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Copyright - what is it good for?
Copyright - what is it good for?
For many years copyright was a consigned to the backwaters of the newsworthy pool of stories that news editors could dip into and use to grab their readers' and viewers' attention. Occasionally a high profile case might come along and a reporter would be dispatched to the high court to cover the legal proceedings. The advent of the internet and file-sharing services like Napster changed all that. Where teenagers had previously made dodgy (in sound quality terms) pirate copies of tapes to give to their mates, file-sharing services meant that high quality music could be distributed world-wide among a "community" of people who did not (and never would) know each other. Piracy had left behind the parrot and the wooden leg and gone all shiny and electronic. Big music companies and games makers had a big grumble about this and failed to read the mood of their would be customers, a mood which said "you are making billions out of this and you are complaining about a few friends sharing some music? You are making so much money you'll still be hugely rich!" Now, don't get me wrong, I'm not taking sides here I'm simply describing a mood that exists in a certain section of society. The key point is that a sea change began to happen in the public attitude to copyright - the thinking was that it existed to make the fat cats fatter and was unfair to the normal person on the street. The Pirate Party UK draft manifesto (as described on their website as of 15th February 2010) refers specifically to software copyrights but only to "all other copyrights". They also claim that copyright should only apply to "commercial exploitation". In the eyes of many people then, the answer to the question "copyright - what is it good for?" would be "absolutely nothing".
But what is copyright and where did it come from?
Copyright is in essence a form of intellectual property - other forms of intellectual property would be things like patents and designs, but these are a separate discussion entirely and I won't be addressing them here, or at all for that matter! The earliest notion of copyright came from the Greeks, who asserted their rights to be identified as the author of a work, but they did not exert any control over the economic value arising from the wider dissemination of their work. This doesn't mean they didn't benefit economically, they may have done so directly. Later, with the invention of the printing press a means for the state to control the information being distributed within its borders resulted in a system of licensed books - not for the benefit of the creator or publisher, but for the benefit of the ruling class. In England the Licensing Act of 1662 was established by royal prerogative to regulate the book trade. This was repealed in 1681 and the Stationer's Company enacted a by-law that further regulated the book trade in favour of a small number of its member. This heavy regulation had a quite obvious detrimental effect on the authors of the books and this was recognised and acted upon by Queen Anne who, in 1710, created what is now considered by many as the first instance of a proper copyright law - the "Statute of Anne".
"...Printers, Booksellers, and other Persons, have of late frequently taken the Liberty of Printing, Reprinting, and Publishing, or causing to be Printed, Reprinted, and Published Books, and other Writings, without the Consent of the Authors or Proprietors of such Books and Writings, to their very great Detriment, and too often to the Ruin of them and their Families: For Preventing therefore such Practices for the future, and for the Encouragement of Learned Men to Compose and Write useful Books..."
It goes on to grant the authors of books the right to print those books for the period of 21 years - in other words, a term long enough for them to benefit economically from their own labour. This is an example of a law that reflects morally defensible and correct position for a civilised society to take. That someone should be able to create value through their own labour and then exchange that value for those things that make life possible. So for a content creator, whether that be a musician, a writer, a painter, a photographer or anyone else who creates something in the artistic or literary fields, copyright is the legal framework that enables you to create something of value and use it to earn a livelihood.
Copyright from the Photographer's perspective.
Opponents of copyright law tend to come from the position where their objection is to the big corporations who "exploit" the customer. They grudgingly accept that copyright law may have a role to play in protecting those who create the content in the first place, but still argue that copyright is wrong and seek to minimise it's scope and term - the Pirate Party UK's draft manifesto refers to a term of "5 years with an optional 5 year renewal" for non-software copyright. This position would actually hit the creative talents harder than it would the corporations. Companies sign contracts with large numbers of content creators and so have a constantly renewing source of income. The content creators on the other hand, have to make what they have created keep on putting bread on their table year after year. A severely limited copyright term will hurt them "...to their very great Detriment, and too often to the Ruin of them and their Families". Bear in mind that the average life expectancy in the 18th century was only 35 years, so a term of 21 years covered the life expectancy of an author and the period after death in which any children may still be minors.
