Wednesday is Ask an Art Buyer day. Send your questions to email@example.com with the subject line Ask an Art Buyer. I’ll answer as many as I can every Wednesday.
During my summer hiatus there was some interesting discussion on this Blog about… gulp…. Copyright. Well, as I started to talk to people about this, one thing lead to another and I thought the whole complicated mess was worth a post.
This all started with Kay Izzard, Art Buyer at BBDO Toronto who she offered the following comment as a follow up to an old post on Usage Reuse.
I would like to start a conversation about who owns copyright. I’ve always wondered why the photographer assumes all copyright to the image. If the Art Director/Agency hadn’t ‘created’ the ‘vision’ to be photographed, well…I want others opinions because I am asked this A LOT when usage etc. comes up.
I do realize that photographers bring the ‘creative idea’ to life but again it gets down to which came first the chicken or the egg ( for my clients). Without the initial ‘idea’ the photographer wouldn’t have anything to shoot. Without the photographer the ‘idea’ would remain intangible. On every quote from photographers is the clause about the photographer ‘retaining’ the copyright to the image, but I guess what I am asking is what about the ‘idea’ or ‘original vision’.
I asked CAPIC’s copyright authority for some perspective on this question. Andre Cornellier had this to say:
In all copyright law, not just Canadian but in every country in the world, the ‘’IDEA’’ is not protected. Only what become ‘’tangible’ is protected.
The idea of making a painting of a vase with sunflowers cannot be protected. But the painting of sunflowers by Van Goth is protected. The idea of a photograph of an apple, a sunset, a nude, a car, cannot be protected. The Copyright law protection applies only when the idea become a tangible object, a piece of music, a painting, a novel, a photograph.
When you ask 10 photographers to do a photograph of a vase of sunflowers, they will come up with a different interpretation of this idea. It is this interpretation that is protected by Copyright. Same in music, in writing, in film, in all the arts. Same in the pharmaceutical industry: one cannot copyright the idea for a headache, but a specific formula like Aspirin or Tylenol, yes.
The problem (for photographers) is that when it comes to commercial photography in Canada, the law has decided that the “interpretation” of the idea (which is copyright-able) rests with the one who came up with the idea and not the artist who is hired to execute it, unless there is written agreement to the contrary. As per Kay’s comment above, this is a tricky thing to navigate. From the client’s perspective, they paid the agency to develop the creative and they’ve paid the photographer to shoot it. Now they have to pay to use the shot? The law, in this case, might seem to downplay the artistic merit inherent in any one photographer’s vision in favour of the originator of the idea. Nevermind, it is the Art Buyer’s job to gently explain that, though this might sound counter-intuitive to the end client, this is the way things run and if they want to use the image, they’ll have to pay accordingly.
As Kay mentions above, Canadian photographers can, and do, ensure that they right this wrong by including verbage in their invoices to the effect that the copyright remains with the photographer who then grants the advertising agency the rights to use the image in the stated usage.
So the onus is on the photographer to claim the copyright. Hmmm… that sounds like an important piece of information.
I went back to Andre for some perspective on this.
In your knowledge, do all shooters include this on their invoices? Is this universally known by photographers?
Certainly not every photographer includes this on their invoices. Keep in mind, this only applies to Canadian photographers. Every country in the industrialized world recognizes that photographers should automatically own the copyright to their work. So, in Canada, and only in Canada, the photographer has to have a contract that says he owns the copyright. We, at CAPIC, have asked the government to change this law. A bill, Bill C-61, was introduced last May. But now, with the forthcoming election, this Bill will have to be reintroduced in the years to come to fix this anomaly.
Do agencies balk at this idea? Any challenges to the photographer’s claim of copyright?
Yes, many. But most agencies recognize that this is an anomaly and sign the contract. They know that only photographers are excluded from the 1924 Copyright law. They know that when they commission work from an illustrator, a writer, a musician, a painter… the copyright belong to the artist and only in the case of photographers would the agency have the copyright. Most don’t mind signing a contract with a photographer.
Whew. Thank goodness the Ad agencies don’t take advantage of this odd little copyright situation.
But hold on, since I’ve started writing this Blog I’ve been shocked by the stories I’ve heard from shooters who complain about colleagues who either don’t charge usage or knowingly hand over copyright. This is surprising and discouraging. I don’t understand the short-sightedness of industry professional that would undercut each other so substantially as to give away what otherwise should be coming to them.
The Jill Greenberg debate (filtered through the “Blog commentor” population) has galvanized photographers in their anger that one of their own has ruined it for the rest of them. One otherwise obnoxious commentor at A Photo Editor had an interesting point that takes the shame game to a new level:
by the way, how is that guild of yours, the one that bargains on behalf of photogs and makes sure their rights are protected and they can’t get screwed by bidding against (and under) each other? what? there is none? really? so you guys can fuck each other over at the drop of a hat
The ever-wise photography consultant Leslie Burns-Dell’Acqua has a fantastic post about what Art Buyers do. I take my role as an advocate for photography very seriously. In fact, I have argued for an allocation of more money (and time) for photography more than I have argued with a photographer for a decrease in fees. I’m willing to let you keep the copyright (and argue about usage fees with my ignorant clients until I’m blue in the face) but you have to fight for it amongst yourselves too! In an ideal scenario, a job is awarded on merit alone. But, when quotes vary wildly, it is hard (not impossible) to argue (increasingly against Cost Consultants… grrr!) for a substantially larger quote if a client finds out that one of the shooters in the mix is willing to give away usage for peanuts.
But, what about that guild that was so flippantly mentioned above? Why isn’t CAPIC more powerful, better attended? Y’all would be wise to get your collective act together and stop back-stabbing. Respect what I TRY to do for you and respect each other by not cutting off your nose to spite your face. And, to close this post, please stop shitting on those of us who are trying to help you. Tell me, why hasn’t Leslie Burns-Dell’Acqua been recompensed properly for the mountain of valuable insight she offers? She is accepting donations as a way to avoid ads on her Blog and I am shocked that more people aren’t throwing her ten bucks. C’mon now… it’s just ten bucks… I’m sure you can find that on your next job…