Copyright grabs to reduce liability

Discussion in 'Business of Photography' started by photomark, Jan 24, 2014.

  1. Curious it anyone else has ever dealt with this.

    I have a potential client that wants to work on a project with me. Everything was going smoothly until I received a
    contract from them that included an assignment of copyright to the client. This is a non-starter for me and is usually
    pretty easy to negotiate. But in this case, the project involves photographs of children and the client is (justifiably)
    concerned with liability from the misuse of photos. They feel that they need to own the copyright in order to manage
    this liability.

    My position is that copyright is the wrong tool for this for the following reasons:
    1. Because of a fair use it doesn't actually prevent all use of images and their liability still exists.
    2. Should the worst happen, their remedy would be a federal infringement suit, and since they probably won't register
    the images, they will likely spend more than they make on the suit.

    It seems like better tools are well-written releases and a decent indemnity clause.

    My question is: is there anything I'm missing? Is there a legitimate argument for using copyright in this way? Are there
    better arguments against using copyright in this way?
     
  2. Just to play devil's advocate here: what's the problem? Meaning, if the people paying you to produce the images for their own use wish to hold the copyrights ... so? Let them. Include a license for your own portfolio use (you weren't going to try to sell other uses of the images to other parties, were you?), and everyone's happy.

    Unless you have in mind a use for those commissioned photos that you're not suggesting here, I don't see why you'd want to stir the pot. Treat it like work for hire, cash the check, enjoy a portfolio license for those occasions where it's helpful to show the work to other prospects, and move on.
     
  3. The short answer: because I have some self-respect.

    The long answer:
    At the end of the day I don't know what value the work I will produce over the course of my career will
    hold. When I'm 70 years old looking back on the work I've done, the only thing I will have to show for
    myself is my work and my memories (assuming those are still in tact). I may want to produce shows,
    books, the images might have historical value. I just don't know. What I do know, is that if I spend my
    career signing away copyrights without legitimate reasons and compensation, I will have nothing.

    And honestly, I don't treat anything work like work for hire. If I wanted to work under the assumption
    that the images I make will have no value beyond the immediate use of the assignment, I would
    choose a different career. It's entirely possible that I am deluding myself, but if so it's a delusion that
    motivates me to get out of bed in the morning.

    But all this is beside the point and doesn't deal with the main question.
     
  4. If they want to pay for copyright, like all types of usage, that should be a line item on your estimate and invoice.
     
  5. Of course, Ellis, I understand that. The problem is they don't want to pay (and probably can't pay) for
    copyright. And don't actually want the copyright, they want protection against liability.

    My hunch is that this project won't happen, which is a shame because it has a lot of photographic
    potential. And this is why I'm exerting a little extra effort to show them that they don't actually need to own
    the copyright and that it won't actually protect them the way they hope. I'm searching for the best
    arguments to convince them.
     
  6. "It seems like better tools are well-written releases and a decent indemnity clause"​
    They are. This is a use of likeness issue, not ownership.
    I agree with Matt. If there's no future use or sales for you, then there is no need to worry about ownership either. Who cares if their notions about liability are misplaced. That's their problem. You will have none. Hanging on to copyright out of mere principle is pretty silly I might add. If it happens to bring a few extra bucks then its even more of a no-brainer. Sell em' the photos already.
     
  7. If they want protection from liability they need to talk to an insurance agent.
     
  8. If there's no future use or sales for you, then there is no need to worry about ownership either.​
    It would be nice to have that crystal ball, but I don't. How many photographers do you think wake up knowing they'll shoot their one career-defining photo that day? Most of the work we make will sit in a file cabinet or hard drive collecting dust, but a few are going to be important to us. Unless you know which are which ahead of time, it's not simply a matter of principle. I've been working full time at this long enough to understand that I am not a particularly good judge of which images are going to be valuable even after they've been shot, let alone before. I've made five-figure sales on throw-away images and next to nothing on some of my favorite shots.
    But again, I'm not especially interested arguing the merits of copyright ownership—I'm pretty settled and comfortable in my opinions on this matter. And I'm not starved for work, so I don't need to entertain obviously bad deals.
    What I am interested in is getting inside the thought process of this potential client: How do they imagine things would play out in a worst-case scenario if they owned the copyright and trouble arose? Do they imagine they would then try to recover damages by suing me for infringement? Is that a viable option? Why do they think this is a better option than the obvious tradition solutions like an indemnity clause? What would they need to hear to make them consider better options, etc.
     
  9. "The short answer: because I have some self-respect." I'm with Mark on this, particularly his long version. And I'm not a lawyer, but I don't see where copyright has anything at all to do with the liability issues the client seems to be concerned about, or for that matter what the liability concern is in the first place. I don't know what the pictures would depict, but I don't think that all pictures of children have an inherent risk or none of us would be out there shooting baby pictures, school portraits, little league team pictures, etc. Sounds like a problem client to me. I would decline the assignment.
     
