UPDATED: Orphan Works and Licensing Exclusivity

NOTE: There has been SIGNIFICANT discourse in the comments section of this post, which makes it well worth reading - AGAIN, in light of the insights by a number of folks.
-- John

---

I got to thinking the other day, about how many times I license an image to a client exclusively. I sign a contract. It's a rigid contract. Usually it's exclusive to the industry, sometimes it's a complete exclusive. I promise I won't license the work to anyone else that would dillute the client's brand for the work they commissioned me to make.

Here's an example of an image used in a multi-million dollar ad campaign (not by me though) for Nike:

When that photographer (who goes by the name of Boogie) doesn't submit this image to the Orphaned Works database, his work will quite possibly become orphaned. His background is noted here:

This Thursday is Nike Boots and Vault in Harlem will show an original photographic Exhibition by Boogie. Boogie is a Serbian immigrant with a body of work that’s graced the page of The New York Times, Time, Maxim, Playboy, and Rolling Stone. In his photography he not only captures a moment of life but nearly the whole story as well. Boogie’s well know for his incredible photos from the Bed-Stuy area of Brooklyn capturing the life of gangs of the area.

Boogie no doubt licensed to Nike the exclusive rights to use this (and others he made) for their campaign. They surely insisted that these images not be used to promote other footwear lines, if not all other uses, for the duration of the ad campaign.

A Google search for "boots gangs brooklyn" returns this image in the result. Hit that link to see it. Dragging the image to Photoshop reveals no metadata. There's no photo credit, and no corporate logo. When Nike sees this image being used for something else (this image is 490px wide, big enough for lots of web ads) they will naturally go to the photographer. Here's the way that conversation will go:

(Continued after the Jump)

Nike: Hey Boogie, you're in breach of our contract for licensing that image to Brand X for their ads. We had an exclusivity clause.
Boogie: Hey Nike, I didn't know anything about that. They're infringing my work.
Nike: You did register that work with the copyright office?
Boogie: Of course! I register everything.
Nike: Good. Now, let us know what's happening with this. We're very upset.
Boogie: I'm on it.
***
Boogie: Hi Brand X, you're using my photo that I shot for Nike in your own ad campaign. I didn't give you permission, and you stole it.
Brand X Rep: No, we didn't steal it. In fact, we did a search to find the image, and it came up in our web search. We tried to determine who's it was. In fact, we went to the databases that the copyright office set up so that we could search for it.
Boogie: But I didn't give you permission, and you didn't pay me either. Your using it puts me in breach of contract, and I could well lose not only them as a client, but a lot of money because their use isn't exclusive anymore.
Brand X: Sorry. We're using that in about 500 web ads to promote our "stay away from the gang life" messaging.
Boogie: You can't.
Brand X: Actually, we can. See, we did a diligent search for your work, and couldn't find you. Unfortunately for you, you can't stop us. We only have to make a good faith offer to you. We found this photo on Flickr, which we could have used when we did the same search, and this photo we found on iStockphoto, which would have cost us about $1. Since our only obligation is to come to a good faith resolution to this matter, we'll offer you five times that, or $5. Our accounting department will expect an invoice from you, and I'm not sure if you'll need to fill out a W-9, they know these things. We'll get you paid in 30 days.
Boogie: But by accepting $5 from you, that means I have accepted payment from you for your use, and I am thus violating the terms of the contract I signed with Nike.
Brand X: That's not our problem. You shouldn't have signed away exclusivity to these images in the first place. Don't you know there's really almost no such thing as exclusivity any more in this new Orphan Works Era.
****
Nike: Well?
Boogie: I can't stop them from using the photo. They're going to pay me $5 for their use of the photo, and I don't have a choice.
Nike: You're in breach of our contract. We paid you a lot of money for that image, both to create it, and for exclusivity, and now we want that our money back, plus damages for the dillution of our brand equity, and the confusion that those ads are now creating between their product and ours.
Boogie: But I didn't do anything wrong.
Nike: That's not our problem. You'll be hearing from our lawyers, and you better have a good one yourself, this is going to cost you.
***

How do you think the conversations will go for these:

That one above? That's Boogie's too, for the same campaign.

OR this one, also cropped (and note, the cropping can be done by the user, or by others and then the images can be released without owner information or company logos) that was Microsoft's ad with a photo-illustration of penguins, poking fun at Linux:


Or this one, also from Microsoft, where (before the white-line cropping) it was an ad for their Silverlight product:


I could go on, and on, and on. Licensing exclusivity to your work could place you in a legal quagmire that will shutter your business. This applies to magazine work, newspaper work, and, of course, ad work.

