Copyright Lawyer Ceren Taygun on Understanding Copyright and Contracts
Ceren Taygun is an international copyright lawyer and PR consultant based in the Middle East. She holds a Masters in Criminal and Intellectual Law from the University of Amsterdam and formerly worked for NORMA, a Dutch collective management organization for performers' rights. Disclaimer: This interview does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact an attorney directly.
Why is it important for photographers and nonprofits to have a contract outlining copyright issues when working together? It’s always better to have a contract when you are working with someone. It’s advisable to write down what you agree upon.
If the photographer works for an organization on a longer basis and receives a salary and benefits in exchange for services he or she usually has to give up copyright to the employer. In the United States, Great Britain and Holland, the law says that the owner of the copyright is the organization. (Many other countries see the maker – in this case the photographer – as the copyright holder even though he or she was fully employed by an organization or company.) In these three countries, after the employer pays photographers their monthly salary, those photographers don’t own the copyright anymore. Photographers do have personal rights, which means the employer can not put another name on the photo as the maker, but the employer is not obliged to use his name either.
If you work as a freelancer these laws do not apply. You hold the copyright even though you are paid a one-time fee. But if you make a contract about your copyright arrangements, it can all be negotiated.
So what incentive is there for an organization to allow any photographer to keep the copyright, or perhaps share copyright on pictures? An incentive for the organization is that they really want to use the photo and the photographer won’t let them use it unless he keeps his copyright. Otherwise, organizations would always like to have the copyright. On the other hand, a license agreement will be much cheaper for an organization than to buy the copyright. If the organization is not planning on using the photo for an indefinite time, then making a license agreement will be the best choice for both parties. It will be cheaper for the organization and better for the photographer, who gets to keep the copyright.
An idea is only copyright protected after it becomes a concrete plan which you have written down. In some countries you are protected after the moment you scribble it on a piece of toilet paper. In others, you have to file a legal copyright on your idea.
What are three basic copyright concepts that should be covered in a contract and why? I would cover the paying arrangements. For instance: are you getting paid so the organization can use your photos only once? Twice? You can make a deal based on the amount of times they will use your photo. Or you can agree on a copyright buyout for indefinite use for a period of time, like one year for instance. If the organization wants to use the photographs again then they have to buy you out of your copyright for another year.
Another important issue, especially for photographers who work on a salary basis, is the copyright. As the photographer, I would try to maintain the copyright. That might not always work and the company would get the copyright. But then at least keep the right of being allowed to use the photo on your own website. If you are a full-time employee, you can also write in your employment contract that you always want your name credited on photographs. That way, even if you’re not generating extra money, you could generate extra work.
Also, if you as a photographer sell your copyright to an organization, it’s advisable to put in the contract that the new copyright holder (for a short period of time or indefinitely) is not allowed to make any changes to your work without permission upfront.
Many nonprofits now use music in their short films. How is negotiating copyright for a photo different from negotiating copyright for music to be used in a video or film? There is not a huge difference if we are talking about the photographer and the composer/lyric writer of the music. There is a difference if we are talking about the performer of the song, because the music performer is not a copyright holder but a neighboring rights holder. All the others have copyrights and therefore are in the same boat.
Is there a basic international understanding of who owns copyright and how it can be transferred? Or is different in each country? There is an international understanding because of treaties, but I would look at every situation separately since in every country there are slightly different regulations.
What do you see as the most common misconceptions about copyright? Without a doubt, the biggest misconception about copyright is that people think they can have a copyright on an idea, which you can’t. So, please don’t go around telling other people about a great idea and get upset afterwards when someone goes and uses it. An idea is only copyright protected after it becomes a concrete plan which you have written down. In some countries you are protected after the moment you scribble it on a piece of toilet paper. In others, you have to file a legal copyright on your idea. But in every country you have to be able to prove that you were the first one who had this copyrighted idea, especially if someone else shows up with the same idea and takes you into court. There are ways (for different countries) to make sure you can prove the date.
Anything else you’d like to add? I would like to advise all photographers to read about their rights. When there is a real problem, contact an attorney. Whenever you are signing a contract, ask questions, think about possibilities, and use Google to find out more. There is a lot of info you can get without paying a lot of money for it. And in that line I would like to mention two things:
- Creative Commons is an organization which provides licensing packages without pay. The packages allow some flexibility with your licensing such as whether you require certain attributions, such as your name or website, with the use. If you offer licensing of your photo through Creative Commons, someone may use your photo for free but that person must follow the conditions of the license you select.
- The Digital Millenium Copyright Act (DMCA), enacted in 1998, implemented treaties signed at the 1996 World Intellectual Property Organisation (WIPO) Geneva Conference. It addresses many issues, one of which affects photographers directly. The DMCA states that while an Internet Service Provider (ISP) is not liable for transmitting information that may infringe a copyright, the ISP must remove materials from users’ websites that appear to constitute copyright infringement.