  10. Perhaps I'm missing something, here. Is the client really going to agree to pay you for your time, and also consider letting you make other eventual sales of the images you'll be making for them? I presumed that, like most commissioned work, that would be off the table. Hence making the copyright hand-wringing moot, and not the least bit about self respect.
     
  11. Is the client really going to agree to pay you for your time, and also consider letting you make other eventual sales of the images you'll be making for them? I presumed that, like most commissioned work, that would be off the table.​
    That has not been my experience with commissioned work, neither editorial nor commercial work. Editorial clients almost always ask for first publishing rights, often with an embargo for a certain length of exclusive use. With commercial clients we sometimes arrange rights such that I can't relicense to organizations that are direct competitors. Or, with a few that have political goals, I agree not to license to organizations that promote particular policies. This of course varies and is spelled out in the contract. An extreme example is some freelance work I've done for Greenpeace: I own the copyright, but I've agreed in the contract not to license images to companies and government entities that endorse products, brand and policies—in practice this means editorial licensing only. But they're an exception and have a pretty good reason for this policy.
    In general, I license particular usage and, with the exception of large editorial clients that still think in day rates, I don't invoice my time. I don't want people paying for my time.
    I'm not sure where your presumption about commissioned comes from. I was under the impression that this was the standard business practice for professional photography.
     
  12. It would be nice to have that crystal ball, but I don't. How many photographers do you think wake up knowing they'll shoot their one career-defining photo that day?... ...Unless you know which are which ahead of time, it's not simply a matter of principle​
    That's just emotional rationalizing which makes no sense. If you don't do the shoot, there can't be a "career defining photo that day" from the job anyway.
    This IS known ahead of time. We also know you will lose out on real actual definite money for turning this job away. All that's left is the "matter of principle" which is completely pointless.
     
  13. It baffles me that contributors to a photography business forum are so strongly resistant to holding on to one's
    copyright. It's the cornerstone of my business; maybe you've never actually tried to make a living this John. If you did,
    you might not be so cavalier about it.

    I am asking for ideas to help to negotiate a better solution, not suggestions about whether or not to do the shoot. I was
    hoping for some additional ideas and insight about why copyright is not a suitable solution for them given their concerns
    that might help me convince them that they don't need it. I would like to do this project, but it's not because of the
    money—it's because it's an interesting subject that might result in good work. Their budget would not even cover the
    cost of my typical commercial portrait and this project will be several days of work over the course of a few months. My
    biggest concern with a project like this is the opportunity cost, not the money—I'm more than likely losing money taking
    this job.

    So John, if you have any of helpful ideas, I would love to hear them. If you'd rather insult my critical thinking some
    more, please save it for another day.
     
  14. I don't invoice my time​
    Most commercial photographers do invoice for their time when approached by a prospective client to shoot stuff for their project. Otherwise, you're shooting on spec, and hoping to produce something that they're willing to license at the price you want to get within terms you both will like. Since you didn't provide any insight into all of those variables, it seemed perfectly reasonable - given your introductory language - to presume you'd be getting paid for your work, and that's what the contract in question would be about.

    When you refer to a client, and a prospective project, that doesn't sound the same as "not charging for my time, it'll all come out in the licensing."

    When I shoot for a client, it's hourly or day rates. Usually with no licensing money changing hands, unless there's something special about the arrangement. I always preserve my right to make use of the images for portfolio and promotional efforts, but completely understand when the client's project is considered special to that client, and something I think I'll also sell as stock, later. I would find that to be a very distasteful pitch to make, and can imagine that most clients would (if they'd even still have me) want a major reduction in the rates if they think I'm going to double-dip on their dime.
    It baffles me that contributors to a photography business forum are so strongly resistant to holding on to one's copyright.​
    Who's resisting? This is about getting/retaining a customer for some project work. Now that it's clear that you're talking about shooting on spec and only licensing the work, it's a different conversation.
     
  15. Spearhead

    Spearhead Moderator

    It baffles me that contributors to a photography business forum are so strongly resistant to holding on to one's copyright.​

    I do plenty of work for which the copyright is meaningless to me. I don't care about family photos. If I get a great photo, I can recreate it with models, which is something I have done. And I have done product photography where the copyright doesn't matter to me either. How valuable is a photo of boxing gloves? I can re-shoot in five minutes, and probably make it more interesting than a catalog photo.

    And I do work for hire. I have a day job that includes photography. I have photographs of celebrities where my employer owns the copyright. But I can use them for certain purposes. It's not a big deal to me since they have time value more than anything.
     
  16. Sorry Matt, I didn't make myself clear. I don't invoice time, but I don't work on spec either—I charge a creative
    fee based on the brief. In my head, the amount of time and effort will be a factor in the creative fee, but
    the time is never a line item on the invoice or estimate.
     
  17. I do plenty of work for which the copyright is meaningless to me.​
    Fair enough Jeff. For the sake of this thread, let's assume that is not the case in this specific instance.
    And I do work for hire. I have a day job that includes photography.​
    Sure, lots (well, it used to be lots) of newspaper shooters do to. I have no problem with a situation where an employer is giving you consistent work and benefits and they get they own the product. It's not quite the same situation for a freelancer, though.
     