In an age where the internet makes the copying of a photograph as simple as a right-click and where there is both a great antipathy towards copyright and a perception that "if it's out there it's fair game" photographers more than anyone have the greatest uphill struggle to protect their moral and economic rights in the work that they create. First of all lets dispel the myth that the copying of a photograph has no impact on the photographer:
If I farm eggs for a living then I can exchange those eggs for things that I need. There is a voluntary exchange of value between me and someone else. Originally this would have been a direct barter system, but given the problem of finding someone who has shoes for sale and who needs eggs in return another way of transacting business was required. Logically, the most common commodity became the commodity for exchanges and eventually money was adopted as this common commodity. So as an egg farmer I can exchange the value that I create through my egg farm for money, which I can then exchange for the things that I need, like food and clothes.
If I am a musician then, before the advent of audio recordings, I could have made a living by giving live performances. Somebody, a patron for example, would place value in the performance I could give and provide me with money or goods to the same value in return - another voluntary exchange of value. With the advent of recordings, the audience became wider and copyright became necessary in order to facilitate the transfer of value from the musician to the listener and from the listener back to the musician. The fact that many people think that the recording industry is broken and hurts both musician and listener is not the fault of copyright, but of how the industry is structured.
But I am neither an egg farmer nor a musician. I am a photographer and I presume that if you are reading this then you are a photographer too. Before the advent of the internet the proposition for a photographer was much simpler. People wanted family photographs taken, publishers needed illustrations, newspapers needed imagery to accompany a story - these photographs had a value and the exchange between photographer and client was a voluntary one. It is important to realize that the photographs had value simply because they were wanted or needed by the client. If a photograph is neither wanted nor needed then it has no value, or at least no economic value.
If I have a photograph that has a value associated with it because is wanted by someone, then who could object to a voluntary exchange of value between myself and the client? Imagine that this image is placed on the internet and people copy it. Why would they copy it? The only reason would be that they too place value on it - they want it or need it for some reason. Is it wrong for me to demand payment in return? A transfer of value is occurring from me to those people who are making copies. Moreover, the more copies that are made the more devalued the image becomes - the reason for this is two-fold. Firstly, there is the simple economics of it - the more there is of a commodity the lower the price. More importantly, the more widely distributed an image is, the lower the chances are of licensing it for a commercial use, for example, in an advertising campaign that requires a fresh image that carries impact. Widespread unauthorized copying of such an image would very directly devalue it.
So, if a photographer has an image that someone wants, then they have a commodity that has value and they can voluntarily exchange it for something else of value. Understanding copyright is essential to the photographer's success in maximizing the economic benefit from that photograph. Unfortunately, copyright is widely misunderstood by both the general public and by photographers.
Copyright - what it isn't and more on what it is.
OK, let's get this one out of the way first. Copyright is not an all-encompassing right to use a photograph in any way whatsoever. This is a misconception held mainly by the general public, but also by a number of photographers. I have a friend who doesn't like having his photograph taken - nothing wrong with that! Many people don't. However, after several comments about how "unfair copyright is" he made a comment about how a photographer could do anything with the image. This, as I pointed out, is just plain wrong! Copyright only allows for control of how and when an image is used but it does not allow a photographer to infringe upon the rights of another person. Copyright does not give a photographer the right to use (or licence for use) an image of someone for use in an advertising campaign. Here a right exists for someone to object to his or her image being used in an advertising campaign as it implies an endorsement of that product. That endorsement is of value to the advertising company and so can, just like a photograph, be sold to the advertising company. This completely separate from copyright and is instead covered by a "release" - typically referred to as a "model release" when referring to people and as a "property release" when it is a photograph of private property. In the UK model and property releases are not required for editorial and fine art uses, and this includes portfolios. They are required for commercial and advertising use.
