ASMP
WHO OWNS THE PHOTOGRAPH?
1987

INTRODUCTION

This is the second in a series of publications developed by the American Society of Magazine Photographers and sponsored by the Polaroid Corporation. This educational series addresses key areas of concern to photographers and those who commission photography. The first brochure focused on the evolution of the profession of photography and the role that a photographer can play in meeting business communication needs. This brochure is concerned with the revised copyright law which was passed in 1976 and went into effect in 1978, changing the law which had applied to the industry for 70 years.

The photographs in this publication and others in this series were chosen to represent the outstanding work being created today in a variety of commercial fields-advertising, corporate and editorial-by ASMP photographers.

UNDERSTANDING THE COPYRIGHT LAW

"All of us are still finding our way through the copyright law. These are not black-and-white issues- there are so many shades of gray it is incredible."
-PHOTOGRAPHER'S REPRESENTATIVE

Today more than ever, it is essential that photographers and buyers know how to negotiate photography assignments that are advantageous to both the client and the photographer. The copyright law states -absent a written agreement to the contrary- that the photographer becomes the owner of the photograph at the moment of creation. The real issue is the transfer of rights of usage. While the "new" copyright law is no longer so new, it has taken time for photographers and buyers to get used to the change.

Major revisions in the copyright law, which became effective January 1, 1978, shifted the ownership of art work. The new law clearly states that the moment a photograph is taken, the photographer as creator owns the copyright unless stated otherwise in writing. Consequently, the buyer needs a license from the photographer for rights of usage.

DEFINING NEW RELATIONSHIPS

"When a home furnishings company launched its new advertising campaign, the company initially wanted all rights to the photographs. The photographer explained the recent changes in the copyright law, which protects photographers' rights to retain ownership of the images. The advertising manager had not been aware of the changes, but agreed that negotiations should be in accordance with the 1978 law."
-ACCOUNT EXECUTIVE Public Relations Firm

The significant shift in the copyright law has caused buyers and photographers to re-examine their relationships, and to study anew the issue of rights transfer and ownership of the photograph. As the scenario above illustrates, there are corporate executives, art directors and agency people who may still be unaware of the changes caused by the 1978 revisions. Understanding these can result in a fundamental shift in thinking. An art director recently commented that the controversy over who owns the photographs can be avoided if clients are properly reeducated about rights.

In line with industry practice, photographers generally charge a per photograph rate, or a day rate (plus expenses in either case) depending on whether it is an advertising, corporate or editorial assignment. The fee may cover one-time use or multiple uses and if the buyer later needs additional rights, supplemental fees are negotiated. Many photographers establish fees for continued uses of photographs at the beginning of an assignment. In this way the photographer and the client understand from the outset the additional charges that may be involved for further usage.

Such arrangements generate a partnership between the buyer and the photographer. A typical case involved a four-day assignment for a major accounting firm brochure. The photographer charged his usual day rate plus expenses. Almost immediately, the firm decided to use the photographs in a recruitment booklet and negotiated a re-use fee. When the booklet was revised and expanded a year later, the photographer once again heard from the client and another fee was agreed upon. The photographer's agent explained, When they call for re-use, I simply get the details of the intended use, and calculate what I consider to be a fair figure. With excellent clients like this one, I will try to keep the rate low for the sake of the relationship. There are also certain uses that I feel those clients ought to have at no cost, especially for in-house publications."

In some areas of photography, the 1978 law merely confirmed a relationship that had been developing for years. According to the photo editor of a major general-interest magazine, all photographers on assignment for the publication own the copyright to their work without question. By agreement with the photographer, the magazine may also use a photograph to promote the issue it appears in, but will pay the photographer if the image is used in any of its other publications or for general promotion. Although ownership of editorial work was less clear in the 1940s and 1950s, the photo editor explained, by the 1960s many magazines already operated under the premise that photographers retained the rights to their images. The 1978 revision simply codified this understanding.

THE CONTRACT AS A NEGOTIATING TOOL

"You simply can't have a blanket system; the paperwork isn't meant to be simplified. Negotiations should be handled by the art directors."
-ART DIRECTOR Advertising Agency

One of the most important steps in successful negotiations is to put all aspects of an agreement in writing. Some photographers and buyers like to create a formal contract while others prefer a simple letter agreement or an assignment confirmation form.

A written agreement between a buyer and a photographer encourages both parties to think through their objectives clearly and express them concisely. It helps avoid misunderstanding about rates, rights and other ramifications-it protects both parties.

Whichever type of contract is drawn up, the law provides the latitude for both sides to tailor an agreement to their particular needs, present and future. It is everyone's responsibility to be sure that all points agreed to are in the contract.

COMMUNICATION IS KEY

"Each job is unique, so reaching an agreement takes a lot of patience. You have to have a willingness to sit down and explore your needs and options together."
-SENIOR ART BUYER Advertising Agency

Experienced buyers, photographers, and representatives agree that a willingness to communicate openly and to raise all issues at the outset is important. The solution to any problem can be addressed and incorporated into a contract.


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This issue arose recently when a marketing executive for a small corporation developing an advertising campaign negotiated a one-time use contract for the photography assignment. The executive was concerned that the photographs might be used elsewhere, particularly for competitors, but could not afford to pay for more extensive rights to the images. In order to encourage a harmonious working relationship, the photographer explained to the executive that he would not grant competing rights to others. While not legally required, many photographers feel that this practice promotes continued client relationships.

