Since as photographers we have always licensed (rented) our photos, we are surprised to find a photo buyer who assumes that their payment for a photo represents present and future use of the photo.
Unless a “work for hire” agreement is established in writing between the purchaser of the photo and the stock photographer, payment for the use of a photo is for one-time rights only.
Incidentally, the 1976 revision of the Copyright Act, enacted in 1978, addressed this very point. Prior to 1978, the publisher (the buyer) was assumed to be the owner of the photo. The 1978 law states that the photographer retains all rights to the photo unless otherwise stated in writing. In other words, unless a buyer makes you sign a paper saying that the publisher owns the rights to the photo, any court will assume that the photo belongs to the creator of that photo. It is illegal for a publisher to reuse a photo without their permission.
YOUR REPLICAS
Some publishers are unaware of this labor-for-hire provision of the Copyright Act. As an individual freelancer, you may find yourself in conflict with a publisher who assumes that they can retain all rights to your photo. Also, in the digital age, publishers more than ever will want to assume all rights, even to previously published photos. Their excuse for capturing all rights is that they claim that the electronic distribution of photos in the digital age will present an administrative nightmare to search for the copyright holders of previously published photos.
Here are some demands from publishers you may find and some answers to offer:
Editor: We want to retain all rights to the photos on this assignment.
You: My earnings come from the resale of the photos in my archive. After you’ve posted the photos, they’ll go into my stock file. If you want to own more rights to those photos, we will need to come to an agreement on what rights you want. The rate would be substantially higher than the contract we have currently drawn up. Right now, you are only buying one-time rights.
Publisher: We need to retain the rights to the photo because we want to be able to post it elsewhere on the web.
You: And I also need to retain those rights for web publishing.
Publisher: We need to have retroactive electronic rights for all photos you have previously produced for us.
You: That would be an editor’s dream. I would never sign a contract that says you own all my previously posted photos with you. I have licensed those images to you in accordance with prevailing industry agreements; in other words, for single use. 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 electronically publish all of your previously published images with us. If you do not sign the contact, we will no longer need your photography services.
You: It is disrespectful of you to try to demand that I sign such a contract. I was able to produce those photos on the basis that they would belong in my archive to preserve my business. I authorized them for a single use in good faith.
UNLIMITED RIGHTS OF USE
Publisher: We are not asking you for copyright, just online rights.
You: You are asking me to give you unlimited rights to use my photos. It is not known how the digital age will evolve. It may be the only way the photos will be disseminated in the future. These photos are part of my annuity; They are an inheritance for my children and grandchildren. Other than that, giving them online rights would be inviting them into direct competition with me.
Editor: We are dealing only with the online permission here.
You: No, you’re not. His contract allows you to reuse and republish these and other derivative creative works with almost no limit. My congratulations to your lawyer.
Editor: We don’t make a lot of money from electronic publishing. In fact, we are losing money today.
You: Some new publications don’t make money for several years. Some never make money. But vendors down the road get paid nonetheless. Any start-up of a company is a risk, a gamble.
Publisher: Our contract says that you are free to sell your photos to any other buyer.
You: I could sell you all the rights to this photo for $2,500. But if I sell you this photo for $350, and the contract says I still retain the copyright but you have the right to use this photo in any way and as often as you like, practically an unlimited license, then I’ve sold you all the Rights. for $350, not $2500.
Publisher: You can retain the copyright to your image and sell it to others.
You: I own the copyright, but you have general permission to use, resell, etc., to you it’s an unlimited license, which undermines my livelihood, let alone makes my ownership in the photo essentially worthless.
Publisher: Please read this agreement carefully. There are liability claims. We have included an indemnity clause. You will be responsible for legal fees if we are sued by a for-profit plaintiff without any case.
You: I’m a professional. That’s why you asked me to do this task. Trust me I’ll do a good job. The problem with liability is the risk you take. I am not going to assume a responsibility that is justly and historically yours.
Editor: We may use one or two of the photos from this assignment, but we expect to own all the photos you take.
You: If you would like full control (ownership) of the photos in this shoot, I can offer you a work-for-hire arrangement, at a rate commensurate with that. Otherwise, I take the task and you buy the single use rights of the photos you want to use.
Editor: What do I have to do to get them to sign this contract?
You: First, make electronic use of a photo payable at the same single-use rate as your print use, or pay five times that rate to own (unlimited) electronic rights to a photo. Second, I cannot sign a contract that transfers to you, without further compensation, the electronic rights to all my previously published photos with you.