---

Related Posts:

• Orphan Works - A Unique Set of "Myths" and "Facts", (6/2/08)
• Orphan Works and Licensing Exclusivity, (5/23/08)
• What Are the Odds? The Orphan Works Likelihood of Passage, (5/16/08)
• Apathy Gets You NoWhere, (5/15/08)
• Orphan Works - Senate Markup (5/9/08)
• Orphan Works - HIstory in the Making, (5/7/08)
• Speedlinks - Orphan Works Edition, (5/6/08)
• Orphan Works 2008 - A Wolf In Sheep's Clothing, (5/1/08)
• Orphan Works Act = Thieves Charter? (4/29/08)

---

Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.

[More: Full Post and Comments]

New Flash Technology

So, you're stuck with just one way to point your flash head, and a single bounce-card to make your light look better, and you haven't taken the baseline advice of David Hobby over at Strobist to take your flash off-axis with an off-camera flash cord?

Enter a cool new device to make you look better. Check out the video for the latest Presslite flash modifier: Makes you want to order one right now, doesn't it! At the introductory price of $34.95, you're going to have a nice new tool in your satchel.

---

via Gizmodo

(Comments, if any, after the Jump)

---

Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.

[More: Full Post and Comments]

Copyright Transfer Termination

"Did I mutter, or stutter?" Said the author, arriving at the desk of the publisher. "I said I want my copyright back. "

"Well," said H.J. Henry, "You can't have it back. You transferred it to us back in 1981, when you were the naive and starstruck song writer that you were, what was it, 23?"

The author retorted "yes, and I didn't know any better then. I am fifty now, and I know that you've made millions off my work."

"Too bad," said Henry. "It's ours."

Not so fast. Our now-wisened bard has a safety net that was built into the copyright law.

(Continued after the Jump)

§ 203. Termination of transfers and licenses granted by the author (read it here)

Conditions for Termination. — In the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright, executed by the author on or after January 1, 1978...Termination of the grant may be effected at any time during a period of five years beginning at the end of thirty-five years from the date of execution of the grant;...The termination shall be effected by serving an advance notice in writing...The notice shall state the effective date of the termination, which shall fall within the five-year period....A copy of the notice shall be recorded in the Copyright Office before the effective date of termination, as a condition to its taking effect...Termination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant...Upon the effective date of termination, all rights under this title that were covered by the terminated grants revert to the author...

So, if you're a creative, whether it's photography, music, illustrations, text authors, or others, you can turn back the clock - in a way - and undo the transfer of your copyright.

"But I signed a work-made-for-hire agreement", you say.

Why do you think that almost all contracts that have WMFH in them, which reads:

each of the images created is a "work for hire" under the Copyright Act;

Has as a direct follow on:

"...and to the extent that the images are not deemed to be a "work for hire" under the Copyright Act by a court of competent jurisdiction, 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 images."

It's because of what can statuatorily be considered a WMFH. The statute that defines copyright appears in Section 101 of the Copyright law. In it are enumerated several tests to determine if your work is even eligible to be considered a work-made-for-hire. They are:

1) a work prepared by an employee within the scope of his or her employment;
2) a work specially ordered or commissioned for use as a contribution to a collective work
3) as a part of a motion picture or other audiovisual work,
4) as a translation,
5) as a supplementary work,
6) as a compilation,
7) as an instructional text,
8) as a test,
9) as answer material for a test,
10) or as an atlas,

if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for a publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes; and an “instruc-
tional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

The only category that the image might fall into would be "a work specially ordered or commissioned for use as a contribution to a collective work", but that's not really going to fly.

Creative Commons has created a CC Termination of Transfer Tool, you can read a great deal more about this in the Copyright Office's Circular #9, Copylaw.com has an article on How Authors (and their Heirs) Can Recapture their Pre-1978 Copyrights, and Lawrence Lessig wrote a blog post - Are you ready to "terminate"?, and Creative Commons also has a FAQ on the provisions thats worth a read. Fortham Law Review discusses this as it applied to Superman (and others), in this article, and the Copyright Office, in preparation for the coming tide of termination requests, wrote about it here.

So, there' more to learn about the copyright laws, and how it affects you. Consider what's written here, and linked here. Then, if you even think you created work back then, talk to a good IP lawyer about how to work though getting your work back. If you have work that was created even as late at 1988, you can file a notice - up to ten years in advance - of your intent to recoup your copyright. This law is like your Oil of Olay, but while it can't clear up those brow lines and crows' feet like that salve can, it can give you back those lost pieces of yourself that you sold when you were young an innocent, and didn't know any better.

---

Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.

[More: Full Post and Comments]

Self-Interest vs. Mercy - Pick One

I find I get a great deal out of my reading. I can't imagine the person who just doesn't enjoy reading. Learning from the wisdom of others holds an infinite amount of genius - at your fingertips.