  18. I've got no horse in this race, but I think Mark is over estimating the future value of his portfolio. It's pretty easy to see that photography is being devalued every day.
    Often I read posts of photographers agonizing about "their photographic legacy." In general, unless they are doing radical, innovative art, their photos, whether negatives or files, are going to have zero value when they are gone.
    How many unrecognized dead, or non-working, photographers are being discovered today? One, two, three in the last four or five years.
    Do you really think you're one of those, really, if so keeping the copyright is important to keep, otherwise, take the money and run.
    <Chas>
     
  19. I appreciate your opinion Chas, but (again) whether I should take on this project or not is not the question.
    I'm certainly not concerned with anything that happens after I'm gone.
     
  20. I appreciate your opinion Chas, but (again) whether I should take on this project or not is not the question. I'm certainly not concerned with anything that happens after I'm gone.​
    By insisting on not selling the copyright you seem to feel that the work will have some future value you are unwilling to sell.
     
  21. William Michael

    William Michael Moderator Staff Member

    I have a potential client that wants to work on a project with me. . .
    I received a contract from them that included an assignment of copyright to the client. . .
    The project involves photographs of children.
    The client is (justifiably) concerned with liability from the misuse of photos. They feel that they need to own the copyright in order to manage this liability.
    My position is that copyright is the wrong tool for this.
    It seems like better tools are well-written releases and a decent indemnity clause.
    My questions are:​
    -
    > Is there anything I'm missing?​

    Very likely: the ‘Clients’ probably are both: ignorant (or ill advised) and also scared. My best guess is that the ‘Clients’ are not used to dealing with the nuances of this area of the law and/or are super sensitive about photographing kids.

    I expect that you’re reluctant to expose much detail about this particular potential assignment, but for example, I’ll give you an example of my experience . . . I shoot a lot of competition swimming: both youths and adults, but mainly only high level competition. Competitive Swimmers are near naked most of the time and many (all around the world) do a ‘deck change’ often: but there are never any problems for me (and my colleagues) to walk around at meets with two or three cameras in hand.

    However, I recently covered (pro bono) a local school’s junior carnival, (8 to 12 years) as it was their school’s anniversary year and also because there was guest (Olympic) Swimmer attending to present prizes and give an exhibition swim and generally mingle with the kids . . . the School’s Management body showed “concern” about my “engagement” and wanted “written assurance that I had the necessary legislative 'working with children clearance form and number’ ”.

    Now the point is (where I work): I don’t (and neither does any other Photographer) require the ‘working with children clearance’ (which is the incorrect name anyway) to shoot ANY school event, for ANY age of children. It was simply ignorance and ill directed concern by the governing body and they were convinced that if I had the form and the clearance all their concerns would be put to rest and (probably more important) they would be seen to be doing a good job. As it happens, I do have and have had for many years that clearance - but such is required by law here because I tutor school aged pupils, not because I photograph school events.


    *

    > Is there a legitimate argument for using copyright in this way?​
    I don’t think so.

    *

    > Are there better arguments against using copyright in this way?​
    Yes I think so.
    But you thinking about whether there are, or there are not and moreover attempting to persuade these potential clients so, I expect will NOT assist to progress this situation.

    *

    > I am asking for ideas to help to negotiate a better solution, not suggestions about whether or not to do the shoot. I was hoping for some additional ideas and insight about why copyright is not a suitable solution for them given their concerns that might help me convince them that they don't need it.
    As previously indicated, I suggest that you don't attempt to convince them.

    *

    > I would like to do this project, but it's not because of the money—it's because it's an interesting subject that might result in good work. Their budget would not even cover the cost of my typical commercial portrait and this project will be several days of work over the course of a few months. My biggest concern with a project like this is the opportunity cost, not the money—I'm more than likely losing money taking this job.​


    Well, my take on my position was that I wanted to do the job – I am not backward in revealing doing these pro bono gigs are of a moderate networking advantage to my business interests: and also I genuinely wanted help out the school – I arranged the visit by the Olympic swimmer too.

    Obviously your reasons for wanting to do your job are not the same as in my example.

    Unless you want to divulge chapter and verse about your potential project, we’ll need to take on face value that you want the gig not for “business” but, in general terms mainly for stimulation and as a challenge to you: “I would like to do this project, but it's not because of the money—it's because it's an interesting subject that might result in good work.”

    So, the way I see it is: your “thinking” about this matter should be more concentrated YOUR thinking than the client’s thinking.

    If your motive for wanting this gig is stimulation and not business (profit) then I see no reason for a deep analysis of the client’s ignorance.

    You have the opportunity to make an interesting shoot.

    Ostensibly your reputation is in good order and, as such, you could make many of your own (artistic) rules; so I don’t see any value wasting time thinking about talking them around their seemingly misguided perception of what Copyright actually is . . .

    If this is really is an opportunity to create and stretch yourself artistically, then make the client very, very special and move forward: if they cannot afford a fiscal payment for the Copyright – then do another deal with credits or endorsements or a Case of Scotch.

