The Disposable Camera Conundrum
Iassure you that there is a legal issue that I will be discussing in this article, but it won’t fully emerge until later in the piece. As I have often said, these are tough times for working pho- tographers. There are many causes and factors
at work here, and a major one is competition from
amateurs. It seems that, wherever you look, there are
people taking photographs. Everyone and his cousin
appear to have, at a minimum, a small, inexpensive
digital camera in their pockets. These cameras are
usually “point & shoots,” but they have capabilities that those
of us who started to use 35mm cameras back when Tri-X was
rated at ASA 200 would have killed for. Even those who are
not carrying cameras per se have cell phones that can make
astonishingly good photographs, some up to 8 megapixels
in size and more. Needless to say, they are quite capable of
producing images that are, at least in technical terms, quite
adequate for almost any publication purpose.
All of this has led to a massive explosion in the number
of photographs available to satisfy the needs of licensees
and buyers of photography. As if that were not bad enough,
the Internet and social media as channels of distribution
for all of those photographs have worsened the situation
exponentially. All of this has created an enormous supply of
photographs that increases daily at an ever-expanding rate.
Everyone knows what happens to prices when the supply
side increases. Even worse for commercial photographers,
corporate consolidation on the publishing and art buying
side, combined with the demise of many print publications,
has led to a decrease in demand and a decrease in competition
within the demand side.
Within recent years, wedding and social photographers
have experienced many of the same changes in the supply-demand-price equation. On top of those changes, though,
wedding photographers have been faced with an additional
problem: Many of their clients have started to leave “
disposable” or “single-use” cameras on every table at their wedding
receptions and other events. Now, wedding guests are supplying, for free, all of the candid shots that a bride and groom
could want and used to buy from professional photographers.
Even worse, many of those candids capture subject matter
that is never even available to the professional photographer
who is shooting the wedding. The “guest photographers”
simply turn over the cameras to the bride and groom at the
end of the reception, and the bride and groom then do as
they wish with the images contained in them. Although this
trend started with film cameras, these disposables have even
become digital in recent years, allowing virtually unlimited
online uses of the images—all without clearing rights to these
images or paying usage fees.
All of this drastically reduces the number of professional images that the clients want to buy and pay for.
What is the poor, beleaguered wedding photographer
to do? I was scratching my head thinking about this
issue, when a potential solution occurred to me.
As the old saying goes, “If you can’t beat them, join
them.” Consider the possibility of, instead of the bride
and groom leaving these disposable cameras on the
tables, the photographer doing it and offering that
service as part of the wedding package. Then, after the reception, the photographer (instead of the bride and groom) collects all of those cameras and the images in them. Now, the
photographer is in control of almost all of the images created
at the wedding.
Here is where we get to the legal issue. The problem with
doing that is this: While most of the guests will never think
about it, these “guest photographers” are the owners of the
copyrights to those images, not the professional photographer who supplied the cameras. While the risk that one or
more guests actually try to enforce their copyrights in these
images against the photographer might be small, the potential
cost to a photographer of even a single claim is substantial.
So, how might one get around this issue? In order to transfer
the copyrights to these images, our Copyright Act requires
that the transfer be in writing, signed by the copyright owner.
Obviously, getting signed transfers from each guest is not a
workable alternative. Instead, however, consider this possibility: What if each camera had a sticker affixed to it bearing
a legend stating that, by using the cameras supplied by the
photographer, the user is agreeing to grant an unlimited,
non-exclusive license to the photographer to use the images
stored in it? With such a grant of rights, the photographer
could legally use, in package, any of these images however he
or she would like.
Is this a perfect solution? Of course not. However, since the
risk of a guest coming forward is fairly small in the first place,
this additional protection might make that risk so close to
zero as to be acceptable to even the most cautious photographer. Are any photographers doing this already? I would love
to know about them, as well as whether anyone has run into
any problems stemming from the practice. Just send me an
e-mail at Perlman@ASMP.org.
Victor Perlman is General Counsel to the American Society of Media Photographers, Inc. (ASMP). He has also served on the Boards of Directors of the Media
Photographers Copyright Agency, Inc., the Copyright Clearance Center (CCC),
and the Philadelphia Volunteer Lawyers for the Arts. He has frequently appeared
as an author in various publications and is co-author of the book Licensing
Photography with Richard Weisgrau, published by Allworth Press.