Today, I was reading an article which referenced a book - The 48 Laws of Power. Law 13 notes that in order to get what you want, you have to appeal to people's self-interest, not their mercy.

Really?

(Continued after the Jump)

Yes, Really. Those most pre-disposed to responding to a merciful call either wear a habit, a Roman collar, or are otherwise faith-based.

When was the last time you heard a colleague say they got the assignment because they threw themselves on the mercy of the client - "oh please, hire me. I need to make rent this month!" Nope. Doesn't work that way.

Instead, you have to appeal to their self-interest. Will the work you produce bring to life the vision that the client sold to their client, and make your client look good? Will the imagery you produce sell more product, and bolster the company's bottom line? Will the work you deliver make a subject more attractive, or is it a magazine cover that causes an increase in newstand/single-copy sales?

If you're saying "oh, I'm a documentary photographer working for XYZ humanitarian causes, it's not about that." Really? Yes, it is. It's about the self-interest of the organization in utilizing your images to promote their cause to the world, or validate the efforts of those financing the trips/outreach - so that they continue to give.

If you're saying "I work crappy assignments so I can save up and take trips that are meaningful to me, and hopefully, through my work, make a difference when I can shed light on the plight of the {fill in the blank} people." If that sentence applies to you, and you felt a kinship with it. Read it again, focusing on the phrases "meaningful to me; though my work; I can shed;." That's all about you feeling better about yourself, with the resulting benefit being your work sheds that light.

The sooner you can focus your outreach to clients on what your work can do for them to make them: look better; sell more magazines; further the cause; or improve profits, the sooner you will win those assignments.

---

Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.

[More: Full Post and Comments]

Assignment vs. Stock - Is Stock Risky?

Photographer Thomas Barwick produces a great deal of images. Getty Images has 3,479 images available online via their Digital Vision brand, and other brands - including Photographer's Choice, where he may well have paid to put the images up. Mr Barwick's work here stands as evidence of the value of actual assignment photography, rather than stock. Doing a "search within" for the phrase reveals 193 images include a laptop. Having a look at those images reveals that he probably lined up the whole class - boys, girls, brunette, african american, glasses, no glasses, and with teachers, among them.

Unfortunately, for two PC part manufacturers, and I stress "PC", they both were fishing from the wrong ocean of images. First, they were images of a Macbook, second, well, you take a look....

(Continued after the Jump)

They tried - probably attempted to secure exclusivity to the image they wanted, because the actual images they each used appear to be off the website, just this one. This is the only image on the Getty site. Note the position of the youth in the background. This is the link to the images on the Getty site, and the image is available on a CD, likely with others from the same shoot of the boy.

Next up, is one of the variations from that same shoot. ASUS used a different image and cropped out the ports, because they obviously were not PC ports, they're Macbook ports. Here's the ASUS official product page.

Then there's the MSI computer. Note that they've modified the ports on the side of the Macbook, and added in the MSI logo. Here's the MSI official laptop section, here.

ASMP has a great recouce that goes further in-depth on this subject - check out their website here -Rights Managed Stock vs Royalty Free Stock. I wrote about this previously, back in November - (Black Friday? Try, "You Get What You Pay For" Friday!, 11/23/07).


The evidence mounts - assignment photography, commissioned for the client, and precluded by others in the same field, or altogether, is worth a great deal. If nothing else, it's worth it to avoid the embarassment.

---

Via: Zeke K & Jeff Kowalsky/Engadget/ eepc.de

---

Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.

[More: Full Post and Comments]

The 2008 AP Contract Analysis - Introduction

Most assuredly, the AP has a new contract. We first reported about it here (A New AP Contract Emerging? - 5/14/08), and more than one copy came our way from several readers. Of note in their paperwork, was the disparity between pay from bureau to bureau.

You have until June 1, or about 2 weeks, to indicate your intent to object to this or sign it. If you don't sign by June 1, you won't be getting any more AP assignments.

(Continued after the Jump)

Interestingly, the AP notes in their cover letter "We urge you to read the agreement closely and to seek expert guidance before signing if you desire." Yes, be sure to talk to a lawyer, and your insurance agent (regarding indemnification, if for nothing else), before signing.

I've consolidated sections 7, 8 and 9, because they have some fairly standard language in them, and my comments/suggestions in those sections are somewhat limited.

In the end, there clearly was an attempt at doing more for the photographers. Perhaps it was because the AP was competing with Reuters for freelancers, who already pays royalties. Perhaps it was because there was ambiguous, or aged language in the last contract that needed updating. Perhaps it was because they just couldn't get consistent image quality from their freelancers (setting aside competition from Reuters) with the previous low rates. Perhaps it was the AP making an effort to be more thoughtful about the realities of being a photographer. Likely, it was a combination of all of the above.

---

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

---

Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.

[More: Full Post and Comments]