Copyright Protections for Photographers
Copyright is the legal concept that once an original expression of a creative process is fixed in a tangible medium, like a photograph on film, that expression belongs to the creator who has the exclusive right to control and authorize its reproduction, distribution, public display, or performance. Copyright is the single greatest protection that any creator of intellectual property has at their disposal. It is what allows us to control the use of, and to profit from, the fruits of our creative efforts and to enforce certain claims against even much larger corporations. Copyright is not intended to stifle the sharing of information, merely to guarantee that the creators of that information have a right to make a decent living. There are plenty of exceptions to copyright protection written into the laws which guarantee the free exchange of information for academics, research, news, teaching, and other legitimate intellectual pursuits.
Articles, photographs, and music on the internet and in other digital formats are all covered by the same copyright protections as more traditional printed, displayed, or performed creative works. Now that the Web has become an open worldwide marketplace, it needs to be moderated by the same controls that guide commerce and advertising in other venues. In a free market economy, the right to buy and sell goods lies with the owners of those goods, not just anyone who happens to find them lying around. For example, when you walk by a grocery store with displays of goods both inside and outside, you know that the outside displays are there to attract your attention with the implication that you should come inside and buy something. They are not implying that you may just take an apple and walk away– that would be stealing. Likewise, by posting copyrighted information on the Web, we are putting it out there with the intention of it being looked at and perhaps purchased, but not stolen.
End-users of copyrighted material have the legal responsibility to obtain permission to use the work before doing so, and this permission is granted with a usage license from the copyright holder. A usage license is merely a simple contract which grants to a certain user the right to use a work in a certain way, in a certain place, for a certain period of time. A license for a photograph should specifically state who the user is, how large the image may be used, how many times, in what specific media format(s), and for how long. Any uses not specifically granted in a license remain with the copyright holder, by law.
With this tremendous power of copyright, however, also comes the responsibility to use it wisely. While work is technically protected from the moment of creation, in order to actively enforce the law, copyright holders must register their works with the Copyright Office. The US Copyright Office is a division of the Library of Congress and, as such, is much less intimidating, and much more helpful, than other government agencies. Registering your work is a simple but vital responsibility to enjoy the right of copyright protection.
There are many great websites where you can look up information about copyright – everything from basic definitions, to how-to-register, to cross-referenced legal precedents. When you have a copyright question, first start by looking at the copyright section of the EP website: www.editorialphoto.com/copyright . Many hours of accumulated experience is written out there for you to browse through, as well as information contributed by legal experts. If you can't find your answers there, then try the Copyright Office's website at: www.loc.gov/copyright .
Photographers Alan, Bob, & Charlene
Photographers All-Rights Alan, Bothers-but-Busy Bob, & Copyright-Savvy Charlene all work in the same city and share a similar mix of clients: both large and small editorial clients, some corporate, some stock sales, and an occasional small advertising gig. All-Rights Alan worries only about where his next assignment is coming from and doesn't care who's paying the bill, how his images are being used, or if they ever make him another dime. He covers himself with the bare minimum paperwork, but works for the day rate that's offered and wonders why he can never quite seem to get a leg up the bills or boost his net income year to year. Bothers-but-Busy Bob understands that his images have value and that residual sales can generate thousands of dollars a year for his business, but he too rushes from day to day, shooting on the fly for his clients so he can cram in more shoots per year. He sells some stock and knows he should register his images with the Copyright Office, but doesn't know where to start with over 25,000 images in his files. Besides, a copyright infringement case won't happen to him as he's not afraid to stand up for himself. Finally, Copyright-Savvy Charlene also understands the value of quality images to her clients and believes that she should be paid fairly based upon their use: just as corporate or advertising uses justify higher fees, so too do multiple or larger uses of editorial images. She owns a modest home, provides for her family, is covered by health and liability insurance, and rewards herself with shooting a personal project at least once a year. She earns a nice bonus income from residual sales, both through reprints and through stock sales, and so she protects that income by registering her copyrights regularly.
Let's look at a couple of hypothetical, but realistic, situations and see how each would fare. As we go through these examples, try to honestly identify yourself and your practices with one of the three. Do any of these situations sound familiar to you?
Example #1
A nationally distributed general interest magazine contacts the photographers for a shoot in their area. The subject is a local amusement park with its family-owned and family-themed entertainment for the magazine's travel section. The story is planned to run 2-3 pages, with two, maybe three photos. The AD offers some criteria, including an environmental portrait of the current owner and his family, and a night shot to show the beautifully lit historic Ferris wheel, as well as a selection of images to show other rides, games, and families enjoying themselves. The day rate offered is $450, plus expenses, with the total budget not to exceed $750. Their contract uses language like "non-exclusive right to publish, reproduce, or distribute. . ." and, "...may exercise, by itself or through third parties, the rights granted herein in any form in which the Works may be published, reproduced, distributed, performed, displayed or transmitted, including by not limited to, electronic and optical versions and in any other media now in existence or hereafter developed, in whole or in part", yet it also clearly states that the photographer retains the right of re-sale to all the images, and claims only "non-exclusive" use.
