Advance Notes: What do you say to a publisher who assumes the freelance photo they have “purchased” (i.e. “rented”) from you, belongs forever more to them and not to you ? Unless you have signed a work-for-hire arrangement, or have a written agreement signing over all rights, the copyright law says the photo is yours. Here’s information on how to answer that publisher.
Since we have always licensed (“rented”) our photos, it is shocking to us to hear a suggestion from photo buyers that they expect their payment for a photo to represent both present and future use of the photo.
Unless a “work-for-hire” agreement is arranged in writing between the publisher and the stock photographer, payment for the use of a photo is for one-time rights only. (By the way, 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 1970’s law declares 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 an individual freelancer, you might encounter a clash with a publisher who assumes he can retain all rights to your photo. Also, in the Digital Age, publishers more than ever will want to assume all rights –even of previously published photos. Their excuse to capture all rights is that they claim distribution of photos electronically in the Digital Age will present an administrative nightmare to seek out copyright owners 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 as electronic delivery becomes more prevalent.
You: And I also need to retain those rights as electronic delivery becomes more prevalent.
Publisher: We need to have retroactive rights in 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. Those photos were licensed 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.
UNLIMITED USAGE RIGHTS
Publisher: We are not asking you for the copyright, only the on-line rights.
You: You are asking me to give you unlimited usage rights to my photos. These photos are part of my annuity; they are inheritance for my children, and grandchildren. Apart from that, to assign on-line rights to you would be inviting you to be in direct competition with me.
Publisher: We are dealing only with on-line 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 any electronic publishing. In fact, we are losing money at present.
You: Some start-up publications often don’t make money for several years. Some never make money. They go bust. But the suppliers along the way are paid, nevertheless. Any business start-up is a risk, a gamble. There’s no reason that as a publisher you should expect me to contribute to your ventures. If you are looking for contributions, go for venture capital. It will help both of us to stay afloat. If you can’t get the venture capital, your electronic projects evidently aren’t passing muster. But don’t ask me, the freelancer, to be the foundation for your forays into new business trials.
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 $1500. But if I sell to your publication 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 $1500.
Publisher: You get to retain the copyright in your picture and sell it to others.
You: Big deal. 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. That’s 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 three 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.