Workshop on Management of Intellectual Property by Photographers Beijing, China, December 8 and 9, 2005

IP Issues Related to Photography Contracts Lien Verbauwhede Consultant, Consultant, SMEs Division World Intellectual Property Organization (WIPO)

This Presentation Introduction Contract to take photos Model Release Conclusion

PART 1 INTRODUCTION

Contracts Agreement, legally binding on the persons who made it Normally: do not need to be in writing –But advisable –If not: at least , letter, fax with your understanding

PART 2 Contract to take photos

The parties –name, address Work to be done –place, time, number of shots, digital, black & white, due date, etc Who will own copyright in the photos –Is there assignment of rights? –If so, when? ( E.g. upon payment). –For how long? –Also in photos the client doesn’t use? Source: Photographers: copyright & moral rights. A practical guide. Australian Copyright Council, 2004

If you keep copyright, what can your client use –For what purpose (advertising, website, book jacket, etc): limit right of use –For how long + where –Exclusive or non-exclusive (limit exclusivity) If your client is to own copyright, what can you use –License to use the images –E.g. for self-promotion, contests, samples, portfolio, editorial use, etc

Who owns physical items –Negatives, proof sheets, transparencies, etc –If you own them: obligation to keep in good condition? –Obligation to notify client if you destroy or sell them? –If client damages them: pay? Payment –How much & how (lump sum, royalty, day rate) –When (in advance, on completion of work, in instalments) –Can you charge for extra prints? –Reimbursement of expenses? Travel, etc

Attribution to be given to you –Your name on the photos or in the publication –Copyright notice (if you own copyright) –Type size Can the photos be modified without your consent –Cropped, overprinted, reproduced in black & white, combinations with other works If you grant electronic rights: can client make work freely available to public –Restriction to “display rights only”

What if client wants additional usage rights –need to ask you permission –pay extra fees –E.g. Electronic rights Who will be responsible for any permissions –Model releases, license to use IP material, etc –Indemnity if one fails to get necessary permission –If you need to warrant: try to be covered by publisher’s liability insurance policy owned by client

Prohibit client to license/assign rights to others without your consent Termination –When can contract be terminated –Reversion of rights, return of negatives to you, deletion of digital files controlled by client Arbitration

PART 3 Model Releases

Document that stipulates terms under which you may use pictures taken of someone else Short (one paragraph) or lengthy contract Can be retroactive When necessary? –Most scenarios are not clear-cut –Advisable for anyone who is recognizable –Not only for professional model

Model’s name –Have model recite that he/she is of full age –If minor: signature of parents Some amount of money as consideration Release given to you (photographer) and to anyone you may want to assign rights –E.g. Manufacturer of t-shirts Grant is irrevocable To mention in the contract

Right to use name + image in all forms, media, and manners of use Right to make distorted or changed versions of the image + composite images Right to use for advertising and trade + any other lawful use

For a valuable consideraton of ____ (sum) received, I, ____ (model’s name), hereby give _____(photographer), his or her assigns, licensees, successors in interest, legal representatives, and heirs the irrevocable right ot use and publish my name (or any fictional name), picture, portrait, or photograph

In any manner and medium, (including distorted versions and composite representations), For advertising, trade, or any other lawful purposes. And I waive any right to inspect or approve the finished versions, including written copy that may be created and appear in connection therewith. I am of full age. I have read this release and am fully familiar with it’s contents. Signature, date, address

If no written permission : disclaimer “This photograph cannot be modified for commercial or advertising use, nor can it be copied or reproduced in any form without the photographer’s permission.”

CONCLUSIONS

Laws –Give certain protection and create certain obligations –Sometimes obligatory –Sometimes complementary (if no contract) Remaining part: contractual freedom Contracts are about NEGOTIATION Contracts create legally enforceable obligations

Thank You for your Attention. WIPO’s website for SMEs :