    I think, that is it is always very good to do 'thinking' – but I think that you are over-thinking this one.

    WW
     
  22. Damn I forgot to check my calendar today - completely missed that is was "beat on the OP day today".

    Mark asked a question and instead of answering everyone decides to tell him his work will never be worth anything and his business model sucks. I assume you all have a personal knowledge of the shoot he is about to do, upon which these opinions are based? For all you know he could be about to shoot portraits of the kids who are going to star in the next Harry Potter sized movie hit - or he might be photographing the kid who is going to place 14th in the Podunk cutest baby competition - but regardless of which it is, giving away IP rights for no good reason is a short sighted idea at best.

    Mark,
    I've spent the last 10+ years trying to keep companies from giving away their IP to bigger companies (in most cases without even realising it). The answer is what you have already worked out - It always comes down to one thing, money.
    Part one
    Explain that what they need is a proper license. Then explain that copyright = a whole bunch of rights they don't need and wont ever use, but would have to pay for. Show them the cost of a proper license and the 10x larger cost of buying copyright.
    Part two
    Point out that paying the 10x cost of copyright wont get them the protection they are looking for. Then point out what they need to do to get it and an example of what that will cost them.
    Many companies simply don't realise what copyright actually is. When you point out that paying for "all rights" means paying for the right to use the image in Outer Mongolia, Micronesia, Antarctica and an assortment of other places they haven't heard of, in a range of ways they will never do, until the year 2085 and beyond they, usually realise that isn't a sound investment. Of course there will always be companies that want to pay for the license but get the copyright for free. Then it just becomes a case of deciding if you want to do business with a company that is either stupid or thinks that you are.
     
  23. William Michael

    William Michael Moderator Staff Member

    I have absolutely no idea what this prospective job comprises – I have made few educated guesses – but still they remain guesses only.

    I’ve invited Mark to divulge all the detail of this gig: but I doubt he will and I understand if he chooses not to.

    Apropos his business model – I am not necessarily interested in considering the details that Mark gave of his business model as I don’t think such details (as yet) are particularly relevant to this situation or the questions that Mark has asked.

    Obviously it is likely that more critical and specific commentary would be forthcoming if more details of the job were provided – but again - it is understandable that many OP’s posing business related questions are reluctant to expose all the details of the job and their clients which would be necessary to make critical, detailed and specific responses.

    By nature, without details, responses will be vague – and if responses are made precise and concise, such responses run the of being negative or of being critically off the target . . .


    I think it is a bit of the chicken and the egg situation –
    Not enough detail in the question may equal assumptions and some frustration shown in the answers.
    My reading is, that the general thrust of the answers is meant to be of assistance.


    WW
     
  24. That's just emotional rationalizing which makes no sense. If you don't do the shoot, there can't be a "career defining photo that day" from the job anyway.
    This IS known ahead of time. We also know you will lose out on real actual definite money for turning this job away. All that's left is the "matter of principle" which is completely pointless.​

    ^^ That.
     
  25. Dan and William, thanks for those answers. They are helpful and I really appreciate you taking the time to directly address the question.
    William, you're correct, I'm not really comfortable getting into the details—at least not while this is still an open issue for me. I was hoping the original post would be narrow enough that we wouldn't get into the weeds of whether or not copyright has value.
    I've tried to abstract the problem as much as I can and in my mind it boils down to this: if you are trying to manage liability for the way a photographer might use images he or she made, is owning the copyright really helpful? Does it contribute meaningfully if you already have an indemnity clause and model releases that directly address the liability. My hunch, which I think agrees with Dan, is that they simply don't understand the nuances of copyright and think it will protect them in ways that it doesn't. I was hoping for informed and experienced ideas regarding this that might be new to me.

    That's just emotional rationalizing which makes no sense. If you don't do the shoot, there can't be a "career defining photo that day" from the job anyway. This IS known ahead of time. We also know you will lose out on real actual definite money for turning this job away. All that's left is the "matter of principle" which is completely pointless.
    ^^ That.​
    Brilliant exegesis of John's thesis — very helpful, touché Steve. One small point it misses is that I stay pretty busy. If I don't shoot this, I probably won't be sitting on my ass that day, but will likely be shooting something else for somebody else or at the very least working on personal projects.

    By insisting on not selling the copyright you seem to feel that the work will have some future value you are unwilling to sell.​
    I don't feel it has (potential) future value, I know it does from past experience. As I mentioned earlier, knowing which images will be useful or valuable later is, or course, difficult. And I'm not unwilling to sell it, I'm unwilling to give it away for dubious reasons—maybe that wasn't clear in the OP.
     
