For several years, the concept of “intellectual property” as it applies to the business environment within the U.S. has been a heated and controversial subject. Passions flare on all sides, from licensees to the creators of the work.
What exactly is intellectual property? According to The Beginner’s Guide to Entrepreneurship, “The U.S. legal system has developed the concept of intellectual property to encourage the creation of valuable ideas and protect them from being stolen.” Further, according to the Convention Establishing the World Intellectual Property Organization, “Intellectual property shall include the rights relating to literary, artistic, and scientific works, performances of performing artists, phonograms, and broadcasts…”
There are several different types of intellectual property, including copyrights, patents, trademarks, trade secrets, and designs. This article focuses on the copyright issues facing the photography industry—in particular, music and visuals working together.
Creators of visual materials (TV, film, and photography) and audio works (music, soundtracks, and spoken word) protect their material by having it registered with the Library of Congress. For music, composers and publishers also register their works with a Performing Rights Society (PRO), which monitors the ways music performances are used, then collects and distributes royalties. These royalties are collected from the broadcast media and businesses engaged in using music as part of their commercial ventures.
The largest and oldest PRO is The American Society of Composers, Authors and Publishers, better known as ASCAP. The following quote from their website explains the basic premise of what they do: “ASCAP protects the rights of its members by licensing performances and distributing royalties for the non-dramatic public performances of their copyrighted works. (Note: The phrase “non-dramatic performances” refers to performances in American movie theaters, which are not covered.) ASCAP’s licensees encompass all who want to perform copyrighted music publicly. ASCAP makes giving and obtaining permission to perform music simple for both creators and users of music.”
In the photography industry, these issues touch both creators and licensees. People working in visual media have long sought to protect the rights and earning power of their images. On the other side of the coin, many of these same people may never give a second thought to improperly duplicating and using copyrighted music as part of their presentations, on their websites, and, in many cases, as part of the final product they sell to end users.
Professionals need to be able to deliver a high-quality product to the consumer while making a profit. It’s a tall order to make a profit while still doing “the right thing,” but industry leaders report that with greater awareness of the issues, strides are being made to satisfy all sides.
J. Alexander Hopper is director of membership, Copyright and Government Affairs, for Professional Photographers of America (PPA). When asked what PPA’s official stance on the issues were, Hopper summed up the current situation as follows: “PPA stands up to protect the copyrights of photographers and other creative professionals who own intellectual property. If we stand up for photographer rights, we think we have to stand up for everyone’s. When we communicate with the Copyright Office, it is on behalf of photographers, but we know the law is the same for everyone.”
Though photographers and musicians may sometimes find themselves at odds, in reality we are all in the same boat, so to speak. We are all lobbying the government to protect that which is rightfully ours and deserving of protection. We also are both looking to exploit their creations for the maximum profits possible. Hopper added, “We let members know about the importance of remembering that music is covered by copyright as well—and to help them find ways of using music legally. Licensing popular music is both expensive and time-consuming, but there are great alternatives available, and PPA can help photographers find them.”
There is a great deal of talk about “royalty-free music” in the photographic industry. It’s a nebulous description that’s become a catchphrase for any legally obtained music or songs available for use in slide shows and other photographic productions. Basically, a photographer can use just about any song or music if he or she has the legal written permission to do so from the artist/publisher of that music. This is similar to copyrighted visual images. If you have permission and you have paid the fee, you will most likely avoid any legal ramifications.
Considering the extreme financial penalties that come with copyright infringement, it certainly makes little sense to take a chance with materials we don’t have permission to use. Purchasing a song from a website or on a CD does not give the buyer a license to use that recording as part of a commercial venture. One can glean that information from simply reading the copyright explanations that come with commercially available material.
Why do professional photographers need or want to use music in their productions? Increasing one’s business is the most obvious answer. As technology advances, consumers are expecting so much more from their vendors. These days, young couples expect DVD shows as part of the wedding or family portrait services being offered by photographers. And in this ever-changing multi-media world, what would visuals be without the accompanying music?
Edward Zemba of Robert Charles Photography in Longmeadow, Massachusetts, talks about the role music plays in his business. “Beautifully crafted music adds to the emotional impact of our images. One only has to see the reaction of clients to understand why we use music whenever we can. We feel that lyrics are an absolute necessity to lift the presentation to a higher level. The lyrics say what lies in a client’s heart when they are too reserved to express what they are feeling out loud. It’s not uncommon for us to have tissues on hand when we do our presentations.”
How does Zemba’s studio deal with the complex issues of intellectual property and copyright?