Submission to Hargreaves by the Association of Photographers

Submisson:

The Association of Photographers Limited (AOP) is a not-for-profit professional trade association, founded in 1968. Its aims are to promote and protect the worth, credibility and standing of its members and to vigorously defend and lobby for the interests and rights of all photographers in the photographic profession.

With around 1,800 members, the AOP represents professional photographers, assistants, agents and students. Members have a wide client base, ranging from individual clients in the corporate sector to design groups, publishing houses, music publishers and advertising agencies. Their work is published worldwide in magazines, newspapers, books and advertising campaigns and many sell their images as Fine Art through galleries, both traditional spaces and online.

The AOP is a member of the British Copyright Council, British Photographic Council, Pyramide Europe (EEIG) and AOP members are represented by the Design and Artists Copyright Society (DACS) for collective licensing.

All our photographer and assistant members are SMEs, some work in partnership with another photographer but the vast majority are individuals either working for their own limited company or as sole traders.

UK creators are innovators and contribute to the growth of the UK's creative industries. It is imperative that they are recognized as SMEs and that legislation is strengthened to ensure their future earning potential, enabling them to grow and continue to contribute to the UK GDP and work with an equal bargaining power to their predominantly larger and more powerful commissioners. Strengthening of intellectual property (IP) legislation is needed to support them and ensure a level playing field.

In the last decade:

• 50% of photographers say their bargaining power has worsened
• 40% report an increase in assignments of copyright and other rights
• 24% report an increase in moral rights waivers and a decline in attribution
• 31% see attribution decreasing going forward

We believe the following is required to strengthen the position of creators and ensure a thriving UK creative industry in the digital domain:

• Equal bargaining power between commissioners/users and suppliers be facilitated by a change in Unfair Contract Terms legislation to now include IP
• The UK Government, and the bodies it wholly or partly funds, to set an example by accepting licenses and ending the current widespread practice of seeking copyright assignments and moral rights waivers
• Moral Rights legislation needs to be strengthened to remove (i) the formal assertion requirement for the Attribution Right; (ii) exclusions for the Attribution and Integrity Rights; and (iii) the contractual ability of a waiver in order to prevent future 'orphan works'
• The introduction of effective sanctions against those who purposefully and knowingly strip metadata (identifying data within the work) from photographs
• Funding to be made available to aid research into stronger, universal software solutions to input, secure and maintain robust metadata into all types of digital image formats
• Fewer exceptions to copyright legislation to ensure a better understanding of what is a legitimate use of copyright work
• A punitive element be introduced into copyright legislation to deter infringements, particularly in the digital domain
• An effective and affordable legal remedy with easy access to be made available in the format of a copyright small claims court
• Mandatory copyright education in schools and Further Education/Higher Education establishments
• A Government-led public-facing copyright and IP rights education campaign

Call for Evidence: Copyright

Photographers are relative newcomers regarding ownership of their copyright. The Copyright, Designs and Patents Act (CDPA) 1988 (as amended) was the first piece of UK legislation to award copyright ownership in commissioned photographic work to the photographer as the author. This was a radical change and needed a new way of working for both commissioners and photographers.

Licensing

The AOP worked with art buyers from leading advertising agencies and photographic agents to agree a method of licensing images and produced effective and appropriate paperwork (estimate, invoice & licence) and terms and conditions of business, together with a method of charging for additional usage of images over and above the initial commission brief. All of which was registered with the Office of Fair Trading, as was required at the time.

The paperwork and methods of charging are still in use today, albeit the media now includes the digital platform and have proved a workable solution to ensure all parties to the contract/commission clearly understand how and where images can be used and how much extra needs to be budgeted for if additional usage is required. A "re-usage" calculator is currently being beta-tested which will provide free, easy access to calculating appropriate fees for both licensors and licensees. A list of the most common licensing terms used by photographers is in the appendix to this reply and a more comprehensive list can be found at http://www.useplus.com/useplus/glossary.asp

To further help those commissioners of photography, who do not use an agency to negotiate for them, we produced a website www.copyright4clients.com to educate them on how photographers price and license their work. The site links through to our own so that they can see, and download, the paperwork and methodology of pricing the re-use of images.

Images already in existence can be either licensed through a stock photo library, such as Getty or Corbis, for example, or by the photographer themselves. These licences are, as with commissioned work, negotiated to accommodate the needs of the client.

