Copyright, Contracts and the Independent Photographer

Most photographers hold copyright sacred.  By law, (in the United States) a photographer holds the copyright to his or her work, unless they transfer it to another person, company, institution or organization.  Generally, this happens in a “work for hire” situation.  But it appears that this is becoming more and more the standard in contracts between photographers and the clients who are commissioning them.

This is happening more frequently in editorial markets, where magazines see the added value of the photographs that they commission, beyond their original usage and want to keep that additional revenue, rather than relinquish it to the photographer.  Many publications have partnered with stock agencies for the purpose of “reselling” the images.  Historically, photographers would benefit from relicensing their photographs when shooting for publications. Editorial assignments paid much lower rates than commercial commissions so in return a photographer would receive a credit and in most cases could make additional money by relicensing their images for other uses.  That is quickly changing.

Photographers have been so narrowly focused on just holding on to their copyright, they haven’t been paying much attention to the details in the contracts. Some contracts being offered, transfer the photographer’s copyright to the magazine and in turn offer the photographer a small percentage of any future commissions made from the “resale” of their images, but this of course is a percentage of the magazine’s commission after the stock agency takes their cut.  A lot of photographers think that’s better than not getting anything at all.  But is it?

What’s most alarming in some of the recent contracts that I have seen, is a clause that states that the photographer will hold the magazine harmless if there should be any legal consequences resulting from their images.  So, contractually, even though a photographer no longer holds the copyright to the images they were commissioned to create, nor maintains any control over how those images are used (by the magazine or the stock agency) they are liable if there are legal consequences.

The devil is in the details.  Read the contracts. Do the math and ask yourself if you’ll still be in business in 5 years.  As for me, I see new opportunities beyond commissioned work and one of the many rewards is that I will hold the copyright to the images (still or motion) that I create.