Protecting Your Rights

215

April 21, 1999

Many publishers are now claiming that the copyright law gives them the unlimited

right to reuse pictures and text that have appeared in their publications. They

base this right on the Tasini vs. New York Times decision.

At the time images are supplied photographers and agents need to be much more dilligent in

defining contract conditions in order to protect their rights and receive adequate

compensation for their work. Lawyer Robert Cavallo has

recommended a series of steps that creators should take to protect their rights by

contract rather than simply relying on copyright to protect them.

There is a tremendous erosion of traditional rights in the new era of electronic

publishing. Contributors to electronic publishing should be looking for three

elements in their contracts:

• Fair compensation on the traditional advance and royalty

  basis,

• In the event that rights are transferred to a 3rd party, not the original licensor,

  such as a print

  publisher, the author should be compensated by the original licensor on the traditional

  basis with the author receiving 85% to 90% of the fee charged for the use.

• No use of the work should be made without the author's approval

  of the medium, format and content.

As such, I am recommending that the following concepts be included in contributors contracts

when they provide works to print publishers who have no intention of publishing them electronically.

1 - Allow the print publisher to issue the work in electronic form to a third party only on

condition that the terms of the use be negotiated immediately prior to electronic

publication.

2 - Divide the proceeds of the licensing of electronic rights to reflect the print

publisher's role as an agent for the sale of those rights with 90% going to the

author.

3 - Retain the right of approval over all electronic licenses.

Where the print publisher is also the electronic publisher or licensor, the

following should be attended to:

1 - Grant electronic rights only on an advance and royalty basis.

2 - Grant the right to issue electronic versions of the work only in specified

existing formats, preferably on a non-exclusive basis.

3 - Retain control over any abridgement or anthologizing of the work and over any

illustrations to be added to the work.

4 - Unexploited electronic rights should revert to the author.

5 - Grant periodical publishers the right to republish an article electronically

only in the same format and context as the original article. This grant should be

non-exclusive.

6 - Insist that periodical publishers pay an additional fee at the time of the

electronic re-publication following traditional industry practice with syndication.

7 - Publishers should indemnify authors for all claims arising from illustrations

or other materials added to the author's works.

8 - The work should not be considered in print because there are electronic

versions of the work available.

9 - The publisher should be responsible for obtaining publication permissions in

electronic publications.

10 - Royalty statements should contain accurate records of production runs and

number of units sold and accessed, etc.

A photographer or author may not be able to get all of the things I have requested

above, but it is necessary to at least try.

Robert M. Cavallo, an attorney specializing in all areas of photography law is the

senior partner in the firm of Cavallo & Wolf, located at 400 Park Avenue, New

York, NY 10022.