Areas where the use of images is impossible to track by the photographer - e.g. photocopying, cable re-transmission and educational resources - are licensed collectively and the funds distributed by DACS. At the end of 2010 DACS distributed £pound;3.8 million to 13,000 visual artists, including photographers, through collective licensing schemes.

Licensing, as opposed to the assignation of copyright, enables photographers to control the use of their images whilst being remunerated to enable their businesses to thrive.

However, there is abuse of the current system in the UK that tends to benefit larger economic entities. This can lead to an inability to pursue a professional career and discourage creators from entering the market. In a European context this is alien to author's rights legislation, putting the UK creative sector at a disadvantage.

Photographers are faced with onerous contracts, demands for an assignment of copyright; waiver of moral rights; indemnity to the commissioner for rights the photographer cannot control; which are presented as a "sign or don't work" option and can severely limit the marketplace for photographers to work in. The terms and conditions in these contracts often include other restrictive terms, are often non-negotiable and do not offer equitable remuneration. Whilst legal, the contracts are contrary to the spirit of the CDPA 1988 and result in an imbalance between creators and users of works.

Pyramide Europe published a book examining such contracts; explaining the meaning of the clauses and comparing the various contract and copyright legislation in the main EU countries.

93% of photographers report being placed under pressure by clients to either assign their copyright or grant an extended licence without further and/or equitable remuneration.

71% said one or more of their clients attempted to acquire an assignment without compensation.

Photographers who were able to retain their copyright earned 33.2% more than those who assigned it.

"I'm very new to the industry and an assistant photographer. However, I adhere to the AOP's guidelines for usage and copyright. Recent example:

Photograph commissioned by a magazine. Agreed editorial usage in perpetuity.

Client calls 6 months later requesting to use the image for marketing materials and website. Agreed further usage at 60 percent of initial day rate. Clients words: "I think this is a good deal actually"

A very small scale example, but because usage was part of my terms and clearly stated on the invoice I was properly consulted and remunerated. I've shot work for another client in the same sector who've insisted on a copyright assignment, which leaves them free to keep re-using my images indefinitely. I simply can't turn down the work because I need to be paid. But I'm doubtless losing out financially by doing this which leaves a sour taste, especially when their feedback is so positive from the work I produce."

We would ask that the UK Government consider adopting European authors rights legislation to replace the common law approach of property legislation.

The imbalance between copyright and contract legislation should be addressed to prevent copyright being assigned in equity.

Photographs are an ideal medium for the digital era; images that were previously produced on film are now produced digitally and can be easily uploaded to websites and distributed via the Internet. The digital era has seen the photographic industry expand, allowing photographers to: reach new clients worldwide; license their work to a greater range of businesses; show their work to a global community through the expansion of social networking sites; and sell images via online galleries to people who would not normally have considered purchasing an original work.

Many clients use the images they have commissioned on their websites as a matter of course; most magazines and newspapers publish digital versions of their publications. All of these uses can be, and are, licensed at a reasonable cost.

However, it is equally easy to download and copy images, without permission or the creator's knowledge. This is theft of IP. Not all image digital file formats support metadata (that may include information on how large the picture is, the color depth, the image resolution, when the image was created, and other data), which can be removed automatically when these formats are changed and search engines harvest imagery on request. Photographers rely on the honesty and integrity of users, who access photographs via the Internet, to request permission for their use. If those images are not credited to the photographer by users uploading images to their own websites, or the metadata is stripped out by the upload/download platform, there is no 'trail' back to the copyright owner. These images can easily become 'orphan works'.

Once images are downloaded, digitally copied or transferred between computers – with or without the photographer's permission – they can additionally be altered without the photographer's knowledge. Some changes, such as minor cropping, would not greatly affect the image or its integrity.

However, major changes such as the merging of two or more images and extreme cropping can alter the image adversely by changing the meaning, the style and the content. This is derogatory treatment. Regular commissioners and others working in the photographic industry will recognize a particular photographer's style. Indeed photographers and other visual artists work very hard to develop such styles as being wholly pertinent to their employability and economic success. An image that has been digitally altered in a derogatory fashion could still be recognized as belonging to a particular photographer's style but the changes could, however, place the photographer's integrity and ability in question.

We support the British Copyright Council proposal (BCC), within their submission to this review, for licensing orphaned works (subject to the caveats required by the photography and graphic arts BCC members of which we are one).

84% of photographers want mandatory, legally enforceable credits and bylines when their work is published.

