Corbis Photographers Win On Copyright

Posted on 7/3/2000 by Jim Pickerell | Printable Version | Comments (0)

320

CORBIS PHOTOGRAPHERS WIN ON COPYRIGHT


July 3, 2000

The good news for Corbis photographers is that the company is listening to their

concerns and on at least one issue -- copyright ownership -- has responded

positively by making changes in the way copyright registration will be handled

when their new contract is presented to photographers later this summer.

After discussions with CEO Steve Davis, Director of Commercial Photography

Leslie Hughes and Corporate Counsel Dave Green, I am convinced that Corbis'

intent all along -- and their practices since establishing this copyright policy

in 1995 -- have been in the best interest of photographers.

However, contract language is extremely important and rules in the event of any

dispute. The language in the draft Corbis contract presented to a few

photographers in March had some serious flaws in the way it dealt with

photographer's copyrights. APA (Advertising Photographers of America) pointed

out to Corbis that the proposed language created a risk of blurring the extent

of the photographer's copyright ownership. Corbis listened to the photographer's

concerns and modified the language. At this point I believe the new version

fully protects photographers rights.

Jeff Schewe, APA National President said, "Working with APA, David Green of

Corbis has drafted new language for their contract and Copyright Registration

Program. The APA attorney has reviewed the contract language and deemed it

acceptable. It both clarifies the copyright ownership rights of photographers

as well as strengthens photographers' ability to take the fullest advantage of

U.S. Copyright Laws." The APA attorney also called this new language a

"suprisingly positive movememt on the part Corbis," given certain previous

positions in negotiations.

The New Language

The new language that photographers will be asked to agree to is as follows:

    I have reviewed and wish to participate in the Corbis Copyright Registration

    program. Solely for the purpose of registering my copyright on my behalf, I

    hereby assign to Corbis the right, title and interest to the copyright in my

    Accepted Images. Upon completion of the copyright registration process and

    receipt of the copyright certificate covering my registered Accepted Images,

    Corbis shall promptly re-assign in writing to me all of my right, title, and

    interest in my Accepted Images that I transferred to Corbis. When re-assigning

    my rights to me, Corbis shall retain no rights to the copyright in my Accepted

    Images. Corbis shall retain ownership of the non-image elements that Corbis

    creates and compiles in its digital files. However, this compilation shall not

    permit Corbis to use any of my Accepted Images except as I have permitted under

    the Photographer Representation Agreement that I have executed with Corbis. Any

    Accepted Images that Corbis has previously registered on my behalf under its

    Copyright Registration program shall be governed and interpreted by this

    Agreement.

    Signed [Photographer]

This language will be offered to both new photographers and to those who had

previously participated in Corbis' Copyright Registration program. All monies

recovered as the result of an infringement (after legal costs are deducted) are

shared on the same percentage basis as a normal sale, according to the

photographer's contract.

It is also important to note that participation in the Corbis Copyright

Registration Program is voluntary and at no cost to the photographer. The

photographer is given a choice. If he or she chooses not to participate that in

no way affects the rest of the contract. However, in my judgement, once

photographers fully understand the reasons for the program, and the benefits it

offers, most will choose to participate.

Important Factors To Consider

1 - In the U.S., in order to get the fullest protection in the event of

an infringement of copyright the image must have been registered at the U.S.

copyright office prior to the infringement.

If it is not registered you lose the ability to recover statutory damages,

court costs, and attorneys fees in an infringement suit, and are limited to

recovering only actual damages, or the normal fee that would have been charged

for the usage.

This registration requirement differs markedly from the copyright laws of most

of their countries, and is often difficult for photographers who live and work

outside the U.S. to understand. Nevertheless, it is absolutely necessary if a

photographer wants protection when infringements take place in the U.S.

2 - Statutory damages are the amount of damages a court can award in its

discretion against an infringer, without the owner of a work having to prove

that he or she was damaged. Statutory damages can be awarded up to $30,000 per

infringement and increased up to $150,000, in the event of willful infringement.

This risk will cause potential infringers to think twice about stealing an

image. On the other hand if the only punishment for stealing is that the

infringer must pay the same as if they had licensed the rights properly, there

is very little incentive, beyond an individuals basic moral code, to be honest.

3 - The normal process for registration is very time consuming and

costly. Because of this, most photographers do not register their images. As a

result, when an infringement is discovered most photographers are unable to

collect.

4 - There are certain procedures that have been mandated by the U.S.

Congress with relation to the registration of copyright. One on those

requirements is that only one individual or organization can apply for any

specific registration. An application can cover the work of many copyright

owners so long as the applicant has the clear legal right to act on their

behalf.

5 - The Copyright Office has some latitude in establishing administrative

procedures for registration, but they are also bound by certain requirements

that Congress has placed in the law.