  26. I had virtually no idea of whether any of my photos were or would be 'career defining' when I first started posting here at age 58, ten years ago.
    Worse, even after receiving much acclaim for some of them, it took a Lucie Award winner going through my extensive archives to say 'John, this one iis fabulous, don't you see that?', and I didn't. There were many such photos.
    I had longed for a curator, and he gave it to me with the eye that curated works by Rauschenberg, Nann Goldin, Sallly Mann, Graciella Iturbide, and Helmut Newton. It was a great help and came with the promise that 'when ready', he'd make appropriate introductions to see that I entered the rarified air of high-level galleries and museums through personal recommendations with gallerists and curators he proved to me he personally knew and who I learned by watching him work crowds of the best in the industry, highly respected his opinion.
    Just a word from him would open sealed doors, I saw.
    He said, 'just let me know when you're ready'.
    Problem came a couple of years later, when I let him know 'I'm ready', he had become totally disabled and no longer could help, so here I am; having missed a great chance.
    He helped me find lots of what for me would be 'career-defining photos' if I had been exhibited, and still will be if that point ever comes.
    The OP is not wrong to wonder if any moment or any shoot might produce a career-defining photo.
    I know of one photographer who shot a photo of Richard Gere and went from relative obscurity to almost instantly become highly-regarded, famous and sought-after celebrity (and other) photographer.
    The Gere photograph was 'career defining', but he could and did do as well and better for the rest of his carreer (which continues) and was also curated by my now disabled 'friend', the Lucie Award winner.
    Who can know or have the foresight to know what photo will 'catch on' although some photos are so benign that they have almost no chance -- perhaps product photos as noted above are good examples, but even they are not entirely excludable if photographed lovingly and distinctively.
    On the other hand, there is one architectural photographer, Los Angeles based, whose work was simply seen as very good and a mainstay of documentary work for architecture, especially of 'modern' houses in the Los Angeles area, who now in his late years has had his work (and his abilities) recognized as 'genius'.
    I found on my FIRST ROLL OF FILM a lifetime keeper - a street photo that will endure, and taken in my first year with a camera at age 21, and thanks to the exposure on Photo.net learned that many of my early works were 'career-defining' (if I had a career)
    I left the profession after speaking briefly with Cartier-Bresson shortly after being hired by Associated Press after returning from Viet Nam with a camera, and thereafter left my AP photographer's slot, realizing there was no future in it -- Cartier-Bresson told me he could hardly get work then, and I foresaw the future, as he did just before he gave up photography to paint and draw back in 1969 (and shortly thereafter).
    Afterwards, as a photo editor, I worked with Eddie Adams, Horst Faas, Sal Vader (Pulitzer winners all) and also previewed slides of Bruce Davidson's East 100th Street as he searched for a publisher who would treat them right . . . (he didn't know me) and I always came up wanting (in my eyes), yet somehow my photos seem to catch on here and other places this late in life.
    A famous photographer the other day introduced me as 'the man who will be a famous photographer when he dies', which was both heartening and glum at the same time.
    I've never signed away any copyright.
    I'd rather go hungry.
    Or do something else.
    It's a terrible business model, I'll be the first to admit, but as one photographer told me and another in a meeting about my work 'It's the work the most untainted by commercialism I've ever seen,' as she previewed a book of mine with 200 photos.
    I've been 'discovered' seven or eight times, and I keep as many of my photographs as humanly possible, mostly in multiple sets in the eventuality I exit this mortal coil and some day someone does recognize talent in my work AND commercial worth.
    The OP dreams that his work will be seen some day has having merit.
    A visit last weekend to Photo L.A. showed me work that I could never hope to understand, let alone admire, and other work that was phenomenal, and much of that which will be successful will become so because it has caught the eye of someone in the rarified gallery and museum world who will promote it, not because EVERYONE will recognize that work for its intrinsic worth, but because a few will see some worth in it, and it only takes a few collectors armed with large checkbooks to turn a large profit IF they get in a collecting mood for this or that photographer.
    I admire the OP for sticking to his guns to retain his copyrights. He may have to eat his principles instead of steak (or tofu, depending on his personal dietary strictures), but I'd be the last person to tell a photographer that he should sell all rights to any work if in his heart of heart he feels that some day it might be collectible.
    At the very least, I'd admire him for his optimism and his principles.
    I wouldn't lend him any money for his business though.
    For obvious reasons.
    ;~))
    john

    John (Crosley)
     
  27. It's not really a 'copyright grab' as the title dramatically suggests. It's just a business proposition.

    If you don't want to do it on their terms, let someone else do it.
     
  28. My guess is that since you are photographing kids they want complete control over the images because they are kids. Just one of the ways the world has changed for the worse. I doubt this client will budge on this issue. I'm like you though, I will sell single use rights on just about any editiorial or commercial image I make but I never ever sell all rights to anything. I doubt I'll ever be famous for anything I shoot but it's one of those 'just in case' issues. If a client makes this demand and we can't resolve it any other way I suggest they contact someone else. Nothing personal. It has had no noticeable effect on business and is the way I prefer to do things. I've noticed that so many photographers are willing to give up almost everything for a job. This is going to come back and bite us one day and is a bad precendent to set.
    Rick H.
     
  29. Thanks for that great story John. I presume the LA architectural photographer you're referring to is Julius Sherman, who passed
    away in 2009. He's a really great example of how work that would never be considered fine art when it was commissioned turns out
    to to have indelible value in hindsight when taken as a whole.