Effective sanctions are needed against the alteration, stripping or removal of metadata (specifically for ownership and rights information)

Moral Rights legislation should be strengthened to make those rights automatic; to remove all exclusions; and to render the rights unwaivable in addition to them being inalienable as they currently are:

Previously proposed private copying/format shifting exceptions would have meant a loss of income for photographers working in the social and wedding sectors and those who rely on the sale of images through online galleries. We understand the reasoning behind introducing an exception, and that there are many private uses of copyright material that would not be a threat to the copyright owner – including photographers. However, a blanket exclusion would be highly damaging to the businesses of many photographers and, in the long term, damaging to the UK's ability to encourage new blood into the creative industry, if the real and potential returns from a career in photography continue to be depleted.

"I have many thousands of customers a year who come into my gallery to see and enjoy my work. Many of them buy small A4 prints or books of my work. These "small" items actually constitute a large proportion of my business survival income. Now what if any of them knew that there was a new law where my images could be reproduced for free, without needing to ask me? With modern day scanners and printing equipment it was be as easy as pie to scan and reproduce my images on nice papers and produce a very convincing replica of my prints for just a couple of pounds. These 'personal' copies would very VERY seriously damage my income if they were 'legally' allowed to me made. Equally, if they were badly scanned or printed, it could lead to damage to my nationally recognised reputation as a high quality fine-art printer.

As someone who prints Limited Editions for customers, now just down to 1 in 3 prints, and for whom customers / clients may now spend several thousands of pounds BECAUSE they are rare, and critical to the investment potential to that client (as a member of the tax paying British Public) how on earth can I assure a rarity value if anyone can copy that image and reproduce it for nothing?

• The creator cannot promise any rarity value to any customer from that moment on
• The creator cannot guarantee limited editions and can therefore not charge for rarity, directly damaging income and livelihood.
• The creator may have taken a lifetime to build up a reputation for quality, uniqueness and rarity value within their work, which would be decimated by this plan
• Any existing client will have their investments threatened or immediately devalued
• The buying into rarity in ANY art form will be questioned and devalued
• The generation of struggle to have photography accepted as a high value art form will be ruined in one fell swoop.

If any law comes into play whereby my portrait clients could order just ONE print and then make a hi-resolution copy 'legally' for their own use, WHAT constitutes their own or personal use? Sending a copy to Aunty Nelly again, making a one-off print for Cousin Jack? Then of course Cousin Jack makes a copy for his sister Jo. Even if each person made just one copy it would lose me hundreds and hundreds of pounds, which I need simply to pay my overheads of running the studio and gallery."

Photographers who work in the wedding and portrait sectors rely heavily on the income from re-prints. Charging extra for prints allows the photographer to keep the initial cost of the sitting down, and so the subject can budget accordingly and only request, and pay for, the prints they need or want. Digital proofs are supplied to the commissioner to allow them to choose the prints they wish to have.

The average final order of prints from a portrait sitting is £pound;346 The average final order of prints from a wedding is £pound;1700 Up to 75% of income comes from print and CD sales 36% of those who replied receive income from online and high street gallery sales

Call for Evidence: Enforcement of Rights (Copyright)

Photography is something anyone can participate in and the technological advances in cameras and phones has made the activity of photography readily accessible to everyone. Social networking sites have provided a platform for amateurs and professionals to share their work and the Internet is flooded with images. There are 4 billion photographs hosted by Flickr and 30 billion photographs per year being uploaded to Facebook as an example. This does not even begin to include the commercial websites of professional photographers, image-makers, galleries and so on.

There exists a common misconception that anything on the Internet is seen as being in the public domain and as such, free to use. This is wholly wrong and needs addressing.

Professional photographers, who rely on the income from licensing their images and print sales, constantly find their work used on other websites, either through their own detective work, by chance or word of mouth, or by using reverse search engines such as TinEye, which can identify where an image came from; how it is being used; if modified versions of it exist; or if a higher resolution image exists, all using image identification technology.

Of photographers who knew their work had been infringed:

• 45.2% found infringements on blogs or personal websites
• 45.2% found infringements on online editorial sites
• 31'7% found infringements on social media
• 24.2% found infringements on business websites
• 30% of photographers pursued every known infringement
• 25% never pursued known infringements
• Of those who pursued an action only 34% were happy with the outcome

Currently, enforcing copyright of images is difficult enough if the infringement is perpetrated by a commissioner outside the scope of the licence already given to them. Often it is just a matter of negotiation. However, for online infringements by an unknown third party, the remedies are extremely limited.

30% said the infringer was in a different country and the change in jurisdiction would make legal action difficult or impossible due to the costs involved.

