American only. No other rights granted. These rights may not be

transferred by the client to a third party. Client may not reprint or

sell the Images to anyone.

-

One time publication rights in one issue of the magazine in North

American only. Internet use also granted. These rights may not be

transferred by the client to a third party. Client may not reprint or

sell the Images to anyone.

-

One time publication rights in one year of the Annual Report only. No

other rights granted. These rights may not be transferred by the client

to a third party. Client may not reprint or sell the Images to anyone.

-

Publicity rights only are granted to the client. No other rights,

including but not limited to, marketing or advertising are granted.

These rights may not be transferred by the client to a third party.

Client may not reprint or sell the Images to anyone.

-

Exclusive unlimited usage rights are granted to the client. These rights

may not be transferred to a third party.(photographer1s name)

retains the copyright to all Images and the right to use any Images

for portfolio and promotional use.

-

Non-exclusive unlimited usage rights are granted to the client. These

rights may not be transferred to a third party. (photographer1s name)

retains the copyright to all Images and the right to

use any Images for portfolio and promotional use.

-

No Rights of usage are granted to the client. Use to be negotiated.

Exclusive unlimited usage rights are

granted to the client. (photographer1s name) retains the

to use any Images for portfolio and

promotional use."

"Non - exclusive unlimited usage

rights are granted to the client.

(photographer1s name)

retains the copyright to all Images

and the right to use any Images for

portfolio and promotional use."
 
 

The 1999 report is an extraordinary document and gift to our industry. It

is a survey of the business of photography in America. It is eye-opening

and contains an incredible amount of specific and very useful information.

It is a PDF file and you will need Adobe Acrobat Reader to view the file or an Adobe product that will open the file. Adobe Acrobat Reader is free and can be downloaded from the Adobe web site. (www.adobe.com)
 
 
 
 
MONEY - INSIGHTS - IDEAS

I agree with you that it is essential to mark-up ALL expenses, from film to

assistants. Photographers cannot live by the creative fee alone. I might

add that I think when it comes to film, a mark-up of 100% is reasonable.

Look at it this way, film cost, processing cost, editing cost, pick-up, clip

test cost, storage cost. By the time it's all said and done, just to shoot

one roll of film runs us about $20. I general charge $40 per roll to cover

myself and have been doing so for three years now. No one has raised a red flag about it.

We are not in the business of loaning interest fee money. Like our clients,we too have a bottom line that must be maintained.
 
 

*I got tired of not getting paid in 30 days. Usually it was between 60 and 90. So, whenever someone asks me my "day rate" I say, $500, for example. However, on the estimate, I break out "photographer's fee - $500" and then I add in an "administrative fee" for timely payment. The exact language I use is below. So, if the expenses were $150, and the total estimate was $650, the administrative fee would be $65.

"Administrative Fee - We are now building into the invoice the cost to

repeatedly follow up with accounts payable departments on past due invoices, and float the cost of payment to our vendors, which require 30 days payment. This fee is approximately 10% of the total invoice. If payment is made within 30 days, you may deduct this amount. A notation to this effect will be made on the invoice."

So, even if in the end the invoice is for $500+$200 the admin fee is $65. The language on the invoice would read:

Photographers Fees - $565

Film.....processing - $200

---------------------------------------- (obviously it looks more

professional than that)

Total: $765

NOTE: If payment is made by X/X/99 you may DEDUCT $65 and pay $700.

As the "photography fee" and the "administrative fee" are both "photographer's fees" I roll them together. 85% of my clients pay the extra money.10% of my clients take the deduction

5% of my clients pay early and still pay the administrative fee

This fee amounted to an increase in revenue of $13,255.35 during the 1988 calendar year. I have only had a few people complain about it, and I just say"then you won't have to pay it if you pay on time." And yes, I've billed $250 admin fees for larger jobs, without any problems.

"EP member"
 
 
 
 

**Magazines should not expect self promo rights without giving us additionalcompensation. If you shot an annual report for XYZ Company, and you licensed one-time use in the annual, if they came back and wanted to use the same photos in an ad you would of course negotiate for additional use. At our meeting with Time, XXXX and I emphatically argued that the samemodel should hold true for editorial. They are only paying for one time use in conjunction with the story, and this clearly does not include promo rights. They said that there was no room in the editorial budget to cover this. I suggested the money come from the promotions budget, and they seemed interested in exploring this idea.

I have in the past billed and received payment for use of my photos on

those little stick-in promo cards that fall out of the mags (they're called

"blow-ins") from such magazines as Smithsonian and even National Geographic World. It all comes under promotions and one-time use in print only doesNOT cover this.

As for phone calls, unless its a big job where I bother to keep track of my

phone records, I bill a flat rate of $15-25 per assignment for long

distance phone calls. I put in a separate line item if I use my cell phone

(I haven't gotten a cheap cell phone yet and calls on that thing are like

calling Europe...I know, I know, I have to change it). No one balks,

except once in a while bean counters at Time Inc., but not in a few years.

For longer gigs that involve lots of phone calls over many days or weeks, I use accounting codes that are included in my Sprint package package ofservices (MCI also does this). After each long distance call I make I plugin a 3 digit code, and I assign each client a number (I usually spell the first 3 letters of the client name so I don't have to memorize a bunch ofnumbers). At the end of the month, each accounting code comes neatly totalled separately on my bill, which I can photocopy and send to the client as needed. The service costs a few extra bucks a month, but it

saves hours of trying to divvy up the phone bill by client and is very

handy.

*We charge a search fee of $200 which is deductable from a usage fee. It ensures that only serious users come on board and it keeps the

'browsers' at bay. Generally we refer a potential to a library which

holds our stock and then inform the library of the referal hoping they

will be good enough to push our material to that client. In any event

we charge for delivery unless it is on their freight account.

*Now, what about charging for scanning and transmitting? I am not talking about the extra time but about the way to recoup our investment into our scanners, ISP connection, etc...

$75.00-$100.00 sounds reasonable to me as long as local telephone connectionis used and the time to transmit is taken on the assignment time. Any thoughts?

"EP Member"
 
 
 
 

*

The electronic age arrive so fast that we didnt know where the turning on

button was. And just like that clients started telling us that since the

internet was all new we had, not options here, to get on board with them

intothe unknown voyague. Then they started making money BIG MONEY AND MUCH MORETO COME. And somehow somewhere somebody "forgot" about US. But among us they're a few souls that surfed & crawled their way around the web to know better and to inform folks like me. Then Fith AVenue/Avenue of the Americasfolks too notice and agree that some money was long over due. Then they told

us what type of $ was "RIGHT." But its was only 'RIGHT" for them. Then they commenced telling us that everything under, above and beyond the sun had to belong to them and the doggybag was fine enough for us. If there is something I feel rotten is the fact that only a year ago I go an email/internet access.

Why, hell, basically I didnt know a mouse from a port or scuzzy. Am still

learning but damn if I'll let myself into a quicksand again.

If am sending images via fedx I've been charging a scanning fee of $30-$50 per images (they usually want to see 3-5 images) + $100 research fees +$25.00 zip disk (which must be returned with all the images in it) then the usage fees.

