What's the proper way to do things here...

I shot a few assignments for a local magazine recently of 4 nearby businesses, in exchange for advertising space. Midway through, I sent an email asking if I was allowed to post any of the photos to my Facebook page.

My message:

And their response:

Over the last week, I have posted photos from all 4 assignments with good response, including the magazine itself "liking" my photos.

Today though, I got this message.

Now, I AM working on removing the photos right now. I want to maintain a good relationship with the magazine, and I feel like it is probably normal to NOT be able to use the image on my FB page. However, I never signed any sort of contract, and it was never made clear previously that rights to ALL of the photos would be given to them. I could certainly understand not using the particular images that they used for the magazine, but thought maybe it would be acceptable to use the ones that they didn't use?

Anyway, just looking for the best way to handle all of this and to find out what the industry norm is, as this is my first time with this sort of thing at all!

They say "you agree to providing images in exchange for advertising in ******* magazine.", this does not constitute giving up your rights.

You need a properly drafted contract that covers the points of confusion.

It sounds to me that if you do not have a contract giving up the rights to the photo you still maintain them and therefore have the ability to do whatever you want with them. Is it worth it to not comply? probably not. Going forward, I would have a contract signed clearly outlining what exactly you want and works best for both you and the client.

In the absence of a contract, the company can't just decide they own the photos you took. You retain copyright, and you grant them a license in exchange for advertising space.

In very very rare circumstances, if the magazine did most of the work to set up and create the images, provided the set and stylist and all art direction, and you just mashed the shutter button, they may have a case for joint copyright. There's some case law around somewhere, where MTV (I think? or Nike? Some known company) collaborated with a photographer, then later sued for joint copyright and won. I can't find that link right now, but it's almost certainly NOT the case for what you describe.

Is the advertising space worth it?


[edit] Here's a case law where a publisher tried the same thing, wanted to just decide after-the-fact that they owned copyright, and failed.
http://www.own-it.org …hotographer-or-the-client

[edit2] Found it, the very rare case of the courts granting ownership to someone other than the photographer (don't let the magazine guys see this, ha ha)

Robinson v. Buy-Rite Costume Jewelry, Inc. and MTV Networks, 2004 U.S. Dist. LEXIS 16675 (S.D.N.Y. Aug. 23, 2004)

They can't do this unless you agree to it in advance of doing the work. They're essentially trying to declare retroactively that what you did was a work for hire. They can't do this legally. They also can't legally make a blanket statement that all your work for them in the future shall be "for hire"; each project requires a new agreement. Work for hire is so disadvantageous (exploitive) for freelancers that U.S. courts have set explicit limits on its use.

The basis is the Copyright Act of 1976, as amended. There's plenty of case law.

Uh, didn't the response of go ahead and post once the issue comes out constitute as written consent?

I'm also in agreement with the others in that they cannot just retroactively change the terms of your agreement. I would let them know this and state that for future dealings you will need to have a contract in place.

njstacker22 wrote in post #17537540
It sounds to me that if you do not have a contract giving up the rights to the photo you still maintain them and therefore have the ability to do whatever you want with them. Is it worth it to not comply? probably not. Going forward, I would have a contract signed clearly outlining what exactly you want and works best for both you and the client.

I tend to agree.
Since you were shooting a static subject, it wouldn't have been hard to take a 2nd shot from a slightly different perspective so you would have something to post to FB, would it? ; )

+1 to the above.

You are not an employee so US Work for Hire law doesn't apply and under Copyright law you own all the images. The magazine can't retroactively claim ownership, nor can they stop you posting the images on your FB page. Obviously you can choose not to post them to keep the relationship.

The normal price for a copyright buyout would be at least 10x the normal license cost and (unless they are giving you a lot of add space) I don't think what they are "paying" you equals the normal license fee. So agreeing to their terms to keep them happy doesn't really seem like a great deal.

The industry norm is for a business to pay an agreed fee to license specific images for a specified use. The photographer retains copyright and all rights to license or publish in any way.

In the case of this informal trade, there is no industry norm. You just have to decide if you agree to this change of terms and if you want to continue the arrangement. Since you did the assignment specifically to boost your marketing, its stupid to agree to give up rights to use the images in your social media and portfolio. To add insult to injury, those businesses that you did the assignments for may now pay the magazine to advertise with your photos and you don't get a dime.

As you can see, your failure to accept an assignment without full agreement on key terms can have serious consequences.