Photographers' Battle Over Royalties Could Affect Artists

Freelance photographer Ron Chinoy was stunned when he saw his picture of professional golfer Mark O'Meara prominently featured in a full page ad for Toyota in USA Today. He shot the photo when on a freelance assignment for the Associated Press (AP). While the ad credited AP and Mr. Chinoy for the photo, no one asked his permission to use it or paid him any royalties.

"It was my first major freelancing job," Chinoy says. "It was kind of naive of me not to ask, but I never had any idea of what was going on with my pictures."

The dispute over who has the rights to profits from the reuse of freelance work has erupted thanks, in part, to the Internet, where a photo or a story may sit on-line for weeks rather than be printed once in a daily paper. The outcome has profound implications for all involved in creative work, whether they're freelancers or full-time staff.

Many publishers are now demanding all rights to freelance work, when once they were content with permission for a single use. Writers and photographers say the effort is designed to cut them out of profits to which they're entitled. But publishing firms counter that they're simply trying to protect themselves in the fast-growing on-line world.

The AP unleashed the latest round in the controversy that has quietly dogged the major media establishments for the past few years. This month, the news service sent notice to all its freelance photographers that they must sign a contract transferring all rights to the company by today if they wanted to continue to work for AP. The company says it's only formalizing the agreement it has had with the photographers for the last 60 years.

"It simply puts it on paper, as opposed to a verbal agreement," says Mike Martinez, AP's senior photo editor.

But freelance photographers, who've organized to fight the contract and are prepared to challenge the company in court, say AP is trying to get something for nothing.

"I think this is an egregious attempt to acquire rights and fail to provide photographers proper compensation for them," says Richard Weisgrau of the American Society of Media Photographers (ASMP), a trade group based in Philadelphia. The ASMP is supporting the freelancers, in part, because it believes such contracts could undermine the livelihoods of staff photographers, too.

UNDER the copyright law of 1978, publishing companies own full rights to everything produced by their full-time employees. Those staff photographers, in return, get a salary, benefits, use of equipment, and an office. Freelancers are paid by the job, get no benefits, and use their own equipment. But they retain the copyright to their work. Many supplement their incomes by reselling their work later.

But if a publisher can get the same rights over free-lancers as it can over staff photographers, then a publisher can say, " 'Hey, I can just rely on freelancers. I don't have to pay benefits and insurance, and all of that,' " says Jonathan Reichman, head of the copyright practice group of the law firm of Kenyon and Kenyon in New York.

Mr. Martinez insists that AP has no intention of shifting any more of its resources from staff to freelance photographers. He also points out that freelancers' paychecks have written on the front a statement that says, in essence, by endorsing their paycheck, they agree to transfer all rights for the work done. The freelancers charge that practice directly violates copyright law because it's a blanket transfer of rights made after the work has already been done.

But the outcome has implications for all artists. "If AP succeeds, others who rely on creative people will also try to enforce that kind of agreement," says Kevin Larkin of the National Association of Freelance Photographers. "Then who will be able to afford to write, or paint, or take pictures for a living? This will no doubt destroy our industry."