Do You Really Own That Photograph?

Just as the urgency of fighting the proposed Orphaned Works amendment to the Copyright Act had faded, photographers and illustrators find their legitimate copyright interests under assault once again, this time not in the halls of Congress, but from the client side (what else is new?). In a recent opinion piece in Cummings Advertising's, "Marketing Insights," agency Creative Director Patrick McDonough not only asks the question, "Do You Really Own That Photograph?" He answers it as well.

Unfortunately for Mr. McDonough, his rationale is flawed and his conclusion is wrong. Unfortunately for the community of artists working for publication, his point of view is all too pervasive.

McDonough writes, "one of the photographers [the client] interviewed had, quite matter-of-factly, told [the client] that any photos he shoots are his property - and that the client must pay additional [license] fees if they used any of the photos beyond the original use. In this case, the publication of a new annual report..... It's been some time since we last encountered this arcane idea that just because a photographer shot the picture, he or she owned it."

Copyright protection was first instituted by Congress in the U S Constitution, ratified in 1790. The idea behind copyright (and patent) protection is that it gives creators the incentive to create with the guarantee that they will be able to benefit from their creations. Some, most notably Benjamin Franklin, purposely chose to forgo these constitutionally guaranteed protections. Franklin never registered a copyright or a patent, believing that his creations and inventions were for the public good. Franklin also lived in the 18th Century. Here in the 21st Century there are still a number of photographers, working with McDonough, who have done the same, and it is they who give Mr. McDonough the impression that our ownership of our work is an arcane idea.

Is copyright an arcane notion as Mr. McDonough suggests? I think not. Why? Because Congress has reaffirmed and strengthened copyright protection consistently throughout the past hundred years. The Copyright Act of 1909, the Copyright Act of 1976 and The Digital Millennium Copyright Act of 1998 all support the notion that copyright protection is a valid and contemporary concept. The copyright laws are the basis for the licensing of rights in all intellectual property.

The Copyright Act of 1976 is a landmark statute and is the primary basis of copyright law in the United States. The Act enumerates the rights of copyright holders, firmly establishes the doctrine of "fair use", and extends the term of copyright from a flat 50 years (requiring renewal) to a period based on the date of the creator's death. Introduced in the United States Senate as S.22 by Senator John L. McClellan (D-AR) on January 15, 1975, it became Public Law number 94-553 on October 19, 1976 and went into effect on January 1, 1978.

The Digital Millennium Copyright Act (DMCA), introduced in the House of Representatives as H.R. 2281 by Rep. Howard Coble (R-NC) on July 29, 1997, is a United States law which criminalizes production and dissemination of technology for the purpose of circumventing measures intended to protect copyright, not only infringement of copyright, and increases the penalties for copyright infringement on the Internet. Passed on October 8, 1998 by a unanimous vote in the United States Senate and signed into law by President Bill Clinton on October 28, 1998, the DMCA amended title 17 of the US Code to extend the reach of copyright protection.

Does this seem like an arcane idea to you? Sure doesn't seem like one to me. It seems to be very much alive. I can only wonder if Mr. McDonough and Cummings Advertising similarly disrespects other creators?

For instance, is the idea that Adobe owns Photoshop arcane? How about Microsoft's ownership of its Office software? Or Quark's rights in Quark Express? Do they view ownership of those copyrights as arcane? Did Cummings Advertising buy only one copy of each CD and install it on every machine in the office or did Cummings buy a multi-user license. My bet is that Cummings did the latter.

Why then would Mr. McDonough assume that Cummings or their client(s) would own the photography they commission? According to McDonough: "Our position has been and will always be that our art directors designed the ad, brochure or other materials into which the photo is placed - and therefore we actually design the shot. Our art directors supervise the photo shoot to ensure that the "creative essence" of the photo is captured, and our clients pay the photographer the agreed upon price to shoot the photo. Bottom line, the photographer shot the scene our art director designed and the photographer was paid his time to complete the photo shoot. The client owns the photo once they paid for it."

One of my colleagues, Lou Sapienza, writing on APAnet counters: "Since when is
designing the ad, brochure and other materials equal to designing the shot?" Lou wonders if a photographer commissioned by Cummings Advertising will be, "directly instructed as to which equipment format, lensing, camera angle and lighting to be used; if the photographer will be instructed on the placement of lights, the light modification and lighting ratios; if the photographer will likewise either be instructed to elicit certain responses from the models and actors or the photographer will be instructed by the art director to press the shutter as the art director guides the model(s) through the shoot; or will the photographer be instructed by the AD when to press the shutter while the AD is eliciting the proper expressions?"

I don't know how things are done in Rockford, Illinois where Cummings Advertising is located, but the art directors I know generally engage a photographer based on a number of factors, chief among them the photographer's style and vision... we're not just technicians. And out here in the rest of the world photography is licensed according to its usage, the value determined by an image's exposure in the media. We don't charge by the hour as McDonough would expect.

All that said, there is a larger problem to be tackled. Members of our community are willing to go along with whatever a client like McDonough demands and that includes agreeing, either specifically or tacitly, that all rights can be purchased on the cheap. Who's fault is that? Not McDonough's! I'm more disappointed by photographers who easily roll over than I am by overreaching clients. Pogo, the legendary comic strip character, perfectly lamented: "We have met the enemy and he is us!"