If they wanted right away over the line it breaks down like this:

$100 scanning (per image)+ $40.00 courier + $200 transmitting + $100

research fee= $440.00 (we're not talking about the licensing fees yet) I've been doing it this way for a while and my scanner, which I bought I the beginning of this year, is all pay for & now making money. Had to train somebody to doit for there was not time for that. And, just when dealing with your doctor/attorney/mechanics, we dont own them an explanation. If I can tell they mean business then I may say, "That is how I do business. Listen my day is really busy so please call me back when you know for sure." Or tell them that it maybe "better" hiring a photographer to do it for them. If is an established client then am a bit nicer and educate them saying things like, "The lab alone will charge me 200% rush charge scanning fees. And someonewill go/pick it up at the lab. Then rush to the house to send it ASAP and of course we need to find it first. Usually they dont complain and we're in business.

Right before all of this e stuffs goes out I send my delivery memo

which must be signed and fax it back ASAP or the images will not leave thestudio.
 
 
LATE PAYMENTS br> 
 
 

Late payments can be handled from a very simple perspective and use of

terminology as leverage within your delivery memo and contract. I use the

following terminology.
 
 

FULL PAYMENT IS DUE PRIOR TO PUBLICATION. ANY USE

PRIOR TO PAYMENT SHALL BE CONSIDERED AN UNAUTHORIZED USE. CLIENT AGREES THAT REASONABLE AND STIPULATED AMOUNT WHICH SHALL BE PAID BY CLIENT TO PHOTOGRAPHER FOR USE PRIOR TO PAYMENT SHALL BE, THREE (3) TIMES PHOTOGRAPHERS FEE AS LISTED ON PHOTGRAPHERS INVOICE.
 
 

My invoices are payable in 21 days, just like Federal Express. If I am not

paid in 21 days overdue notices are sent. Many pay in 30 days and that is

reasonable. If I have not been paid in 40 days I send a copy of the

contract with a note that the none payment must be an oversight and that as

such we have not charged triple the amount as yet. I give them 5 business

days to make the payment and copies go the accounts payable dept but

further directly to the comptroller. If after 5 days no payment is received

I make one last phone call to the comptroller. Everthing is documented. If

there is no return or response from the comptroller I have painted myself

as a victim which is very critical from a legal perspective. A new invoice

is generated for triple the amount and it is Federal Expressed to the

comptroller at the bottom of the invoice is a CC to ESQ. I have only gotten

stiffed 1 time in 20 years with this method and that client went belly up.
 
A DAY RATE?
 

What is fair compensation for editorial rights? There are a lot of questions

revolving over this concept. I did some figuring last night and would like

each of you to do the same. First I took the amount of editorial assignments

I did from 1/1/98 thru 5/1/99 and determined what the average day rate was.

The amount for myself was $731.73. The figure was higher than what I thought

would be the case. Now for the interesting component which took a fair

amount of work. I took each assignment and figured out the amount of stock

sales to foreign publications and reprint rights and elctronic rights and

determined the amount of money this generated. This figure was divided by

the number of assignments, which gave me an actual figure for the average

amount of money each assignment generated. The figure for me is $1321.95. I

ask each of you to figure this out. This can become a hard core figure we

can use to show publishers what our dayrate should be for all the rights

they want. Again, in my case the amount would be $1321.95 Since many of

these assignments will continue to generate income, this figure will

increase with time. This sets the base figure at $1321.95 as a minimum,

which will inevitably increase. Please everyone do this and let1s see if we

can determine a figure based on fact not fiction.
 
CREATIVE FEE - DAY RATE - AN EXPLANATION
 
 

Several of you have now written to me privately to ask what exactly day

rate against space rate means. Rather than answer you each in private I

will post in public because others probably don't understand this basic

concept of editorial use.
 
 

The photographer is paid upfront a creative fee or so called dayrate for a

shoot. This is essentially a minimum guarantee for shooting an assignment.

The story runs and the publication thinks your work is great and uses four

images instead of one. The magazine should have a space rate which is the

minimum rate they pay for stock per image. If the day rate was $500.00 and

the space rate is $250.00 1/4 page and the magazine runs four pictures that

would bring the space rate up to $1000.00 because 4x250 = 1000. The

photographer would or should be paid the additional difference between the

space rate and the day rate or $500 in this example. Usually the day rate

or 500 plus expenses would be billed upon completion of the job and the

additional $500.00 or space rate would be paid upon publication.
 
 

I hope this clarifies the concept.
 
THE WORLD WIDE WEB
 
 
 

The web without images and graphics is boring so our imagery is essential.

This is why we have to refuse any contract that grabs electronic rights.

Electronic or digital rights have to be treated the same way as the print

rights, case by case. Granting unlimited e-rights to Time Inc. for an extra

$100.00 was a big mistake. If we play it right, our income or sales should

grow in a near future because we will get paid on print AND web usage.
 
 

PS: While we are on the internet subject, I would like to correct a widely

believed concept that 72dpi is no good to be stolen and used for print

usage. 72dpi is the concentration of pixels/dots per inch and not the total

number of pixels. They are just related. If I copy an image from the web

that is 500 x400 pixels (This size can be found on a lot of photographers'

web sites after clicking on the thumbnails) and I paste it into Photoshop,

I get a 7x5.5 inch print at 72 dpi which is not a good resolution for

printing. If I change the dpi to the printing standard of 300dpi, I get an

excellent quality image at almost 2x 1..5 inches. Now look at Time or

Newsweek and see how many 2x1.5 inch pictures and below they use. A lot!
 
 
 
 

*The web is exactly like print. The size, distribution, length of

time, and placement are all important and are the only fair way to

price the web. Further many small thumbnails web shots are for use on

banner ads on search engines which by my standards are the highest

price category of all.

* In order to determine the proper price for the web one must

first find out additional info. Will the image be posted with the

copy exactly as it appears in the magazine ? Is it in fact the same

image that appears in the magazine? Is the image readily available

on the site during the issue of the magazine or do you have to search

for it? The same question applies to archiving. How is the image

archived? Some magazines maintain an archive which makes each issue

readily available and others you actually have to go through rather

deep searches to find back material. This drastically effects the

quantity of people viewing the images. Does the site sell advertising

or is it only editorial content? What did you agree to for a

creative fee.? You may want to charge a % of the creative fee for

the web use. You may want to charge a flat rate. The biggest problem

is the 2 year factor.
 
As for reprints and promotional rights
 
  In my mind the reprints are

the best financial incentive to work in the editorial marketplace.

The magazine sells the reprints at a ripe profit and corporations are

willing to spend big bucks for the reprints. Sorry in my mind

reprints are a commercial venture not editorial and I never give in

on reprint rights unless the compensation approaches a major

corporate rate.
 
 

*This agency principal suggested that you could take the top 500

editorial photographers working today and remove them from the market tomorrow and get nary a blip from publishers, such is the surplus of talent in theeditorial field and

the callousness of publishers in cranking-out and

dumbing-down 'product'. The conversation, my friend observed, was more than a

little pessimistic in regards to our plight. I beleive the time is right for

us to make our blip before someone pulls the plug on the radar entirely.
 
 

Maybe its wishful thinking on my part, but I would disagree

that if the top500 editorial photographers disappeared there would be nary

a blip from publishers. I'm convinced that the publishers need us as much as we needthem.

When the founders of this list were turning down work from

Business Week in Silicon Valley, BW had a big problem. If the top 500

editorial photogs did the same, publishers would be in a panic. The bean counters

don't realize what the photo editors already know: the relationship is

symbiotic, and it is that reason the final deals must be win/win and not anything else.
 
BUSINESS WEEK CONVERSATIONS
 
 
 

We have shown good faith in the negotiations with Business Week by going

back to work. Business Week has responded positively with a reciprocal show of good faith. Until the entire issue is solved with one of the proposals on the table, Business Week has decided to implement a policy change to reciprocate as of 5 PM today.
 
