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I'm a Cairns, far north Queensland, Australia professional photographer specialising in travel, editorial and environmental portraiture.

Wednesday, June 11, 2014

Why you need your copyright and your clients don't.

If you take a look in the bottom right hand corner of this image of the Champs Elysees in Paris you'll notice a big Copyright Symbol with my name and website details around the outside. Copyright. It's one of those things that we don't always pay as much attention to as we should. Now granted that the copyright laws may be different depending on where you live in the world but there are some generalities we can make before we move on to specifics.

When you take a photograph for your own personal pleasure the copyright is yours. That means that nobody else can take that photograph, use it without your permission or do anything with it at all without you saying it's OK. That's a pretty simple concept that I'm sure we all understand. We go on holiday, take a bunch of photos and they're all ours and nobody else's. But there are things you can do to your pictures voluntarily which could irrevocably change that, and if that happens it could be a very, very bad thing.

So let's say you buy a house. And it's a beautiful house with a fantastic garden which everybody compliments you on. So you enter some pictures of your house into a competition and there's a big, long contract there but you don't read it because those things always say the same thing blah, blah, blah.

And then one day somebody shows up on your doorstep and claims that you no longer own your house. In fact, by entering the contest, you have agreed to give your house away to the organisers of the competition. Not that you won and are going to get a nice prize or anything, you just sent in the entry form. Sounds ludicrous doesn't it? Who would think of such a stupid idea?

Well, whilst photo competitions won't cause you to lose your house, quite a few of them will take away your photos just by entering them. Seriously. They have little clauses in there that will take away your copyright. So what you say? That just means that the competition people want to use those pictures to promote next year's competition? Believe you me, if that's all they wanted to do that's all they would ask for.

So what exactly do you give them when you give them your copyright? Firstly the photo is theirs. No ifs or buts about it. The photo is no longer yours. That means that you can't show it on your website or anywhere in public. You can't sell it to another person, or even claim it as yours. Because it's not. It's theirs. And if they wanted to they could sue you for using 'their' photo. Because they now own it lock, stock and barrel.

Which means that they can do with it whatever they want. They can use it to promote next year's comeptiton of course, but they can also use it however they like. They can put it on billboards, in magazines, on TV. They can sell it or license it to whoever they want. So not only have they not paid you for it, but they can then make money off what was once your picture. If the competition is being run by a state or national tourist board it's often simply a way of getting great photos for free that they can then use to advertise their local area. Haven't got the budget to pay for photos? Run a photo competition. Works every time!

Think that's not gonna happen? There's a major magazine publisher in the US which is now selling original photographs that they commissioned and took the copyright for. The photographers don't get a red cent and the mega-corporation makes yet more money. Tourism Boards all over the world have the same clauses in their photo competition contracts.

OK so this all sounds like conspiracy theory stuff and you're saying "huh that'll never happen'. OK, call me cynical, but if they don't think it will ever happen why do they insist on taking the copyright?
My advice would be to run, don't walk, in the opposite direction of these so-called contests. There are plenty of legitimate competitions out there that won't ask you to hand over your first-born child just to enter. Read the fine print.

But what about when somebody hires you for a job and tries the same thing?

Government departments are notorious for demanding the copyright in images that are shot on assignment, and I have always either negotiated out of it or walked away from the job. But it is never done in anything but a friendly, non-confrontational manner. I'm not at war with these people. We're trying to work together to get beautiful pictures that they can use for their marketing and promotional purposes. We're on the same team but sometimes the corporate lawyers don't see it that way.

So how do I explain it? Firstly it all comes back to how the pictures are going to be used. For example, if a magazine sends you on assignment all they really need (as opposed to want!) are the rights to print the pictures once in their magazine and also maybe on their website and iPad App edition. That's it. That's all they need.

And yet they will still send you their boilerplate contract with a Copyright Transfer (also known as a Work Made For Hire) in there. Believe me when I tell you that there are always different versions of the 'standard' contract, and no contract is above negotiation.

Government departments often have more extensive usage requirements. They might need to use it in slideshow presentations, websites, brochures etc. A whole range of usage that they're not really sure about. Which is often their excuse for requesting copyright. "Oh but we don't know where we're going to use it so we just need everything."

This is how I explain things. I firstly explain what copyright transfer means. It means that the pictures become theirs and I can never show the image on my website, in my portfolio or even claim it as my own. I explain that I wouldn't get much work as a photographer if I couldn't show my work to people and my website would look pretty boring if it was all blank spaces! That they in fact could sue me if I did any of that. Standard response? "Ooh we would never do that!" My reply? "Maybe not, but you could if you wanted to and I don't want to expose myself to that kind of risk."

I then explain that they would also then have the right to put those images into a stock library and make money off them, or sell them to third parties without either my permission, or paying me extra money. Standard response? "Ooh we would never do that!" My reply? "Maybe not, but you could if you wanted to and I don't want to expose myself to that kind of risk."

And that's usually all I ever have to write. We work together, as a team, on terms of service that give them the usage of the pictures that they need and I retain the copyright. The people who contact you aren't the bad guys in any of this. Ever. The legal departments aren't necessarily evil either, they're just trying to cover their own butts and save time, money and hassle.

If they take copyright they never have to worry about you charging them extra money for using the photos in ways that weren't charged for in the original contract. They save time by not having to contact you to ask permission to use the photos in new ways. And they save hassle by not having to keep track of which images have been licensed for what use. In other words they're most likely being more lazy than they are greedy. Or maybe that's the naive, optimistic side of my personality coming out?

But here's the thing. Unless all you do is photograph for local, very small businesses, then usage will be a big part of how you charge. A big corporation that intends to use your pictures in a multi-million dollar campaign will pay a lot more for your pictures than a small magazine that wants to use it once. But guess what? If that small magazine is owned by that multi-million dollar corporation and they get your copyright? They can use that picture in ways that would have netted you a lot more money. So, in essence, they've saved themselves a lot of money and you've lost a lot of money.Can you afford to subsidise another person's business? I know I can't.

So this is my hard and fast line that I draw in the sand and never cross. I never sign away the copyright in my work for anybody. Never, ever. I will negotiate very extensive usage (with an equivalent charge) to cover those clients who want to use the images every which way (but loose!) but the images never become theirs. They are always mine and will continue to be mine. They are my property, and my legacy to the world. Not all of them are fine art and perhaps many will never see the light of day again, but they are mine and I am proud of every single one of them. And that's non-negotiable. I suggest you adopt the same policy.

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