Re: Copyright Conundrum #3: Are works created by ad photographers derivative?

At 11:12 AM -0500 11/17/03, Jeff Sedlik wrote:
>It is the custom and practice in the commercial photography industry
>for photographers to retain copyright ownership in their works
>created on assignment for advertising agencies and their clients.
>The client signs a photographer's estimate, which serves as an
>agreement between the photographer and client, specifying that the
>photographer will retain copyright in the work and that the
>photographer licenses a client limited or unlimited reproduction
>rights on an exclusive or non-exclusive basis.
>
>The workflow frequently involves the creation of a "layout" or
>"comp" created in advance by the advertising agency and presented by
>them to the photographer to indicate general or specific
>photographic requirements. The layout or comp is a tangible work on
>paper or digital form and may or may not include a drawing or a
>representative photograph. The drawing or photograph may be used as
>a placeholder or may be a specific indication as to the mood,
>lighting, composition, subject matter, background or other factors
>desired by the advertising agency and their client.
>
>The photographer then creates a photograph, which may or may not
>resemble the layout or comp. The photographer does not act as a copy
>machine and does not merely translate the layout into another
>medium. The photographer interprets the layout and other
>requirements and goals stated by the client, and then creates a
>photograph using conceptual and technical skills. Ten different
>photographers each would likely create entirely different
>photographs after having viewed the same layout.
>
>The advertising agency often sends a representative, typically an
>"Art Director" to the photo shoot. The Art Director is typically the
>person who created the advertising concept for the project and
>supervised or created the comp or layout. is present to ensure that
>the agency's and client's requirements are met by the photographer.
>The Art Director may provide input to the photographer on matters
>such as composition, lighting, wardrobe, and direction of the models.
>
>Two questions:
>
>If the photographer is presented with a layout or comp by the ad
>agency, could the photograph created by the photographer be
>considered a derivative work?

It's conceivable, but it would only matter if it was an unauthorized derivative. The creator of an authorized derivative owns the copyright in the derivative. I have advised a client, a commercial artist who take blueprints (now CAD designs, usually) and draws pictures of the future building for real estate developers, to include language in her contracts that warrants the developer's authority to commission a drawing derived from the blueprints, and acknowledges that she will be the sole copyright owner of the resulting drawing.

>
>Does the participation of the Art Director cause the work to be a
>joint work? The Art Director is most frequently an employee of the
>ad agency, but some work as independent contractors.

Again, it's possible. Most of the cases on joint authorship concern writings, rather than audio-visual works, and require both authors to have done some of the writing, and deny joint authorship status to someone who only suggests scenes or dialog, without him/herself having actually done anything to "fix" the work in a tangible medium. At the same time, however, I could dictate a poem to a secretary, and I would still be the author because the work was fixed under my authority. So the Art Director who directs composition, etc. has at least a theoretical argument that the work was fixed by or under his authority. The contract should have unambiguous language regarding copyright ownership.

John Noble Received on Tue Nov 18 2003 - 02:25:59 GMT