Losing your rights to your professional portfolio

Many creative professionals give up their rights to their professional portfolios when they sign employment contracts without realising it.

This article was inspired by a discussion with a colleague about creating and protecting a professional portfolio. One of the challenges facing creative professionals is building and maintaining a current portfolio for future reference. In this particular conversation, we discussed whether someone could include work produced while employed in a professional portfolio?

I suggested that he import his blog posts and articles from various sources into his Medium profile using the “Import story” feature. It got me thinking about the copyright implications of doing that so I did a little research.

Your employment contract is your first challenge

It turns out that, as an employee, you probably gave up your rights to your writing. Many employment contracts have clauses like this:

Employee acknowledges that any original works of authorship s/he creates, whether alone or jointly with others, within the scope and during the period of employment with Company, shall be deemed a “work made for hire” as defined by the United States Copyright Act and are protected in accordance therewith. To the extent that such work is not, by operation of law, a work made for hire, Employee hereby transfers and assigns to Company all his/her right, title and interest therein, up to and including copyright.

There is often another clause that deals with something called “moral rights” which the contract may require the employee to waive or otherwise give up.

For writers who put a huge amount of effort into their work and take pride in their literary brilliance, clauses like this are analogous to amputations and this is why:

  1. The “work made for hire” clause has the effect of saying that your brilliance which you create as an employee actually belongs to your employer and you don’t have any rights to it from the moment you start populating that blank screen.
  2. If your contract has a clause that requires you to waive your “moral rights”, that basically means you give up your right to be known as the author of your professional work.

The effect of these kinds of clauses is to take your work from you and create a fiction that you didn’t create it and a legal fact that you have no rights to do anything other than admire it from afar. It limits what you can add to your professional portfolio because clauses like this limit –

  1. What you can claim credit for; and
  2. What you can republish without permission from your employer.

In other words …

You didn’t write this, it isn’t yours, just keep working

How you can salvage your professional portfolio

There are other options for building your portfolio which could work. One option is to simply point to an author page of the company blog that lists your articles by author (if you have that option). You could create a collection of links to “your” articles that implies that you are the author of those marvelous works.

The best way to avoid this situation is not to sign a contract that contains those legal scalpels. At the very least, hold on to your moral rights so you can publicly assert that you wrote those works.

Best case scenario

You negotiate clauses that give your employer co-ownership of your work (most employers would insist on this level of control) while retaining co-ownership yourself. That gives your employer the security of knowing it can do what they want with your work (because, after all, it is paying you to write that stuff) and you have the rights to do stuff with it all too, such as include it all in your portfolio.

Don’t assume you have the rights

Unfortunately many of our preconceptions about our rights to our work are misinformed and many creative professionals routinely give up their rights to their work when they sign their employment contracts. The power dynamics are usually against you and you may feel you have little choice but to agree if you want the job.

At the same time, it is a good idea to do the following if preserving your professional portfolio is important to you:

  1. Read your contract and identify the clauses that relate to your rights to your work.
  2. Discuss the clauses with your (prospective) employer and negotiate better terms before you are too far down the road.
  3. If you find you have little choice, be mindful of the clauses’ scope and ensure that the clauses don’t encompass your otherwise unrelated work simply because you don’t make clear distinctions between work and non-work stuff.
  4. Most importantly, don’t assume that you have no say whatsoever. The little secret is that most things tend to be negotiable to a degree.

This article was originally published on Medium on 2015-12-25 as “When you signed away your rights to your writing

A developers’ guide to GPL

If you are looking for a clear developers’ guide to GPL, Richard Brest has published a terrific guide to GPL with WordPress developers in mind.

Richard Best has a terrific guide to GPL for WordPress developers along the lines of the famously simple “human readable” Creative Commons license explanations on his site, WP and Legal Stuff, in his post titled “A human readable summary of the GPL“. He actually has two versions, both of which are worth taking a look at. I like his version modelled on the CC license explanation format:

A human readable summary of the GPL by Richard Best
A human readable summary of the GPL by Richard Best

Best has also published “A Practical Guide to WordPress and GPL” and it is available in three packages. The top package is the “business package” which includes –

access to a terms of use builder through which you can build draft online terms of use for your WordPress commercial themes or plugins shop, with open and honest GPL licensing as well as protections for your business.