 

MAJOR CHANGES STARTING FOR ALL PHOTOGRAPHERS AS OF 5 PM TODAY

1/4 page or less $225.00 (up from $175.00 still the official rate at Time)

up 29 percent. Further there will be no more spot rate bringing the minimum

from $100 to $225.00
 
 

1/3 page $275.00 (new category which will help photogs because prior they

only paid an increase at 1/2 page size.)
 
 

1/2 page $325.00 (up from $250.00 for an increase of 30 percent)
 
 

2/3 page $400.00 ( again a new category)
 
 

3/4 page $500.00( up from $400.00 for an increase of 25 percent and $100.00

more than Forbes, Time and Newsweek.)
 
 

Full page $600.00 (up from 500 for an increase of 20 percent and again more

than all of the competition.)
 
 

Again these changes are for all photographers and have happened because of

EP. For some this may not seem like a lot but for the majority of

photographers this is a major increase in the money going into their

pockets. Almost every agency photographer is still paid $175.00 from the

major magazines. After the 50/50 split this amounts to $87.50. These

photographers will see that go up to $112.50 after the split. Further the

majority of photographers were not paid the 1/2 page rate until the image

was used 1/2 page or larger. Now everyone will be paid more for images that

run just under 1/2 page. Again the typical photographer would have been

paid $175.00 for 1/3 of a page and now will get $275.00
 
 
 
 

Business Week will also still pay for research fees when they are

applicable.
 
 
 
 

In addition the day rate was recently increased to $400.00 from $350.00 or

roughly 14 percent

and the cover rate was increased to $1500 from $1000.00 or 50 percent
 
 
 
 

For all of you who thought that EP was just another chat room we are

proving that we are a much greater resource. This is just the

beginning..............
 
 

Sincerely,
 
 

The Moderators
 
 
 
 

*EP has had ongoing discussions with Business Week regarding

all aspects of the photographer magazine relationship. I have been

the person from EP who has been dealing with Business Week trying to

bring closure to a variety of problems. The reprint issue has been a

sticking point and with the "EP member" problem of this week, Larry

and I again had lengthy conversations.
 
 

Larry Lippmann is the photo editor and has been exceptional

to work with from my own perspective. He had a terrible time when EP

got started, and bore the brunt of many problems. The culmination of

the original issues led to a situation which started this group and

one in which the best photographers in San Francisco were unwilling

to work with Business Week. The issues were again raised when there

was an impasse and we have made great strides in the relationship

with Business Week.
 
 

The reprint issue has been the one problem. Larry is in a no

win situation and I want everyone to understand that he is not the

problem with this issue. Reprints come from a different division at

McGraw Hill and Larry can voice opinion but does not have the power

to execute in this area. He supports the photographers and has been

very vocal. He believes that the reprints are in fact commercial use

and believes we are entitled to fair market compensation.
 
 

Larry is as angry as we are for several reasons. If the

reprint situation can not be resolved than he faces the wrath of

angry photographers and the possibility of his core shooters

unwilling to work with the magazine. On the other side he has been

told that he needs to be cohesive with the company. I do believe his

job would be on the line if he refused to cooperate. This places him

in a lose lose situation.
 
 

Larry has talked with senior VPs of the reprint division. The

situation with "EP member" was ludicrous. Business Week had every

opportunity to charge, and "EP member" had every opportunity to charge

because Maytag was willing to pay the price which "EP member" had asked.

Many magazines today have heard about EP especially in the area of

reprints. Many are now giving a price for reprints and than having

the clients secure the rights for the art directly with the artist or

photographer. Everyone wins in these situations and it is a no

brainer in terms of business. Business Week as of now does not want

to do this for one very STUPID reason; PRECEDENT. Regardless of the

fact that this is the best business move, regardless of the fact that

this would improve the working relationship of photographers and the

magazine, regardless of the fact that it would make them more money,

they still want to exercise power and not budge, even when it may

anger the end client. THIS IS STUPID PURE AND SIMPLE.
 
 

There is one more person who can shed some light and make a

change. He is Stephen Shepard, the Editor-In-Chief. He just left for

a three week vacation and Larry intends on meeting with him directly

along with the reprint people to hash this out as soon as he returns.
 
 

I do have some thoughts for every photographer who works with

Business Week. Everyone can take certain steps to help.
 
 

1. Lyle Steele and the rest of the reprint department still believes

that photographers agreed to have Business Week make reprints without

compensation from some ancient working agreement done years ago with

photographers. Many of us made changes to that agreement or never

signed it at all, yet Business Week seems to think otherwise. Send a

letter to Lyle Steele and cc the letter to Larry and Stephen Shepard.

The letter should say that you never agreed to reprints and your own

delivery memo clearly states this position. You should also write

very clearly that there may be a misinterpretation of ANY

PRE-EXISTING terms and as such you want to ABDICATE any old

agreement. The word abdicate is important. Also send a copy of any

delivery memo. In addtion please state clearly that you grant no

permission for reprints under any circumstances without permission

granted in writing.
 
 

2. Write a second letter to Stephen Shepard and cc it to Larry

Lippmann. In that letter explain how Business Week has come a long

way and in many areas and this final issue makes no sense at all.

There are many options for resolve which would appease all parties

and Business Week is not choosing any of those options.
 
 

3. Again here are my suggestions for REPRINT PRICING:
 
 
 
 

Solution One

Use the following as guidelines:

A minimum of $1000.00 or (3) Three times the space rate which ever is

greater for up to 10,000 reprints.

Add 25% for 10,500- 20,000

add 50% for 20,500 - 50,000.
 
 

1/4 page $225.00
 
 

1/3 page $275.00
 
 

1/2 page $350.00
 
 

2/3 page $400.00
 
 

3/4 page $500.00
 
 

Full page $600.00
 
 

Cover $1500.00
 
 

Full page plus 1 column $775.00
 
 

Full page plus 2 columns $900.00
 
 

Spread $1100.00
 
 
 
 

Example1: Image runs full page and press run is 10,000.

$600.00 x 3= $1800.00

Example2: Image runs 1/4 page and press run is 50,000

$225.00 x 3= $675.00 plus 50% =$1012.50
 
 
 
 

This method takes into account the quantity of reprints, size of the

image, and gives a substantial break to small

print runs.
 
 
 
 
 
 

PRINT RUN 1/4 PAGE 1/2 PAGE FULL PAGE COVER
 
 

1000-2000 $500 $775.00 $1000.00 $3000.00
 
 

2000-4000 $625 $965.00 $1250.00 $3750.00
 
 

5000-19000 $775 $1200.00 $1560.00 $4687.00
 
 

20000-50000 $1000 $1500.00 $1950.00 $5858.00
 
 

50,000 PLUS quoted on per order basis.
 
 
REPRINTS
 
 
 

*I have several methods to solicit work, market reprints and eliminate

pains after a shoot.
 
 

Clients that actually inquire at a photo are handled by getting there

business card and address. I usually set up a private protected web

page and show selects from the shoot for their eyes only. The type

will list some possible uses and a fee. If they are interested they

contact me and pay first.
 
 

The second method involves more sales tactics. I carry 5 or six

reprints of my work from sourcebook ads. I hand one set to the

subject and another to the PR director. The reprints all list my web

site so typically they go and check out the web site. Many times I

give the web site to the PR person and the subject prior to the shoot

so that they get to see the type of images I make. This really helps

when pushing a subject to cooperate for your idea.
 