Alan accepts the offer as is and signs the offered contract. $450 is his standard asking rate for editorial work, so he sees nothing wrong with the terms and therefore barely glances at the contract. In order to get the portrait, the general shots, and the night shot, Alan leaves his office at 7:30am to arrive at 8:00 to set up and shoot the family portrait before the park opens at 10:00. He then shoots throughout the day, takes meal breaks, and stays to shoot the Ferris wheel at dusk, finally arriving back home about 9pm. For his 13 1/2 hour day, Alan bills a $450 day rate, plus $23 each for 12 rolls of E6, plus $15 for meals = $741.
Bob looks up the circulation (1 million) and ad rate ($45K) of the magazine in question and notices that they have a website as well, which sells advertisements. In glancing through the contract, he sees that images may be used on the website, but that he'll still retain the right of resale. He calls the AD back and, citing circulation, ad rate, and web use, asks for $650 but settles for $550. He also asks for a space rate but is told that that isn't the way they do things at National General Interest Monthly as they are paying for the initial photography and should be able to use the images however they want the first time. Still, he will certainly retain the right to re-sell his own images and these should be great general interest stock shots that will probably re-sell several times. Figuring he'll make it up on the stock sales as the client is only claiming "non-exclusive" rights, Bob signs the contract, does the shoot in the same 13 1/2 hours, and bills $550 + F&P + meals = $841.
Charlene also looks up the circulation and ad rate and also carefully reads the contract. She doesn't like the " right to publish, reproduce, or distribute " clause as that might include foreign additions, sister publications, or even reprints to the owner of the amusement park for advertising uses. Yes, she retains her right to re-sell the images, but the magazine also has this right leading to a situation where she could possibly be competing with the magazine for a resale of one of her own images! She calls the AD back and, citing their size and ad rate and all the additional uses, quotes a fee of $1600, with no reprint rights included. When the AD chokes, Charlene asks if they intend to run the story in a sister publication and when told no, she offers to reduce the rate to $1300, with no third party rights. She then asks about the website and is told that must be included. She then offers to reduce the rate further if the magazine will pay her a space rate. In fact, if the magazine is willing to pay her space rates based on how much they like her images, she will take the risk and will gladly shoot for $650 for one-time, N.A., print rights, + $175 for concurrent web use, or roughly half of the original estimate just because the magazine has more specifically defined its needs. The AD asks about archiving on the web and about using the same image twice in print, as in the TOC, and Charlene offers to throw in a one year web archive plus a spot TOC use for another $75, bringing the total to $900, against space. The AD grumbles about Charlene being the only person who's ever had a problem with the contract, but likes Charlene's work and so agrees to the terms. After all, the assignment fee is only several hundred dollars more than originally offered, and archived web use, plus a TOC use, is included. These extra uses will make the AD look good to the editors and will simplify life for the web design team. Charlene signs the amended contract, does the shoot, and bills $900 + F&P + meals = $1191.
Example #2
When the issue of National General Interest Monthly comes out, the story has run larger than anticipated because of the great photos and because the ad department was able to sell several ads to travel companies based on this great story about a family-oriented travel getaway. They have used one full pg. photo, two halves, two quarters, and one spot photo in the TOC. An excerpt from the story also appears on their website with one of the travel companies having bought a small ad on the web as well. Also, a company that builds authentic looking, but safer, faux wooden rollercoasters sees the story, recognizes the park as a client, and wonders if there are any pictures of their recently-installed rollercoaster, even though they didn't run in the story. And lastly, the owner of the amusement park sees his attendance jump 10% in the weeks following the story and wonders if he shouldn't get some copies of the story and mail them out to his target audience in another 6-8 weeks and thereby get another pop in attendance.
Alan gets his tearsheets from the magazine and recognizes that they ran more images than originally intended. Still, he was paid his money and has since shot seven more jobs in the ensuing months. When the rollercoaster company calls him, having gotten his name from the credit in the magazine, and asks about shots of the faux-wood rollercoaster, Alan remembers having those shots but can't find them. Only then does he realize that he sent the best ones to the magazine client and hasn't received them, or any of his shots, back yet. When he tells the caller this, they say, "Oh, well we'll just call the magazine then," and they hang up before Alan can get any contact info. The magazine does what is perfectly within their right and returns Alan's original film, but makes a stock sale to the rollercoaster company for use in a brochure and charges $600 for that use, delivering a digital file made from Alan's originals, and thereby paying for a large portion of the entire original photo shoot. Finally, when the owner of the amusement park calls the magazine to discuss 5,000 reprints for a targeted mailing, the reprint department negotiates a fee which doesn't include paying Alan. Alan's gross billing from the shoot and residuals is: $741 + $0 = $741.
