The AP 2008 Contract Analysis - Section 4

Here's Section 4, followed by commentary:

Section 4. Rights.

4.1. Freelance Photographer agrees that the Assignment Photos have been commissioned by AP, and each of the Assignment Photos is a "work for hire" under the Copyright Act; and to the extent that the Assignment Photos are not deemed to be a "work for hire" under the Copyright Act by a court of competent jurisdiction, Freelance Photographer hereby assigns all right, title and interest in and to the Assignment Photos to AP, including all copyrights and any other rights in law or equity (including but not limited to other derivative works of any kind, made by any method or technology known or invented hereafter, derived from the Assignment Photos) . Freelance Photographer agrees to assist AP, at no further cost to AP, in perfecting any such assignment, including executing any documents within a reasonable time period after AP provides them to Freelance Photographer.

(Continued after the Jump)

Comments:
Ok, here’s a bit of splitting hairs, but worth considering. First – the circumstances under which a “work for hire” situation exists, doesn’t really meet the terms that that terminology requires. As such, all contracts I’ve read also include something like “you agree to transfer all rights/copyright…” to the photos. However, in order to transfer, or assign them, you must first register them.

Now, two things come into play. First is that you may have to actually register the copyright yourself in order to transfer it, hence the language where you agree to – for free – assist them in securing those rights. More importantly, is, a copyright transfer need not be forever. The Copyright law allows for you to recover copyrights you transferred –it’s called a “termination transfer.” For more information (keeping in mind my indication about the lack of your work as being a WMFH) check out the Copyright Office’s section 203 .

Thus, any attempt to collect your copyright for a duration longer than 35 years, would be inconsistent with the language in section 203.

In addtion, I don’t know of a single instance where freelance colleagues of mine have signed any Copyright Form VA documents effecting this transfer, so it may be that there are massive amounts of freelance work of the AP’s that are not registered. Additionally, there's a great article about termination of transfers here.

Section 4.2:

4.2 . AP hereby grants Freelance Photographer the worldwide, non-exclusive license to reproduce, prepare derivative works of and publicly display Assignment Photos in a personal portfolio only; provided that any Assignment Photos displayed include proper attribution to AP, and the display is only for personal, non-commercial use by the Freelance Photographer.

Comments:
Seeing this in writing is of value. In many instances, it’s not there, meaning you can’t use the work on your website, or portfolio. Although it may technically be that a website is a commercial use.

Could be changed to:
“in a personal portfolio only” could better be clarified to read “in a personal portfolio, on a website demonstrating photographer’s photographic capabilities, or for the purposes of self-promotion”. This would allow the photographer to also send out a promo email with a “here’s what we’ve been doing this week” type of client update.

Section 4.3

4.3. The attribution provided for Assignment Photos licensed by AP shall be "[Freelance Photographer's name]/AP." Failure to include such credit or to cause licensees to include such credit will not be deemed a breach of this Agreement.

Comments:
The AP has chosen curious language here, and it may be a just an oversight, but the language says ”licensed by AP”, and the AP actually becomes the owner, so I’m not sure why it says “licensed”, but it could be to be cognizant of the non-WMFH status of the images, and as such, the transfer of rights.

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Continue Reading:

• The 2008 AP Contract Analysis - Introduction
• The 2008 AP Contract Analysis - Opening Recitations
• The 2008 AP Contract Analysis - Section 1
• The 2008 AP Contract Analysis - Section 2
• The AP 2008 Contract Analysis - Section 3
• The AP 2008 Contract Analysis - Section 4
• The AP 2008 Contract Analysis - Section 5
• The AP 2008 Contract Analysis - Section 6
• The AP 2008 Contract Analysis - Sections 7,8 & 9
• The AP 2008 Contract Analysis - Rates

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