PHOTOS, PHOTOS, WHO OWNS THE PHOTOS?
by Tom Rankin, APR
In recent years, a growing number of freelance photographers have taken up the cause of minority rights--their own--by claiming copyright ownership of all their photos. This often comes as an unpleasant surprise to the unwary marketer who blithely tries to use the shot from last year's direct mail in this year's brochure only to be informed by the photographer that he must pay a hefty usage fee for that privilege. It gets even stickier if said photo is to be used with a press release and the photographer not only insists on his usage fee, but exorbitant fees to make quantity prints, and a photo credit in every publication that uses it.
Is this legal, you ask? Can these guys really do this? The answer, in short, is "you bet your bippy." If you have not clarified terms up front with a photographer, or any other creative, for that matter, then they do indeed own the fruits of their labor and can charge whatever they like.
It's all nicely spelled out in the Copyright Act of 1976 (found in Title 17, US Code, Section 100) and while I am not an attorney and would not presume to offer legal advice (or even pretend to understand such weighty matters without benefit of counsel) I have bumped up against this particular nettle enough times to know whereof I speak. According to the Act, any original creative work is protected from the moment it assumes tangible form. An author (or creator) does not have to register his copyright, nor does the work have to display that little circular "c." Protection is automatic and exists from the moment of inception. Registering the copyright with the U.S. Copyright office and displaying the little "c" only serves public notice of the copyright; it does nothing to enhance or even legitimize it.
So, what's a body to do? Must you submit meekly to highway robbery? Don't you have any rights? After all, aren't we talking about stuff you've already bought and paid for? The answer, again, is a resounding "yes," but only if you have acted with foresight.
That same Copyright Act includes a provision for "work made for hire." Under this provision, copyright ownership for certain kinds of original work is granted not to those who actually do the work, but to those who employ or commission them. Thus, if an employee of your company writes a user's manual for one of your products as part of his or her job, the company, not that individual, owns the copyright for the manual. The same provision can apply to outside contractors, such as photographers, providing both parties sign a Work for Hire Agreement in advance.
Issues of legality aside, however, what's fair here? Is the use of such an agreement somehow cheating? Are you playing the big corporate Nabob and beating the little independent photographer out of his just rewards? I, for one, don't think so. In fact, I rather think the opposite is the case, that too many honest marketers are being taken advantage of by unscrupulous freelancers because of a legal technicality. These guys either don't know what constitutes fair play in the MarCom game, or don't think the rules should apply to them.
I'm not against creativity, or against being paid handsomely for it. But the fact of the matter is the Copyright Act applies to all original works, not just photography. The copywriter who writes the brochure, and the artist who designs it are equally entitled to copyright protection. Yet most never claim it. Advertising and PR agencies that produce such works for clients every day don't claim it (with rare exceptions). Why? Not because we are not entitled to, but simply because what we do, and what the photographer does when he works at our direction, is implicitly "work made for hire," whether or not we have a legal agreement in place to define it as such. That's what our clients hire us to do, and to pretend otherwise strikes me as being more than a tad hypocritical.
If our friend the photographer goes out on his or her own and takes a most wonderful photo, or happens to capture a most horrific scene, then let all the rewards the market will allow shower upon that person and let all the credit for that work, legal and otherwise, be enshrined forever with his or her name. But if that same photographer shoots your product for your brochure, at your (our) direction and expense, I think you own that photo and should be able to use it however you will. And that's what the law says is right and fair, provided you both agree to it in advance.
Now, it just so happens that I once paid an attorney a hefty fee (on a work for hire basis) to draft such an agreement for use with our vendors. Whenever we use a new vendor (especially photographers, whom we tend to hire for location shots around the country) we have them sign this agreement and stipulate that they send along all their negatives and color chromes when they submit their prints. This not only eliminates those nasty usage fees and the surprise copyright stickers on the back of prints (which stop reproduction services dead in their tracks) but it also gives the photographer the opportunity to set his or her fee accordingly before the work is commissioned.
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