6 - In the internet age, with digital delivery, and the ease of scanning

anything and everything, there is a great likelihood that there will be a lot

more infingements in the future. Thus, it is necessary to be more vigilant in

protecting your rights.

7 - In the past year Corbis has settled four separate infringements in

which they were required to show the copyright certificate before getting the

client to settle and pay. Corbis estimates that their recoveries would have

been less than a third of what they eventually were had the certificate not been

available. To date, no costly trials have been necessary. Once presented with

the certificate infringers have recognized that it is in their best interest to

settle quickly.

Why Is It Necessary Or Advisable To Transfer My Copyright To Anyone?

To answer this question it is necessary to understand the process established by

the copyright office for registering images in a digital database, and how it

differs from the normal registration process.

Corbis has been registering all new images it adds to its database on a

quarterly basis since 1995. The number of images in each registration has

varied from 6,000 to 30,000. Given the number of images they are adding to the

system they are planning to begin submitting registration applications monthly.

The normal system for registering images prior to publication is that each

individual photographer is required to provide some type of copy of every image,

fill out and sign an application form and pay a $30 fee for each separate

application. For agencies, this process had become impossible to administrate

when they were trying to protect all the images from hundreds of different

photographers in each new catalog they released.

According to Nancy E. Wolff, legal counsel for PACA, "The burden and expense of

this procedure resulted in a meeting five years ago among PACA (the then

President and the Legal Committee) and the Register of Copyrights, the Chief

Examiner and the Head of the Visual Arts Department at the Copyright Office. At

this meeting and through follow-up conversations, a recommended simplified

registration of catalogs was established. The only way to file ONE application,

is for the individual contributors to grant the agency legal title in the

photographs for copyright registration purposes. This protects the collection

of images (selection and arrangement) and any previously unpublished images

published in the catalog. Previously published images must still be registered

separately. The copyright can be reassigned to the photographer after

registration."

While this procedure was first provided for the publication of print catalogs,

the Copyright Office has applied the same rules to digital databases. According

to Ms. Wolff, "The Copyright Office has a database registration procedure that

permits the submission of a database of works on a CD-ROM and then allows the

registration of quarterly updates every three months."

To file their applications Corbis creates a CD-ROM with thumbnails of all images

that have been uploaded to their system within the previous three months. They

include the appropriate image ID numbers and the photographer's name with each

image. To the standard registration form they attach a list of all

photographers included on the disc and the number of images belonging to each

photographer. They also submit a sample color printout of approximately 50 of

the images on the disc. They are not required to provide a printed

representation of every image in the submission.

Line 4 on the copyright registration form mandated by the U.S. Congress asks the

following question about 'Copyright Claimants': "if the claimant(s) named here

are different from the author(s) give a brief statement of how the claimant(s)

obtained ownership of the copyright." The answer Corbis supplies here is, "By

agreement". Thus, if Corbis has a signed agreement from their photographer

allowing them to act in the photographer's behalf the copyright will be

effective. If there is no signed agreement the copyright for that particular

image would be judged invalid.

The next important question is how is the agreement assigned back to the

photographer?

As soon as the registration application is approved by the copyright office,

Corbis sends a letter to the photographer reassigning the copyright to the

photographer. The effective date of any copyright registration is the date the

Form VA application is accepted at the copyright office, not the date of final

approval of the application. However, given the work load at the Copyright

Office it often takes six to nine months from the date of filing before final

approval is given.

In cases where photographers have lost their assignment letter Corbis simply

submits another copy. Corbis maintains a database of all registered images with

the specific Corbis number for each image, the photographer's name and the

photographer's contract number. Thus, if the photographer ever needs to know

which registration number applies to a specific image Corbis can easily provide

that information to the photographer by searching their database.

The current language of the re-assignment letter is as follows:

    REASSIGNMENT OF LEGAL TITLE

    Corbis Corporation hereby reassigns all legal title (including all copyright) to

    [Photographer] with respect to his/her/its registered image elements that are

    covered under Certificate of Registration, number [Certificate Number], issued

    by the U.S. Copyright Office, with an effective date of [Date], a copy of which

    is attached hereto. The image elements covered by this reassignment are listed

    by Corbis barcode numbers on the attachment hereto.

    This reassignment does not include any non-image elements or the compilation

    authored by Corbis that may be included in the copyright registration, which

    remain subject to all terms and conditions of the License Agreement between

    [Photographer] and Corbis.

Some photographers have expressed concern about a situation where an image is

placed online on January 5, an infringing use occurs on January 15 but the

quarterly registration for this group of images is not filed until March 31st.

Will the infringement be covered by the registration? The answer is YES. There

is a provision in the copyright law that says that in order to have the benefit of

statutory damages you must have registered prior to the infringement. The

exception is when the registration is filed within 90 days of first publication.

In that case the copyright holder is given statutory protection as if he or she

had registered within the 90 day period.

