual report to collateral to on the web. They think they need to own the copyright to do this, but they don’t—they just need a usage agreement and licensing. “
Registering images for copyright is a simple process. The photographer needs to obtain a visual arts application form from the copyright office in Washington. The form is sent back to the copyright office along with a $30 fee and “deposit material” —a copy of the image. Because the visual arts division is always understaffed, the copyright office encourages photographers to register photos as group works or as a collection.
Hawkins says he gathers a page of slides, places them on a light box and copies the sheet with a digital camera. He transfers the images to a CD, gives it a distinct name or number and sends that to the copyright office. As long as the images are recognizable, any number can be packed on to the disk.
Gignilliat stresses having a registered image is to the photographer’s advantage if an infringement has occurred. The law provides for statutory damages, and double or treble the original license amount is the industry standard of what is customary and usual for photographers. It also provides for return of attorney’s fees and court costs, as well as getting an attorney interested in representing the photographer in the infringement.
Registration, he adds, hastens the settlement process. “If you write a letter to the other side stating the image is registered and they are in violation because they’ve gone beyond the scope of the license and need to pay, they usually do, “ Gignilliat explains. “When it’s unregistered, it’s a real battle because the other side doesn’t have the kind of incentive to settle. They’ll simply try to wait you out. Their view of what an image is worth is always far less than the photographer’s. “
Having paperwork that spells out usage rights is the best method for avoiding problems. There are a number of forms available, as well as books providing examples in photo or bookstores. Or if in doubt, an attorneed, there should be an agreed-upon value if they’re lost as a result of the actions of the end user.
• A credit line acknowledging the photographer unless the custom and usage in that area doesn’t give credit lines.Many feel that a standardized bid or estimating form may be a solution to the problem. Green cites the bid form created for the television commercial production industry by the Association of Independent Commercial Producers (AICP) as worth emulating. Since its introduction, it has been adopted as an industry standard by ad agencies and production companies.
“When AD’s and art buyers get estimates [on the AICP bid form], they’re in the same order and all they have to do is compare apples to apples and not go line by line, “ says Green. “ They know where to find everything. Although organizations like APA and ASMP [the American Society of Media Photographers] have estimating forms, there needs to be one set of standards, one place everybody can go to and look up what all the usage terms mean. “
Though emphasizing photography works differently than the film and video industry, Anderson believes it is possible to develop a standard form. “Art buyers, art directors and designers simply want something that enables them to see where and how the money is being used, so they know they’re getting production values for their dollar, “ he explains.
As a director and director of photography on commercials, Jon Hill is familiar with the AICP form. He says that it’s easy and quick to fill out, and no ad agency will accept a bid without it. But, when he bids for still photography assignments, the task becomes more complex.
“ The problem with still photography is there’s no guideline to go by, “ Hill declares. “It drives me nuts to not have a standard form for bids. It was simpler to bid on a $150, 000 commercial with the AICP form than a $10, 000 or $25, 000 photo job. It gives the agency a great break down. If three or four photographers are bidding on a job, and everybody you’re bidding against is going by the same form, the agency sees what the budget needs to be because everyone will be in the same ballpark. “
Dalager, however, has her doubts as to whether a standard form can be applied to photography. “ Film production is more regimented in many ways, “ she explains. “In photography, you don’t have crews, unions, set prices for talent. All aspects of production are negotiable. “
It’s to everyone’s advantage to negotiate usage at an early point in the project. Anderson says he prefers to talk about usage, when he is estimating the job. “At that point, I like to cover all the bases including the production. “
By and large, both sides of the dispute agree that education on copyright is essential. APA and ASMP regularly hold forums and seminars to keep their members informed on the issues. In terms of educating clients, Anderson says it’s up to the photographer to have the conversation with who ever is handling the negotiation. “Hopefully, that will get relayed to the end user, “ he says.
“Clients don’t know the full story and are always a little confused by it, but we always try to spell out right away what the total usage is going to be,“ says Melia Design’s, Hipp. “ When we contract a photographer, it’s laid out right up front including how much and how long. Once we explain usage to the client, they usually get it and are generally okay with it. It depends how long they’ve been in business. If they’re a start-up, they may not necessarily know the rules. If they’ve been in business a while, they know the rules. “
Else, who teaches a professional practices class at Portfolio Center, speaks to graduating design students about copyright issues. In addition, she says the Atlanta chapter of the American Institute of Graphic Artists (AIGA) recently had copyright infringement as a topic as part of its series of business development lectures. “AIGA national did surveys of what members around the country wanted addressed, and ethics was on that list, “ says Else.
“It’s my suggestion that photographers have an absolute obligation to educate anyone they’re dealing with, “ says Gignilliat. “ When they don’t educate the other side, and when they don’t use delivery memos or license agreements that very carefully spell it out as a tool, they’ve lost a real opportunity. They invite the situation to happen in which someone uses their copyrighted material without their permission or goes beyond the scope they attended. “
The war doesn’t have a foreseeable conclusion. With the economy on a downswing, Dalager feels photographers are being crunched to make concessions they may not normally make in a better market. “ It ebbs and flows, “ she explains, “and what is happening now is not an indication of what’s permanent. What it all comes down to is the value a photographer is bringing. Things are too subjective, and there are no hard and fast rules. It’s all negotiable because it’s art, not a commodity. “