The terms of use builder isn’t exactly revolutionary but what I like about it is that it is designed for a specific niche: WordPress theme and plugin developers who license their products under GPL. Best also released a demonstration video which reveals a nice, clean interface and a great looking end result. You’ll have to view the video either in his blog post or the promo page for the ebook packages.

The standalone ebook option is a little pricey at $25 for the PDF but if you consider the cost of legal advice on the topic, it is probably worth it.

Image credit: Light Reading by Martin, licensed CC BY 2.0


 

This article was originally published on Paul Jacobson’s blog on 2015-08-10

Which contracts photographers should consider using

Which contracts your clients should sign

A photographer asked a great question about contracts recently:

I would like to redo my contracts. Would like to know what do you get clients to sign before a shoot?

Disclaimer: This note is a fairly broad overview of many of the major themes you, as a photographer, should think about and which contracts photographers should sign with their clients. It isn’t legal advice or even the best advice for all photographers. It should give you a more informed starting point for a further discussion with your lawyer.

There are two key documents that you should have. The first is a contract governing your services and the other is some sort of privacy statement.

Services contract

The services contract needs to cover a number of themes both for clarity and to make sure you address your common risks. I also refer to services contract provisions as “terms and conditions” in this note.

For starters, use clear, well defined terminology is really important. It may seem pedantic but clearly defining key terms is essential for a clear and intelligible contract which, in turn, is more likely to be enforced if you ever have to test it. Obviously the content of the contract is very important but a contract written in confusing language can be very difficult to understand and enforce effectively. You typically include this terminology in a glossary in your contract.

Your services contract must obviously deal with your services, how you will communicate them and what you will charge for them. Think about issues like scope creep (where your services change without necessarily agreeing on the changes specifically) and amending your pricing as your scope changes. The model I prefer is to use a standard set of terms and conditions that refer to a separate booking form (that can be an online form or a paper form that your client signs) instead of preparing a lengthy contract that contains all the variables such as client details, services required and pricing. The booking form model that refers to the terms and conditions is less intimidating even though the terms and conditions, themselves, will be fairly detailed to make sure you deal with all the important themes.

One issue which comes up frequently in photographers’ groups is a cancellation fee. The Consumer Protection Act enables clients to terminate advance bookings subject to reasonable cancellation fees. Define those in your contract and set cancellation periods which may attract varying fees. For example, you may agree that if the client cancels a shoot 3 months before, the client will pay Rx; 1 month before, the client will pay Ry and 2 weeks before, the client will pay Rz. This will depend on your booking lead times; whether you can replace that booking and other similar factors. You will also need to align these cancellation fees with the Consumer Protection Act’s mechanisms and intent.

As a photographer the licensing aspects of your work are critical. The Copyright Act generally recognises your clients as the owners of the copyright in your photos if they commission you to do the work and agree on a fee for that work. This is good for your clients because they have more control over your deliverables but you have to consider what you will need to do with the photos. Because, by default, you are not the copyright owner in this context, you are not entitled to share the photos as part of your portfolio, restrict what your clients can do with the photos and exercise much other control over the photos’ use.

The Copyright Act gives you a way to change this default position. You can agree with your client to opt-out of the default copyright ownership mechanism in your contract. It is pretty straightforward but you need to include that in your contract. You may also want to think about including a mechanism in your contract which enables you to withhold your deliverables if your client fails to pay you, for example. This would be a separate clause in your contract.

Other clauses you’d include in your contract would be –

  • fees and payment;
  • privacy (linked to the privacy statement which I discuss below);
  • dispute resolution;
  • breach and the consequences of a breach;
  • termination;
  • common no-variation and similar clauses; and
  • domicilium clauses which can be pretty useful for different situations.