Once the infringing party is identified a formal Take Down Notice can be issued and depending on the type of infringer and the country they are resident in, can be effective in securing the images' removal from the website(s). Pursuing the matter further is not always an option as currently the CDPA does not set a limit to what is recoverable by way of damages (S96) - the level of compensation being merely the fee charged had permission been sought. Infringers, therefore, can steal and use an image knowing that if they are caught, they will only have to pay the cost of the original licence fee and will not be penalized or fined for the theft.

Legal redress in the United Kingdom is too difficult and costly to pursue for a licence fee. The majority of infringement cases attract a relatively small amount of money, for which there is currently no accessible legal redress available. The Small Claims Court no longer accepts copyright infringement cases, legal firms with specialist knowledge of copyright rarely take on no-win no-fee cases and the cost of a lawyer is prohibitive for SMEs. The need for a better system to pursue small infringement claims was identified in the Jackson Review of Civil Litigation Costs, published in 2010. Lord Justice Jackson recommended that "there should be a small claims track in the PCC for IP claims with a monetary value of less than £pound;5,000 and a fast track for IP claims with a monetary value of between £pound;5,000 and £pound;25,000".

• 45% of photographers say the UK legal system is too difficult
• 82% want a quicker and easier way to pursue copyright infringements.

A simple and affordable system to be established for pursuing smaller infringement claims and punitive damages for copyright infringements to be introduced into legislation.

We believe that more education is needed urgently for those entering the creative industry, for those using copyright works and for the general public. Many infringements are perpetrated through ignorance not malice but this is no justification. Trade associations and unions within the visual arts community and creative industries educate members and their commissioners where possible, but are hindered by a lack of funding to take that education to a wider audience.

The AOP has 35 affiliated colleges and universities and, in 1992, published Beyond the Lens to aid the photography and media courses' attempts to better educate their students in copyright. Inclusion in the syllabus is a condition of affiliated membership of the AOP, as is a fair student copyright policy to prevent the college/university owning the copyright of their students work. However, there is a massive and growing number of photography and media courses in the UK and many of those students finish their education without the copyright and IP knowledge they need to protect their own work, profit from its use and respect the copyright of others.

We produced a website to educate commissioners of photography on how to commission a photographer; how photographers charge for their time and work; and that a licence will give them all the rights they need to reproduce the work without an assignment of copyright.

Copyright education should be mandatory on all photography and media courses

The music and film industries have run television and media campaigns to educate the public on the use of their copyright works. Unfortunately the photography and graphic arts sectors are not in a financial position to fund the large, high-profile campaigns that are required. Social networking sites, such as Facebook, have gone some way to alerting the public that copyright exists in visual works, but much more is needed. The IPO have published a booklet on essential copyright information, but unless you know that the IPO exists; what it is; what it does; and how to find it, it is of little use – most members of the public are unaware of the IPO's existence and are unlikely to visit the website.

A Government-funded and sponsored campaign should be launched to educate all UK citizens in what copyright is, why it is important and why it needs to be respected.

Gwen Thomas
Executive Director Business & Legal Affairs
020 7749 4380
gwen@aophoto.co.uk
February 2011

APPENDIX

Licensing terms

• Ambient Public areas where advertising is screened (not cinemas) eg Garage Forecourts, rail station screens
• Press Adverts places in trade, consumer, local, national magazines and newspapers
• Posters Advertising on building wraps, escalator panels (non moving), billboards, bus sides and panels, taxi wraps & seats, tube, underground
• Internet All aspects of website advertising including banners
• Intranet Internal company communication
• Direct Mail Door drop leaflets and postcards
• Brochures
• Packaging Images on product packaging
• Point of Sale Advertising placed near/or on the product being sold
• PR Images used to promote within a press editorial, advertorial or trade handout
• Television Stills for advertising commercials
• Marketing Aids Eg umbrellas, ashtrays, beer mats, exhibition panels, trolley panels but not merchandising products
• Interactive TV
• Video
• Mobiles
• CD /DVD Ads Cover or inserts
• Annual Reports
• First British Rights Right to publish once on a British publication (magazine or newspaper)
• First British Rights with syndication As above with the right to syndicate the image to other publications
• 1st Edition English language worldwide Publication in 1st book edition
• Credit/debit cards
• Advertorial Promotional piece in a magazine
• Catalogues Product catalogues, retail or trade
• Inserts Magazine inserts
• Merchandising Images on promotional, saleable items eg T'shirts