Photo Attorney

Jul 25, 2005

Safeguards for Collective Works

Photographers often submit photos to publishers for inclusion in a book or magazine. But what happens to the copyright for that photo? Does it transfer to the publisher? What is the publisher allowed to do with the copyright?

Unless the copyright to a photo is specifically transferred in total to a publisher, the publisher's use of that photo is limited by the usage agreement. The publisher, however, creates a new copyright, called a "collective work," when your photo is combined with other photos, text, illustrations, etc. Your photo then is covered by two copyrights - one for the photo itself, and the other as part of a collective work.

As the owner of the copyright to a collective work, the publisher may reproduce and distribute your contribution as part of that particular collective work, but not as a separate item. The publisher also may distribute any "revision" of that collective work and any later collective work in the same series. "Revision" also is thought to be a new "version," which still is considered to be one work.

Revision became an issue with some photographers who had contributed work for National Geographic magazine. There, National Geographic distributed via CDs previously published magazine issues almost exactly as they appeared in print, except that National Geographic added a search engine and index. The photographers argued it was a new use of their images and wanted to be paid for it. National Geographic argued that the CDs were a revision of the collective work (the magazines) so that the usage was included in the initial grant. Because the photographers were located in different parts of the United States, they filed their lawsuits in separate courts and both cases were appealed. While the reasons why aren't covered here, in sum, the 2nd and 11th Circuit Court of Appeals came to different conclusions about whether the CDs were a revision or a new product. This inconsistency in the law will have to be resolved later.

While hindsight is 20-20, we can learn from this experience that the best way to protect your copyrights is to be as specific as possible when granting usage rights. If you don't want your photos used for certain purposes, say so. But if your agreement doesn't address a usage, a court that might not agree with your position just may be the one that determines your rights.

Take my advice; get professional help.

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