Licensing, Stolen Photos, Contributors Agreements

[ericstaud]

Hi all,

Thought this would be of interest to those taking pictures for a living.  I just received a copy of Contract Magazine in the mail with my photo on the cover.  The full use consists of 2 quarter, 1 Half, 1 full, and 1 cover page.  The images are also on their website.

I have never been published by, or worked for, this magazine previously.  Never heard of the arhcitecture firm or the stories author.  I shot the images for another magazine doing a story about high-end dental offices.  I feel lucky the original magazine does not have an exclusive arrangement with me.  The dentist had licensed rights to use the images one time in an advertorial about 10 months ago and has still not paid me, although this is not the point of my bringing up this topic (the only time I have ever not been paid for a job).

So I assume the Advertorial magazine returned the HiRes images to the dentist instead of me.  The dentist sent them to his architect.  The architect sent them out to magazines.

Now I will be calling Contract Magazine on Monday to ask who to send the invoice to.  I think about $2200.00 is the going rate for a one time editorial use.

Here is the thing that made me want to post here though.... They enclosed with the magazine a "contributors agreement" which is totally rediculous.

[attachment=1042:attachment]  [attachment=1043:attachment]

Should I assume that these agreements are not signed by most photographers?  I have not signed anything like this.  There are other photographers in the magazine like Nick Nerrick of Hedrich Blessing, Paul Warchol, Richard Stefani.  

Is it common in anyone elses experience here that a cover story can get published without any contact with the photographer?

In my experience, architectural photography fees are lower than other fields.  On the upside, each magazine who publishes an editorial is considered an end user who is charged licensing fees.  This is true of the dentist, The architect, and the Interior designer.  So very often the initial shooting fees for a project do not make you a good living.  It is the residual uses over the next few years that add to a retirement.  This is why this kind of overt copyright infringement and the heavy handed rights grab gets me worked up.

-What does everyone else think, or do, in these circumstances.

-Thanks,

Eric

[Eric Myrvaagnes]

That is utterly apalling. I hope you have a good attorney. I supect you're going to have to sue the magazine, the architect, and the dentist all. It is ironic that such behavior should come from a magzine on "contracts."

Good luck, and please keep us posted.

Eric (M.)

[MattLaver]

So these guys have used your photography, from whatever source, and published the magazine without having an agreement in place in advance. This breaks so many copyright issues straight off. Then they send you a contract after the fact and expect you to sign off worldwide rights in all media for all perpetuity!

What do they think, you're going to be so pleased they used your stuff that you'll thank them for the priviledge and hand over all rights?!

I appreciate exposure is a valuable aspect of being published but I think this is pretty insulting to your professionalism and business.

On the up side since they have already gone to press, you are in a strong position for negotiation on fees. I would use it as a way to get paid appropriately and absolutely not sign off any rights other than one time, one issue, print and web, time limited. Any future rights needing to be negotiated seperately and for more fees. As is normal practice.

This type of rights grab is not uncommon, unfortunately. Here in the UK, and maybe internationally, Conde Nast (Vogue, Vanity Fair, GQ, House & Garden, Architectural Digest, et al) tried to force that sort of waiver on it's contributing photographers and met with a lot of resistance from the AoP (Association of Photographers, UK equivalent to the ASMP) who strongly advised against giving in to this sort of pressure, especially as there is no way back from it. I can't say if they are still trying to force this on photographers.

Another thought, who supplied the images, and did they have the licensed (and paid for) right to do so. And from what you said did they have the right to use the images themselves? More fees could be generated there.

Lastly its nice to see that they liked the images enough to use them on the cover. Positive feedback on one's work is always good in this often solitary business. Shame it had to come like this.

Good luck with this and I hope you are able to get a positive outcome from it, as well as getting well paid of course.

Matt

[bcroslin]

I would call around tomorrow and secure yourself a good IP attorney. Do not sign the contract. They've already run the images so they have no legal footing to stand on to try and enforce a contract after-the-fact. Have your attorney draft a letter essentially asking that any images of yours in their possesion be returned or destroyed if digital files and hit them for the highest one time usage times three. Also, I hope you registered the copyright of the images in question. If not, you might still want to do that but your IP attorney will not be happy with you that you didn't do it within the first three months of creation.

BTW - suing is a last resort and most IP attorneys will not want to take a case like this to court. If you had exclusive images of the Tomkat offspring and the images are used without permission that's worth it but the infringement you described is probably only worth 4k-6k and by the time the attorneys are done with a lawsuit you'll be 3k-4k in the hole.

Ain't making a living as a photographer fun?

 

[ericstaud]

Thanks Eric, Matt, and Bob,

It sure is fun making a living as a photographer.  

Just FYI, "Contract" is a magazine about contract interior design and furniture.  Basically a trade magazine with alot of very clean images of architecture and furniture.  It is funny, because of their name, that they would not be on the up and up with their photo usage though.

Hopefully the phone calls tommorow and Tuesday will go well.  My business has survived and grown on referals alone.  The editor and art director of this magazine now think of me as someone who makes cover shots.  So although charging them extra for the infringment is likely valid and justified, I would be happy getting the going rate for their use, and to have a slightly embarrased editor, architect, and dentist who now think of me as both talented and fair.

I have had clients want to pay me more because they think of my photos as PR images which they have more control over and thus can then give away for anyone to use.  I have also had clients want me to shoot a house for free because they now there are thousands for me to be made in licensing fees from magazines and books.  I shoot more one-off homes, than I shoot commercial stuff.  The few commercial clients I have do not use the images for anything editorial or PR-like.  I would not be suprised to find that with trade magazines that the larger corporate architects buy greater rights to the images so that they are not encumbered by having to get permission from the photographer all the time.  Does anyone have this experience in this?


Thanks,

Eric

p.s.:  About it being fun working as a photographer.  I had a very talented photographer friend after photography school who had terrible health problems.  He saw all sorts of specialists for sleeping disorders and depression.  For several years he seemed to always have the Flu or a cold or just something.  He then got a regular job with a paycheck every two weeks and ALL his health problems went away.  It's just not for everyone.

[Caracalla]

Att:ericstaud

Perhaps, this link could help with the copyright.

ASMP’s Copyright Application Tutorial » Commerce/Legal/Copyright/Tuorial


Regards

[Kumar]

Eric,

I routinely ask architects whether they would like magazine rights. Some do, and are happy to pay extra upfront. Some don't want to pay initially, and refer the magazine people to me as and when the question of publication arises. This is always with reference to those magazines where the architect does not pay for publication.  If s/he is paying, that is advertising, and gets charged for. Publication by architect association publications is always included in the usual rights, at no extra charge.

And the larger firms are really "corporate", so they tend to buy a whole range of rights. But so far they haven't been able to buy copyright from me  

I looked at the Contract magazine site:

"Please note that Contract does not cover photographers' usage fees."

Kumar

[LasseDPF]

And their publisher, VNU, also pubilshes PDN Magazine. One would imagine them to know better..  
But I get these kinds of "contracts" all the time. Even the big ad agencies try to get me to sign things like this. It is just so much easier for them to have unlimited rights to all images. Saves them the "hassel" of checking usage rights .. and paying for images..

good luck.