Booking form

A booking form is a convenient way to sign a client. Here are a few things to include:

  • Client details (name, contact details, address details);
  • Shoot details (date, times, locations);
  • Fees due (linked to specific deliverables), including deposits due;
  • Your specific deliverables;
  • Cancellation fees (you can include these in your terms and conditions but including these in your booking form makes them more prominent and confusion less likely);
  • Your details;
  • Express confirmation that your client agrees with your terms and conditions and privacy statement;
  • Signature and date fields (the form these will take if you use online forms can vary).

Privacy statement

As a photographer you are dealing with a lot of personal information. Using personal information often requires permission from the people the personal information relates to and the way you obtain this permission is a privacy statement (also known as a privacy policy or data protection policy).

As a starting point integrate your privacy statement with your services contract so when the client agrees to the services contract, s/he also agrees to the privacy statement.

Broadly speaking, the privacy statement must deal with these broad themes:

  • what personal information you will collect and from which sources (for example, automatically through your website, personal information your client volunteers through your booking form or contact forms and so on);
  • what you will do with that personal information (remember to include adding photos to your portfolio or Facebook page for marketing purposes, for example);
  • under what circumstances you may disclose personal information to third parties (these third parties may include your vendors for printing; law enforcement and other legal authorities); and
  • where you store personal information and, broadly, measures you take to secure the data (this will often mean identifying your hosting provider, especially if you use foreign hosting providers and will be transferring personal information across borders).

You will probably include other people in your photos (especially if you do functions and have the usual group photos) who have not signed your contracts. You should require your clients to obtain permission from people they want included in these group photos to be included and their agreement with your data practices which are explained in your privacy statement. How you do this can vary. You can prepare releases for subjects to sign and have them sign in advance or on the day or you can prepare something for your clients to have these participants sign. This can be a cumbersome process so consider the process with the least friction and which still results in permission from these subjects to take photos of them and use those photos for different purposes.

This is more important if you intend publishing photos on public platforms (for example, Facebook). Simply taking photos, making prints and handing these to your client probably won’t require you to go to these lengths because a subject who poses for a photograph clearly consents to being photographed. You’ll need to use your discretion.

It is very important to be sensitive about photos of children. You are not permitted to take photos of children and share them without their parents’ advance permission so make sure you obtain clear consents when it comes to children.

Get it in writing

If you capture the terms of your agreement with your clients in writing, you take huge strides towards reducing the likelihood of confusion and disputes. A written contract can be printed on paper. It can also be digital and part of an email or published on a website. Find the best medium for you that strikes a balance between clearly conveying your contract terms and being relatively accessible and convenient for your clients.

I have prepared a service contract and privacy statement for photographers which I’ve since updated. These two versions should give you a fairly decent idea of what your contracts could look like.

No, you can’t unilaterally opt out of Facebook’s terms and keep using it

Facebook has updated its terms of service and data use policy recently and the changes have upset many people. I’ve started seeing more declarations of users’ intention to opt-out of provisions of Facebook’s terms and conditions. These sorts of declarations seem to be legally binding with their fairly legalistic language but they don’t work except to help you feel better.

The only way to limit what Facebook can do with your content and your personal information is to stop using Facebook and to delete your profile. Unilateral declarations of your intention to opt-out of provisions you don’t agree with don’t make those provisions less binding on you.

If you use Facebook, you do so on Facebook’s terms. If you don’t want to be bound by those terms and conditions, stop using Facebook.

No photos of Cape Town Stadium, please, it’s protected

You may have heard that photographers are not permitted to take photos of Cape Town Stadium. The issue came up at the 2014 Advertising and Marketing Law Conference and I asked IP attorney, Hugh Melamdowitz, about the ban.

It turns out that copyright in the architectural drawings of the stadium were assigned to the City of Cape Town and the City’s ban on photos of the stadium are basically based on copyright protection. Commercial photos of the stadium will fall foul of the City’s rights. On the other hand, if you take photos that qualify for fair dealing protection under the Copyright Act (for example, for your personal use) then you should be able to sidestep the prohibition.

