Dealing with copyright and ownership of your own work is a necessary part of a photographer’s life. One of the key factors in this that you need to be aware of is the rights grab. Briefly, a rights grab implies a transfer of rights to the photo away from the photographer. If you read the terms and conditions of most competitions, social media websites and media contracts you will often find some kind of rights grab contained within.
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What Is A Rights Grab?
Simply put, a rights grab is when a company attempts to require a photographer to transfer some or all rights to a photograph (or any other kind of intellectual property) to the company. This may range from the granting of all rights in totality to a company to do whatever they wish with the image, or presenting them a wide-ranging license that goes well beyond the scope of what is required. You will most often find rights grabs buried somewhere in the terms and conditions, particularly when it comes to competitions. Words and phrases to look for include “perpetual”, “irrevocable”, “royalty-free”, “right to distribute or sublicense” and anything to do with “transfer or assign copyright”.
If you’re like most people, you never really read the terms and conditions of a competition or the like. Most people simply click okay to the agreement and that’s that. Well, you shouldn’t. If you don’t want to read all of it, at least search out any of the words and phrases above and read that section. It may be under a sub-heading or clause or condition that says something like “Material You Submit”, or it may be buried in the middle of a lot of other information. What follows is a fairly generic wording that appears on one particular company’s website right now. I’m not going to name which company as they’re by no means the only one who has this type of wording, but I will say that almost everyone would be familiar with the name if I did.
If you do submit material, and unless we indicate otherwise, you grant ____ and its affiliates an unrestricted, nonexclusive, royalty-free, perpetual, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute and display such material throughout the world in any media. You further agree that ____ is free to use any ideas, concepts, know-how that you or individuals acting on your behalf provide to _____. You represent and warrant that you own or otherwise control all the rights to the content you post; that the content is accurate; that use of the content you supply does not violate any provision herein and will not cause injury to any person or entity; and that you will indemnify _____ for all claims resulting from content you supply.
It’s not just big corporate entities the have this kind of wording in their terms and conditions. Social media and networking are used daily by photographers of all stripes these days and you potentially give away image rights anytime you upload something to one of these sites. Here’s an excerpt from the terms on Facebook.
you specifically give us the following permission, subject to your privacy andapplication settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (“IP License”). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.
Note that if your content is shared with others, it is still governed by the above if they (the others) are still displaying it, even if you have deleted it from your profile. This is very important to consider in conjunction with Facebook’s recent addition of an option to upload high resolution photos. It’s now becoming possible for 300 dpi photos to be uploaded and printed at sizes up to 8 x 10 directly from Facebook.
Similar wording can be found in the fine print of photography competitions. In fact, it seems that it’s rare that photography competitions don’t feature some kind of rights transfer or the granting of broad usage. Here’s an example from a Canon-sponsored competition.
[you] agree that the copyright to [your] photograph will be assigned to Canon U.S.A., Inc. in the event it is selected as a winner in this contest
Avoiding The Rights Grab
First and foremost, if you don’t want to be an unknowing victim of a rights grab, make sure that you read the contract or terms and conditions before agreeing to anything. If you’re in business as a photographer, where possible have a lawyer read it before you add your signature. When it’s a contract negotiation with a client, there’s obviously room for changes to the wording but when it’s a competition or uploading to a social media site, you’re going to be stuck with what they offer, so it’s up to you whether you agree or not.
When you’re in talks with a client, find out what they really want. A lot of buyers think they need a lot more than they actually do. As a photographer, it will often be up to you to educate the buyer. When someone comes to you with a contract that requires rights that go far beyond their needs, it’s more likely to be out of ignorance than it is to be a concerted effort to grab the rights. Ask questions to determine what they actually require and chances are you’ll be able to find common ground. It’s very rare that you’ll be offered a take it or leave it contract. The initial contract offered is more than likely to be a generic one that covers all bases rather than one specific to the particular job.
At the end of the day, it’ll be up to you, the photographer, to decide what you should do. Your decision will affect you and your bottom line, and to a lesser extent, the industry as a whole. Get informed before you come to your decision.
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