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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."