CONTRACTUAL COPYRIGHT ISSUES PLAGUE THE CREATIVE INDUSTRIES
On a global scale, large publishers, stock conglomerates, and corporate advertisers are increasingly favoring complete copyright surrender on commissioned assignments. While these companies reasons for this practice are clear, creatives agreeing to work under such conditions are losing revenues in the long term. It's easy to place blame; however, creatives need to remember that the power to change the current state of affairs lies with them.
What's the big deal?
The most disturbing trend is an increase in all rights contracts generated by clients, particularly those in the publishing and stock imagery businesses. The main issues surrounding most of these contracts are copyright surrender and freelancers not being compensated for re-uses of their work. Key phrases in the contracts include will be assigned in perpetuity, world rights, and/or rights throughout the universe now known or heretofore to be discovered. The bottom line: Creatives from graphic designers to photographers, illustrators, and writers who agree to perform work under the terms of such contracts lose revenues normally generated by additional uses of their work, while the client who originally commissioned an assignment is able to continuously profit from such re-uses.
Examples of this client practice are numerous and span every corner of the world. The Boston Globe, a US-based newspaper, is currently under fire by five of the country s creative groups who have banded together to fight this publisher s recent take-it-or-leave-it freelance services contract. In the United Kingdom, the British Journal of Photography reports on a similar protest being mounted against the British Broadcasting Corporation s (BBC) recent contract. Yet another case in point is presented by one of the leaders of the global stock industry, Corbis, which now owns a combination of stock and photo journal agencies around the world. The company s recent attempt to implement a new contract has encountered heavy resistance in both the United Kingdom and France, with industry advocacy groups and contributing photographers opposing the company s need for exclusivity, the right to digitally alter an image, the part ownership of digital copies, and issues regarding liability.
Australia sets an example
On the other side of the world, the Australian Association of National Advertisers (AANA) advises its member agencies to secure rights to all possible uses of photographs taken during a commissioned assignment. The association is recommending formal contracts assigning all intellectual property rights to the agency. Although on the surface, this sounds like the all-too-familiar all-rights grab, having contacted the AANA for comment revealed that this, in fact, is the best case scenario. AANA a membership-based organization of Australia s major advertisers, representing the interests of companies responsible for 85 percent of the country s annual media spending actually went as far as to prepare a guide to photographic copyright for its members. This demonstrates not only the organization s awareness of the issue, but also its willingness to educate its membership. In response to our questions, AANA general manager Sara Morton-Stone explains: For our members, investment in photographic works for advertising purposes can be significant. To maximize this investment, advertisers often use photographs in a number of different applications. Obviously, when investing in commissioning works that would otherwise not exist, advertisers need to have surety (for campaign planning and reporting purposes) that they have maximum opportunity to realize this investment through these applications. Of course, we recommend that they secure the maximum possible rights. However, we recommend that these rights be obtained fairly, at an agreed price, and obviously to the satisfaction of both parties. We are an ethical, responsible industry organization, and we advocate securing rights in the context of fair, transparent, and ethical business practice.
When asked if the organization gets more specific, i.e. recommending additional compensation and/or compensation commensurate with intended use of work, Morton-Stone states: AANA does not specify commercial dollar values within the context of an agreement. This association is about ethical process, not the specifics of particular negotiations; that is a market issue. Agreed. These recommendations are most certainly in line with that which is considered appropriate from the business, legal, and ethical points of view.
Controlling your destiny
In Australia or anywhere else, it bears mentioning that photographers, illustrators, and graphic designers should not place the responsibility for being fairly compensated on the advertiser, organizations such as the AANA, or a creative industry advocacy group. Rather, they should be asking the right questions when bidding for commissioned assignments, mainly as to the intended use of work, and basing their pricing on this information in addition to the costs involved in actual assignment. And if Australia s case is at all similar to the rest of the world, that probably doesn t happen as often as it should.
Too many creatives in all disciplines still forget to or are not aware that they should factor in additional charges when transferring ownership of their work. Those of you who do, consider the fact that you are probably losing a very significant amount of revenues generated by ownership transfers or royalties, the latter in cases where you ve chosen to retain copyright ownership and transfer only specific, limited usage rights to the image(s).
On a parting note, if all of the legalese above sounds like a foreign language, consider investing in your local equivalent of the US Graphic Artists Guild s Handbook: Pricing and Ethical Guidelines (visit www.gag.org for more information). Practically every creative industry organization puts out a publication such as this, and they are an invaluable resource for those whose plans include being financially successful.
About this article
The following article is reprinted from Visual Arts Trends, with permission. 2001, Visual Arts Trends.
With offices in New York and London, Visual Arts Trends is an international quarterly "state of the industry" report for the creative professional. Focusing on graphic design, advertising art direction, photography and illustration, each report offers a brief, business-oriented, definitive and timely overview of industry developments that affect aesthetics, pricing, salaries, working conditions and client relations. Visual Arts Trends combines unique proprietary research with material gathered by monitoring hundreds of publications, companies, membership organizations, online sources, and other relevant sources of information. The reports review and analyzes professional trends by business category and by specialization. In addition, each report profiles client industries interviews with senior executives of leading companies and organizations. Visual Arts Trends is a trademark of and is published by Colonial Communications Corp.