    I recently read Nassim Taleb's 'The Black Swan.' One of the premises of this book is that improbable and unpredictable events
    have an outsized effect on the course of history, economics and our lives. Being prepared for the negative effects and available to
    positive effects of these events in his view is the best way to deal with this situation. Your story and the stories of the
    photographers you mentioned reminded me of this—Herb Ritts shooting Richard Gere is an extreme example, but less extreme
    examples that don't rocket one to stardom can be important and valuable enough to provide the scaffolding for sustainable career,
    but only if you are open and prepared from them.

    I would disagree with you that trying to hold onto your copyright is a bad business decision. Of course, this depends on what is
    being offered for it, but in my experience it is almost always a grab—i.e. they want it, but don't want to pay for it. In a vast majority
    of the cases they don't actually need it, so it's relatively easy to negotiate a better deal. I've even done this with federal contracts
    where the contracting department thought they needed perpetual exclusive use, but in the end didn't. If we take Steve Smith's idea
    and just give in, the client obtains something they don't really need and we lose something we could otherwise extract value from.
    I think that is a pretty poor business proposition.
     
  30. William Michael

    William Michael Moderator Staff Member

    ... well maybe it is because that I work in a location and still work in a narrow genre of Photography where the first copyright is held by the Client, so I might be a bit more 'relaxed' (for want of a better word) about the intrinsic value of copyright, per se: hence, perhaps, I have a less extreme point of view, or at least less 'passion' over the worth of Copyright in some (not all) Photography / Business situations.

    As I mentioned: I don't have all the details of this gig - and I do understand and appreciate that you don't want to reveal such. But based upon what has been revealed thus far and based upon what I can interpret (possibly incorrectly, of course) - I still think, that your thinking on this matter needs to be less about understanding / converting / educating the client and more about casting asunder your own records.

    I wish you good luck with the project.


    WW
     
  31. Spearhead

    Spearhead Moderator

    It's not a "grab" if they are negotiating, which is what it sounds like is happening. There are plenty of things in contracts that are do not change cost and they are not called "grabs." They are basically "deal points."
    There are plenty of ways to retain the right to use photos without copyright, they just need to be negotiated. However, if I were the client, I would have already found another photographer.
     
  32. Thank you for your lexicographic expertise Jeff; very valuable. I was also hoping to know what you would
    do if you were the client, but I was afraid to ask—thanks for providing that as well.
     
  33. "It baffles me that contributors to a photography business forum are so strongly resistant to holding on to one's copyright."​
    No one is resistant to the concept or practice of maintaining one's copyright. In this particular instance, unless there is something we were not told, it serves no material purposes and only results in loss or forgoing the shoot. We were told the purpose for retaining it, here, was in case lightning strikes and the career defining shot occurred. If the shoot doesn't not proceed because of the transfer of copyright issue, then there will be no career defining shot.

    It's the cornerstone of my business​
    It may be but, in this instance. its has no material purpose that we know of.
    "I am asking for ideas to help to negotiate a better solution, not suggestions about whether or not to do the shoot... ...whether I should take on this project or not is not the question... ...if you have any of helpful ideas, I would love to hear them"

    We're trying to help by saying that whether to do the shoot go forward SHOULD be your question. Otherwise, it will help to know what you hope to achieve with this project since we are told that its not about the payment. How is copyright retention necessary to accomplish it?
     
  34. In this particular instance, unless there is something we were not told, it serves no material purposes and only results in loss or forgoing the shoot.​
    John, I don't know that is the case yet, so you can't possibly either. What I am trying to do is shoot this job AND maintain the copyright. Maybe that's not possible, at which point whether it's worth my effort is an entirely different question. What I was hoping for were some ideas that might help me negotiate. What I got was a lot of flaming and non sequiturs by some 'regulars' in this forum who seem thrive on turning every thread into a controversy.
    Let me save you some time and prevent you from repeating yourself. I won't take the job if it requires a copyright transfer. Full stop. I'll find better things to do—I'm not a starving photographer hoping for any work; I'm fairly well established, busy, and don't need to accept jobs on these terms. So whether to go forward isn't and won't be my question.
    My question, one that you are probably well-equiped to answer is this: if someone tells you they need the copyright to images because they are worried about liability arising from the images being used in ways beyond their control, would you tell them that this is good strategy or a bad one? Why? Does copyright really offer the protection they think they're getting? If it's a bad strategy, are there better ways to deal with this concern?
     
  35. Mark: The only way to prevent an image from being used in a manner contrary to your (or to your client's, or licensee's) wishes is to never publish it or otherwise let it into someone else's hands. Because absolutely nothing written on a piece of paper can stop such mis-use. The only thing that the piece of paper does is set the tone and define the options for how to proceed after someone has otherwise infringed.

