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The Absolute Basics of Copyright and Licensing

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Copyright seems to cause an enormous amount of confusion, both to clients and commissioners of photography, as well as photographers themselves. I've personally heard some lovely comments in my time ranging from "you're using a Nikon camera, so Nikon own the copyright", through to models acting outraged when shots of them turn up in magazines, despite having signed a release form that said "full library usage". This piece is mostly written by Emma Taylor of Vue Photographers agents, as she has more experience with licensing and copyright than I do. As primarily an editorial photographer my copyright status is fairly straightforward, and I've always read the contracts I'm asked to sign very carefully, so I defer here to someone with more intricate knowledge.

As a quick summary before we kick off, here's copyright law in a nutshell:

Providing you are not in full time employment, in which case your employer owns the copyright for any work you produce whilst working for them, you always automatically own the copyright to your own work, and will continue to do so until long after your death.

Now, the easiest way to lose your copyright is to sign it away if someone asks you to. This may seem like a no-brainer, but when faced with the choice of not working or signing it away it can often be tempting. You don't legally need to assert your copyright, though identifying your work, either through watermarks, stickers or embedded IPTC data is usually a good idea, as it makes it easier to prove in the event of a dispute. Needless to say, both myself and Emma are here talking about UK law, it will be different in other places, and as with anything of this ilk, if you're in serious trouble, get some legal help - don't quote a website!

And now on with the main bit, and I'll hand over to Emma:

One of the first things to check before you agree to take on a commission are the terms of the shoot. Make it a rule of thumb to ask what the Usage is and how many images your client requires from the shoot. Not only does this allow you to start thinking about a rough checklist of what to achieve on set but also allows you to gage whether you’re getting a fair day rate or if additional Usage fees are needed (more on this later).

So remember to ask . . .

- How long will the images be running? (3mths, 6mths, 1yr?)
- What media will they be run in? (press, posters, online?
- And in what territories? (UK, Pan European, Global?)

Unfortunately not all clients, or photographers for that matter, are aware of how the legal land lies and exactly who has what rights to commissioned images.

Rest assured Mr. & Mrs. Photographer the copyright always belongs to you. And if your client doesn’t understand that you can send them here . . .

Copyright for Clients

Now that doesn’t mean you won’t ever get asked for an in-perpetuity buyout. Although this is a rare occurrence, it can crop up and it’s up to you or your agent to make sure the commissioner pays accordingly.

Although your client is commissioning an original shoot, they are only buying the right to use, not the copyright to the images themselves.

As standard advertising (not always the same for other market sectors) practice included in your day rate is a clients right to use . . .

- One Image – Two Media – 1yr in UK (or similar size)
- OR
- One Image – One Media – 2yrs in UK (or similar size)
- OR
- Two Images – One Media – 1yr in UK (or similar size)

Over and above this you are within your rights to charge for additional usage.

So if you were asked to produce x4 portraits for a client across a two day shoot, that are to be used in Press & Posters – UK – 1yr, no additional cost would be required. But if you were asked to produce x4 portraits for a client across on a one day shoot, that are to be used in Press & Posters – UK – 1yr, an additional cost would be required for usage on X2 of the images. This is normally charged at a half-day rate per image.

Now however much we’d all love to be working to the 80’s ideal of fixed day rates and inflexible usages, these days we have to be flexible. Just make sure you don’t bend too far in one direction! Use your judgement; if you have a client who is looking for a days shoot to get a portrait to be used in trade press, online & direct mail for 1yr in the UK, it’s not totally unreasonable of them to expect this included your day rate.

When you get into the realm of Pan European, Worldwide, ATL (above the line) & BTL (below the line) you can turn to the AOP’s handy downloads to give you and your calculator a point in the right direction. There’s a very useful PDF titled Re-usage Guidelines on their site, although you may well have to join to get access to it.

It’s crucial to protect yourself as much a possible, establishing the terms with your client is just one area to do this.

You also need to be aware of third parties involved in your shoot. If you’re using models you need to make sure they sign a Model Release form. This states what the images are being used for, for how long and how much the model is being paid. As long as your model has signed this you have no fear of them turning around within the usage agreement and swearing blind they didn’t know they would see themselves on a 48 sheet! Having the model fully aware of the Usage can often turn out to be a huge blessing, especially when they spot an image 5yrs after the fact in a Brazilian airport!

Something that is becoming an increasing pitfall in this modern age, is protecting your clients exclusivity.

As a standard they retain exclusive use of your commissioned images in accordance with your Usage agreement. You’ll be hard pushed to find a client who will begrudge you the presentation of these images within your portfolio and website, But that doesn’t mean you can start to show them before they have run.

And neither can your assistant, make-up artist, model or stylist! In these Flickr, Twittering, Facebook days of camera-phones it is all to easy for shots to get leaked. Make sure all your crew are aware of your clients rights to show images first. Behind the scenes shots can be very interesting, but they can also be a potential legal time-bomb if an overzealous assistant posts shots of a celebrity getting changed to facebook.

And lastly but by no means leastly be very careful what you sign. Just because a contract has been thrust under your nose doesn’t mean you have to sign it. You are within your rights to cross through and initial any areas you feel are unfair or not in accordance with your own Terms & Conditions.

Useful links . . .

Copyright for Clients

Photo Agents London


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