 

A letter goes with the reprints which varies from company to company.

A recent one was worded as follows.
 
 

Photographers possess a special kind of vision, a unique way of

seeing the world. Yet, we must combine this gift with a degree of business acumen if we are to succeed in sustaining our vision. I hope you enjoy my work and

perhaps find it inspirational. I retain all rights to all of my work.

If your are interested in using any of my images from the shoot today

contact my office for further details.
 
 

There is a special note about magazine reprints :
 
 

Magazine Reprints:
 
 

If you are interested in reprints from xxxxxxx, please note:
 
 

All IMAGES PRODUCED ON (DATE) AT (LOCATION) ARE THE EXCLUSIVE

PROPERTY OF (Your Name). NO USE RIGHTS OF ANY KIND INCLUDING

REPRINTS ARE GRANTED WITHOUT WRITTEN AUTHORIZATION FROM (Your Name).
 
 

FOR A LICENSE GRANTING RIGHTS TO USE A PHOTOGRAPH IN THE REPRINTS

CONTACT (Your Name) AT ( PHONE & EMAIL) . ANY REPRINT DONE WITHOUT

AUTHORIZATION FROM (Your Name) WILL BE DEEMED INTENTIONAL VIOLATION

OF COPYRIGHT. THIS VIOLATION WILL APPLY TO BOTH PUBLICATION AND THIRD PARTY. PLEASE RESPECT THE LAW, AND CONTACT (Your Name) FIRST.
 
 
TIME MAGAZINE - LETTERS
 

July 20, 1999
 
 

Mr. Norman Pearlstine

Editor-in-Chief

TIME

1271 Avenue of the Americas

New York, NY 10020
 
 

Dear Mr. Pearlstine,
 
 

As a photographer who has worked for TIME, People, and Money, Iím writing you to express my deep dismay about Time Inc.ís proposed standard photography contract.
 
 

It is so one-sided that it will hurt not only your photographers, but the company itself, for many top-notch photographers will not accede to contract terms that are, as presently written, seriously unfair.
 
 

It sets up a big lose-lose situation ó while what I believe reasonable folks on both sides want is a win-win.
 
 

In the last couple of decades, with the introduction of all-color magazines, computers, and other technological advances, the capital investment a working photographer has to make in lighting equipment, computers, and other gear has skyrocketed, while, in real terms, fees from magazines have actually declined.
 
 

Meanwhile, globalization of media, the convergence of print and electronic, and the sweeping consolidation of media (such as in Time-Warner itself) have made the right to reuse (or to more widely use) editorial content ever more valuable as new opportunities for synergy, data-banking, and instantaneous world-wide distribution abound. This has lead to greater profits. And these underlying trends seem sure to continue as we zoom through the 21st century.
 
 

All this makes content ó and the creators of content ó more valuable than ever before.
 
 

Which makes Time Inc.ís proposed new contract startlingly out of kilter. It should be offering much more, not less. Time is a great journalistic institution and I think we all want it to do well ó and to do well by us.
 
 

The ability of freelance photographers to profit from the reuse of images we create is at the heart of our business. It is the essence of copyright. And probably the biggest problem with Time Inc.ís proposed contract is that it seeks to arrogate to the company many of our re-use rights ó for instance, use in overseas editions and affiliated publications, for little or no apparent extra

compensation, even while the long embargo period prevents the photographer from selling the image elsewhere.
 
 

I suppose itís very understandable that business people think it would be great to get something for nothing (who doesnít like something for nothing?), but when you think about it, itís not a very realistic approach.
 
 

I wonít detail here these and various other problem areas in the proposed contract.
 
 

I do, however, think the contract should specifically deal with digital rights and also should specify creative fees, space rates, and various re-use or additional use fees. After all, Iíd be delighted to license to Time Inc. everything you want, if the price is right! And I am extremely hopeful that all these things will be arrived at in amicable talks with photographer representatives.
 
 

Iím proud to be a member of both the ASMP and the new Editorial Photographers (EP) group ó both groups have done much, not just for photographers, but for the entire industry ó and I want you to know that I have full confidence in the EP representatives to speak for me.
 
 

I also have a lot of respect for Time Inc., and the many wonderful people Iíve worked with there over the years. So I feel confident that a fine, mutually beneficial, contract can be worked out.
 
 
 
 

Best Regards,
 
 

EP Member
 
 

Caren Clarke

TIME, Inc.

1271 Avenue of the Americas

Room 37-30

New York, NY 10020 19 July 1999
 
 
 
 

Dear Ms. Clarke:
 
 

I am a member of both the Editorial Photographers (EP) and of ASMP. However, I am not writing to you today as a representative of either group. I am writing today as a concerned photographer who shoots for TIME, FORTUNE, Your Company, People, and Entertainment Weekly.
 
 

I am very concerned about the TIME, Inc. Standard PhotographerÇs Agreement. There are many worrisome details in that document, but the central issue for me is that it requires a number of additional rights without any additional compensation.
 
 

Freelance photography is a beleagured profession. Costs of doing business,

from film to cameras, from rent to insurance, have risen dramatically over the last ten years. Unfortunately there has not been a comparable rise in rates. Many editorial photographers have found they must pursue other kinds of photography to supplement the meager fees they can charge for the editorial work they love. They plan fact is that base rates from magazines must go up or those magazines will find their supply of photographers greatly reduced because so many of them will be forced out of the business.
 
 

I find TIMEÇs proposed plan to acquire more rights with no increase in rates outrageous given the facts above. I urge you to listen carefully to all

industry groups and individuals and do the right thing- the right thing for

TIME, Inc. to ensure a continuing supply of fine photography, now and into

the future, and the right thing for photographers to ensure them reasonable compensation for the work they provide.
 
 

Sincerely,
 
 
 
 

EP Member
 
 
 
 
 
 

*Norman Pearlstine

Editor In Chief

TIME Magazine

1271 6th Avenue

New York, NY 10020
 
 

July 26, 1997
 
 

Dear Mr. Pearlstine,
 
 

I am a photographer who has worked for several Time, Inc.

publications including Time, People, Entertainment Weekly, and This Old

House (TPV). I am writing today to tell you the recent Photographer's

Agreement drafted by Time, Inc. and presented to photographers is not a

workable contract in today's freelance market.
 
 

Our costs of doing business have risen astronomically in the past

two decades (much like your costs and your ad revenues) but today's "day

rate" system does not reflect our additional financial burden. Simply put:

it is virtually impossible to earn a living at today's editorial "day

rates".
 
 

The demand for additional rights (online, future sales of images,

etc.) only adds fuel to the fire that threatens to engulf our profession.

We must be able to retain resale rights to our editorial images to

supplement the meager rates paid throughout the industry. You will find

hundreds, perhaps thousands of the top editorial photographers unwilling to agree to these demands and relenquish resale rights, or even to shoot the job at all. Additional rights must be accompanied by additional

compensation. This is the reality of intellectual property creation and

negotiation. We are simply asking for fair compensation and it will

benefit us both to receive it.
 
 

I urge you to listen carefully to representatives of the American

Society of Media Photographers and Editorial Photographers, two

organizations of which I am a proud and active member and which represent me and thousands of my peers. We provide much of the visual content that your magazines use to inform and entertain readers. These images also contribute to your successful advertising revenues.
 
 

I am confident that we can reach an agreement that is mutually

beneficial to both of us. With proper compensation and the ability to

retain reasonable rights to our images we can continue to produce the

vital visual content which has contributed to your success and ours.
 