The reason for this (and similar) bans is probably to protect revenue the City earns from tourism involving the stadium. I don’t agree with the strategy, I believe that allowing people to take photos of the stadium (commercial or private) and sharing those photos widely will only encourage more tourism and more revenue from that tourism derived from ancillary products and services.

Another possible excuse for a photo that includes the stadium is if the stadium is incidental to the photo as a whole. Drawing a clear line between incidental inclusion of the stadium and taking an otherwise prohibited photo of the stadium will likely be pretty tricky.

Next time you are in Cape Town, bear this prohibition in mind if you intend taking photos you’d like to sell some day. Perhaps focus your attention on other aspects of the city and its environs, just to be on the safe side.

Could it be unconstitutional to block access to the Pirate Bay?

A recent Dutch court handed down a fascinating ruling which sided with ISPs who were under pressure to block the infamous Pirate Bay. What is really interesting about the ruling is that the Court found that ineffective blockades infringed ISPs’ rights under the European Charter of Fundamental Rights:

In its ruling the Court states that the Pirate Bay blockade is disproportionate and ineffective, citing TNO research and the Baywatch report of the University of Amsterdam. As a result, the blockade was found to hinder the Internet providers’ entrepreneurial freedoms.

The court based its decision on the Charter of Fundamental Rights of the European Union, which both includes “freedom to conduct a business” and “right to property.” In this case the entrepreneurial freedom outweighs property rights, because the blockades are disproportionate and ineffective.

The South African Bill of Rights has similar rights including the Freedom of trade, occupation and profession which states that –

Every citizen has the right to choose their trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law.

The Dutch argument may not work in the context of our Bill of Rights but it is certainly an interesting argument to make. What must surely be relevant in a hypothetical South African court decision is how effective attempts to block access to torrent sites are and whether more draconian efforts become unduly oppressive?

<

p>(Source: TorrentFreak’s post titled “ISPs No Longer Have to Block The Pirate Bay, Dutch Court Rules“)

What “public domain” really means

Have you ever caught yourself arguing that you can use some content you found on the Web because it is in the “public domain”? Don’t feel silly if you have even though you likely misunderstood what the term “public domain” means as a legal term which is very relevant to content use.

Fountain Square in Downtown Cincinnati Is a Public Square That Works for the City and Its People in a Myriad of Ways: Sale of Donated Books for Benefit of Cincinnati and Hamilton Public Library 06/1973

Have you ever caught yourself arguing that you can use some content you found on the Web because it is in the “public domain”? Don’t feel silly if you have even though you likely misunderstood what the term “public domain” means as a legal term which is very relevant to content use. Before I explain what “public domain” means, you first need a copyright refresher.

Copyright in a nutshell

Copyright is essentially a bundle of exclusive rights a copyright owner has in content. A copyright owner’s exclusive rights usually include –

  • reproducing the content;
  • selling the content;
  • publishing previously unpublished content;
  • transmitting content; and
  • creating adaptations of content.

As a general rule, someone who doesn’t have the copyright owner’s permission can’t exercise those rights. There are exceptions to copyright infringement and one of the better known set of exceptions is known as “fair dealing” in South African law. Aside from that, you need the copyright owner’s permission to use her content. One way you can obtain permission is through a license which is basically a set of permissions.

If you’d like to dive into South African copyright law and many of its challenges, the 2008 Open Copyright Review is a good place to start (I made a small contribution). The Open Copyright Review introduces copyright law slightly differently and with a useful perspective:

Copyright is a right created by the Copyright Act, to give exclusive rights to an intellectual creation. Because it excludes people from certain uses, the rights are referred to as exclusive rights. Copyright is a statutory incentive scheme. Copyright law gives exclusive rights, usually to the creator of an intellectual creation, so that she can allow others to make copies or modifications of the intellectual creation in exchange for money or some other benefit. The primary benefit conferred by a property right is the use and enjoyment of the property such as a car, rather than the ability to exclude others, although it might necessitate the exclusion of others only in order to secure use and enjoyment of the car. However intellectual property rights consist solely of the right to exclude others.

