Small Chamber of Commerce Publisher wants Copyright! Part II

From the Editorial Coordinator in a follow up e mail:

And as someone who’s worked as a freelancer (sometimes for pretty low wages) for more than ten years, I can assure you that I would never get any work if I argued with magazines and publishers over petty stuff like residuals. Once I’ve done work for a magazine, it’s theirs to reprint as they see fit. Period. Personally, I’m willing to hustle and make my money with each assignment as it comes along in this marketplace, and in my opinion it’s unreasonable to expect newspapers or magazines to pony up every time they want to use content they’ve already paid for. Especially not in this marketplace where print is fighting for its very life against the internet, where photos and content are republished without any authorization and plagiarized willy-nilly and for profit every second. So honestly, as someone who makes his living producing original content for publications on a monthly basis, I think the “residuals” argument is an invalid one. That’s just my two cents.

My reply:

I know many writers who write for national publications, Men’s Health, The New Yorker (and smaller local magazines, such as Traverse Magazine in Michigan: http://www.mynorth.com/My-North/Traverse-Magazine/who do a story for a magazine. That story then turns into a book. Are you saying the magazine should own that chapter of Doug Stanton or Jim Harrison’s book? Or the idea of their book? No, these publications have an editorial policy that values the future value of the writer’s work and their creative ownership of that work. Usually there is a 3 month embargo on the work, where the magazine has exclusive rights to the piece.

Indeed, musicians also make quite a bit of their money off of licensing their music to TV commercials and movies. They own the song, they license it. What if they sold all rights? Hummmm, then music companies would get all the future residuals. What if actors had no rights to future syndication of shows they worked on? Should the cast of Friends or any other actor not get paid for episodes they were in when they run again?

I can only run my business on residuals from assignments and re-selling the images after the first usage has expired, especially when fees are so low. Stock Photography and re-licensing images after the 1st client is done with their usage is a huge part of my business. On top of that, some images are extremely valuable and photographers never know which ones those will be. If someone I photograph for an assignment (for you or anyone else) becomes a national news story, then the photographer owns something that is truly valuable. If the photographer doesn’t own the image, then the former client gets a nice windfall, selling to a 3rd party. Is that fair? Also, I’ve had some copyright infringements, that have resulted in payments and damages of 5 figures.

However you run your life and business is your choice. If you’ve worked for 10 years giving publications all rights, that is obviously your choice and you’ve made a go of it. I’ve done the opposite and have found plenty of work.

I agree that images and content should not be “Stolen” and used on the internet without permission (that’s why I copyright everything and go after infringers,) but I don’t see how that relates to a photographer giving away copyright and all rights to a work they create. Are you saying that photographers should be thankful for the payments they are getting because work is being stolen every day and used for “free?” Or are you saying that print publications are fighting to survive and photographers (and writers) should just give them all rights so they can survive? It is true that print publications are struggling. So are photographers. But I don’t see how this issue relates.

Some publications will require all rights, and I will continue to not work for them. It’s nothing personal, I just believe it is a much better business model for an artist.

Editor’s Response:

Well, I wouldn’t really get too deep into using the musician/commercial business model as a basis of comparison—I believe the musician/music label relationship would be more apt as an analogy. And in that relationship, more often than not a label owns the albums produced under it.

As for the national magazine argument, you’re talking about taking a story submitted to a publication and revising it into a book. That’s entirely different than taking that story and turning around to sell it to another magazine after it’s been published by the first one.

Were your assistant to want to collect these images and make a coffee-table book or a textbook or something of his photography, for instance, I sincerely doubt that our company would have any legal recourse to keep him from doing that. It’s having the images and editorial reprinted in other competing media that the clause is designed to protect against.

However, I can understand your and your assistants concerns, because a clause like that does have the potential to be abused. Otherwise the AP wouldn’t have been able to sue Shepherd Fairey, for instance, over his usage of their photograph to produce that incredibly pervasive Obama poster a few years back. The original photographer, I believe, had no problem with the poster being made from his image — it was the AP who had the problem.

Either way, I agree that the clause should probably be re-worded so that an artist is afforded his rights in terms of reusing his work for non-competing media outlets (books vs. magazines for instance). This corporation probably isn’t going to change any of its policies though, so I apologize for wasting the time of yourself and your protege.

After that I did not respond.

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