 

Sincerely,
 
 

XXXXXXX
 
 

Member: ASMP, EP
 
 
CIGAR AFICIONADO Letters

CIGAR AFICI ONADO Letters
 
 

*Dear Deny,

I have enjoyed and looked forward to every assignment I receive from you.

I received my very first freelance assignment from you after moving to

Miami. My experiences have always left me feeling good about working with

Cigar Aficionado, Food Arts and Market Watch. I look forward to a long

relationship with M. Shanken.

However, it has come to my attention that a 'work-for-hire' clause is

being demanded from M. Shanken Communications. If this practice continues,

then I unfortunately would be unable to accept assignments under this

clause. As you know, as buyers of stock photography, photographers make a

large amount of their income on resale's of work and stock photography.

The 'work-for-hire' clause essentially robs us of this portion of our

income. I feel that you would lose a large portion of your photographers,

in turn hurting the sophisticated look and feel of your magazines, if you

were to insist on this.

I urge you to reconsider the proposed clause and the effects it could have

on the photographers that you use and the look and feel of your fine

publications.

Regards,
 
 

EP Member
 
 
 
THOUGHTS AND COMMENTS ON TIME
 

*I just spoke with the p.e. at Time about the new contract. I told her I

couldn't sign because it asked for more rights and offered nothing in

return. She said she would talk to the director and get back to me.

Half hour later she comes back and says the contract has not been

implemented, it is still being negotiated and I don't have to sign it.

So I am on for this afternoon<<<
 
 

This should be an indication to everyone who receives this contract that

you should not feel pressured into signing. Do not sign it if you agree

that it is a bad deal. Many individual photographers and agencies are

doing the same and are still getting and doing assignments.
 
 

SNIP<<<The contract included a rider which was even more pernicious than the main part. I don't think XXXX/YYYYexcellent analysis (which was

invaluable to me) mentions the rider.<<<<
 
 

You're right that our commentary does not mention the rider because it is

new. Neither Seth nor I had seen it before it was posted on this list

yesterday. It does indeed, as you describe in your post, have some clauses

that were worse than the contract we commented on. It is discouraging that Time Inc. is moving in this direction, and it is surprising that they don't seem to care about the bad PR that this move is generating. They do, afterall, depend on us for the content that sells their publications, and one

would think that it would be bad business to be perceived as offering their

suppliers such bad terms.
 
 

I urge all of my colleagues on this list to read this contract and rider

carefully. If you agree that it is a bad deal, do not accept the terms.

Walking away from bad deals is the best thing we can do for our own futures and the future of this industry.
 
 

*Greetings List Members,
 
 

YYYY and X XXX are back from the Big Apple. We met with Caren Clarke and

Jacob Young at Time offices. The meeting lasted for more than 4

hours. We went over the contract in great detail and discussed

possible solutions that would make the contract mutually

acceptable. Below is a copy of the 8 page document presented by Paula

and myself. The contract language is highlighted.
 
 

Some of our concerns have already been cleared up: they were based on

unclear contract language. Caren has promised to address that in the

near future. One item which appeared to be a problem and no longer

exists is a 90 day embargo for Time Magazine. In fact the reality is

that there is no embargo for Time Magazine.
 
 

We feel that our concerns have clearly been heard and await an

appropriate response from Time. A very special thanks to all of you

who spent the time to contribute to these comments.
 
 

The package that we presented was thorough and raised awareness of

our wider business concerns. Like Business Week, several issues with

profound implications for photographers and the magazine, which had

gone unnoticed were discussed.
 
 

As we have more to report we will be making more posts.
 
 
GENERAL THOUGHTS IDEAS
 

*Donít act defensively or offensively --just straightforward.
 
 

*We use the contracts our customers write because we have not the willpower, resources or knowledge necessary to write and use our own and protect our income and our rights as authors of intellectual property. Myth: people with ridiculous contracts "that cannot be altered." Just hand them your own.
 
 

*Tasini ruling on line. Info on the matter.

http://www.nwu.org/tvt/tvthome.htm
 
 

*One of my new "Terms and Conditions" since joining EP has been to ask for expense money up front when they are estimated over $1000.00. After all, I'm not a bank. This might be tough on short notice magazine jobs, but I've gotten it twice in the past month on commercial assignments. (One was for a local advertising job ($4600.00 advance) and another for a little book project ($1900.00 advance)). It just goes to show that everything is negotiable, and if you don't ask for it, you won't get it.
 
 

*I carry a worker's comp policy in Massachusetts that covers the freelance assistants I hire. if I go do a shoot in another state, any assistants I hire are not covered, and I'd have to buy a separate rider for each instance of this. My current worker's comp policy costs me a few hundred dollars a year. I do not bill this out to my clients, but probably should.
 
 

I know some commercial photogs that always have a line item on their invoices for insurance. They figure out their total insurance costs for the year (not just worker's comp but all their biz insurance) and then divide that among their total number of shooting days. This number is then billed as a line item to all clients.
 
 

*Putting your money to work for anyone else (risk) is bad business if it does not return multiplied (not yet profit - profit would have to be asessed against the opportunity cost of the risk undertaken at the very least).
 
 

*Incorporating these terms, forms, memo1s, contracts and information into

your daily business life can help you protect your work and career.
 
 
 
 
 
 
 
 

*I think that the minimum stock fee for a magazine ought to be the same as the damn assignment fee.
 
 

After all, supposedly we are licensing the use based on the worth of the image.

so is it worth less to Magazine B than it was Magazine A?
 
 

I've thought the same thing for about a year now...To me, the MINIMUM stock

rate for a magazine should be their DAY RATE. If you subtract all the expenses

from a commissioned assignment (film, processing, airfare, hotels, rental cars,

etc.),paying the day rate is STILL a great deal for a magazine.
 
 

I sent off a FedEx last night to Forbes; some stock of a very wealthy

individual who shuns the press. I know that the subject would not agree to be

photographedagain for this article, so I know how valuable these pictures are to them.

I'm already preparing for the conversation with them if they offer some lame

stock fee like $225 or something similar. I'll just say "No" and ask for them to

be returned.
 
 

For me, getting this daily digest dose of this maillist every morning has

had a cumulative effect: I don't know if I'm "mad"; I just think I'd forgotten

just how raw a deal editorial has become. What other occupation has a guy getting

ona plane with $40,000 worth of electronic equipment, doing extensive lighting

setups on location, for a mere $400 plus expenses? Just think about it; it's

ajoke. Maybe it's appropriate that we DO get mad; mad enough to stand and

just say NO to these terms.
 
 

I know that the moderators are preparing for this meeting with Time. I

wonder this: do we not give them power just that we are considering signing ANY

contract? I might be niave, but MUST you sign a contract to work for Time?

Who started this precedent? What happened to the viewpoint of having the

customersign OUR Terms/Conditions letter?
 
 

For example, if I rent a car from Hertz, I am the customer, and I must agree

totheir terms and sign their contract, or else they won't rent me a car. If I

go to Home Depot to rent a tool, I am the customer and must sign their rental

contract or they won't give me the tool. If I rent a lens from Lens&Repro, I

am the customer and must agree to their rental terms. It's just the standard

accepted practice in America.
 
 

Why, in the Time Magazine example, are they the customer of our work, but

theyare forcing us to sign THEIR contract? To me, we should be protesting the

VERYCONCEPT of them putting their contract in front of us! It just sets a bad

precedent.
 
