Work/Jobs - - Convoluted Copy Protection

Swampy · #1 04-15-2005, 02:52 PM

What do you think?

I did the local Chamber of Commerce membership directory last summer. I created and sold the ads and the Chamber provided the editorial content. I laid the book out, had 20,000 copies printed and I paid for the books. I paid the Chamber a percentage of the ad sales for their fund raiser and I kept the rest of the ad sales money. The Chamber holds the copyright on the contents of the entire book.

The largest ad was the center spread. It used an aerial shot of the town which I laid ad copy and the Real Estate office's logo over. The Realtor paid a royalty to the photographer for the one time use of the photo in this ad. I did not charge for the composition (considered that part of doing business). Customer was happy.

Now, here's the sticky part. The photographer called me today and said that he was going to sell the rights to the photo to the Realtor. He wants me to provide him a CD with my original 300 DPI version of his 72 DPI digital picture. He also wants me to provide it to him WITH the Realtor's ad as it appears in the book AND a copy with the photo and Realtor's logo in place (no addresses, phone numbers etc.) Then he wants to turn around and sell the CD to the Realtor.

The plot thickened when I checked with the Executive Director of the Chamber and she will not release rights to duplicate the ad to the Realtor.

I have no objection to the photographer's deal to sell his rights to the photo, but I do object to his wanting me to provide it to him let alone with logo and ad copy in place. (I had to reproduce the logo in Adobe Illustrator since the Realtor did not have a digital version to give me when I first did the ad). Apparently he does not have the capability to generate the file at high resolution. Either he doesn't know how or doesn't have the software and he's stuck with a 72 DPI photo. (I recommended to the Realtor that if the photographer provides it in digital format he should give it to her in at least 300 DPI so that she could have it printed just about anywhere and so that she doesn't have to adjust it herself. This is the quality you usually get when you buy stock photo art so it seems only fair that she gets high quality stuff.)

Have I done the correct/legal things?

In addition, and the Chamber Ex. Dir. was not aware of this, other advertisers in the book are handing a copy of the book to the local newspapers to run as ads. I've seen them a number of times (the moire pattern is a dead give away). The Ex. Dir. said she will call the local newspapers and advise them that they cannot scan and reproduce materials out of the book. I provided photographic services to a number of the advertisers (at no additional charge for their ad) and no photo credit is given either. Is it time for the Ex. Dir. to educate the membership in the newsletter? Many of the advertisers feel like, "I paid for the ad, I'll use it any way I want."

input appreciated....

Doug Nelson · #2 04-15-2005, 04:58 PM

Sounds like you need to check your contract with the Realty company. They own the copyright on the ad design, and there may be a clause in there stating you owe them the original digital copy. It sounds like there's nothing that involves the Chamber, unless they hold the contract with the Realtor.

On the other side of the coin, there's nothing you can do with the ad aside from using it as a portfolio piece, which this wouldn't interfere with.

But the whole thing sounds fishy to me, anyway.

Swampy · #3 04-15-2005, 07:48 PM

Doug,

There was no contract between me and the Realtor. Technically, I was working for the Chamber as an independent contractor. My contract was with the Chamber to sell the ad space, print the books and give them both the books and a portion of the ad sales. The realtor purchased the ad space and provided the photo (after paying royalties to the photographer). I designed their ad at no charge to them or the Chamber. The Chamber has copyrights on the book the ad appeared in.

How do you figure the Realtor owns the ad? They did not "hire" me to create the ad. They did not pay me to create the ad.

Mike · #4 04-15-2005, 08:58 PM

If you were working for hire (for the chamber) then you are out of the loop, as the photographer should be contacting the chamber, you cannot sell someone elses copyrighted material.

Now if the chamber comes to you and says they want a high rez copy of the work you did for them, then fine, all you should need to say is "the price for that will be $xxx.xx" unless your agreement with the chamber says otherwise.

Is this newspaper in the same town as the chamber? I cannot believe that the towns paper would not be working hand in hand with the chamber so they could both promote the merchants in the very best light. When I have some kind of copy problem similiar to this, and the ads are bad, I usually make the remark to those concerned that a crappy ad is proof that that merchant sells crappy products. Most of the time that kind of gets their attention!

I would hope that you have some kind of written agreement for all this. If not, I bet you will next time.....

Mike

Doug Nelson · #5 04-16-2005, 04:10 AM

Although you say you were working for the Chamber as an IC, your description of events says otherwise. You paid for the books, you created and sold the ads and paid the Chamber (not vice versa as an IC would). It sounds to me more like you paid them a commission in exchange for permission to do so (essentially a licensing arrangement).

Which, unless I've misread this, would take the Chamber out of the equation. So any incentive you might have offered the realtor (ie: free ad design) would still be part of what they paid for (even if it isn't broken down as such). If this is the case (and I'm assuming this without flatly claiming it is so) then the design was work for hire, therefore they own it (the design, not necessarily the files).

This is how wisdom is won

Swampy · #6 04-16-2005, 07:33 AM

Got ya, Doug. I have no problem with the realtor owning the ad design, but not the files. In essence, I signed over the rights to the content of the book to the Chamber (I have no problem there either). It is the Chamber that does not want the contents of the book reproduced and the disclaimer in the book states that they hold the rights and reproduction of any portion of the book is prohibited without written consent.

Mike.. I agree... I'm out of the loop once the chamber has the books and all the bills are paid and everyone is happy.

My biggest beef is with the photographer who wants me to provide the digital file with logo in place so that he can resell it to the realtor. Shouldn't HE provide the file (photo only) and let the realtor have an ad agencey or graphic artist generate further advertisments for her real estate firm?

I spoke with the realtor last night and she has already writtin a check to the photographer for the rights to the photo! And she tells me that he wants to continue to use the photo for his own side business (he prints and frames areial shots from around the county and sells them to local businesses and through gift shops). Can he continue to use the photo for his own profit if he sells the rights to it to her?

He's also insiting that she give photo credits to him on anything the photo appears on. (We did give him photo credit in the chamber book when she paid the one-time-usage royalty for its specific use in the book.)

Doug Nelson · #7 04-16-2005, 07:42 AM

Invite the photographer here to bring his skills up to par

Swampy · #8 04-16-2005, 08:47 AM

Doug... LOL

Actually, last summer when I saw the photo in question in a acryllic frame in a gift shop and knew it would be perfect for the center spread of the book and first contacted the photographer to see if the Chamber could use it (assuming there would be an advertiser who would pay the bucks for the spread ad space) he knew nothing about royalty fees or rights. I had to guide him through the process of getting paid royalties by the advertiser. He does take some of the greatest aerial shots I've ever seen, but his business acumen is lacking.