Bob gets his tearsheets and also sees the extra space used by the images, as well as noticing the 3 full page ads from the travel companies spaced within the story itself. He checks the website to see if they used any of his images and sees part of the story reproduced there, as well as the additional ad. He feels a little bitter that the magazine earned an additional $135,000 from placing print ads within the story he shot, plus extra for the web ad, yet he still got paid the same $550. But, Bob's paperwork is in order so he knows to call for the return of his images when they haven't yet showed up several weeks after publication. Therefore, when the rollercoaster company calls for the stock shots, Bob can submit some images and he makes the $600 sale. Yet, when the reprint for the amusement park comes up, Bob is once again left in the dark as the magazine has contracted for "the right to publish, reproduce, or distribute " and so they negotiate reprints that do not include a fee to Bob. Neither Bob nor Alan ever even realize their images were reused. Bob's gross billing is: $841 + $600 = $1441.
Charlene also gets tearsheets and applies the space rates she's negotiated for just such an occurrence: $325 for each 1/4 pg., $520 for each 1/2 pg., and $925 for a full page for a total of $2615; less the original assignment fee of $650+$75 for the re-use in the TOC = $2615 – 725 or an additional $1890 worth of printed space rate due on publication. In return, the magazine has sold $135,000 worth of print ad space. The magazine bought a good deal when they paid just $175 for concurrent web use plus a portion of a small $75 fee for archiving for a year, so they have already easily recouped that $250 fee with a single web ad sale to the travel company, who may even continue their presence throughout the year's archive for additional income for the magazine. Charlene also captures the $600 stock sale for the rollercoaster brochure, and, when the issue of reprints comes up, because she has eliminated reprints and third party rights from the contract, she is called by the magazine to see what she would charge for reusing her images in 5000 reprints. Going to her reference books and the EP Estimator at www.editorialphoto.com/resources/estimator, and knowing the value of those reprints as an advertising tool for the amusement park, and as a revenue source for the magazine, Charlene quotes $1171 for each of the 1/4 pg. shots, $1522 for the halves, and $2694 for the full pg. or a total of $8080. She offers all of them together for a package price of $7500. The reprint department contacts the amusement park owner who expresses dismay at the price, so Charlene and the reprints manager negotiate a deal whereby the magazine will reproduce the entire story, but only use the full page and one of the half page images, removing the rest. Charlene charges full price for these two uses and gets a total of $4216. Charlene's gross billing from the shoot and residual sales is: $1191 + 1890 + 600 + 4216 = $7897.
Example #3
Because Charlene is able to afford to shoot one large personal project each year, she travels occasionally. Later that year, she travels overseas to record crumbling Gothic architecture, a personal interest. On her plane flight, she picks up a magazine from the flight attendant and is surprised to see three of her images, along with a rewritten version of the amusement park story, in a business magazine that is promoting the virtues of family-run businesses. When she checks the masthead, she recognizes the name of the publisher as being the same as that of National General Interest Monthly. In spite of their promise not to do so, and in spite of the usage license stating, "one-time, N.A. print rights only, plus one year archived web use, with no reprints, re-uses, or third party rights of any kind," the magazine has nevertheless shared Charlene's images with a sister publication. Charlene takes the magazine with her and, upon returning home, calls the AD of the business magazine who confirms he got the story and images from NGIM. When she explains that reuses were not included in the original terms, the AD offers to pay her stock rates totaling about $250 as, "you've already been paid once by NGIM."
Now, if this were Alan or Bob, they would have little recourse but to accept the offer because they never bother to register their copyrights. Sure, they could decline the offer and threaten court, but they'd have a hard time finding an attorney willing to take a case where the images weren't registered and besides, the most they would be entitled to would be actual damages, or maybe about $500. Either might counter offer at $500, accept $325, and be done with it. But because Charlene registers her copyrights before the images leave her office, and because she has a good, complete paper trail that grants specific, limited uses, Charlene can claim copyright infringement. Her Terms & Conditions stipulate 3 times normal charges for unauthorized usage, so she sends an invoice for $1500, along with copies of both the registration certificate and the original usage license. After checking with the legal department, the AD signs off on the bill and forwards it to accounting for payment. Charlene's gross billing from the shoot, residual sales, and penalties is now: $7897 + $1500 = $9397.
While these hypothetical examples are ones in which the stars aligned just right for Charlene, the point here is that these residual sales do happen all the time, and that publishers are treating them as important sources of revenue, as should we. Notice that Charlene didn't attempt to gouge the magazine, nor did she ask to be compensated for instances where the magazine didn't also make additional revenue. In fact, she was paid just $100 more than Bob for the original assignment fee, yet she asked for, and collected, revenue for web use (offset by the sales of web advertising), revenue for additional space rate (offset by additional ad sales), and revenue for reprint usage (offset by the sale of the reprint). She also preferred not to compete with herself for her own stock sales and so negotiated that clause out of the contract.
Remember, the only way you can access this additional revenue is by 1) asking to be paid fees that are commensurate with usage; and 2) registering and protecting your copyright to your own images in order to safeguard your own potential revenue sources.