Saturday, February 28, 2009

"Your" Staff-Made Images - What To Do When A Publication Closes?

Over at SportsShooter, there was a lively discussion (Who Owns The Rights 2 The Images When the Paper Closes?? ) on an issue that is affecting more and more photographers as jobs are lost.

In the interest of broadening the reach of my commentary on the subject, I am posting here my message for your review:

The paper owns the copyright, and that includes the right to publish, as well as the right to preclude the publication. That includes the right to the physical material (i.e. film, CF cards, hard drives, and so on). If the paper wishes to place into the trash can, any or all of those assets, that is their absolute right. However, their doing so is the relinquishing of only the physical material, and not the intellectual property that is on them. This can, of course, be litigated in a court, but generally speaking the above statements hold true.

That said, you need to look at the status of the DOP. If the DOP is empowered to sign contracts engaging freelancers, then that person is also likely empowered to license material, or to sell it, in so far as they can legally authorize the dissolution of assets.

Thus, asking the DOP - "hey, can I take with me a copy of the images I made here at the paper", and getting a verbal "yes", while a binding contract, may be subject to misinterpretation, or a lack of recollection, at a later date.

If you are a photographer looking to get your images out, you need this in writing. The document should read something like this:

(Continued after the Jump)
---------
This is an Agreement between John Doe, a staff photographer for the Rocky Mountain News, and the Rocky Mountain News, dated February 28, 2009.

John Doe is hereby granted permission to take a copy of any and/or all images made by him during his term of employment, for the following purposes:

___ For personal and portfolio use

___ For personal and portfolio use, as well as the non-exclusive licensing of such works

By signing below I grant this permission, and also stipulate that I am authorized to enter into this agreement.
---------
Then you both sign at the bottom, and they keep one, and you keep one. On the date that you depart, I would be sure to hand over to the personnel department a copy of that document for your personnel file.

You can write a much more lengthy document, and you can argue that the licensing language is vague and should say things like "for an unlimited period of time in perpetuity" and so on, and those are certainly things that could be added. Also, some states may require the sentence "for good and valuable consideration herein acknowledged as received..." near the beginning, and that consideration could be $1, or it could be many other things.

It is also quite accurate that it was suggested that once the business goes out of business, even if the assets were acquired, and those assets included the photo library, that the likelihood that you would get caught licensing an image a year (or 5) from now is very minimal, you would if it was a major image that garnered a lot of publicity (like the Clinton/Lewinsky hug), but, on principle, you should do what's right even if you can get away with doing what is wrong.

Note - I am not a lawyer, and this should not be construed as legal advice, but as a starting off point to have a discussion with a lawyer in your home town that knows the laws of your state and locality.

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.

3 comments:

Northern Virginia Photographer - Mark Finkenstaedt said...

God help us all during this latest faze of the shredding of the American lifestyle's fabric.

Interesting related article : http://www.washingtonpost.com/wp-dyn/content/article/2009/02/28/AR2009022801964.html

Interestingly enough, I mentioned just this to a life long local DC newspaper photographer's wife ( Major DC paper) and he hadn't kept many if any of his photos for "personal" use or legacy. I was stunned what with the ease of maintaining your own archive. In the event of a catastrohe all you'd need would be the release and not the full blown scramble to retrieve from the newspaper's archive.
Save you stuff folks the end of the world is neigh.

How would he even promote himself in any future layoff/buy-out? A disaster!

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