A photographer wrote on our group page on Facebook, Business of Photography, to inquire about his friend’s rights. Apparently, based solely on a verbal agreement, his friend did some photography for a magazine. Later on, the magazine asked if the magazine’s client could use the photo for a poster for display in a mall. The photographer said no, but the photo was still used. The photographer was, and still is, upset. They are all upset – the magazine folks, the mall advertiser and the photographer. His photographer-friend asks: Should he complain? Should he sue? Should he sue the publisher, the mall advertiser or both?
To quote the photographer who wrote to us, in behalf of his photographer-friend: “Now I ask, who is in the right in this situation? Is there a legal basis for the Photographer to come after the Mall or Magazine? What would you do in this situation? Should the photographer teach them a lesson in how to respect photographers rights if this is indeed a rights issue?”
I tried referring this to a lawyer-friend, but she is hesitant to give an opinion without access to more complete information. That’s a professional for you. But I am not a lawyer so let me hazard an opinion as a lay person. (Please don’t mistake my advice as legal opinion – for more professional advice, please consult a lawyer). I’m just thinking out loud, and if my thinking is erroneous, please do correct me.
Photographers should take an active role in protecting their rights. In the case presented to us, we were told that there was no contract between photographer and magazine, or between photographer and the mall advertiser.
Allow me, however, to ask further. Was there really not a contract between them? There might have been, but it’s possible that the photographer was not aware of it. Perhaps it was not in a standard form where we sign on dotted lines- it could have been in the fine prints, and maybe, no signatures were even required.
Some magazines announce, usually on their editorial page (the page where the editorial box lists all the people involved in the publication – the publisher, editors, designers, staff as well as contributing writers and photographers) a declaration that all submissions, whether articles or photographs – become property of the publisher upon publication. If this was the case, and I am not saying that this was the case between the photographer and the magazine in question, then submitting to such publications may have caused the photographer to surrender his rights to the publication, albeit unknowingly.
Years ago, I remember aspiring to get a personal story published in a prestigious magazine. The instructions on how to submit were clearly stated, and it included an announcement that all submissions, when published, become the property of the publication. All the warning bells rang in my head, and neither a $100 payment for each article published nor the honor that came with seeing my name and story in print in this international magazine (pardon me for not naming the publication) could not make me grant them perpetual and universal rights to my story. It did not matter that my story would never be a bestseller and I probably could never sell it even just one more time – all that mattered to me was not losing ownership of it. It was MY story, and I wanted to keep it.
Photographers should watch out for a similar rule that many photo contest organizers add to their terms and conditions. All entries, not only winning entries, become the property of the contest organizer. Many photographers I know don’t even bother to read those rules – even when they are printed in big, bold letters – but they would be the first to complain when they see their pictures being used, without their “permission.”
Do I mean to tell photographers to never submit photos to magazines or contest organizers, when the fine (or not-so-fine) prints warn them about the full transfer of rights to the publications or the contest sponsors? Or to work for clients who demand total surrender of their rights? No, I am not saying that. All I am saying is please read the rules, terms and conditions, and make your own decision whether to accept or not accept them. What you get in return for surrendering your rights – fame, glory or cash – is for you to weigh and to negotiate for. As we were told during the seminar – be aware of your rights, but know that what you do with your rights is or should be a business decision. You have the primary responsibility to protect your rights, and the first step in doing so is in reading the rules, terms and conditions, whether in large or fine print.