Copyright protects “works” and different works enjoy protection for different time periods. Copyright term in South Africa is usually 50 years which runs from different dates depending on the nature of the work. For example, copyright in a book operates for the author’s life and for about 50 years after the author’s death. Other countries may have different copyright terms and this can be both troubling and controversial. The United States has extended copyright protection terms so much that very few works are actually falling into the public domain (a tease). This is problematic. Copyright is not intended to protect works forever but is rather supposed to be used to protect innovation and creativity for a limited time period after which time they are to be surrendered to the broader Commons for everyone’s benefit. Unfortunately copyright protection has been corrupted by content owners but that is another discussion entirely.

Public domain

When a work reaches the end of its copyright protection, it loses that protection and falls into the public domain. The Creative Commons wiki has a nice explanation of what the “public domain” is and how it works:

When a work is in the public domain, it is free for use by anyone for any purpose without restriction under copyright law. Public domain is the purest form of open/free, since no one owns or controls the material in any way.

The US Copyright Office has another helpful explanation:

The public domain is not a place. A work of authorship is in the “public domain” if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner.

What “public domain” means is that the work’s copyright protection term has expired and the copyright owner’s rights have similarly expired. The work is then freely available for anyone to use in any way. This is different to content licensed under open licenses like Creative Commons licenses (this came up recently in the Woolworths hummingbird controversy) where those works still enjoy copyright protection but the copyright owner has chosen to grant fairly broad licenses permitting other people to use the works in different ways.

If you have found content online, the odds are that the content is not in the public domain, even if it is publicly accessible. You still have to check whether it is licensed for your intended use. The general rule is that if you don’t see any indication of how content is licensed, you have to assume the copyright owner has reserved all of her exclusive rights for herself and your ability to use that content is limited.

Fortunately search engines generally have options to search for content that is available under more permissive licenses in advanced search. Here are Google’s search options, for example:

Another terrific resource for images is Flickr Commons which is a growing collection of images which are in the public domain and have been made available to Flickr for its users’ benefit.

<

p>Creative Commons has also come up with a way for copyright owners to release their works into the public domain before their copyright protection terms have come to an end. It isn’t so much a license as it is a renunciation and it is an interesting approach.

Hypocrisy, ignorance and the #HummingbirdGate controversy

The allegation that Euodia Roets is a hypocrite for misappropriating RW Scott’s photograph as the basis for the sketch she contends Woolworths, in turn, misappropriated ignores a few important issues. First, was Ms Roets’ sketch actually an infringement of RW Scott’s photograph? Secondly, Woolworths’ failure to comply with the Creative Commons license Wikipedia applies to its content could have profound implications for Woolworths. Lastly, this debate highlights a remarkable degree of ignorance of the law in the digital marketing and creative industries.

Did Euodia Roets Infringe Copyright With Her Design?

One of the allegations doing the rounds in the midst of this controversy is that Ms Roets is a hypocrite because she has complained about Woolworths misappropriating her idea and it subsequently turned out that she draw her inspiration from RW Scott’s image. I’ve dealt with this in more detail in my post titled “A Few More Thoughts About the @Woolworths_SA #HummingbirdGate Controversy”.

The hypocrisy allegation misses the bigger point. It assumes a degree of knowledge on Ms Roets’ part that, by apparently relying on RW Scott’s photograph as the inspiration for her sketch, she was infringing his copyright in his work. As I pointed out in my previous post, to the extent Ms Roets lacked permission to create a derivative of RW Scott’s work, her sketch (which is likely still protected by copyright) probably infringes RW Scott’s copyright. RW Scott’s son, Greg Scott, commented on htxt’s blog post about this story:

My dad, R. W. Scott was the photographer of the original image. He gave me the rights to the digital image. years ago, around 1990, perhaps. I scanned his slide, edited out an overly complex background, and posted it on GregScott.Com and have given rights to use the photo for reference to many artists, provided they they don’t sell a “direct copy”, that is, that they should make creative interpretations of the image. From my perspective, I’m assuming that both works of art are licensed derivative works,and that Woolworth’s has compared two similar images and chosen one work over the other. Clearly two works derived from the same image can be legitimate, and yet have a strong resemblance.