    Since someone else's infringement (and possibly the liability-related concerns that your prospective client is worrying about) can happen regardless of which of you two holds the copyright, it comes down to who should have the power to go after the infringer. Using the power of copyright to pursue, say, a DCMA take-down (to make some kinds of infringement go away) or to get a court to make an infringing advertiser cease using the image ... if such a thing were to happen, the chore of pursuing it falls on the copyright holder. Who holds the copyright (and thus can do that work against that infringer) may have some bearing on how quickly that action takes place. Your client - who is worried about someone else mis-using the images - may have an interest in reacting instantly to such mis-use, while you might have 100 better things to do, and not get to until you're done with some other project, a week later. Perhaps your prospective client is looking for assurance that mis-use - today, tomorrow, and ten years from now - is aggressively tackled, and knows that holding the copyrights on his project's images is the surest way to know when and how that will be done.
     
  36. William Michael

    William Michael Moderator Staff Member

    "Perhaps your prospective client is looking for assurance that mis-use - today, tomorrow, and ten years from now - is aggressively tackled, and knows that holding the copyrights on his project's images is the surest way to know when and how that will be done."​
    That makes awfully good sense.
    I didn't look at that angle: thanks.
    WW
     
  37. "I don't feel it has (potential) future value, I know it does from past experience. As I mentioned earlier, knowing which images will be useful or valuable later is, or course, difficult. And I'm not unwilling to sell it, I'm unwilling to give it away for dubious reasons"​
    None of which reveals any reason why copyright retention matters in this situation. nor how a transfer here would somehow be "dubious". Surely, if the intended photographer use is of no worry to the client, there can at least be licensing use retained for the photographer. If this shoot is so valuable, there is no known reason why it can't be done with a copyright transfer.
    "everyone decides to tell him his work will never be worth anything"
    Actually it explained that it can't be worth anything if the job is turned down.
    For all you know he could be about to shoot portraits of the kids who are going to star in the next Harry Potter sized movie hit​
    We know, as well discussed now, it can't happen at all if the client is turned away. So, at worst, there is nothing to lose if that happens. Indeed, only loss can occur if the job is turned down, No payment obtained, no moral rights can be achieved, no credit can be claimed, no portfolio use can occur, no marketing or promotion can be done. All of which can be done with routine portfolio/self promotion use retained licensing.
    and his business model sucks... ...giving away IP rights for no good reason is a short sighted idea at best.​
    No one said the business model is poor. However, if this shoot is so valuable, and Mark claims it is, it is folly to turn it down for reasons that don't make any material difference. Mark's explanation that the shoot has value is the "good reason" to transfer ownership.
    We are trying to help Mark attain his goals. He appears to attach more importance to principles about copyright than the valued goal itself. The irony is that, while Mark asks us to convince others about the irrelevance of their perceived legal issues, he resists our efforts to convince him of his.
    We may not be convincing to Mark, but others reading this thread may have a more objective analysis in the future as to when copyright retention is important and when it is not.
    .
     
  38. William Michael

    William Michael Moderator Staff Member

    "We may not be convincing to Mark, but others reading this thread may have a more objective analysis in the future as to when copyright retention is important and when it is not."​
    +1.
    WW
     
  39. Thanks Matt, that is a terrific insight and the kind of analysis I was hoping for. That will be useful — I
    really appreciate it.
     
  40. If the issue is liability due to the use of the photographs of children, I don't think owning copyright will protect your client, in fact it seems it would ensure liability to the owner of the copyright for using the images. It seems the best guard against liability are model releases, or are those out of the question in your scenario?
     
  41. Thanks Barry. No, model releases (including minor releases) are not at all out of the question and I'm
    certain we will have them for everyone in front of the camera.
     
  42. "I don't think owning copyright will protect your client, in fact it seems it would ensure liability to the owner of the copyright for using the images."
    Liability arises from improper usage, not ownership. Unless its child porn or maybe intrusion which is inapplicable here.
    If copyright were somehow relevant to image use based liability , the chilling effect would cause copyright ownership to be a 'hot potato' that no one would want. Which makes no sense whatsoever.
     
  43. So John, as a hypothetical, if the client buys the image and copyright outright and then uses an image of child or children for commercial purpose without a model release, would the photographer have some liability still? I think what I was saying is agreeing with you. Its the improper usage that causes liability. However, would not selling the copyright to the user of the image, actually help protect the photographer?
     
  44. "if the client buys the image and copyright outright and then uses an image of child or children for commercial purpose without a model release, would the photographer have some liability still?"​
    If a photographer were to be liable for the end user's conduct, they would have to get releases from the subjects in all images ever made or to be made available to others to avoid the liability. The so-called editorial use industry would be vastly different than it is. Amateur photographers would have to worry about anyone possible using their images. A novice at a birthday party would be at risk if someone could use an image they gave someone. Even an infringer would imperil the photographer. All because a photographer shot a photo and let someone else have access to it. If transferring copyright spared a photographer, they would always try to transfer it, defeating the purpose of even having one. Invasion of privacy torts are about use, not ownership although intrusion includes the shooter.
    Child porn, voyuerism and intrusion type photography are under a different type of analysis but that arises from shooting the photo. The liability and consequence are already there.
    "would not selling the copyright to the user of the image, actually help protect the photographer?"​
    Legally, there is no difference. Matt raised the issue of practical control where the owner is better equipped to act against unauthorized uses to some extent. But photographers are not liable for other's uses anyway. So, no.
     