The procedure that Corbis has established provides the easiest and most cost

effective way for photographers to protect any image accepted for licensing by

Corbis. Photographers should register all other images they produce themselves,

but the process to accomplish this on an individual basis is much more

burdensome.

Michael Grecco has developed a system for registration that he uses in his

studio. He has set up a copy stand to make a single photograph of four sheets

of images at a time. Before images from a new shoot leave his office he edits

the material and makes a photocopy of every sheet of slides. He processes the

film, completes the copyright application form, attaches the slides to that form

and ships it in along with the $30 application fee. This process

certainly meets the registration requirements, but requires a great deal of

discipline to do it on every job.

Images that have been published prior to delivery to Corbis will not be

protected by the procedures outlined above. There are different rules for

published and unpublished images. Each published image requires a separate

registration (or if published in the same work, they may be registered

together). Photographers should check with the copyright office for the rules

on registering published images.

Steve Davis says, "It has never been the intent that Corbis would own the

photographer's copyright, other than for the limited purpose of economically and

efficiently registering the work for the photographer's benefit, and then

reassigning the copyright back.

As a result of extensive discussions with APA and many of our photographers we

believe the new language clarifies our position on our Copyright Registration

Program."

You can find more information about the Corbis Copyright Registration Program

at: http://www.corbisimages.com/copyright.

The copyright office regulations are available online at:

http://www.loc.gov/copyright/fls/fl107.pdf.

What Brought About The Changes

Jeff Schewe and the APA National Executive Board deserve major credit for

spearheading the drive to communicate the issues to Corbis. Frederic Neema

first brought the issue to APA's attention. The word was spread by Seth Resnick

and the Editorial Photographers (EP) forum as well as the PNN forum. Don

Mitchell, President of PPA also wrote to Corbis in support of cleaning up the

language in the copyright clause.

Jeff Schewe writes, "This is a really great example of what can be accomplished

when photographers actually work together to bring about change in the industry.

I hope this will be seen as a turning point that signals a change in the

industry's apathy of the last few years. Corbis has also indicated that this

will be the beginning of a collaboration with PPA and other industry leaders on

issues that are important to photographers."


Copyright © 2000 Jim Pickerell. The above article may not be copied, reproduced, excerpted or distributed in any manner without written permission from the author. All requests should be submitted to Selling Stock at 10319 Westlake Drive, Suite 162, Bethesda, MD 20817, phone 301-251-0720, e-mail: wvz@fpcubgbf.pbz

Jim Pickerell is founder of www.selling-stock.com, an online newsletter that publishes daily. He is also available for personal telephone consultations on pricing and other matters related to stock photography. He occasionally acts as an expert witness on matters related to stock photography. For his current curriculum vitae go to: http://www.jimpickerell.com/Curriculum-Vitae.aspx.  

Comments

Be the first to comment below.

Post Comment

You must log in to post comments.

Stay Connected

Sign up to receive our FREE weekly email listing new stories posted.

Follow Us

Free Stuff

Recent Stories – Summer 2016
If you’ve been shooting all summer and haven’t had time to keep up with your reading here are links to a few stories you might want to check out as we move into the fall. To begin, be sure to complet...
Read More
Corbis Acquisition by VCG/Getty Images
This story provides links to several stories that relate to the Visual China Group (VCG) acquisition of Corbis and the role Getty Images has been assigned in the transfer of Corbis assets to the Gett...
Read More
Finding The Right Image
Many think search will be solved with better Metadata. While metadata is important, there are limits to how far it can take the customer toward finding the right piece of content. This story provides...
Read More
Where Is The Stock Photo Industry Headed?
For new readers, or those who may have missed some of what I have written over the last few months, the following are a list of stories worth looking at to get a sense of where the industry is headed.
Read More
Photography As A Career
It’s that time of year when high school seniors are waiting for college acceptance letters and thinking about future careers. If you know someone who is thinking about photography as a career you mig...
Read More
2014 Stories You May Have Missed
For many the end of the year is a time to review past experiences and consider whether it makes sense to chart a new course in the year ahead. Stock photography has changed dramatically for professio...
Read More
More Stories In 2014 You May Have Missed
Every so often I put together a list of the most important stories we’ve published in the recent past. If you are engaged in the business of stock photography the links below are to stories that we’v...
Read More
Getty: A Three Month Review
In all the excitement about 35 million FREE images it is worth looking back at some of things that have been happening at Getty Images in the last three months. After watching revenue decline for the...
Read More
State Of Stock Photo Industry: 2013
If you’re looking for an overview of the state of the stock photo industry as of October 2013 the stories listed below are a good place to start. Regular readers of Selling-Stock will have seen all t...
Read More
Education Market Shifts To Digital
If supplying pictures for educational use is a significant part of your business plan you need to be aware of how the market is trending toward digital delivery and how that is likely to affect the p...
Read More

More from Free Stuff