Creative License

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Seth Resnick and Paula Lerner of Editorial Photographers are waging a battle that you must know about.

If you are creating work and calling it your own, please read the note below.

Folks, your work, once you create it, is YOURS. Until it sinks in, repeat that last sentence a couple of times. Too many people out there forget this fact. Just because your work is published in XYZ magazine or newspaper or web site or CD-ROM, does not mean the publication owns your work. Sure, there are situations where and when you enter into a contract to sell your work outright. Sheer lunacy, but I'll take that up another time. But what is being debated here and now is the tendency for big name publishers to assume that because they paid you for the use of your images, they have the right to re-use your images ad infinitum. That's simply not true.

For those of you starting out in the business, it may be all too tempting to “give” away your images or work or work for free. Don't! Who wouldn't like to be published in The New York Times or People magazine? No doubt, getting published is important, but so is having a livelihood. Look to the future, not just the here and now. Enter into a written contract to LICENSE your work. This is an important distinction that I urge you to make early in your career and this piece of advice comes from me having learned this the hard way.

A license allows the publisher the specific use of your image for a specific amount. Multiple usage should garner you multiple payments. The nitty-gritty details need to be fleshed out in a written contract that both you and your client have signed.

Stay clear of verbal agreements. A litany of winks, nods and nudges may have sealed the deal but it will not convince any judge in court that you have the kind of rights over the publication of your images, or, even words.

We all make choices, don't we? What will be yours about your future?

Faulkner et al v. National Geographic

Ladies and Gentleman:

Our intellectual property is once again at risk and we need your help to protect it. The decision handed down on December 11th in New York in Faulkner et al v. National Geographic is one that could potentially have a devastating impact on the livelihood of photographers and all independent authors of creative works. This case has stunned the nation's copyright attorneys. The case has gained as much media attention as the National Geographic's CD-ROM case. The original dispute began when National Geographic produced a CD-ROM set of 30 discs containing all the images and content in 108 years of National Geographic Magazine print editions without payment or a license to do so from the original artists. A group of photographers filed copyright infringement suits against NGS when the CD-ROM collection containing their images was sold as the Complete National Geographic (CNG) without a license from the photographers.

In Florida Jerry Greenberg was the first photographer to file suit, and he prevailed. The U.S. Court of Appeals for the 11th Circuit in Atlanta ruled that Geographic violated copyright by creating and selling the CNG CD-ROM package without a license to do so from Greenberg. Douglas Faulkner, Fred Ward, David Hiser, Louis Psihoyos and others filed similar claims. In striking contrast to the Greenberg decision, on December 11th the U.S. District Court for the Southern District of New York dismissed claims by Faulkner et al.

It is critical that this decision be challenged and that the voices of creators be heard. The potential interpretation could lead to publishers producing new products of collective works without payment of additional licensing fees to the photographers, writers and illustrators. This will have an impact on every photographer in the country, including advertising and corporate photographers. Why? Because if this ruling is allowed to stand any additional usage of material, as long as the content isn't substantially different from the original, may be allowed. This means the ad agency that wants to use an ad on the web and the corporation that wants to put their annual report up as a PDF may be allowed to do so without having to pay creators for the additional use. Further, this could be interpreted by some to include translations into other languages, reprints, foreign licensing agreements and other secondary uses.

This case hinges on what will become the legal definition of a “revision” as it pertains to copyright law on the digital frontier. What at first glance may seem to be legal hairsplitting will in fact have huge ramifications as to how our clients will be able to use and distribute our work, and whether we will be entitled to compensation for it. This case is every bit as important and substantial as Tasini v. The New York Times case, and could potentially hit all owners of intellectual property with an even deadlier blow. We can't afford to sit back and wait. This calls for immediate attention and support.

This case isn't about a couple of individual photographers or even photographers in general. This case will have dramatic impact on everyone who creates copyrightable material for licensing. We as a unified group must show Judge Kaplan that this decision was wrong and will have a negative impact on the Copyright Act and on all case law pertaining to every form of intellectual property.

The various photographers in the several pending lawsuits are planning to appeal, and the Executive Board of EP feels that the potential impact of this case warrants the need for multiple Amicus Briefs. We are pleased that ASMP is planning on writing one and we at EP have initiated work on our own. While the cost is significant, we feel that the importance of this case makes it imperative to use our resources to make this statement. We urge each of the trade organizations and stock agencies to consider working on their own Amicus Briefs with the photographers' attorneys. According to attorneys, multiple Amicus Briefs will send the most powerful message to the court: We can't emphasize enough that it is crucial for our voices to be heard.

Please feel free to pass this letter to any organization representing the rights of creative artists.

Sincerely,

The Executive Board of EP

Seth Resnick, President; sethres@sethresnick.com
Paula Lerner, Vice President; paula@lernerphoto.com
Andrew Buchanan
Ed Caldwell
Rich Frishman
Jason Grow
Shawn Henry
Richard Morgenstein
Rick Rickman
Brian Smale
Brian Smith
Jennie Zeiner