Usage rights and is a blogger classed as press?

[NJI]

I'm in a bit of a tricky situation and struggling to find an answer so hoping someone here can help! I have two main queries...

1) I was assigned to photograph for a hotel - general area shots, staff, etc for which I have assigned the hotel "all media: print & digital, worldwide territory and unlimited time period". I have not assigned copyright.
I was also asked to photograph an event where 2 well known chefs were hired by the hotel to put on a tasting menu for guests. Some images have gone onto the hotel's instagram and the chefs have also put some images on their instagram crediting the hotel. Now, as I have assigned usage to the hotel, and the chefs were there and hired by the hotel, should I expect a personal credit and/or additional fee if the chefs are using the images for their social media? What if the chefs then use the images for anything else - their own press for example without crediting the hotel or myself/ or just crediting the hotel?

2) Next is a somewhat similar to point 1 I suppose but it's more about how a "blogger" is classed. So a very well known blogger (5m instagram followers) stayed at this hotel. They wrote a blog post about it, credited the hotel and used some of my images (it could be argued it looks as though they passed them off as their own photos). Does this fall under fair usage in terms of "all media: print & digital"? As I have given them this permission, does a blogger count as "all media: print & digital" even if they pass the photos off as their own and don't credit myself (but do mention the hotel in the post). Has the line between ownership and copyright been crossed here?

The hotel is arguing that they "own" the images, although I feel there is confusion on their part between ownership and copyright. How far can they go with using the images in the above cases?

I hope this is clear, and hope someone can help. If anyone needs further clarification, just ask!

Thanks in advance.

PS: my T&Cs state:
"The entire copyright in the Photographs is retained by the Photographer at all times throughout the world.”
and also: “...even where any form of ‘all media' Licence is granted, the photographer's permission must be obtained before any use of the Photographs for other purposes eg use in relation to another product or sublicensing through a photolibrary. Permission to use the Photographs for purposes outside the terms of the Licence will normally be granted upon payment of a further fee, which must be mutually agreed (and paid in full) before such further use. Unless otherwise agreed in writing, all further Licences in respect of the Photographs will be subject to these terms and conditions.”

 

[Designer]

It sounds like a call to your lawyer solicitor might be in order.

 

[tirediron]

I'm not an IP lawyer, nor do I play one on television and I didn't stay at a Holiday Inn Express last night, HOWEVER... Based on what you've posted (and assuming you're based in North America), your T&C need work. "all media: print & digital, worldwide territory and unlimited time period"" this is meaningless. What are they actually getting? All rights? Limited rights? Specified rights? My sense is that your license is so poorly written that there's no point in pursuing this. Write it off as a lesson learned, drop a couple of grand with a lawyer, and get your stuff written out in language that will stand up and is clear to everyone.

 

[Designer]

"License" is spelled as it is spelt in England.

 

[KmH]

What country you are in determines what copyright & publication laws apply.
You do not include location info in your profile.

Yep. Consult a qualified attorney.
You will likely need to pursue legal recourse by filing infringement actions against the chefs and the blogger.

The language of the license - "all media: print & digital, worldwide territory and unlimited time period" - sounds like it was written by the hotel and not the photographer.
Did you say anything about 3rd party usage in the license?

Your T&C statements might give you a hook for some legal leverage against the hotel.
However the hotel, blogger, and chefs lawyers will point to the extremely broad use license terms sold to the hotel and argue that terms that broad indicate you placed no future value on the usage of your images, by anyone, and thus lack any traction to seek any kind of a damages award.

 

[vintagesnaps]

It seems like you allowed unlimited use with no time limit... I agree the terms are unclear. I think the usage needs to be more specific.

I don't know if bloggers are considered press; to me they aren't because they aren't working or credentialed media nor employed by a media outlet. That usage would probably be considered editorial. But whether a blogger's use of your photos on the blogger's personal website or page fits into usage provided by you to the hotel, I'm not sure. To me it would seem inappropriate for the blogger to use your photos but the contract would probably need more specific language.

I don't think once you've provided photos to a client that you can expect to get 'credit'; it depends on how the photos are used. In ads or brochures (commercial use) typically there won't be a photographer credit. Bylines for writers and photo credits are usually used for editorial purposes (newspapers, magazines). For commercial use by a client like a hotel, I wouldn't expect the photographer's name to appear. You should be able to get and use a 'tearsheet' of your work used commercially.

Usually I'd suggest looking at sites for pro photographer organizations like ASMP or PPA but I don't know if their info. on licensing usage, contracts, etc. would be applicable where you live. This might be a learning experience to rework your contracts etc. and get better informed. Businesses like hotels may not know that info. unless they have a PR/communications department, but you as the photographer should know it.

 

[NJI]

Thanks for all your assistance.

I should have mentioned I'm in England, UK.

I believe that I will use this as a bit of a learning curve, and move on with clearer terms.

In reference to the usage however, I took this information from the Association of Professional Photographers in the UK; they state:

"Many clients still want to obtain copyright from the photographer for a variety of reasons, the main ones being a lack of ‘copyright’ understanding and the fear of having to spend more money for further use. In principle, we are opposed to the assignment of copyright. However, we recognise that agencies sometimes need to negotiate a fee covering any future use of the photographs without continuous reference to the photographer (who owns and should continue to own the copyright).In such cases, the Licence to Use will specify "All Media: print and digital" under Media Use, the Territory will be "Worldwide" and the Time Period will be "Unlimited" (copyright will remain with the Photographer).

The licence will be exclusive to the Agency/Client and will cover all uses of the photography in relation to the product named on the licence. The photographer retains the right to use the photographs for promoting his/her own work. An All-Uses licence is still subject to the general Terms and Conditions and therefore does not permit use in relation to another product or sub-licensing, for example to a photo library. Neither can it be sold on as an asset of the company if the client goes into liquidation – at this point the licence would revert back to the photographer."

It's interesting to see that some assumed the usage was written by the hotel when in fact I got it from a professional association, I think this is shows (to me) anyway that it is all rather confusing.

I appreciate the time taken to respond and will change my T&Cs to be clearer.

 

[weepete]

I agree with the other guys, if you have spesific questions about your contract terms or what forms a breach of contract or not, you'll really need to consult a lawyer who specialises in contract law to get a "proper" answer. We can give opinions but really you need someone who is well versed and up to date in the legislation and the common law. Contract law in particular is messy and can get complicated quickly.

PS, Solicitors and barristers are types of lawyer in the UK, but it's fine to refer to them both as lawyers.

 

[Light Guru]

I would just let this one go because your usage terms in your contract were poorly written.

Have a lawyer write you a better contract for future use.


Sent from my iPhone using Tapatalk

 

[KmH]

The use license terms are so greatly favorable to the hotel and poor for the photographer makes it possible the hotel demanded the terms.
Indeed, essentially unlimited use terms like those AND exclusive use usually cost the most. Like several 10s of thousands of dollars per image.

When I had clients that asked for the copyright because of " fear of having to spend more money for further use", but I wanted to limit the terms of the license to the usage they actually said they needed, I emphasized the lower total cost of having to renew the license periodically.

Frankly, I find the recommendation of the Association of Professional Photographers in the UK you quoted absolutely astonishing.

 

[vintagesnaps]

I do too! That information seems inconsistent with what we seem to use here as guidelines. I guess you need to research it more related to laws where you live. I can't find the organization you mentioned either but maybe it's listed under a more full name.

 

[NJI]

It's the Association of Photographers, based in the U.K., their website is AOP find a photographer

The information I quoted was specifically from this page near the bottom: Explanation of B.U.R.

I may have misinterpreted but I don't believe so, interesting to see what others think.