THE BUYOUT ISSUE

"Buyouts may not satisfy client needs, and they are often costly and unnecessary. For example, why purchase art in all media vehicles for unlimited time when the client changes visuals every year and outdoor usage is never utilized? These are questions that must be asked."
-ART BUYER International Advertising Agency

A common stumbling block in rights negotiations is the issue of a buyout. It may seem to be the easiest and least complicated approach for a company that might want to use images in the future for other advertisements or purposes and is concerned about losing the photographs to competitors.

The term buyout is confusing. In any discussion of a buyout, all parties need to be sure they are speaking the same language. In its broadest definition a buyout is considered the transfer of all rights, including the copyright and often the photographic materials. Some individuals define a buyout as the purchase of an entire shoot, including out-takes, while others consider it the purchase of all rights to a single image. Some believe a buyout is effective in perpetuity, while others see it as covering a limited time. Obviously, the term must be defined prior to negotiations.

By any definition, a buyout may cause more problems than it solves. Clients who seek a buyout simply as broad protection, without thinking through intended uses, are asking photographers to give up their right to claim the creation of the images. Furthermore, if an agreement is reached for a buyout, it is generally a very expensive proposition. Often, the cost may far outweigh the benefits for a buyer, especially if the value of the images is self-limiting due to their timeliness or subject matter.

Several alternatives to a buyout can be more effective. A careful assessment of client needs may show that only a few additional uses are necessary for the future, and those can easily be licensed. In specific instances, where a greater variety of potential needs seems likely, rights can be transferred in various forms. For example, contracting for a time limitation such as three years may save the buyer some money and avoid unnecessarily restricting the photographer's opportunities. The goal should be to buy what is needed, for as long as it is needed.

THE PROBLEM OF WORK FOR HIRE

"Today work for hire is seldom necessary, even from the buyer's viewpoint, because rights can be licensed out as they are needed, to fit the actual needs of the parties."
-PHOTOGRAPHERS' LEGAL COUNSEL

Some purchase orders include language establishing an assignment as "work made for hire." Under work for hire, a company employing a staff photographer owns the copyright to his or her pictures, but the staff photographer receives benefits such as disability and medical coverage, unemployment insurance, paid vacations, sick leave and retirement benefits. Freelance photographers receive none of those benefits if they agree to work for hire terms, and also forfeit the ownership of copyright.

Under the law effective January 1, 1978, a written contract must be signed by the freelance photographer and the client, if this is to be work for hire. Legally, use of work for hire by freelancers is restricted to certain categories, such as contributions to collective works (for example, magazines and newspapers), parts of audiovisual works, instructional texts, and supplementary works (such as photographs illustrating the text of a book).

Despite these new provisions, some courts have taken the view that where the commissioning party directs and supervises the photographer's work, that party will be considered an employer and the photographer an employee-and the photography becomes work for hire owned by the commissioning party. Many photographers feel this view contradicts the intention and purpose of the new provisions in the copyright law. They also believe that this view is based upon a misunderstanding of the creative process.

The problem presented to freelancers by work for hire is as yet unsolved and it is the subject of ongoing legislative attention, including further clarification of the copyright law. California has approached the issue by instituting a law that now imposes an employer-employee relationship for the period of work, with the photographer accorded the benefits of state workers compensation and disability insurance.

It is usually unnecessary to use the work for hire clause. Recently a medical device manufacturer needed photographs of a surgical seminar for use in its annual report and institutional brochures. The photographer selected was offered a work for hire agreement. This was unacceptable to the photographer, so the two parties discussed in detail what needs the client anticipated for the photographs. Subsequently, they negotiated a fee for specific rights of publication in a corporate annual report, a quarterly report, an institutional brochure, and/or corporate audiovisual materials. The purchase order also stated specific fees for a variety of additional uses ranging from advertisements to marketing audiovisuals to convention exhibits, to be paid if and when rights were exercised. Both parties felt this was an excellent way to avoid the work for hire issue.

WHO IS THE CREATOR OF THE PHOTOGRAPH?

"No matter how slow the film, Spirit always stands still long enough for the photographer It has chosen."
-MINOR WHITE Mirrors Messages Manifestations, 1969

An issue central to the question of ownership of an image commissioned for a specific ad, corporate annual report, or editorial story is: who is the creator of the photograph? Is it the photographer who creates the image or the art director who creates the concept?

This is a difficult question, since a single photograph often is the result of many creative elements. An art director's concept may be used to meet a visual need. An idea, however, cannot be copyrighted. It is the photographer who contributes the creative vision and the technical know-how needed to transform the concept into a memorable image. As the creators of the photographs, photographers have the ethical and legal right to retain ownership of their creations.

WORKING TOGETHER

"We want to use the best photographers in the world and it's important that the photographs are valuable to them, their careers, their grandchildren. It works to our advantage because, this way, the photographers will do their very best."
-MAGAZINE PICTURE EDITOR

During the 1980s and 1990s, visual images will continue to gain importance in the business communication process. New technologies will be the allies of talented photographers who will discover innovative ways to produce images and present them to the public. These new technologies will also give art directors and editors the ability to produce computerized images, composites of bits and pieces of photographs taken by different photographers.

"Everyone seems to know that in the real world, all the problems are interdisciplinary and all the solutions are interdepartmental, interprofessional, interdependent and international," wrote Harlan Cleveland, an authority on executive leadership, in The Knowledge Executive. Creativity can thrive only in a healthy business environment-one which is mutually beneficial to the art buyer and the photographer. Success requires give-and-take from both parties.

A commitment to professionalism in the development and execution of an agreement and an assignment affords a photographer and the client essential flexibility, and fosters a relationship in which creativity and innovation can reach their highest levels of excellence.

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