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Copyright grabs to reduce liability


photomark

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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?

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<p>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.<br /><br />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.</p>
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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.

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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.

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<blockquote>

<p>"It seems like better tools are well-written releases and a decent indemnity clause"</p>

</blockquote>

<p>They are. This is a use of likeness issue, not ownership.</p>

<p>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.</p>

 

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<blockquote>If there's no future use or sales for you, then there is no need to worry about ownership either.

</blockquote>

 

<p>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 <i>know</i> 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. </p>

 

<p>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.</p>

 

<p>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. </p>

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<p>"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.</p>
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<p>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 <em>not the least bit about self respect</em>.</p>
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<blockquote>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. </blockquote>

 

<p>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. </p>

 

<p> 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. </p>

 

<p>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.</p>

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<blockquote>

<p>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 <em>know</em> which are which ahead of time, it's not simply a matter of principle</p>

</blockquote>

<p>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.</p>

<p>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.</p>

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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.

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<blockquote>

<p>I don't invoice my time</p>

</blockquote>

<p>Most commercial photographers <em>do</em> 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. <br /><br />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."<br /><br />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 <em>client's project</em> 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.</p>

<blockquote>

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

</blockquote>

<p>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 <em>licensing</em> the work, it's a different conversation. </p>

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<blockquote>

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

</blockquote>

<p> <br>

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.<br>

<br>

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. <br>

<br>

<br>

</p>

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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.

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<blockquote>I do plenty of work for which the copyright is meaningless to me.</blockquote><p>Fair enough Jeff. For the sake of this thread, let's assume that is not the case in this specific

instance.</p>

 

<blockquote>And I do work for hire. I have a day job that includes photography.</blockquote>

<p>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.</p>

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<p>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.<br>

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.<br>

How many unrecognized dead, or non-working, photographers are being discovered today? One, two, three in the last four or five years.<br>

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.<br>

<Chas><br /><br /></p>

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<blockquote>

 

<p>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.</p>

 

</blockquote>

<p>By insisting on not selling the copyright you seem to feel that the work will have some future value you are unwilling to sell.<br>

<br /><br /></p>

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<blockquote>

<p>I have a potential client that wants to work on a project with me. . . <br /> I received a contract from them that included an assignment of copyright to the client. . . <br /> The project involves photographs of children. <br /> 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.<br /> My position is that copyright is the wrong tool for this. <br /> It seems like better tools are well-written releases and a decent indemnity clause. <br /> My questions are:</p>

</blockquote>

<p>-</p>

<blockquote>

<p>> Is there anything I'm missing?</p>

</blockquote>

<p><br /> 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. <br /> <br /> 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. <br /> <br /> 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 <em>“concern”</em> about my <em>“engagement”</em> and wanted <em>“written assurance that I had the necessary legislative 'working with children clearance form and number’ ”</em>.<br /> <br /> 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. <br /> <br /> <br /> *<br /><br /></p>

<blockquote>

<p>> Is there a legitimate argument for using copyright in this way?</p>

</blockquote>

<p>I don’t think so. <br /> <br /> *<br /><br /> </p>

<blockquote>

<p>> Are there better arguments against using copyright in this way?</p>

</blockquote>

<p>Yes I think so.<br /> 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.<br /> <br /> *<br /><br /> </p>

<blockquote>

<p>> I am asking for <strong>ideas to help to negotiate a better solution</strong>, 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 <strong>might help me convince them that they don't need it.</strong></p>

</blockquote>

<p>As previously indicated, I suggest that you don't attempt to convince them.<br /> <br /> *<br /><br /> </p>

<blockquote>

<p>> 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.</p>

</blockquote>

<p><br /><br /> 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.<br /> <br /> Obviously your reasons for wanting to do your job are not the same as in my example. <br /> <br /> 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: <em>“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.”</em> <br /> <br /> So, the way I see it is: your “thinking” about this matter should be more concentrated YOUR thinking than the client’s thinking. <br /> <br /> 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. <br /> <br /> You have the opportunity to make an interesting shoot.<br /> <br /> 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 . . . <br /> <br /> 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.<br /> <br /> I think, that is it is always very good to do 'thinking' – but I think that you are over-thinking this one.<br /> <br /> WW</p>

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<p>Damn I forgot to check my calendar today - completely missed that is was "beat on the OP day today".<br>

<br />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.<br>

<br />Mark,<br>

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.</p>

<p>Part one<br />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.</p>

<p>Part two<br />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.</p>

<p>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.</p>

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

<br>

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.<br>

<br>

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.<br>

<br>

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.<br>

<br>

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 . . . <br>

<br>

<br>

I think it is a bit of the chicken and the egg situation – <br>

Not enough detail in the question may equal assumptions and some frustration shown in the answers. <br>

My reading is, that the general thrust of the answers is meant to be of assistance. <br>

<br>

<br>

WW </p>

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<blockquote>

<p>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.<br>

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.</p>

</blockquote>

<p><br />^^ That.</p>

<p> </p>

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<p>Dan and William, thanks for those answers. They are helpful and I really appreciate you taking the time to directly address the question.</p>

 

<p>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. </p>

 

<p>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.</p>

<br />

<blockquote>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.

<blockquote>^^ That.</blockquote></blockquote>

<p>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. </p>

<br />

<blockquote> By insisting on not selling the copyright you seem to feel that the work will have some future value you are unwilling to sell.

</blockquote>

<p>I don't <i>feel</i> it has (potential) future value, I <i>know</i> it does from past experience. As I mentioned earlier, knowing <i>which</i> 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.</p>

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