Picture This – Annie Leibovitz “buys back” her Copyright

Recent media stories on the importance of copyright to the creative community have largely centred around the Music Industry, with much of the recent hysteria revolving around Peter Mandelson’s plans to disconnect internet users who download illegally from the internet if they become persistent enough offenders.

However, one industry which got to grips with the problem some time ago is that of Professional Photography, with the usual rule that whoever takes a photograph is normally the owner of any copyright which it contains being used by the trade for some time as a way of leveraging their IP into profits by either offering to sell their full copyright to the subjects of their images for a larger fee, by licensing or selling their work to “image houses” such as Getty or Corbis or by clamping down on unauthorised use of their work.

This is made even more important for celebrity photographers such as Robert Knight, Lynn Goldsmith, Gered Mankovitz and Pattie Boyd, who have become almost as famous as the stars (and sometimes world leaders) that they shoot and command millions for their creativity in capturing the right shot. The most famous name, however, in the celebrity photographer clique is probably Annie Leibovitz, who shot to fame in the 1970s and ‘80s whilst working for (and defining the “look”) of magazines such as Rolling Stone and capturing iconic images such as the last public photograph of John Lennon before his assassination and a heavily-pregnant Demi Moore for the cover of Vanity Fair.

However, Leibovitz’ fame doesn’t apparently make her less vulnerable to the current financial landscape. She has seen her fair share of financial woe recently, and was forced to approach Art Capital Group, a lender specialising in “creating liquidity from art assets” to secure a loan for £14 million. The amount itself was newsworthy enough, but what’s more interesting is what she out up as collateral: three Manhattan Townhouses, a property in upstate New York and the copyright to every picture she has ever taken or will ever take.

Art Capital had been forced to get tough with Leibovitz when she failed to meet repayment terms on the loan and issued proceedings in New York, which would have seen her lose everything. However, an extension to the payment deadline has now apparently been agreed and most crucially, she will be able to “buy back” the copyright to her life’s work for an “undisclosed” sum.

If Annie Leibovitz had been unable to get an extension on the deadline to repay her loan from Art Capital, then she really would have lost everything. Losing her properties would be bed enough, but if she had lost the copyright in her portfolio, then she’d lose the right to make any income from the huge amount of images she’s taken over the years.

Copyright in most photographs under US and UK Law is owned by the Photographer and will usually last for the life of the Photographer plus 70 years. The length of Given that Annie only really came to prominence in the 1970s, she will have plenty of time to leverage the value of her copyright in her catalogue of images into royalty payments for their use. Very few other photographers have had so many if their images become as iconic as Leibovitz and as such very few will be able to make as much from licensing them out to third parties.

The Credit Crunch has seen an awful lot of Artists use their work as collateral to raise funds as many become more and more aware of exactly how valuable an asset copyright can be. It allows the creator of a photograph (and in fact any literary, artistic, dramatic or musical work) to control how the image is used, reproduced and sold. Art Capital obviously sees the value in this and has built its business from making money for its clients and itself by taking copyright as a form of security in the same way as you would expect to see your house in a mortgage.

However, the loan into which Leibovitz entered was on the basis that not only did she mortgage her existing work, she also put up all of the photographs she would take in the future. This was an extremely good deal for Art Capital and would see her giving up her only real source of continuing revenue in exchange for a loan, albeit a massive one. Granted, she is now “buying back” her copyright, but at what cost? Art Capital could conceivably charge her a premium for doing so in exchange for altering the terms of her loan. If she gets in trouble again, could we see the situation repeat itself?

What this goes to show is the value of copyright, not just to photographers, but to everyone in the creative industry. UK law, and most other legal systems, states that whoever comes up with a copyright work – be it a photograph, a piece of text, a database or a musical work, belongs to the person who created it, even if they created it on a commission for a client or other third party.

Copyright is every bit as valuable as your premises, machinery, and on some occasions even your staff and you shouldn’t make the mistake of thinking that ownership automatically transfers to your client. This may be a term in your contract, but if it isn’t then make sure it doesn’t become one. Once you give away your copyright in a piece of work, whoever eventually becomes the owner can exploit it however they see fit (subject to assertion of moral rights).

By the same token, if you are going to use your IP as security for a loan, think about the terms very carefully. If you default, a lender could end up literally owning your creativity, as Annie Leibovitz so nearly found out. Seeing her iconic images licensed out for use on T-Shirts or on other merchandise would not have been a pretty picture.

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