  45. Thanks John.
     
  46. Mark:
    Late to the party. Seems to me like you and the client are both shooting arrows, which cross in the air, and both miss their respective targets.

    You need to ask the client, "Regarding Liability, what are you specifically afraid of, or have concerns about?" You need to make sure you get some specific concrete examples of hypothetical situations. Once you know what their fears are, you can work to alleviate them.


    For liability, Make sure the model releases are intact, and if children are the issue, have the parents sign a release to specify exactly what the images can be used for. Also have the parents, as part of the release, have included a signed waiver release saying they understand the photographer or client can't be held legally liable for unauthorized uses by any third party out of their control.

    Finally, why not agree to a joint copyright agreement? You each own the images, and can and do allow each other to use the images within the scope of the contractual agreement, (with restrictions to them for using what they're hiring you to shoot and why) and for your own use including portfolio, art prints, (and whatever else you can negotiate and secure) and that you each grant the other the right to individually or jointly pursue infringements. Typical language here generally includes if one party decides to pursue legal action alone against an infringer, they bear the cost of any such legal action, and that the other party, if not acting jointly, shall not bear or be liable for any of the costs, nor receive any benefit or liability from any incurred judgement.
    Hope that helps.
     
  47. Thanks Gary,

    Now that I've had a few conversations, I understand their position a bit better, but still don't think it's reasonable.

    The basic issue is that the person hiring me, who I think of as my client, is part of a large organization and has to work through a
    contracting officer. My client and I are in agreement and ready to work together, but the organization can't sign a contract without
    the approval of the contract administrator. After a conversation with the administrator the issue boils down to their fear that they
    would be held liable if I used the photos in a way that gave the subjects a cause of action. The administrator's job is manage risk,
    so I got the impression that 'no' was always the answer, there wasn't much use in talking about it, and they don't feel releases or
    indemnity agreements are good enough. Maybe they'll find someone else. Don't know.
     
  48. the issue boils down to their fear that they would be held liable if I used the photos in a way that gave the subjects a cause of action. The administrator's job is manage risk, so I got the impression that 'no' was always the answer​
    The real issue is that BOTH sides are stubbornly beholden in their incorrect notions about how copyright status will afford them a protection they desire. Even after provided with the accurate information to the contrary. A mutually beneficial deal needlessly blown not out of the incidental and perceived legal issues but, due to psychological influences and refusal or to review positions objectively.

    A splendid case study.
     
  49. John, I'm sorry I didn't ask the question that you wanted to answer. If I ever do post a question asking
    whether or not to sign over the copyright to my work, I'll be sure to send you a note so you can make your
    feelings well know. In that case I'll also post enough information so you don't have to make so many
    unfounded assumptions about things like my "psychological influences" or how beneficial the arrangement
    will be to the parties involved.
     
  50. "I'll also post enough information so you don't have to make so many unfounded assumptions about things like my "psychological influences""​
    Who needs assumptions? You told us your reasoning here...

    "The short answer: because I have some self-respect."
     
  51. Okay John, since you insist, let's take a look at your argument:
    I've told you that for what they are able to pay I'm unwilling to sign over the copyright (something to which I attach value) as a condition of this job. You have argued that this is silly because if I don't get the job, I lose not only the fee I may have collected, but I also don't have the opportunity to shoot the images and therefore still don't own the copyright for the simple reason that the photos don't exist.
    Is that about right?
    If so, how is it different than this situation:
    You are in a service business and somebody asks for an hour of your time. You tell them you're happy to help them, your rate is $200/hr. They say, I'm sorry I will only pay you $100 - take it or leave it.
    What do you do?
    Using the logic you advocate in this thread, your thought process might go like this: Accept the job and make $100 or turn it down and make $0. Since $100 is greater than $0 you should take the job.
    It sounds so simple and reasonable, but there are a few reasons why nobody actually runs a business this way:
    • It assumes there is no opportunity cost in taking the job. If you take the job for $100, you might miss the opportunity to charge $200 for that hour. If you're busy the odds of this happening are quite high, if you're not busy, you might be overvaluing your service.
    • Information travels and and it will be difficult to control the knowledge that you will work for $100 making it more difficult to charge $200 in future. This puts downward pressure on both your own prices and your market in general.
    • It also reduces to absurdity: the same argument can be applied whether the potential client offers you $100/hr or $1/hr. $1 is still better than $0 dollars, right?
     
  52. None of that is analogous nor demonstrates why the same goals cannot be acheived without a transfer. The $200 rate is,
    itself, a goal while copyright is merely incidental and also inconsequential in this instance.

    One exception could be the 'news travels fast' phenomenon but it doesn't seem credible that the one job will have any
    real effect. Indeed, it is unlikely you believe it will since you have already explained that the job is a loss financially. If you
    were truly worried about word getting around, the job would be rejected for pricing alone.

    There is nothing indicated that shows the copyright issue as anything other than emotional. The self respect explanation
    makes it quite clear. Thats fine for you but other readers should recognize the position for what it really is.
     

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