Dispelling the Myths Around Copyright

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“The Post-Production 101” 

PART B.1: Dispelling the Myths Around Copyright

Around all parties that work with creatives, there are many misconceptions about the true nature of copyright. In this article, we can, hopefully, get rid of them and create a new awareness for how photos and other pieces of creative work need to be handled with respect to the rights of the copyright holders. Of course, this is no legal advice as I’m not a lawyer and laws differ from country to country. My own standards are based on the Berne Convention for the Protection of Literary and Artistic Works (of which you can find a summary here) and are disclosing my location in one of the 180 countries that are part of it, to be precise, in Germany. If you utilise any creative services of artists living in one of these countries, regardless of where your company is based these rules will apply and are completed by local laws defining further details. This is giving the copyright holders fundamental rights to their own works which you should know and recognise before hiring them to create photographs for you. With the following articles of this section, we will go further and discuss how you can achieve the right to use your commissioned images through the purchase of buyouts as well as explain the model’s rights to their own pictures. With this new knowledge, you may learn how to define your usage more precisely in advance and avoid any unintended misusage resulting in controversy or costly new licensing in the aftermath.

Pressing the Release Button Creates the Copyright

The most important thing to remember about copyright is that once created, it is not transferable. A copyright holder may love, hate or even deny their own work, however they will never get rid of their copyright unless they destroy the work and all copies – which can turn out to be a challenging mission in a digital world… Copyright is, therefore, a faithful thing that is non-purchasable – no matter how much money you are willing to offer. As one may say, copyright is so clingy to the artist that it stays with them respectively with their families for at least 50 years after their death. In most of Europe, the UK, and the US it’s even 70 years beyond their lifetime. This means that the images created as a campaign or content for your brand will in fact always belong to the photographer and not even taking them out could make you the legitimate owner of the images. There is only one chance to become the holder of the copyright yourself – which is releasing the camera yourself. The act of pressing the button can be considered as the creation of the image and this will automatically create the copyright which leaves you with the right to publish the work unreservedly, etc. For everyone else, the opposite is true: any sort of usage by parties who are not the copyright holders requires the consent of the artist.

You Cannot Grant Usage to the Copyright Holder

You cannot grant usage to the copyright holder because they ALWAYS have the right to showcase their work or use it otherwise. Many times, when it comes to low-budget projects, photographers are suggested to work the shoot for nothing but their photos. However, it’s a delusion to think that the results can be considered a payment. By definition of copyright, it’s never the client who owns the images. So what are you buying when you, as the client, are paying a fortune for the shooting day? You are, in fact, paying for the service of having your imagery produced. Usage, however, is not a service but a license that can be given to you under certain conditions that define the price. Of course, there are many photographers who offer daily rates as a flat price containing the license to use the images right away. Yet, when it comes to commercial photography it’s very unlikely that the purposes of different works can be compared as distinguished from e.g. family portraits. The latter will probably all end up in a couple of mailboxes and photo albums. Hence, the dimensions of commercial buyouts, as we like to call the licenses, can vary distinctly from one another, and to give you an idea of the possibilities and prices, we’ll look into this throughout the next article in greater detail. Though, if you’re still shaken by the fact that you’ll always have to share the right of exploitation with the photographers who took the photos and you’re agonising how you could possibly keep YOUR PRECIOUS to yourself alone: there is such thing as exclusive usage rights available for purchase. But mark my words! You’ll pay a high price for it because it’s very rare…

It’s Getting Even More Complex with Third-Party Rights

Yes, the model, stylist, and make-up artists have rights to the images too. Although the co-copyright of those who take care of the overall style in images (fashion, make-up and hair, set design, etc.) is officially debatable, you are definitely profiting from their creative work. In case of doubt, the existence of their copyright ownership depends on the extent to which it was their own creativity or just following the instructions of the ultimate copyright holder, the photographer. This may be the reason why it’s not very usual that stylists get to grant you a separate right of use. Much more, it is contained in their professional fee. However, when it comes to editorial works and other low-budget productions the natural deal is to recompense their creativity and work by mentioning their names and linking their platforms appropriately next to the credits of the copyright owner and models.