 

And what would happen in a court of law, for example, if something bad did

happen; like a magazine losing some transparencies? Wouldn't it be a case of

dueling contracts? Their contract (signed by us) versus our Delivery Memo

(signed by them)? The only winner here would be the attorneys.
 
 

To me, if we starting signing THEIR contracts, it gives them even more

ammunition to start refusing to sign our Delivery Memos and Estimates.
 
 

This whole post is really a giant question; I'm open to be corrected if I'm

missing something. I'm certainly not an attorney. But I am a businessman, in

addition to being a photographer, and I just don't get this "sucking up" to

Time Magazine. If we yield ground now, it's just more erosion of our power.
 
 
 
 

* Mere ownership of a book, manuscript, painting, or any

other copy or phonorecord does not give the possessor the

copyright. The law provides that transfer of ownership of any

material object that embodies a protected work does not of

itself convey any rights in the copyright.
 
 

*The mags I've worked with in Argentina (Gente in Argentina for one) in

particular and in South America in general have been a black hole to deal

with. Rates are low ($250/half day, $350 day -- needless to say I no

longer do these gigs) and they don't like to return film. Because of this,

in the past when I have shot for Argentine mags I will only send them

outtakes that I don't care if they return.
 
 

A journalist from Gente recently called me for a shoot and offered me $250 for a half day, no return of film. I told him I now charge $500/day

against space, and that all film had to be returned. He said if the

Argentine photogs found out he had paid this they would kill him back in

Buenos Aires. I said I was sorry to hear that, but I could not accommodate

him. A moment before he had been complaining about the poor job that the

last person he worked with in my area had done (for the low rate).
 
 

Be very careful and get them to pay up front. Don't send anything you ever

want to see again, and forget about controlling reuse for their publication

or anywhere else they might want to syndicate it.
 
Why should a photographer with unique images sign a contract handed to him

by an infrequent client? Why should these contracts be of any concern to

anyone on this list? By now all of you should have your own contracts. Stop

talking about taking action. Take action. Actions speak louder than words.
 
 

When someone calls to license rights, find out what rights they want and for

what time period, etc.. Give them a fee that you the photographer can live

with. Most photographers I know who run their business as a business are

publishing on a daily basis world wide. It would be too confusing to have a

different contract from several thousand different companies withconflicting

terms and agreements. If you are going to license intellectual property,

you must be consistent in your business practices.
 
 

Make life simple on yourselves. Be consistent in your terms and agreements.

This will free you up to be a more creative photographer. License one time

non exclusive rights for a specific time, Etc.. If the end user wants more

rights they will come back to purchase more. If you give them all rights,

why should they ever come back?
 
 

Everyone seems to be making these standard business practices way too

complicated. There is too much discussion on accepting another companies

contract handed to some photographers. The photographers that use good

contracts and submit the contracts with their images find that they are not

having to sign a companies contract. Believe me, 90% of the people buying

images will not argue with you if you run your business properly.
 
 

You will only be respected as individuals and business people when you

display self respect. When you license images act like a business person

not a photographer who wants to get published. Stop being a victim. Stop

thinking with an empty wallet. Learn to say no.
 
 

If anyone needs a contract there are many people on this list that will be

happy to help you use them properly.
 
 
 

* Web use?: This would be covered in your Faxed Estimate. Also, some

type of "menu" of prices for electronic use would be good.
 
 

* International/Secondary Usage?: Yet another menu could cover these

possible scenarios.
 
 

* Work-for-Hire?: Obviously, this is a big no-no, and should be flushed

out in the early stages.
 
 

* Exact written language in Usage Rights category: Obviously, exact

language should be in the Usage Rights section in the faxed, signed Estimate.
 
 

* Receipt of Signed Assignment Confirmation Form: The Big One. Make sure

they sign your faxed Estimate. Make SURE they fax it back, and you have

a hard copy of their signature. This solidifies the transaction.
 
 

------------
 
 

Somehow, some way, there's got to be a way to do this Estimating process

easily; easily for us, and also easily for the client. There has to be a

"mid-ground/balance" to make this work in the real world.
 
 

Please note that expenses include a modest mark-up to cover service costs.

Receipts for actual expenditures (excluding film and processing) will be

provided ONLY when a 100% advance against estimated expenses is paid and all

travel and lodging is booked by Client prior to the assignment."
 
LETTERS
 

*
 
 

Dear Client:
 
 

I would like to clarify a few issues raised by the contract and

letter you have sent me.

First off, a contract is meant to be a legal meeting of the minds. As

any first year law student would know, a contract should be mutual

assent and consideration. To suggest that it is not modifiable, as

you do in your letter, would be going against the legal concept of a

contract. It would also be a contract signed under financial duress

or a contract of adhesion. Any contract is modifiable! You letter

seems misleading, unfair, and intimidating to me. Is this your

intent, to intimidate the people who make great pictures for you?

Second. there seems to be a misunderstanding. I am the copyright

holder of my work. I am the seller, you are the buyer. I set my

terms, not you. I was commissioned at a rate, for one time North

American rights in one issue of XXXX magazine only. Please check my

paperwork already provided, since the shoot has been completed. You

are presently in a copyright infringement (these images have been

registered with the Library of Congress) for not paying me before

publication of said images.

Lastly, my business is one of licensing rights. The contract you have

presented me, after the fact, is egregious in terms of the rights you

expect for the money you pay. These expectations go against industry

standards and the nature of my profession. Please inform your

licensing department that no other rights have been agreed to. All

future use will not be unreasonably withheld, but must be negotiated

before hand.

I have enclosed the contract in the form that is acceptable to me.

Thank you for your time.

Sincerely,
 
 

EP Member
 
COPYRIGHT - AN ARTICLE REFERRED TO ON EP
 
 

Copyright Law and Photography

Myth versus Fact
 
 

I. Introduction
 
 

Photographs and other images are protected under the laws of copyright and

the creators, as copyright owners, have absolute rights to control the use

of their photographs. Infringers are those that violate the owners' rights

and can be subject to fines, destruction of the infringing work, and in some

cases, even criminal penalties and imprisonment.

With access to so many images, via traditional print media, CD-ROMS and the

World Wide Web, along with the ease of copying, manipulating, and combining

images, the rights of the copyright owners are either forgotten in the

excitement of the new technology, overlooked due to ignorance, or just

ripped off because the chances of being caught are considered to be too

remote. Since ignorance of the law is no excuse when it comes to copyright,

and the costs of defending an infringement action are expensive, up to

eighty-thousand dollars or more, and settlements or awards high, not knowing

the law can cost you. And like every driver that speeds on the highway,

even the information highway, there is always that chance of getting a

ticket. Technology may even be your worst nightmare; the image you download

for your next job may be encoded. When the piece is published, an Internet

scanner can trace the work and turn you in!

The purpose of this paper is to debunk certain myths and arm you with the

information you need to protect yourself, your job and your client from

infringing the copyright of an image owner. The Copyright Act is a complex

federal statute. This paper is only intended to be an overview, so you know

when you should ask a few more questions before you assume an image is free.

The Copyright Office publishes many "Circulars," information distributed

free to the public. One is "Copyright Basics." You can obtain circulars

and forms from the copyright office at their website,

http://lcweb.loc.gov/copyright/, or by calling The Copyright Office Forms

Hotline at (202) 707-9100. The Picture Agency Council of America, Inc.

