Advocacy

APA Works for Photographer’s Rights

APA is an industry leader in the fight for photographer's rights.

At Photoville this year, APA National President, Tony Gale and APA New York Members Ron Jautz and Alley Maher, along with members of other creator organizations, met with Brooklyn Congressman Hakeem Jeffries to talk about the importance of introducing a Small Claims Bill in Congress. For Congressman Jeffries to come to Photoville and see the fine work being done by small-business creators and to hear directly how strong copyright legislation can benefit his creative constituents, helped solidify his intent to bring such a bill to the floor of the House.

Yesterday, October 5th, Mr. Jeffries and Co-signers Marino, Collins, Smith, Chu and Lieu, introduced House Resolution #3945, the "Copyright Alternative in Small-Claims Enforcement Act of 2017" ("CASE Act of 2017"). This is a big step forward for photographers but the work is not done yet, the Bill needs to pass onthe floor of the House of Representatives. Now is the time to contact your Congressman and urge support of # H.R. 3945 when it is brought up for a vote.

As individuals, it's hard to have your voice heard in Congress, but APA, in a strong coalition with other imaging organizations, can speak on your behalf and fight for your rights. Most people don't know about the leadership role APA plays when it comes to copyright matters, but APA fights for you--whether you're a member or not. If all photogrpahers joined APA, our voice would be even more powerful. We urge you to join today.

Our coalition includes the American Photographic Artists (APA), American Society of Media Photographers (ASMP), Digital Media Licensing Association (DMLA), Graphic Artists Guild (GAG), National Press Photographers Association (NPPA), New York Press Photographers Association (NYPPA), North American Nature Photography Association (NANPA) and Professional Photographers of America (PPA).

Together we can accomplish great things, so join the professional organization of your choice.

Copyright Office Proposes Extended Collective Licensing Program

On June 9, the Copyright Office issued a Notice of Inquiry (http://copyright.gov/fedreg/2015/80fr32614.pdf) requesting public comments on the practical operation of an Extended Collective Licensing Program that the Office proposed in its most recent report on Orphan Works and Mass Digitization (http://copyright.gov/orphan/reports/orphan-works2015.pdf). According to the Office, the program “would enable users to digitize and provide access to certain works for research and education purposes under conditions to be agreed upon between rights holder and user representatives.”

The report recommends legislation limiting liability for the use of orphan works following a good faith diligent search for the copyright owner, similar to legislation passed by the Senate in 2008. The report also proposes the use of extended collective licensing for nonprofit educational and research mass digitization projects. The Office suggests a “pilot program” that would enable users to digitize and provide access to certain works for research and education purposes under conditions to be agreed upon between rightsholder and user representatives. To assist it in developing appropriate legislation, the Office is issuing a Notice of Inquiry contemporaneously with the Report, inviting public comment on various issues concerning the scope and administration of such a program.

Case Study: Agency Contract Bait and Switch

Article by David Robin

The Summary

We've all glanced over a seemingly benign document an art buyer or client has asked us to sign as a "formality", prior to beginning a project. Let's face it, it's becoming second nature to "agree" to wordy Terms of Use Agreements without reading them (think Facebook, Instagram and Tumblr). In fact many corporations, especially in the tech industry, are inappropriately utilizing the very same language found in their public online Terms of Use Agreement, in their assignment contracts as well. This case study might get you to think twice before placing your name on the dotted line without first reading and understanding what you're being asked to agree to.

I was recently presented with an interesting situation that unfortunately seems to be getting more common as corporations attempt to usurp ever-increasing rights while paying less in licensing fees and shifting all legal risks to the photographer.

An agency's art buyer sprung a last-minute legal document on me that, if put into effect, would have undermined all previously negotiated stipulations and left me relinquishing all rights to my images without compensation. It also required me to never bring a lawsuit against the client - a Fortune 500 global corporation - for any cause including negligence, infringement or defamation.

The Details

An art buyer whose agency represents a Fortune 500 global tech corporation had approached me to shoot several environmental portraits on location throughout the country. The art buyer indicated that they needed to license the images solely for their client's website on an exclusive, unlimited basis in perpetuity.

Production costs, nominal fees and terms were agreed upon and the shoot was set to begin the following week (as the deadline was tight). All that remained was for both of us to formally execute (sign) the contract.

Later that same day, however, the art buyer sent me a form to sign (indicating it was "just a formality") entitled: "Photographer’s License, Release, and Waiver".

Upon reading the first paragraph of the document, I found language that seemed to be pulled directly from the corporation's public online Terms of Use Agreement and was inappropriate for the project I was being assigned. I was surprised to learn that their Waiver actually undermined every stipulation (pertaining to licensing and indemnification) that all parties had agreed to in prior negotiations. The document went on to supplant the agreed licensing with an 'all rights, including sub-licensing, in-perpetuity' clause as follows: "I grant to and its subsidiaries, affiliates, licensees, successors, and assigns an unrestricted, sublicensable, assignable, irrevocable, perpetual, worldwide, royalty-free license to photographs, digital images, taken by me on behalf of (the “Content”).

