Copyright explained for marketers, with reference to photography.

24th of February 2002

In marketing we often use high quality images in brochures, websites or print adverts. We may pay indirectly via an advertising agency but when marketers or photographers misunderstand copyright issues disputes arise. To avoid bad feeling and a waste of time and money .. read on >>

The ethics and logic of copyright explored.

Doing some photography and creating and using images for client websites has caused me to examine this issue a little more.

I have sourced product images, from a professional photography studio, for years without causing them to explain copyright to me in any detail.

Digital photography now makes abuse much more likely but ignorance of copyright remains a weak excuse in a resulting dispute.

Since putting my mind to it the whole issue has become much clearer but bearing in mind my own ignorance as a "photographers client" I expect other marketers may benefit from reading on.

1. A client hiring a photographer:

If a client pays for a photographer's time, equipment and expertise to create images uniquely for them, it seems usual the client will want to own and be able to use those images as they see fit as they perceive they are fully paying the photographer to create unique images.

If this is the case the client should ensure these terms are clear to the photographer and it is on these terms the parties reach agreement. This applies to contracted or fully employed photographers.

2. A photographer hired by a commercial client:

If a photographer expects their client to pay them to create unique images yet also wants to retain ownership and rights, granting the client only various limited rights to use the resulting unique images, the photographer has a duty to make these terms clear before agreement is reached.

The simplest solution for the photographer is to serve or refer to their terms and conditions when they issue their quotation at the start of the process.

If required they should refer to their terms again specifically in an order acknowledgement to rebut the clients terms which may have been stated on their purchase order.

(Note if the client has the power to ensure their terms are in force the photographer will have to decide to live with them or not which is a quite normal commercial decision this also applies whether the photogapher is contracted for the task or fully employed).

3. Photography costs, and rights:

It is the commercial and perhaps moral duty of a photographer hired to create unique images who wants to assert some future rights over them to show a price differential, charging a lower price for providing limited rights / ownership to their client than they would charge if they were selling all the rights and full effective ownership to the unique images to their client.

4. Stock images or a photographers portfolio:

If a photographer creates photographs in their own interest, in their own time with their own equipment from public land (or private land where they have the required permission). The resulting photographs are clearly morally and ethically the photographers property.

If someone else wants to use or enjoy them the photographer can permit this, they can licence, sell or print the images, in a limited or unlimited way.

(If a person is the focal point of images and the photographer is to sell the image for commercial gain, it appears in the UK at least they should have the subjects permission. Clients wanting to use photographs of people should endure they have signed model release forms which cover their planned application or use. Photographs of people displayed in news reports are exempt this requirement where it can be argued that they are of newsworthy content, in the public interest and are not misleading).

5. The case of prints

A customer buying a print of a photograph is ethically different. They are not paying the price / cost of its unique creation just that associated with its reproduction or printing.

So the customer can enjoy the photograph but they own just the print not the image. The customer can sell on prints they own but cannot copy them. The seller of the print usually will exercise their moral duty and business sense to educate / inform their customer that copyright (the right to make copies) is restricted on the print often with a suitable sticker on the back.

6. Benchmarking - other areas of enterprise:

6.1. A car manufacurer and external design studio

A car manufacurer and external design studio negotiating a styling job would normally ensure that suitable terms were specified regarding further use of the commissioned design on demo or production cars and the terms agreed to would have a bearing on the price the parties agreed and who owned what when the contract was underway and when completed.

This is similar to a client commissioning a contracted or employed photographer to create unique images for them.

6.2. Buying a passenger car from Ford.

If a customer buys a Ford motor car they normally will expect to own that particular individual car. They will know that other people will be able to buy other copies of that same car from Ford who effectively own the copyright.

In this way buying a car is similar to buying a photographic print.

The customer normally expects to be able to drive their car when and how they see fit for as long as they wish down whichever road they wish or sell it.

They cannot reasonably expect to be able to reproduce their single Ford car creating multiple copies for profit.

Likewise if a customer buys a print of a photo they can reasonably expect to be able to display it as often as they like or see fit or to sell that particular print to someone else but not copy it.

Conclusion:

The price charged for a single example or use of anything without assigning any part of "copyright" should be significantly lower than that which is fair for the equipment, expertise, staff and time to create a unique item and the ability and rights to reproduce and use multiples of that item.

• If I buy a car I can expect to use it multiple times but only have one car. I cannot drive it in London while my wife drives it in Manchester. To do this I should buy two cars or copy one for which I need to obtain copyright. (similar to a photographic print).
• If I buy a photographic print I can display it in one place (one USE) because I did not buy copyright or a licence for duplication or multiple use.
• If I pay fully to buy the development and creation and production of a car (I am Ford) I can produce sell and or use as many cars as I like.
• Likewise if I commission a unique image and buy all rights for my extended USEAGE I expect to be able to display the image in my home, my office, my website, my catalogues, my adverts and in any future exhibition because I plan to buy the rights for reproduction and multiple use.

Here we come back to the start, if a customer buys the equipment expertise and time required to uniquely create images they will likely want to own the resulting images in every sense of the word, this means as property, to copy and to use in an unlimited way.

If you are a client it is your professional responsibility to ensure you agree specific terms with your supplier.

Author Mark Abraham (mark@sticky-marketing.net) 23 February 2002

Top | Home | Articles | Glossary | Sitemap | About
Copyright 2001-2004 sticky-marketing.net