 Lynsey Lund |
Copyright control and payments I'm hoping someone can give me some pointers on how to handle this situation. I am doing some freelance marketing and graphic design for a real estate company. I have 2 situations with my photos that I'm not sure how to handle...what the implications are legally. The first: we would like to use some of my images for the background of some designs. They have already been taken and printed in various contexts. Do I charge for the use? Do I maintain the copyright? How do I ensure they don't use the photo outside my designs? Is this similar to them buying a stock photo? The second is: I am going to go take photos of properties in order to use on the publications, some different and better shots than I have access to currently. They are paying me an hourly salary. Since they are paying me, and sort of an employee, does the copyright belong to the real estate company? Or is it still mine? Like above, how do I deal with usage of the photo, since these they would like to use in other situations, like their website. TIA for all your comments, advice and experience! I am new to the business of photography, I have really just been playing around with it. I appreciate any insight you can offer!
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Mark Feldstein |
I'll start Lynsey with a pretty standard disclaimer. This is a good place to get photographic advice but not so good a place for legal advice that you can take into court and say I relied on the advice of this person, as a defense to one thing or another, even though at least two of us here are lawyers and one of us, me, is also a photojournalist. So, I recommend that you buy the time of a lawyer, who, specializes in intellectual property law, where you live and ask your questions of them. Having said that, I don't quite understand the first part of your question. To publish or "use" a recognizable photo that you did earlier for someone else, depends on the agreement you with that someone initially, including whether you had a written release from them allowing you to use the photo for other purposes, including advertsing, marketing and/or any kind of self promotion for you or someone else. Generally, however (and assuming you're a U.S. citizen) unless the photographer who initially holds the copyright to her own work, specifically and deliberately transfers that copyright (whether by through a sale or otherwise) then no one else may lawfully use the photo absent your express permission. That permisssion should be in writing but doesn't have to be. If you have a release for the photo, yes you may charge someone else for use of the photo and you should do that by written agreement, per use, based on that use, it's value to the client and how many copies and what size they're printing it. How much you charge is up to you. The second question is a situation you probably ought to avoid because it doesn't sound like you're actually hired as a photographer and doing it as an employee usually gets messy. Why? Because outside photographers are usually paid much differently than people employed inside the company. If you agree to shoot the job, you should be paid by a separate written agreement that sets out the work, the intended result, prints, usage, AND copyrights to be held by you. A "work for hire" agreement, as with photographers working for some media organizations, must be in writing. That agreement must also clearly state that the photographer surrenders their copyright and its owned by the employer of the photographer. In short, if it ain't in writing, it's not a work for hire agreement and you retain the copyright. I also highly recommend that if you do this kind of work that you register your copyright within 3 months of creating the images. If you don't, then you can't move against someone for infringing on your work in a copyright action in court. Last time I checked, deliberate infringement could cost the offending party about $174,000 per violation by statute. I recommend that you get a fundamental understanding of the business practices that apply to what you're doing before you start doing business. If not, you're more likely than not just going to be "dabbling" in this kind of work and like so many others who just want to see their photos published, get taken advantage of for one reason or another. There are plenty of books on business practices for photographers, seminars, etc. For example, asmp.org offers a number of such publications to non members. Take it light ;>)
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Lynsey Lund |
Thank you so much for your advice Mark. I think I understand most of it. Just to clarify, the images that I already have taken that they want to use are inanimate objects. Mostly macro flower shots, scenery, flags, that sort of thing. So no releases are needed. I'll contemplate the rest of the reply and make sure I understand it all! Knowing that my photography should be separate from my employee status is quite useful and probably the biggest issue. This all hasn't quite come to a head yet, but I'm trying to ahead of the game so I am prepared when things really get moving and involved. I want to be ready and have a plan so that, like you said, I don't get taken advantage of. Disclaimer noted, also! I appreciate your opinion and recognize it as that! Thanks SO much!
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Mark Feldstein |
My pleasure Lynsey. One thing I should clarify: Insofar as the photos of the inanimate objects are concerned, if you shot those as an assignment for someone else, even though you would hold the copyright and control the usage, you should ask their permission to use them for other things or other illustrations. Sometimes, offering a credit line like Photo copyright ____ by _____, ...courtesy of...., OR used by permission of ....., keeps the clients happy. I don't reuse work without the original client's written consent and if I offer it for stock, I still make sure I have their consent. I do that as a business practice, not that it's required, but it also depends on what our original agreement says. Okie dokie? You're very welcome ! Latah. Mark
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