Ask an Art Buyer: Copyright

by Heather on September 17, 2008

Wednesday is Ask an Art Buyer day. Send your questions to heather@heathermorton.ca 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…

{ 27 comments… read them below or add one }

myles September 17, 2008 at 12:42 pm

Oh yeah. here we go!

Face it Canada does not support its artists. A simple amendment to the law would make things less murky and ease the confusion on copyright. So many of us care but change never seems to happen. Good mags/agencies/shops/photographers leave or fold every year. As a former employer of mine told staff as he was laying us off…”Canada loves a good murder story.” Good line, poor timing.

I too am always fascinated with the ferocious spite I often see directed at AB’s PE’s etc. Maybe I have thin skin. Know this – at the end of the day an art buyer or photo editor or art director does not work for the photographer…who are you all kidding? But does that mean they are not advocating for better rights? No. Better rates? No. Quick show of hands – those who have sat in on a meeting between an art buyer and a vp of finance or client or cfo or accounts for that matter? Of course there are always those who do give the profession a bad name. Every industry has them…we are not all perfect. ; )

Brad September 17, 2008 at 3:12 pm

I don’t know what it’s like in Canada, but in the US photographers and guilds like ASMP are not allowed to come up with standardized fees or rates because it’s illegal. So we can’t fight it out amongst ourselves. I think that is why rates vary so wildly, everyone is kind of on their own to figure out what to charge.

Heather September 17, 2008 at 6:49 pm

But isn’t there some room for “Best Practices” guidelines?

john Hryniuk September 18, 2008 at 4:31 am

I agree with Myles on the fact that Canada doesn’t support its artists. Its unfortunate that the government doesn’t do more for us with regards to stronger Copyright laws. Kinda unfortunate.

myles September 18, 2008 at 6:48 am

Best practises guidelines would be nice but isnt this something Capic has been trying for years? Why has it not worked? Also, would the agencies buy into it? If the top shooters refused to work for peanuts change may come about but I am not sure I know of a photographer that is willing to be a martyr…too much at stake.

On the flip side many photographers are making very good money. Yes, overhead is high and with the comapanies ramming the newest greatest digital tools down your throats it only serves to increase that overhead….for the time being at least.

I could see photographers banding together to push for change in copyright laws. Their position would only be strengthened if some high ups at the agencies also signed on. Do you see this happening?

chris September 18, 2008 at 11:52 am

CAPIC has a very thorough Business Practices Manual that is given to every member. The difficulty is in getting people to implement those practices. I’d have my daily caffeine fix paid for if I were giving a nickel for every time I heard a photographer say,”if I use those terms and conditions on my estimate, I’d never get a job.” There in lies the problem. “Best Practices” guidelines have been established, they’re just not followed or only partially followed. Add to this the government’s foot dragging on improving the copyright laws for photographers and I am not too hopeful for a solution in the near future.

The one positive thing I have noticed is that younger professionals today seem to be more aware of these issues than their counterparts from years past. Wonder if the internet and blogs like this, have something to do with this increased awareness?

An important reason for “Best Practices” guidelines is that they establish a baseline and are a roadmap on how to navigate your way through all of those non-creative things we must all do to be successful in this profession. As useful a tool at the beginning of one’s career as a camera.

Using standard “best practices” might even alleviate some of that ferocious spite Myles mentioned. At least we’d all be coming at the client from the same place and my dream of the end of negotiating would finally be realized. ; )

Pamela Hamilton September 18, 2008 at 1:19 pm

i’ve always referred to the aop.co.uk for usage guide lines and noticed that capic now puts a link on their website. each photographer/agent needs to negotiate what they deem fair and get a signature in all cases stating terms. not all clients see the value in what is being produced, and its a shame when you see now that some stock photography could generate more income than commissions. I would argue that there is a lot more value to a commissioned photographs whereby the use is exclusive and usage monitored…wouldn’t this be much more valuable to the client…but somehow they’ll agree to pay more for a rights managed image that could show up in their competitors’ ad then for a produced shoot. This never made much sense to me.

peter schafrick September 18, 2008 at 2:55 pm

Seems to me there might be some benefits to all parties sitting down for a meeting. There seem to be some processes that could easily be improved. I sincerely believe there’s a lot of common ground here, we just need to communicate. Vendors and suppliers do it all the time. Surely we could all benefit from this.

Love to see the art buyers in Toronto sit down with CAPIC and have a chat. A few drinks wouldn’t hurt either! ;-)

Myles, best practices don’t work because, well… because they don’t work anywhere. Photographers are not bound to implement them. There are no penalties. Photographers are by nature an independent bunch, and operate their own businesses. So getting consensus on anything is unfortunately impossible.