I don’t see any wrongdoing here, except perhaps for making unwarranted accusations without adequate facts. It does bother me that people seem to assume that big business (Woolworths) is in the wrong, when they bought and paid for the image from the artist. If there are license/copyright issues here, I only see a potential concern with the Wiki text.

This would seem to address the allegation that Ms Roets’ infringed RW Scott’s copyright by creating her derivative work, namely her sketch, and undermines the allegation that Ms Roets is a hypocrite.

The Wikipedia License Issue

As Mr Scott pointed out, this leaves the issue of Woolworths’ use of Wikipedia’s text without complying with the terms of the Creative Commons Attribution-ShareAlike 3.0 Unported license which governs Wikipedia content use. This license requires Woolworths to do a few things in order to comply with the license which include –

  • correctly attributing the Wikipedia article the text was drawn from; and, more significantly,
  • licensing the Woolworths design "under the same, similar or a compatible license”.

This means that the Woolworths cushion design should be licensed under a Creative Commons Attribution-ShareAlike 3.0 Unported license. This license would permit anyone to share the design freely for personal use and even commercialise the design provided any versions of the design (including derivatives) are similarly licensed under this license (or a compatible one which would likely the less restrictive Creative Commons Attribution 3.0 Unported license).

This would be a pretty interesting development because it would take Woolworths’ commercial design and release it into the Commons for re-use in ways I am sure Woolworths did not anticipate. It will be interesting to see whether this product remains on the shelf or is withdrawn to guard against this occurring and to remedy Woolworths’ failure to comply with the license terms.

Ignorance

As I mentioned above, the hypocrisy allegation implies knowledge of wrongdoing on your part while complaining about being wronged. I believe a more appropriate term may be “ignorance”[1] which is remarkably common and which has emerged fairly strongly in commentary about the story. The underlying issue here is that most people are ignorant of the legal risks they face, particularly creatives, and what the law actually says. In fairness, the law is complex and evolving. That said, there is a lot of poor quality information being disseminated as authoritative and is being relied upon to make bad decisions about content and a range of other issues.

I’ve noticed a high degree of ignorance of basic legal risks at larger agencies and smaller creative studios alike. I took a look at about half a dozen large and medium-sized agencies and only one had a set of terms and conditions and a privacy policy framework. The rest have a simple and redundant copyright notice with no further provisions dealing with data protection, content licensing, liability or a range of other themes a decent legal framework is designed to address. This is likely due more to ignorance of the risks these agencies face and what is required to reduce the likelihood of those risks manifesting than a conscious decision to leave the businesses exposed to unnecessary risk.

Given that larger agencies and studios leave themselves exposed to these risks, it is not surprising that small agencies and freelancers are similarly ignorant of the risks they face, especially considering their budgetary constraints which tend to focus their attention on growing their businesses rather than delving into important, though expensive, legal frameworks.

As the saying goes, ignorance of the law is no defence although, in practice, not having many instances of agencies and design studios being sued for rights infringements which could be avoided with adequate legal frameworks leads the industry to complacency. Essentially, agency management doesn’t see the value in appropriate legal frameworks because none of the other agencies have been sued yet. Call it an ostrich strategy or a diabetic strategy, it is troubling and it is going to lead an unfortunate agency to disaster one day.

Returning to this story, perhaps Ms Roets’ critics should consider how prevalent ignorance of the law is in this industry and how many of them have taken the time to acquaint themselves with the facts and accurate representations of the law which governs their activities? It is practically an epidemic.


  1. I haven’t communicated with Ms Roets and don’t have any specific insight into her awareness of the copyright issues at all.  ↩