An area of major confusion for both photographers and conventions wanting to bring on photographers is the way Intellectual Property Rights are handled, specific in regards to Copyright Law for the photographs taken. Please be aware that for your particular situation, it is best advised to seek a specialized attorney. This article is merely meant to be a cautionary warning to photographers before entering in vague or dubious agreements.
I want photographers to know that they have certain rights, but also in key specific situations they actually lose some or all of those rights. Here is the agreement that Sakura-Con is putting out for their 2017 event when requesting photographers to join their team. At face value it seems decent, but please let me take the time to go over this line by line and explain what is right, what is wrong, and what is flat out missing (and thus causing major concern).
Seeking Event Photographers for Sakura-Con 2017
If you agree to become a Volunteer member of Sakura-con’s Photography Staff, you agree with the terms below:
1) Photo rights will be equally shared with Sakura-Con: You are able to use all your photographed images as you wish, and Sakura-Con has the right to use all images as they wish.
2) You must provide copies of all your original (or lightly edited) photos taken at Sakura-Con, to Sakura-Con for the archives. This is done by: handing them off during convention, or by getting them to me, (the photography coordinator) within the week after convention.
3) Sakura-Con is a non-profit organization: the photos you send to Sakura-Con for its use must not contain a watermark of any kind. Sakura-Con cannot use watermarked images. (You may watermark your own copies of your images for your own personal use.)
4) You agree to shoot the events and/or subjects you are scheduled for. (You will have an opportunity to give your availability and input on this manner when the con gets closer and the 2017 schedule becomes available.)
5) All other Sakura-Con membership policies apply
The very first thing that jumps out at me is that several key phrases are consistently missing throughout the entire agreement. The word "Own" simply doesn't exist. There is no mention of "licensing" either. Generally by default, the photographer would inherently own their own photographic works. However, there are legal exceptions to this, one of which being the "Work Made For Hire" clause. Under this, employees of an organization working specifically in their job duty to create works for their employer would then be owned by their employer. The easiest example of this would be a staff photographer working for a news agency. Photographs they take would be owned by their employer while on assignment for their employer.
Section 101 of the Copyright Act (title 17 of the U.S. Code) defines a "Work Made For Hire" as: "A work prepared by an employee within the scope of his or her employment"
Searching through case law, however, this is still a grey area. Volunteers are sometimes considered employees, and sometimes not. Doing artistic work for a non-profit organization sometimes counts as a "Work Made For Hire", and other times it does not. This leaves any photograph that the photographer takes for the convention in a very tight legal grey area that would only be determined by taking the case to court if any disputes were to arise.
When negotiating contracts with conventions, including non-profit conventions, I ensure that there is always a clause clearly identifying the ownership of the works created, and then a second clause clearly defining what the limited licensing rights the organization are granted for the works in question.
Why would a case even come up in the first place? One volunteer told me that "well, the convention has never sued anyone yet!" Think about this for a moment. Would you want to be the first victim? Just because it has yet to happen doesn't mean it never will. With the ownership in question, this creates a very interesting scenario.
Let's say that an anime company absolutely loves one of the photographs that you took of a cosplayer of a character from one of their respective series. They love it so much that they want to include that photographic work as part of an art book and distribute it with the special edition Blu-Ray release of the series. Well, who owns the photograph? The publisher would need to be absolutely certain of this. What if the courts decide that the convention owns the photograph instead of the photographer? At this point, the convention could then sue the publisher for royalty fees for distributing the Blu-Ray with the accompanying art book.
While that is only one example, it could go the other way as well. What if the anime company wanted the photo from the convention, but the courts ruled that the photographer retained the ownership? The same situation happens in reverse. But this concept isn't only limited to just anime companies and photos of cosplayers. There are magazines, news papers, web publications, books, music albums, and countless other places where photographs are published where these scenarios all come into play. Are you willing to take the legal risk that the photos may not indeed be your own property?
"If you agree to become a Volunteer member of Sakura-con’s Photography Staff"
The text starts right off by stating the photographer would be "staff", this is a big reason why I wanted to write up this article. "Staff" has a closer implication to "employee" than "volunteer" does. Additionally, it can be seen as a paid assignment work as well, because the convention would be compensating the photographer with a badge and specifically assigned work.
"Photo rights will be equally shared with Sakura-Con: You are able to use all your photographed images as you wish, and Sakura-Con has the right to use all images as they wish."
This again goes by what I said above. This specifies photo rights, but does not in any way shape or form cover ownership. "Usage" and "Ownership" are not the same things in the eyes of the law. This entire clause should be broken into two clauses. The first clause should clearly list which party owns the rights to the photographs. The second clause should then clearly state the licensing rights to the other party.
Nowhere does it state that the photographer is able to sell, license, or sub-license out the photographs. This specifically comes into play with the scenario above regarding the Blu-Ray art book. The agreement simply gives the photographer the ability to "use" the photos, but doesn't list anything about licensing them out to another organization or selling off the photographer's rights to the images.
"You must provide copies of all your original (or lightly edited) photos taken at Sakura-Con, to Sakura-Con for the archives."
The inclusion of the word "all" prevents the photographer from culling and curating their submissions. This means the convention may show off both the photographer's best and worst works, with no discretion from the photographer whatsoever.
"Sakura-Con is a non-profit organization: the photos you send to Sakura-Con for its use must not contain a watermark of any kind. Sakura-Con cannot use watermarked images."
The convention in question has a 501(c)3 non-profit tax status. This status has no bearing on if the images should or shouldn't be watermarked. That statement is entirely useless from a legal standpoint in regards to the intellectual property rights of the photographs in questions, and shouldn't have been mentioned in this clause at all. Specifically asking to have non-watermarked images is simply part of the agreement between photographer and convention, but again, it doesn't matter if they are non-profit or not.
"You may watermark your own copies of your images for your own personal use."
This is a highly troubling clause to include. It specifically grants a certain right to the photographer for "personal use", but mentions no other usages. On top of this, if the photographer indeed did retain original ownership of the images, this clause wouldn't even need to exist in the first place. What is more troubling is that this clause only permits "personal use", but not "commercial use" or any other use the photographer may want to explore with their works.
"You agree to shoot the events and/or subjects you are scheduled for."
This is probably the most troubling of all clauses within the agreement. This statement, along with labeling the photographer as "Staff", would almost certainly pass the "Work Made For Hire" tests; therefore the photographer would not own the photographs they take at the convention.
As a photographer, it is best to take extreme caution before entering into any agreements. When in doubt, it is always better to explicitly define the ownership of the works in question, your rights, and any rights for an organization you're dealing with. Leaving these rights up to the legal defaults can and possibly will cause complications down the road.
From a personal stand point, whenever I negotiate my own contracts I always ensure that it is explicitly stated that I retain ownership of all photographs that I take, that I retain full right to curate the photos before submission, and explicitly specify what the licensing limitations are in regards to the organization's usage of the photos.