Let’s consider if the agencies would accept only estimates from CAPIC members. With some form of penalty for not adhering to the Best Practices. Just thinking out loud here. Other businesses do the same thing – they implement rules in the bidding process. Because I’m a little troubled that the onus is on the photographers alone. Agencies appear to want best practices, but also stand to take advantage when it works in their favour when not followed. Isn’t that what some photographers are also doing?

john Hryniuk September 19, 2008 at 4:32 am

Getting a bunch of photographers in one room? in Toronto? I don’t know many photographers that hang out together. This business is so competitive I think everyone is afraid to. Not that way in other cities. In London its still competitive but photographers hang out… dunno why Toronto seems different.

clint mclean September 19, 2008 at 6:13 am

I think Peter has a good idea and it’s one i spoke to Aaron Fraser (the relatively new Halifax based CAPIC rep) about not too long ago.
Why not have CAPIC reps meet with art buyers and photo editors?
In all the magazines i’ve commissioned photography for i never once had a personal (or not personal) email from CAPIC. I find there to be an “us against them” mentality in general from CAPIC. Like heather, I have raised rates more than i have lowered them and would have certainly be willing to discuss compensation concerns with photographers individually or with an organization like CAPIC. (i say “would have” only because i no longer live in Canada).
CAPIC does not feel as relevant as they did to me when i got out of Sheridan many years ago. I wonder if it’s because they seem more interested in talking to themselves than to the industry.
Dialogue. Seems an obvious start.

myles September 19, 2008 at 6:57 am

Key word Peter….’Guideline’ which would imply that you dont have to follow it but rather it is a guide to structures and practice. What you propose is a catch 22. In one paragraph you say lets get together and have a chat and in the the next you say getting consensus on anything is impossible which is self defeating! Why meet at all?

Playing devils advocate here as you can see. : )

Your idea about agencies only using Capic members is good if all photographers were members but I believe as is, it seriously limits who should be considered for a job – Which could hinder on the final creative look. I know you are all for agencies putting the best work out there which I totally agree with – and which we all know doesn’t always happen – and limiting the number of shooters to those who choose to be a part of a group doesn’t is limiting.

Of course if every last photographer was a member then you would be talking! The question is, do you think this would be possible?

Peter Schafrick September 19, 2008 at 9:03 am

Hey Myles,

What I’m suggesting is that without some dialogue, we can’t be expected to know what each other expects. Remember, this works both ways. Getting AB’s and agencies to come to a consensus may also be quite a challenge!

What I’m hearing is that buyers are looking for some improvements. What I’m suggesting is that buyers come up with a wish list, some specifics, make them known to CAPIC and allow CAPIC to convey this to photographers. Will all photographers oblige? Probably not. But many likely will. CAPIC not interested in hearing what you have to say? OK – this blog is a perfect forum for buyers to state their concerns and suggestions to improve. Let’s hear them.

I would argue that CAPIC is not more powerful because buyers have not given CAPIC any power. Self regulation, IMO, cannot work. If agencies implement some rules – eg estimates are encouraged to come from CAPIC members – then just watch CAPIC enrolment sky rocket. Watch CAPIC become much more powerful. Most other professions operate the same way – they must belong to an association to practice. The association therefore has some power. If buyers/agencies want to see some changes, then they too have a role to play.

Why meet? Why not meet?

myles September 19, 2008 at 9:53 am

This forum is a good example of the disparity in the business. Photographers saying they could never see themselves getting together. Editors saying they should totally get together.

A thought occured just after I hit the send button on my last post and it was driven by Peter’s thoughts. The proposal to use Capic only shooters would be something pretty darn unique I think and if let’s say just one of the large agencies agreed to this and proved that they could still acquire kick ass imagery for the ads their client were completely impressed then more would surely follow.

The question? Is there an agency willing to take the risk? I am skeptical. Maybe a boutique shop but one of the big players?

Peter Schafrick September 19, 2008 at 11:30 am

Hold on there Myles: I said it’s practically impossible to get 100% agreement between photographers. That’s not unusual in any industry.

I also suggested that CAPIC and buyers/editors get together. CAPIC’s role is to represent photographers. I never suggested for a minute that photographers as a group meet with buyers.

Max September 19, 2008 at 12:05 pm

Copyrights…does anybody knows how to register images in the US?
I mean most of the pics i wanna copyrights have been published..do i still have to register these? I went to library of congress website but it is very hard to understand what to do.
Thanks guys
Max

aaron mckenzie fraser September 19, 2008 at 12:23 pm

Always good to hear about a discussion about copyright and fair uses among peers/employers. Something that I feel doesn’t happen enough.

