Excerpted from Chapter 5 of Concert Photography.
Photography is a discipline that attracts creative personalities who, for the most part, just want to make art and trust the business end to take care of itself. Unfortunately, that approach only ensures that they won't be doing much business. If you want to sell or lease your photos, you must also be a businessperson, unless you can afford to hire someone to handle your scheduling, invoicing, taxes, correspondence, and all the other aspects involved in running a business. And even if you do hire someone, you must still think like a businessperson so you can monitor your employee's work.
A critical part of doing business is making certain that all parties agree on the terms. Oral agreements seem friendlier but are difficult and sometimes impossible to enforce; terms are often remembered differently by the contracting parties when legal action ensues. It's always in your best interest to document agreements in writing when money and photos are changing hands. Among the points that should be confirmed are:
Everything should be spelled out in clear, unambiguous language; leave the legalese to the lawyers, and don't take anything for granted. In general, you want to limit use rights to one time only, unless you've been asked to provide more and are compensated accordingly.
Depending on the nature of the transaction, there are several points in the process where you can and should state your terms in writing-when an assignment estimate is made and/or confirmed, when a transfer of materials occurs, and at the time of invoicing.
With the possible exception of your invoice, the most important form you will use regularly is the delivery memo. Every time you are asked to send photos, they should be accompanied by one. The delivery memo itemizes your submission, establishes its value, specifies compensation in case of loss or damage, stipulates a deadline for the photos' return, and details all other terms of submission. It's also a good place to specify any restrictions you may wish to impose. For instance, some photographers don't want their photos cropped or digitally manipulated. With the conversion to desktop publishing throughout the industry, more photos are being scanned to digital media. Once a photo has been reduced to bits and bytes, everything is subject to alteration. Heads can be placed atop different bodies, backgrounds can change, and objects can be moved. If you don't want your photographs altered, tell the art director and include a clause in your delivery memo that states your restriction. The clause can be something as simple as: "This photograph may not be digitally altered without written permission of the photographer."
The delivery memo is also an appropriate place to establish that you are offering one-time use rights only, particularly if you don't have a prior understanding with the publisher on this point. Without this express agreement, the publisher with the copyright on a collective work (any publication that combines the work of a number of contributors, such as a magazine, anthology, or newspaper) with your photo can use it in a subsequent issue of the same publication without paying you again. All that's required to prevent this from happening is a simple written statement that you are transferring one-time use rights only.
When signed by the recipient, the delivery memo confirms receipt of the materials. There is no guarantee that all of the terms of your delivery memo are enforceable, however. For instance, simply declaring that your transparencies are worth $1,500 apiece if lost or damaged does not necessarily make them worth that much in the eyes of the court, even though that figure has been upheld in several cases. If forced to litigate, you will have to establish that the value of your photos bears some relationship to the stated figure. Among the elements that will be considered are your reputation and earning level, the uniqueness of the image(s), the potential resale value, and your established sales or use rates. Despite these possible limitations on enforceability, you should still always send a delivery memo and keep a copy for yourself. It provides a record of your submissions, while alerting the recipient that you place value on your work and expect him or her to do the same. If necessary, a court will consider the facts and determine the enforceability of your delivery memo.
A knowledge of the fundamentals of copyright is essential if you are serious about protecting your rights. Copyright law assures that creators of written, pictorial, graphic, and sculptural works have the exclusive international right to profit from the distribution and publication of those works. Copyright protection has been recognized in U.S. law since ratification of the Constitution in 1789, and the publishing industry as we know it could not exist without it. Under current law, established on January 1, 1978, with implementation of the 1976 Copyright Act, all "original works of authorship" are granted copyright protection at the instant they are "fixed in a tangible medium of expression." In the case of photography, that occurs when the shutter release is engaged and a latent image is deposited on film. The film need not be developed and the copyright need not be registered to gain protection, although there are reasons for registering that are explained later.
The criteria for originality and creativity are low. All that's necessary is that the work originate with the author and contain a minimal level of aesthetic values. Only the actual expression of creation embodied by the work can be copyrighted, and not the underlying themes, concepts, and ideas. The only exception to this rule of automatic protection is if the photograph is created as a "work for hire" by an employee or an independent contractor who has specifically signed away his or her rights.
By placing control in the hands of the creator from the outset, the 1976 Copyright Act represents a 180° turnaround from previous law. Under the 1909 Copyright Act, unless there was an expressed or clearly implied agreement to the contrary, copyright was assumed to belong to the person or entity that paid to have the photos taken. Even if you submitted a photograph taken on your own time, it was presumed that copyright passed to the client unless the prints or slides were marked and the photographer's terms of submission stated otherwise. Savvy media photographers learned the hard way to make agreements before the shoot, and to mark every print or slide with proper copyright notice before releasing them. Newcomers to the business didn't always fare so well. Some music-business photographers who got started in the mid '60s boom lost control of some good photos before they realized they had to assert their rights.
© 1998 humble press. Material may not be used in part or in whole, unless permission is granted by humble press.