(PACA), a trade association of stock imagery libraries, publishes the PACA

Copyright Commandments, which are written in plain English to inform users

of copyrighted images of their responsibilities. The commandments are

listed at the PACA website at http:\\www.pacaoffice.org.

II. Myths
 
 

Many myths circulate the dens of designers, graphic artists and other users

of images. Like most myths, the origins are unknown, but are assumed to be

universal truths. These myths are not, in fact, based on the Copyright Act

or case law that explains copyright. If relied upon, you and your employer,

or your client, could end up violating the Copyright Act and face costs much

greater than if permission to use the image had first been obtained and a

license fee paid before using the image.
 
 

Some of the myths I have come across are as follows:

· Anything on the Internet or the WWW is in the public domain

· If there is no © notice, you do not need permission

· If you alter any image 20/25%, you don't need permission

· If you only use part of an image, you don't need permission

· If you change the medium, you don't need permission
 
 

Familiarity with some basic copyright concepts will help you understand why

these ideas are untrue.
 
 

III. Copyright Protection
 
 

A. What is Copyright?
 
 

The Copyright Act (Title 17 of the United States Code) is the protection of

original works of authorship. It is derived from the Constitution of the

United States under Article 8 which provides that "Congress has the power to

promote the progress of Science and useful arts, by securing for limited

times to authors and inventors the exclusive rights to their respective

Writings and discoveries." Copyright is essentially an economic property

fight, owned initially by the author. It serves to provide an incentive to

artists to pursue their art and derive economic benefit for a limited

period. While proponents of swipe art may argue that copyright is dead, and

the arts better promoted if everything is free and available to users, the

Constitution chose to reward the original creators with exclusive rights to

their works.

Since the Constitution was written, the Copyright Act has been amended

many times. The most recent act, Copyright Revision Act of 1976 (effective

1978), revised the 1909 Act. It was intended to be technology neutral, to

evolve with technology, which was not the case with the prior act as it did

not foresee radio broadcasts, television, movies, videos or computer

programs, to name a few. Since then, the Act has been amended several

times, primarily to eliminate some formalities imposed by the Act, to permit

the United States to join international copyright conventions, such as the

Berne Convention, effective March 1, 1989 and most recently to implement

aspects of the WIPO Treaty, and to examine issues brought about by the new

technologies. This most recent amendment is formally entitled the Digital

Millennium Copyright Act.
 
 

Since March 1, 1989, the formal notice requirement or ©, is not mandatory

in

order to secure copyright protection. Failure to use a notice after that

date does not place the work in the public domain (free to use without

permission). The myth that no copyright notice means you can freely use a

work is not true. I still recommend that copyright owners continue to use

the notice (©, name, date) since it informs the viewer that the work is

protected.
 
 

B. How long is a work protected?
 
 

Recent legislation has extended the term of copyright protection to life of

the author plus 70 years. Works that are owned by corporations are

protected for 95 years.

C. What works are protected?
 
 

The Act protects "fixed works of expression" including the visual arts,

(pictorial, graphic, sculpture), writings, music, dramas, motion picture,

audio visual, choreography, sound recordings and architecture. Even though

the word fixed is used, the Act has been interpreted to give protection to

works on computers, which cannot be read without the aid of a machine. The

more creative or artistic a work is, for example a work of fiction or art,

the greater the protection. In order to be protected the work must have a

minimal level of creativity. While there must be some form of originality,

not much is required. The alphabetical listings in a phone directory are

not original enough.

D. What is not protected?
 
 

The Act does not offer protection to ideas, words or short phrases, facts or

utilitarian works. For example, if there is only a limited number of ways

to express an idea, protection will not be granted. This applies to

accounting forms and contest rules. Since a copyright is essentially a

monopoly for a period of time, it would not be in the public's interest to

have only one source of accounting forms or contest rules. While these

rules seem simple, they are not always easy to apply. A lamp may be

utilitarian, but the base may be so sculptural that it is protected as a

copyrighted work of art. It can sometimes be difficult to distinguish

between the idea and how a particular artist expressed the idea. Short

phrases are not protected by copyright but may be protected by trademark

law.

Works created for the United States government by its employees acting

within the scope of their employment are not copyrightable. This places

government created work in the public domain. That is why anyone can obtain

a government map or copy the circulars from the Copyright Office.

IV. The Rights of a Copyright Owner
 
 

A. Who is the Owner?
 
 

Since 1978, the creator of a work owns the copyright, unless the owner

transfers the rights to another. If you hire a photographer to take your

portrait, the photographer owns the copyright. You may only own a copy of

the print. These rights of ownership are exclusive, only the author can

give them away. Generally, if a work is created by an employee within the

scope of employment, the employer is considered the author/owner. In most

situations, an independent contractor, such as a freelance photographer will

not be considered an employee, and the work will be owned by the

photographer. To be classified as a work made-for-hire, with the hiring

party owning the copyright, the work must fall into nine enumerated

categories under the Copyright Act. Otherwise a work-for-hire agreement

must be in writing and signed by the author. You cannot cheat, and write a

work-for-hire agreement on the check endorsement, after the work is created.
 
 

B. Exclusive rights of ownership
 
 

The copyright owner controls the rights to his or her work to the exclusion

of others. The ones that apply to the visual arts include the following:

1. Reproduction
 
 

The reproduction, or making of a copy, of the whole or part of a work

without permission, constitutes infringement. A copy can be made by making

an exact copy, or by imitating the original. There is no fixed rule to

determine how much can be copied. Even a small portion may be considered an

infringement. There is no safety in taking only a portion, or having

another photographer make a similar image. Examples are included under

section V (B) - Pitfalls.

2. To modify the work (derivative works)
 
 

The right to modify the original work belongs exclusively with the owner.

This includes the right to make a painting from a photograph, or a collage

from several different photographs or images. This right covers any form in

which the original can be recast, transformed or adapted. Even if

derivative work is extremely creative, permission must be obtained from the

owner of the original work. Manipulating and combining images in Photoshop

or similar computer programs without permission creates an unauthorized

derivative use.

3. To distribute copies
 
 

The copyright owner is the only one permitted to distribute copies of the

work to the public by sale or other transfer of ownership, such as a license

agreement. If a photograph is needed for publishing, in a book,

advertisement or website, as an example, a written license must be obtained,

and in most cases a fee or royalty negotiated.
 
 
How to legally obtain rights to a work
 

Only the owner can grant the right to use his or her work. This grant is

usually called a license or an assignment. The terms of use should be

clearly described. The size of the use, distribution, territory, and length

of time used are just some of the terms that must be considered, depending

on the use. You only have permission to use the rights granted; all other

rights are retained by the owner. If you use the work longer than the time

period granted, you are also an infringer. Once the terms expire, your

rights expire. For example, if you have permission to use a photograph in a

brochure for one year, and you use it for two, you are an infringer.

Copyright is separate and distinct from the work itself, the book, the

painting, the photograph, song, etc. You can buy a photographic print or a

painting, but you will not own any of the rights under copyright unless you

acquire them specifically. Copyright owners can permit many people to use

the same work by creating different licenses. The same image can be used as

a book cover, a billboard advertisement, or on a website. If you want to be

the only one who can use a certain photograph for a period of time, known as

an exclusive use, that agreement must be in writing. It is recommended that

all uses, even non-exclusive uses, be reduced to writing to avoid disputes.

D. Can anyone lose their rights?
 
 

Since 1989, even if you don't use a © symbol, you cannot lose your rights

unless you make a transfer in writing. Public domain only applies to works

created by the government or published without the proper notice before

1989. The copyright notice on a magazine, newspaper or book's masthead or

front page is considered adequate copyright notice for the inside

contributions (other than advertisements). If you have a question, consult

your copyright attorney!