Clint you are totally right about CAPIC. It’s not as visible as it should be.

The organization definitely knows that we need a re-vamp to build up our clout and connection to the photo community as well as art buyers and photo editors. CAPIC has and will always be a staunch supporter of copyright and fair usage. As has been pointed out though, it’s a tough game to get both sides to agree and play fair with each other. I think it has alot to do with some inexperience by the photographers. I know that when I first went out on my own, I was a bit clueless where to start when it comes to charging proper usage.
Education and discussion among photographers/art buyers/photo editors would go a long way.

I know of a couple of CAPIC members that are working on a plan to approach Canadian magazines with a sort of best practices/line item/usage charges…lets hope that it will be a good start.

Even though I’m relatively new in my position here in Halifax I’ve seen a real need for some sort of “best practices” guide. CAPIC does have one, but it’s in need of a serious revision considering the changes in digital technology and uses now that weren’t around when it was first created. At a meeting a few months ago, there was some very frank and open discussion about this among the photographers here which was a bit of a surprise to me (considering the small market/competition), though very encouraging.

Myles, I really like your suggestion as well about agencies that will only hire CAPIC photographers! It certainly would increase our membership.

Bruce DeBoer September 19, 2008 at 1:18 pm

But isn’t there some room for “Best Practices” guidelines?

IMHO, as an industry, we don’t do a good job with education on best practices on the commercial side. I’ve always maintained that we could benefit greatly from such guidelines.

Heather September 19, 2008 at 1:23 pm

I know that CAPIC Toronto is working on some interesting ideas to that might involve getting “us” all together to talk about some of these things. I’ve asked that they contribute to this thread.

myles September 19, 2008 at 1:35 pm

Totally agree that people cannot agree. Look at us!

Peter Schafrick September 19, 2008 at 2:09 pm

Aaron – that was my idea!! Sheesh… ;-)

aaron mckenzie fraser September 20, 2008 at 6:03 am

Sorry Peter, got a bit mixed up there!

Leslie Burns-Dell'Acqua September 22, 2008 at 7:44 pm

@ 15
Check out ASMP’s copyright tutorial (it’s really easy to register copyrights in the US):

http://www.asmp.org/commerce/legal/copyright/

John Hryniuk September 24, 2008 at 4:19 am

Can someone explain to me the benefits of joining CAPIC ?

Thanks Leslie and Pamela for the helpful links

John

chris September 24, 2008 at 2:54 pm

John, there is a partial anwser to the benifits of joining CAPIC, in one of your posts. To quote you , “Thats what this business is all about networking and getting to know these people”. Networking with peers, can be as important an asset in growing and maintaining a healthy business.

aaron mckenzie fraser September 25, 2008 at 6:22 am

John, another great benefit of joining CAPIC is being part of their web portal…I’ve gained a number of really great clients from being “found” on there.

John Hryniuk September 25, 2008 at 6:36 am

Thanks Chris… but I mean are there any other benefits? Is there a yearly photo contest that gives you exposure to art buyers and the industry etc ? Can you explain anything else? I did consider joining but didn’t see a reason. Im not trying to be rude.. Im honestly just curious. I was a member a long time ago but don’t remember much going on in terms of that. It seemed to be focused on copyright and very political… thats all good but I think I would want more out of it to join.

chris September 27, 2008 at 4:57 pm

John, valid questions. I too have been an on again,off again, CAPIC member. I don’t have the answers, but as a past Toronto CAPIC board member, I do have some insight. I will however keep my opinions out of this discussion. I am not up to the typing challenge needed to convey it here.

When I first joined , CAPIC had a National Awards show and book. The show was well attended and very successful. The effort needed to organize it was immense. 1000′s of volunteer hours/ year, were needed to stage it. Most of the work was done by a couple of dozen members. With too few members stepping up to the plate to relief pitch, the show slowly morphed into something less and eventually died. Although it did resurface last spring for CAPIC’s 30th.

In recent years, the Toronto board have had a number of programs on the go. The monthly Xchange Series, Double Vision and events like the recent Michael Grecco lecture. Is it the kind of programming that interests the general photo/ Illustration community? Are members requesting these types of events? Are they volunteering to help make the events they want, happen?

To paraphrase an old CAPIC buddy of mine…Paid dues, may keep the organization alive, but an active membership brings it to life.

Ok, one opinion. Professional, non-profit organizations are a complex entity. The fact that they function as well as they do, has always amazed me.

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