By signing the agreement I would be handing over all rights to my images to this global corporation allowing it to re-sell licenses for profit without any further compensation to me. More over, the Waiver would have prevented me from approving how my images could be used or altered and from seeking legal remedies against the corporation as a result of any misuse. This was clearly an inappropriate over-reach and well outside of what we had agreed to or was needed for this assignment.

In response to and in consideration for their tight deadline, I sent the art buyer my contract as we had discussed and agreed along with a list of questions regarding the Waiver I was being asked to sign. I did this with the expectation that there typically is a dialog between the photographer and art buyer, especially when the parameters of a project have changed.

Unfortunately, this time things did not go as expected. Within a couple of hours, I received a note from the art buyer indicating that she was seeking another photographer for the project, as the Waiver was "non-negotiable" and she didn't have the time nor the inclination to discuss legal matters further.

There are many take-aways from this story. It instructs us first that it's imperative to read any and all contracts you are being asked to sign. And if you don't understand something in the contract, contact an attorney (APA has a great one). Be honest, straightforward and respectful in your dealings with clients. And if you need to have something clarified or need to ask a question of the person hiring you, do so respectfully and in the spirit of ensuring everyone is on the same page and expectations are managed on all sides.

Even if you do all these things with the best intentions, however, there may be times when, for reasons unknown, there is a lack of reciprocity from the person hiring you, such as in this case study. But remember that if a relationship starts out on the wrong foot and you are not feeling right about how you are being treated, it might be time to walk away as it usually only gets worse.

Now more than ever, it is important for all of us to hold the line on ethics in our industry to ensure our livelihood into the future.

I've provided a PDF of the Waiver I was asked to sign. Please pay special attention to the highlighted language as it is appearing more and more in contracts and should raise a red flag in your negotiations.

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Copyright Office Issues a Notice of Inquiry on Photographs, Graphic Artworks, and Illustrations

Intro from: Michael Grecco

Two years ago, as Chairman of the APA Advocacy Committee, I had the idea to create a Statutory Amendment to the Copyright Law which would require users of images on the internet, reprints, and elsewhere to pay the creator for the use. In tandem with that initiative, APA has been working on a distribution society, like ASCAP, to distribute those funds and others currently collected worldwide for photography to the rights holders—photographers. It became clear that this was not going to work without an industry-wide effort. Other APA officers and I helped form a coalition of trade organizations specifically for this effort. We have now met with Maria Pallante and her staff at the Copyright Office twice in an effort to change the plight of our members. Maria was particularly surprised at the inequities for photographers in the industry.

The first step of our efforts has been realized with a Notice of Inquiry from the Copyright Office. This publicly opens the debate as to what needs to be done on our members’ behalf. We would love to hear from you. Please feel free to email me personally at Advocacy@APANational.org. We will be working with the other organizations in our industry to submit comments on your behalf.

United States Copyright Office
NewsNet Issue 578
April 24, 2015

Copyright Office Issues a Notice of Inquiry on Photographs, Graphic Artworks, and Illustrations

The U.S. Copyright Office has published a Federal Register notice requesting written comments on how certain visual works, particularly photographs, graphic artworks, and illustrations, are monetized, enforced, and registered under the Copyright Act. The Office is specifically interested in the current marketplace for these visual works, as well as observations regarding the real or potential obstacles that these authors and, as applicable, their licensees or other representatives face when navigating the digital landscape.

Photographers, graphic artists, and illustrators have expressed a growing list of concerns in recent years when speaking to both the Copyright Office and Members of Congress. This Notice of Inquiry thus builds upon our longstanding policy interest in these types of visual works, including the Copyright Office’s studies in a number of areas such as small claims, the making available right, resale royalties, registration, recordation, and the interoperability of records. As always, the Office is interested in the perspectives of copyright owners as well as users of these creative works. This is a general inquiry that will likely lead to additional specific inquiries.

The Notice of Inquiry is available at http://copyright.gov/policy/visualworks/. Written comments are due on or before July 23, 2015, and reply comments are due on or before August 24, 2015.

Fair Use for the Visual Arts

Last month CAA (College Arts Association) widely distributed a damaging and flawed document entitled "Code of Best Practices in Fair Use For The Visual Arts". This document, by its title, purports to be a well-researched and balanced guide to understanding and applying Fair Use. Unfortunately CAA, whether intentionally or otherwise, excluded all artist rights organizations and their counsel from their research when compiling this biased document. In so doing, the result is nothing more than an opinion piece designed specifically to justify the theft of copyrighted works under the guise of Fair Use.

In response to the release of the CAA guide, the major artist rights organizations excluded from participating in CAA's research (APA, NPPA, ASMP, PACA and PPA), sent a letter to CAA's leadership expressing concerns over the troubling methods and conclusions of the document. APA and the other signatories of the letter further suggested that CAA agree to re-draft a more accurate and balanced Fair Use guide with the help of the organizations and experts who represent the copyright holders. Only then will all parties be well-served and a true "Best Practices" be established.

A reply from CAA leadership is still awaited.

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