“ABC” on Photography Copyright

Instructions of the exploitation of Rights Managed pictures

1 - A photograph is a work protected by Copyright

The legal base of French Copyright is defined in the “Code of Intellectual Property” CIP.

Any intellectual creation in which there is “originality” (usually trace of the author’s personality) and which is represented in a prop, legally turns into a “creation of spirit".As such, it is immediately protected by the Code of Intellectual Property.

The legal precedents (Court’s decisions) determine a photographic works “originality” by i.e. the photographer's framing, shooting angle and light choices ...

Two types of rights are linked to the Copyright :

The moral rights : non-transferable, alienated and permanent, it is directly linked to the author himself. It implies :
- The respect of the work's integrity. Consequently, a photograph can not be modified, cropped or used in a photomontage without the express authorization from the author.
- The respect to name attribution or copyright. The name of the photograph's author must be clearly mentioned on publications.
- The right of disclosure. The author can even refuse to have his work distributed if, for instance, he considers that the foreseen publication might not correspond to his ethics.
The economic rights : author’s exclusive right to license or not his work for free or against royalties. It lasts 70 years after the author’s death. The work then becomes ”Public domain” and can be used without economic compensation. The economic rights are :
- Representation right (concedes the work to the public “directly”, for example during a public showing).
- Reproduction right (concedes the work to the public “indirectly”, for instance as a book cover). In photography, the reproduction right is the most used.

A photograph, immaterial creation, can not be "sold" or "bought". Actually, we "assign" or "obtain" the related economic rights, proportionally to a specific use of the image. Therefore, possessing the prop of a photo (print, slide, digital file…) does not allow reproduction or “representation” without the author's or photo agency's prior authorization. The lack of payment of the invoice following to the license makes a usage illegal.

2 - The photo-agency's part in the image distribution business

The photo agency is buffer between the photographer and the client. Thus, the images distributed by agencies are governed by two contracts: first between photographer and Agency on one hand and secondly between Agency and client.

The Agreement between Photographer and Agency. It determines the extent of the license terms; the duration, the geographical area, exclusivity or not. It also defines the terms of the financial compensation; the “royalties”. The Agency agrees to respect and transfer the respect of the moral rights.
The Agreement between Agency and Client. It conditions the usage (reproduction and/or representation rights) proportionally to the terms of the end-use. The license must be precise and clearly defined as to: type of prop, number of prints, terms of usage, geographical area, commercial or editorial context.... Any unspecified use or even a re - use must be submitted as a new license request and the according royalty payment. Any non-authorized use can be defined as a counterfeit.

On no account the assignment of right invoiced by the agency to the client can't infringe the contract that bounds the agency to the photographer.

3 - The depicted content and eventual rights of third parties

Additional rights may be attached to the depicted contents such as people, objects, trademarks, work of art.

Rights of Publicity. It is a person’s right to control his or her image and its use and has been developed by the courts based on Article 9 of the Civil Code: protecting a person’s private life and integrity. In order to act on this basis, it must be possible to completely identify the person.
Rights of Property (i.e. personal or real estate), based on the Right of Property. Since a sentence of the French Supreme Court on May 7, 2004, the proprietor has to prove an abnormal trouble due to the use of the image depicting his property.
Registered Trademark. This is an exclusive economic right accorded to a registered trademark (Industrial propriety).
Works of Art. Copyright applies :
- If the photographed work is protected by copyright (its author has been alive or dead since less than 70 years) it is mandatory to ask the author, his representatives or the author society (i.e. ADAGP) of prior authorization for publication and to pay the corresponding royalties.
- If the photographed work is in the public domain, the work can be used without any payment of royalties to the author.

Remember : Neither the photographer nor the photographic agency is holder of the possible right of third parties. However in some cases a photographer can have the written authorization (MR or PR) from the depicted person or the depicted object's owner. In case there is a "Model Release" (MR) or "Property Release" (PR) attached to an image, they are always clearly mentioned on the agencies' websites.

Nevertheless, these releases don't authorize any "sensitive", prejudicial, defamatory or pornographic use. It is up to the client and/or the end - user to estimate if the chosen image is possible within the context, with or without additional rights. Indeed, the only one to detain such info is the end-user. In case of doubt, the agency may be able to contact the rights holder to ask if he has a specific authorization. If necessary, the agency can propose another image to the client.

The peaceful use of an image is conditioned by a clear communication between the agency and the client of all the details related to the end-use.

4 – The ten Golden Rules of using a “Rights Managed” image

Respecting the General Terms and Conditions, respecting the uses that are defined on the invoice and/or on the estimate.
The Agency's website presents represented Images. This public interface is the agency's property and it is strictly forbidden to download or use an image without contacting the agency.
The economic rights don't include the eventual third party rights that may be attached to depicted.
The use of a Rights Managed photo is specific, precise and defined. The image can't be re-used without a new request for authorization and payment of related royalties.
Any use of a photograph without pre-approval, is a counterfeit, even if the Photographer's and/or the Agency's signature is respected.
The photograph must be respected in its integrity in accordance with the author's moral right. Unless there is a specific agreement, a photo can't be modified, cropped nor be integrated into a photomontage.
The copyright (name of the photographer and then name of the agency) is a legal obligation (it is part of the author's moral right).
Sending the complete proof of publication as soon as possible is mandatory.
Paying the invoice on time. The non-payment of the rights makes the unauthorized use a counterfeit.
Returning to the Agency any analogical prop (slide, print...) and destroying the digital support after the use. It is strictly prohibited to keep digital files and/or to create databases from the files that were communicated by the Agency or directly downloaded from websites.