Neil Danton

…do it my way.

It’s not always the death of a deal when someone demands copyright that you’re not prepared to give-up.

A big part of the problem is that people often don’t understand what the assignment of copyright actually means and I’m speaking here about people who may not really understand it fully. They’ve heard the word and wrongly assume that they need copyright in order to use the images.

There are clients though, people, institutions, usually in the Editorial world, who fully understand it and are just trying to exploit photographers with a “rights grab”.

I was contacted a while back by a non Ireland based magazine to do an editorial shoot for them and the conversation COULD have gone like this:

Them: “(1) We’d like you to shoot x amount of pictures of y subject at z location. (2) The fee would be abc, inclusive of travel, and (3) we expect assignment of copyright”.

Me: “(1) Shooting x images of y is no problem and z isn’t that far considering that (2) abc is a fair and reasonable fee. (3) Go fuck yourselves”.

That would have been that then. End of story and end of commission.

The “them” part of the conversation above is real. The “me” part was actually changed to “Well I never actually assign copyright because it’s not necessary. What image-use do you actually require?”

After uncovering the client’s exact requirements, I sent an email outlining my terms for doing the shoot, and shortly afterwards received the picture editor’s agreement and confirmation of commission.

Begs the question then, why the copyright issue in the first place?

a) It could be that “someone”, usually in the finance department, who doesn’t actually have a clue about copyright law, decides it would be a great idea to demand copyright in all cases. That leaves the picture editors in a difficult position to fulfil their role and they bend the rules in order to work in the real world.

b) It works in enough cases to justify it. Not enough people stand up for their rights for fear of losing commissions.

I have to confess I was slightly surprised at the positive response I received. This was a division of a big, I mean BIG publisher and the interwebthingy abounds with tales of photographers working for another division having enormous battles over usage rights.

In the end I did the shoot and emailed the invoice. Almost immediately I got a response from the picture editor and so I thought “here we go”. In actual fact though, it was helpful instructions regarding a couple of items to change on the invoice in order to get the fastest routing through “the system”.

I still had the feeling this would be one of those invoices that despite the clear terms & agreement of 30 day payment, would be a case of waiting for 120 days and then chasing many times before having to send a shittygram and threat of legal action in order to get paid.

Yesterday the fee was transferred into my bank account before the due-date. Just goes to show.

TTFN

..you can’t just help yourself.

I was recently flicking through a weekly free newspaper, and for some reason my eye was caught by 2 separate full-page advertisements which featured images of three different celebrities. Why on this occasion I noticed I have no idea, I doubt I normally would.

It did make me wonder though. I’m not accusing anyone of anything here, and I don’t know the facts or the answers to the questions I’m going to ask here. I am also not a legal expert, but I am fairly clued-up as to what may and may-not be done with regard to licensing of images, copyright, and a person’s image rights.

I don’t know whether the newspaper constructed these advertisements on behalf of the client, or whether the client themselves or an agent working on their behalf did so. I certainly hope though that the necessary licenses to use, permissions and model releases have been sought. There is a potential here for at least 6 very costly legal actions, 3 each from the image copyright holder and the celebrity.

Let’s look at the copyright issue first:

All of the images appear to have been taken by professional photographers. One I know was. Fact. Explanation a little further along. Regardless of whether the images were taken by a professional or not though, permission as a minimum is needed before anyone’s images may be used for anything, but in particular for advertising purposes. In the case of a professional, payment is expected for any usage of their images, but in particular when an image is used to enhance an advertisement of a product or service which is designed to achieve financial gain for the advertiser.

Next the image rights issue:

No-one, but in particular a celebrity, expects their image to be used to imply, whether implicitly or not, that they endorse a product or service unless they are sponsored or paid by that product or service to do so.

Let me explain further then. One advertisement features 2 sports personalities and the other a very well known actress (I refuse to bow to political correctness and call her an actor).

Let me point out that nowhere in either of the advertisements does it specifically say that the celebrity supports or endorses the product or service, but the fact that their image is being used does imply, whether deliberately or accidentally, that they do so in some way or the other. Guilt by association if you like.

Let’s take the actress one first.

The advertisement is for a provider of laser hair removal. I don’t know whether or not Angelina Jolie has actually used this product or service, or any similar product or service, or approves of this type of product or service, but her image is contained within the advert. I know it’s Angelina Jolie because, well because I know what she looks like, but also because conveniently, across the image is the text “Angelina Jolie”.

I repeat, nowhere is there any text that mentions her approval or not, but why is her image used unless to attempt to imply or infer that somehow, however tenuous the link, she is associated with the product or the concept? Maybe the space used by her image needed to be filled, and her image was just the correct size?

The sports personalities:

I have no idea whatsoever whether or not Tiger Woods or Brian O’Driscoll have had laser eye correction treatment. Tiger Woods probably needs no introduction to anyone in the world, but Brian O’Driscoll (BOD) might. BOD, for those outside Europe or who don’t follow sport much, is a Leinster (Irish province), and Ireland, and British & Irish Lions rugby player.

Images of both of those esteemed gentlemen appear in the second advertisement though.

Again, as above, no text suggests implicit association. There is text which suggests with regard to Laser Eye Surgery that “it is no longer just for celebrities like Tiger Woods, Brian O’Driscoll or Richard Branson”.

Again, as above with Angelina I don’t know whether permission has been granted by either the image creator or copyright holder, or the celebrity to use these images for this purpose.

So why do I suspect that all these images were taken by professionals and furthermore claim to know for a fact one was, and for some reason suspect that none have the necessary permissions?

Firstly the quality and secondly with regards to the sports images, the access required to get an action image of those subjects. Oh, and the fact that with regard to the Brian O’Driscoll image, it took me less than 15 minutes on the interwebthingy to track down the owner of the image.

The owner (copyright holder) of the image is a sports agency and the photographer co-incidentally happens to be a close friend of mine. Within a few minutes I was able to tell that the image was taken when BOD was playing for Leinster in a Magners League match on 31st Dec 2006. The last match in Lansdowne Road stadium before it closed for transformation into the Aviva Stadium.

The thing is with regard to images, pretty much any image can be used in a publication if it is in an Editorial context, where commentary about the subject of the image is appropriate. Those Editorial rules don’t apply where an image is used within an advertisement though.

In fact with regard to the BOD image, the agency terms explicitly state this:

All of XX Photography’s images are “rights managed” and pending image rights clearance are available for Usage Rights such as advertising, branding, brochures, direct mail and marketing etc.

and also:

As regards “image rights”, although XX Photography are the sole copyright holders and owners of all our images, clients may need to seek clearance from individuals, sporting bodies, or owners of any intellectual property contained in an image they wish to purchase for commercial use. We will assist you with who to contact regarding “rights clearance”, and offer any advice we can on dealing with this important issue effectively.

So did the creator of these advertisements seek the necessary permissions, pay the appropriate licence fees and clear image rights with regard to these images? I may be completely wrong here, but for some strange reason I just have my doubts.

At least in one case though, I can easily find out.

TTFN