E. What is Fair Use?
 
 

The exclusive rights of a copyright owner are limited by the fair use

doctrine. This doctrine permits the use of copyrighted material without

permission to promote scholarship and criticism. It is a limited doctrine

and a defense to infringement. Fair use does not permit advertisers to use

copyrighted material without paying for the use. It is risky to rely on

this defense. It means you are infringing, and a court must determine if

the defense applies by analyzing a number of factors using the facts of your

case. The most heavily weighed factor is whether the use is commercial or

for research. When a court must decide, you are most likely spending more

money defending the action than if you had obtained a license before using

the image. In most cases, if the work could have been licensed, the defense

will not apply.

F. What can happen to an infringer?
 
 

The owner of a copyright has various remedies against an infringer under the

Copyright Act. One remedy is an injunction, a court order that stops the

use completely. The fact that this may cost the infringer a lot of money is

not necessarily a relevant factor. Monetary damages are available. The

copyright owner under certain circumstances, may elect statutory damages

which permit a court to award up to $100,000 if willful infringement is

found. Profits or damages may be elected as a measure of damages as well as

attorneys fees and costs. The destruction of the infringing material may be

ordered. The Act provides for personal liability, even if you work for a

corporation, in circumstances where the individual was instrumental in

permitting the infringement.
 
 
 
 

V. How to be creative without violating rights
 
 

A. Ask First!
 
 

Copyright is the protection offered all creators. A designer or artist

does not want his or her work copied any more than a photographer. Asking

permission to obtain works to include in computer illustration or other

design does not mean the end of creativity. There are many options and

sources of images. When rap music emerged as a music genre along with the

proliferation of music sampling, the artists argued that sampling was part

of the genre. It only took one court to decide that this was an

impermissible infringement before the record companies required permission

for sampling. Licensing is now the practice in the music industry.

A good motto is to ask first. It is much easier to negotiate a reasonable

license fee for a use than to pay a settlement after you have been caught.

If you use an image in a comp, it is likely that the client will want the

same image in the final project. If an image is not available, do not have

another photographer create a similar. This violates the exclusive right to

distribute and make copies. It is difficult to create a wholly original

work if you have an example of another artist's interpretation in front of

you.
 
 

B. Examples of copyright pitfalls
 
 

1. Combining images
 
 

The cover of Newsday Magazine shows people running with "TV set" heads. A

computer artist combined a number of images from various source books,

including an image by James Porto, who is represented by the stock agency

FPG. The James Porto photograph was a computer concept image. Even though

only a portion of the image was taken, and the elements "flopped" and

combined with other images, the copyrightable elements taken were easily

distinguishable. The background of the composite image was taken from

another photographer, using a different stock catalog. The case settled but

the attorneys' fees and settlement figures for both images were high.

2. Altering the original image
 
 

Scanning a portrait of Bob Dole from the cover of Time Magazine and imposing

a pineapple surface on the face may be a play on words, but it is also a

copyright violation. When the use is on a commercial product, the argument

of political free speech does not apply.

3. Copying image exactly/corporate liability and profits
 
 

When an image is copied, even on fabric, the result is an infringement. For

example, a photograph of Penguins presented in the Allstock catalog, was

found to be the basis of nightshirts and boxer shorts distributed through

the Nature Company catalog. All companies in the chain, from the fabric

maker, to the manufacturer, and ultimately the distributor, were sued and

the profits were turned over.

4. Copying image by having a photographer take a similar picture
 
 

If you or your client do not want to pay for the image used in a comp, do

not hire another to create a similar shot. Too many of the copyrightable

elements will be the same. Simply having a different model with a different

color outfit will not be enough to avoid a situation of substantial

similarity. A photograph of a "Girl in a bathing suit, on a bench with a

Dove" was infringed by another advertisement of a different girl, lying on a

bench holding a dove. The photographer was asked to create a similar and

the client saw the copy in an advertisement and commenced an action.

5. Changing the medium is still an infringement
 
 

Using a still photograph in a video or film is still an impermissible copy,

even if the image is manipulated. This is an example of a derivative right

owned by the copyright holder. An example of this type of infringement is

an image from the Photo Researcher's Catalog, of a hand taken with a special

technique, used as a basis of the television opening for the "X Files".

The Tonight Show borrowed a photograph of a baby from an International Stock

catalog, added tattoos, drum sticks, and a milk mustache as part of a "Got

Milk" skit. Permission was not obtained and a quick settlement was reached.

Nor is it permissible to make a sculpture from a photograph, no matter how

expensive the sculpture is sold for, as Jeff Koons, the famous artist

discovered when he copied Art Rogers' photograph to create his "String of

Puppies". A license to create an art rendering is required when changing

the medium.

6. Using an image as a reference without permission
 
 

If you admire the concept of an image and want to create a variation,

request permission and pay an art reference fee. This will avoid a claim of

infringement by the owner of the original piece.

VI. Conclusion
 
 

Copyright is not dead, despite the proliferation of desktop publishing,

scanners, and the ability to download from the Internet. Knowing the rights

of a copyright holder and the responsibility of an image user will allow you

to use imagery in creative ways without subjecting you, your studio, or

employer to expensive claims of copyright infringement. If you are not sure

if you can use an image, ask permission or the advice of a copyright

expert...because what you don't know can hurt you!
 
 
 
 
 
 
 
 

© 1998 Nancy E. Wolff

Nancy E. Wolff is an intellectual property attorney, located in New York

City. Her practice includes copyright as it relates to the visual arts and

new media. No permission is required to reproduce this document provided

that credit and proper copyright notice is provided.
 
 
SUBMISSION OF IMAGES TO THE COPYRIGHT OFFICE

*There was a question here about a method for copying

your images for submission to the copyright office.
 
 
 
 

My method is to video tape images (prints & chromes) and send a VHS

copy to the Copyright Office.
 
 

I have a small 8mm camcorder which is attached to a copystand. (I did

look into an older 'full size' VHS camcorder, but it was too heavy to

be held up on a copystand). The 8mm tape is then copied to a high

quality VHS tape.
 
 

I also use a small light box which can be easily removed when recording

prints.
 
 

I record ALL my chromes/prints as soon as they come (including

similars, density variations, 'soft' images--all images). If I want

to record the caption info on images, I'll use a small lamp to light

the slide mount so the caption is readable.
 
 

It helps if you have an external LCD viewing screen on your

camcorder--you can slide the images quickly and easily into the viewing

area. I grab a stack of images and record each image seperately (tight

but at full frame) for about three-four secords (from my understanding,

a deposit requires the image to be vissible on tape for at least two

seconds.) I leave the camcorder running and only hit 'pause'

occasionally.
 
 

To record older negative images, I looked into Tamron's Fotivix and

Fuji's products. But I ended up going with a small negative/positive

converter adapter ($250) from a company in Indiana (I have the name

somewhere). The devise is workable. But I try to record from prints

instead of negatives whenever possible.
 
 

I fedex one or more VHS tapes along with a cheque and form to the

Copyright Office. I try very hard to submit these material BEFORE

sending the images to my stock agencies or clients. The original 8mm

tape along with copies of the paperwork is deposited in my safe deposit

box for my record.
 
 

Right now, it's taking about 3 months to get your Certificate from the

Copyright Office.
 
 
 
 
 
 

_________________________________________________________