During the late 1990’s and early years of this century I did a fair bit of freelance work for the Wales Tourist Board. The agreement involved handing over copyright with the images but there was a “nudge, nudge….” understanding with staff at the WTB that any out-takes from the shoot could be retained by the photographer. I wasn’t happy about the loss of copyright but felt that being able to retain identical images (in some cases) was adequate recompense.
Wales Tourist Board commissioned photographers to shoot landscapes and events in Wales. as well as using them itself it would also loan them to tourism-related businesses (free of charge) in order to promote Wales as a holiday destination. It became apparent that almost any business could be on the receiving end of the WTB’s generosity, however.
In the late 1990’s most of the WTB photographers got together to present a case to the WTB for a fairer contract. This initiative was led by a former photographer, Steve Benbow, who had by then started a commercial picture library specialising in Welsh subject matter. This was a direct competitor to the WTB in many instances so he found himself on an very uneven playing field indeed.
Letters and meetings with WTB staff followed. It was suggested that the WTB followed the Scottish Tourist Board’s example by themselves setting up a commercial picture library which would pay the photographers a percentage of the income from the images. But the WTB refused to listen. They were determined to retain copyright, come what may. When asked to explain why, they claimed, for example, that the photographer might use an image to show Wales in a poor light while the WTB used the same image to show it in a good light! Hardly likely at all.
This went on for a couple of years with no solution being found. I began a commission for the WTB one summer assuming the contract would be unchanged. When it arrived I discovered that the WTB had further tightened it up to their advantage. The photographer had to agree to hand over EVERY piece of film from the shoot, rejects and all. The loophole was closed. I was particularly irate about this because it showed that the WTB had no intention of working alongside its photographers; instead, it had every intention of dominating them. Despite being half way through a lengthy commission, and knowing that I wouldn’t get paid, I told them I would not sign the new contract.
The letter writing campaign continued when the WTB was absorbed into the Welsh Assembly Government, but to no avail. In fact the WAG adopted the WTB methods of dealing with photographers for all its departments. For me it was a matter of principle – I would not work under these terms. It was particularly galling that one part of the UK government was bypassing the 1989 Copyright, Designs and Patents Act, set in stone by the UK government to protect the rights of the freelance. And the Welsh Government (as it now calls itself) continually encourages other businesses to protect their intellectual property and profit from it whenever possible. Talk about hypocrisy!
Over the years the economic climate has changed and I feel myself reluctantly considering whether to work for the Welsh Government again. The copyright grab continues, and the photographer must still hand over every single image. In the digital age it would be easy for them to identify exactly when an image was taken or if one was missing from a sequence. They do seem to have it all sown up.
But in one respect they have softened. There is now a “fair use” clause in the contract. It states –
“Contractors have limited permission to use copies of imagery produced in the execution of assignments for the Client in order to promote them, using a portfolio or similar promotional tool.
Such use will in no way contravene the Client’s copyright. However fair use rights do not extend to the commercial sale or licensing of such imagery, either directly, or via a third party (e.g. a stock library or photo agency).
In all instances, written permission to use Client imagery for promotion should be obtained from the Contract Manager prior to the use of that imagery.”
This might seem to be an improvement but looked at in another way the WG has still turned copyright on its head. Rather than the photographer giving the client a licence to use the images in return for a fee, it is now the client that offers permission to the photographer – if they feel like it!
I thought I would float this situation for comments in the “Talk Business” section of an online photographers forum. I thought there might be a range of opinions, including some backing me up. But not a bit of it. The overwhelming view was that the client (Welsh Government) is making the terms and conditions of the contract quite clear so it is then up to the photographer to decide whether to go for it or not.
It is probably too late to do anything about it now but with the benefit of experience one does have a different perspective. If, over the past twenty years, photographers had taken a principled position and refused to work on these terms, clients would soon learn not to offer them! Because most did not it is increasingly becoming accepted that unless copyright is handed over, a photographer will not get the work. We called that a copyright grab in the 1990’s and in my opinion, it still is.