Another misconception about copyright is illustrated by a conversation I had with a publisher in which the contract under discussion clearly showed that I was giving up all the rights to the photographs. I explained that I wasn't happy with signing over all the rights and was told it was OK "because I would still retain the copyright". Now this may have been the publisher trying it on with someone who he thought didn't understand copyright and, if so, it shows that he was used to dealing with photographers who didn't understand copyright. If he wasn't trying it on then it shows that he didn't understand copyright.
Copyright is a wrapper containing a sweet...
...or rather a suite of rights. OK, that's the bad pun over and done with, but the concept is a useful one and one that must be understood by the photographer in order to make the most out of an image. If you think of copyright as a wrapper, then that wrapper can be opened up and either a little bit removed, or the whole lot. If the whole lot is removed then you might still be the copyright holder, but in reality you no longer have any rights to copy the image. All that you have left should the rights need to revert at any point, is that you are the person that they may revert to.
As a photographer you should only ever license an image with the minimum amount of rights that are required by the purchaser. If someone needs a small web sized image for use in a small community website then give them (i.e. license the image) the rights that they need and no more. If you signed over the copyright to them, then you have lost all the additional earnings potential of that image and it is highly unlikely that they will ever extract the full worth from the image. The things you need to consider are:
Usage: web, print, editorial, commercial etc.
Territory: Europe, North America, World, etc.
Distribution: if print, what is the print run size?
Term: How long does the licence last? One time use only, one year, perpetual etc.
(Size is also a consideration, but not in terms of copyright - size is a factor in the license fee.)
Remember, this is a voluntary exchange. Once you understand what the client needs then tell them what the license terms are and agree a price. Then record it! This is really important - once you have taken a little bit out of the wrapper then the next time a client wants to use that image you need to check that you are not going to provide them with a license that infringes upon the rights that you have already given to another client. If you have already licensed an image for exclusive use in Europe and someone else wants world rights - tough! You can't give them that because you've already given someone else the rights. Having said that, this is why putting a term on licences is important. If you had licensed an image for exclusive European use for a period of 3 years and you are 2.5 years into the term then you can licence the image to the new client for world rights if their timeframe fits the 6 months remaining on the other licence. If you ignore timeframes in your licence you can't have your sweet and suck it, but if you specify a term you might just get that second suck. There are license management systems out there on the internet - I haven't used any of them so I'm not going to make any recommendations, but I'm sure there are good reviews that can help you of you decide to go down that route.
Just a few things before wrapping up.
I'm based in the UK and so I writing from a certain legal perspective, but I am most definitely not providing any legal advice. The current legislation covering copyright in the UK is the Copyright, Designs and Patents Act 1988, although the Digital Economy Bill currently before parliament is about to supplant this. The Digital Economy Bill is also set to create a horrible mess for copyright for photographer by making provision for orphan works without any means for preventing unscrupulous individuals from making a photograph into an orphan work and thereby circumvent proper licensing fees, despite the fact that the bill is in contravention of the Berne Convention. So this brings me to my last point. Protect your work! There are a number of ways of doing this - watermarks are one way, although they can be removed and the most effective are also the most effective at ruining the aesthetics of you photographs. IPTC metadata is another way of protecting your images, but again, this data can be stripped out or rewritten with ease. The most effective way of protecting your work is to not put it on the internet at all, but at the penalty of not getting the publicity and exposure that the internet provides. A small, web-only resolution image seems the best compromise for the meantime. There are services that are available now that claim to find your images on the internet but that isn't going to help you if your image is being used in print.
This isn't a comprehensive guide to copyright, but it hopefully will be of help to the less experienced photographer who needs to get a handle on copyright. If anyone has any comments then I can be contacted here. I do not promise to publish the comments, but if they are intelligent and informative then I'll add them here.
Copyright © 2007-10 Simon Watterson. All Rights Reserved.