Apropos, when it comes to the model, we are speaking of the right to their own image. Obviously, when serving as the face that’s advertising a brand, these are affiliated to personal rights that require adequate compensation. Usually, model agencies negotiate this for their models and they take approx. an extra 20 % agency provision for their management. Not uncommonly, the usage is all in the total fee, yet, that doesn’t mean that it is not defined precisely. Just as most photographers, model agencies want to make sure that you enter into a contract with them which, eventually, protects their protégés from any image abuse. That being said, everything that goes beyond the usage that you paid for, e.g. if you advertise with the images for longer, or on a larger scale than communicated and agreed upon, you’ll be likely to face legal troubles and penalties on top of the renewal fees of your licenses.

The Duties of the Licensee Explained

As if it wasn’t enough that purchasing all the usage rights may cost you a fortune, holding a valid license also comes with a certain amount of baggage. Namely, there are obligations you have as a licensee that you can’t get rid of once you buy the images. However, these duties make sense considering the copyrights of the images’ owner as well as the rights of the model, and they are explained below to make this a reasonable naturalness to you.

Why You Have to Exercise Due Diligence

When you acquire the right to use a particular image, or several, regardless of whether they are prints or digital, you’ll receive a set of copies from the originals. While the photographer is likely to be taking good care of the storage of his works and protect them from theft, destruction, etc., you become a trustee who is equally responsible for taking this care as soon as you have the images’ copies. In order to prevent yourself from any offences by negligence, it is, therefore, necessary to take some safety measures. When it comes to digital storage, this can be e.g. the use of reliable hardware, strong passwords, and protection against malware. When you have physical copies, the best method for safekeeping, of course, depends on the type of your venue. In both cases, it’s up to your thorough judgement who or which platforms are trustworthy partners and where the limits of your permit are.

You May Not Grant Sublicenses

By reading the paragraph above you may have understood already that your license to images is unique to you respectively your company only and no one else can have access to them, let alone process or publish them. But, what if you have partners who usually take over branding, marketing, communication, or other matters of your brand? Sending the photos to third parties would constitute a sublicense that you are giving to them. However, if this is not specified in your license agreement and accordingly compensated, you are technically violating copyrights. Therefore, it is important to make sure that any sublicense is discussed and articled in the first place or approved in written later by the copyright holder and any relevant third parties because normally, the licensee cannot act as a licensor.

Let Go and Delete/Destroy the Images After Your License Has Expired

Certainly, you have noticed that with the new GDPR all websites have started to add a privacy policy disclosing what they do with your data when you use their website. By doing so you agree to the storage of your data, however, it is your legitimate right to request the deletion of it. Apart from the fact that images are protected by copyright, it may sound surprising to you that (people) photography is, in fact, considered to be sensitive data too. Printed photographs can disclose a model’s health condition and both the photographer’s and model’s dynamic data. Additionally, digital photos are studded with meta information. As long as you have a license to use or archive the images you are also allowed to store the included data. After the license expiration, though, it is effectively a violation of copyrights AND data protection laws to have the images stored, even if it’s in an archive that is left untouched. Therefore, when you read the terms and conditions of photographers, you can certainly find regulations that deal with the correct deletion/destruction of unused works. That being called to attention, from now on you’ll know that filing images beyond your license is as much of an infringement as a shady website sending you newsletters although you have unsubscribed from them.

Accepting the Terms and Conditions of Business

With accepting the photographer’s terms and conditions or/and a license agreement you might need to be mindful of further rules that are individual to your case, however, these are not typically meant to do you any harm or complicate your work and life. On the contrary, they protect both parties in the process of collaborating and, by your fearless signature, you can show that you’re trustworthy and willing to do good business. Nevertheless, it is important to know the standards of copyright and other laws that are in force and to review the individual terms of your photo business partner before entering the contract. This way you can seasonably sort out any misunderstandings or clashes of interests and proceed to business with more ease and complete transparency.

EPILOGUE

If you enjoyed reading this article, or you found it helpful in one way or another, I would love to know (reach out)! You are also welcome to support my work and writing by donating whichever amount this is worth to you. I will thank you with lots of telepathic love and more interesting journal entries. Cheers!

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