Posted by Nigel Blake on November 7, 2007 at 4:00 PM
Hi All
Some of you may remember a posting from several weeks ago regarding the reissue of "Wildlife of Britain" a partwork magazine.
There were some other photographers on here who had also had work used in the original incarnation of the magazine, images that had been supplied by Bruce Coleman Ltd, now in liquidation, my enquiry was regarding the payments for the re-use of said images. Would they be made to the photographer, as there is no longer a binding agency/photographer agreement as a result of liquidation, or would payments go to the insolvency practitioners, meaning the photographer will see nothing of it.
Below is the reply that I received today.
I have the contact details, so if anyone else who is 'in the same boat' wants to follow up this issue with them please contact me for the e-mail address etc
---------------------------------------------------------
Dear Mr Blake
My name is Robert Morgan. I am the Project Manager of Wildlife of Britain. I have been passed this enquiry by the company who manage our subscriptions.
We are investigating this and will get back to you. I am currently awaiting a response from our picture rights manager. We need to find out:-
1. what the arrangement was with Bruce Coleman Ltd. It is likely that, aside from special circumstances, we are not required to pay anything for a reprint of Wildlife of Britain in the same partwork form as before
2. whether any debt that is due is to Bruce Coleman Ltd or to the original photographers
Bruce Coleman Ltd is in liquidation. I need to find out whether any sums due are due to the company to pay back the creditors, or if copyrights have now reverted to the original photographers. I'm afraid it's not our choice who we pay.
Was your arrangement with the company a licence of your photographs or an assignment? Have you heard from the administrator that any such licences have been terminated?
I'm sure you're aware that in theory any sums that we do pay to a company in liquidation are available for distribution to the creditors, including the photographers. It sounds from your email like in practice, there isn't enough money to pay the photographers once the usual banks and so on have been paid back.
I'll be back to you once I've confirmed the position.
Posted by Paul Ashton on November 7, 2007 at 6:27 PM
I would sugest that if you have sold the copyright it is now owned by the company to whon you sold it regardless of whether you have received payment. It will form a part of the assets of that company and if they are in liquidation then the assets will be sold by the administrators who will, after having taken there expenses, share out the balance amongst the creditors at a percentage rate.
Any debtors to the company will have to pay to the company. It would be elegal for them to divert payment to anyone else.
In my experience, when a debtor goes into liquidation, your very unlikely to see any of your money and final details of any settlement are likely to be very protracted.
My advice would be to forget it. Certainly don't spend any money chasing.
The liquidation isn't the issue - the issue for you to resolve is the original license from BCL ie. did it include the right to make further print runs, or to be used in other forms/bind-ups. You need to see the license that BCL supplied.
If it didn't include the rights for further runs/repro, then the use is a new use and the rights should be renegotiated with the individual photo sources - with any fees going to them, not BCL administrators.
Makes me wish I'd carried on with the IP law stuff when I was at uni!
In reading the following remember I am not a lawyer.
Firstly, is curious he talks of copyright and not license. The former is automatically assigned to the creator of 'a work' for the period of his life + X years (depends upon the country) unless the orginator of said 'work' assigned the copyright away for whatever reason or cirmcumstance (this is a seperate topic), where as the latter is a mechanism that allows a third party to use said 'work' under certain conditions for an agreed recompense. If this was an assignment to you by Coleman to take these specific pictures the issue of copyright may be blurred.
Assuming that you ( or Bruce Coleman on your behalf) did not sell the copyright (which I doubt he could have done as it was not his to sell) then this is simply a licensing issue. In my humble opinion it has nothing to do with copyright.
Because Mr Coleman is now not trading obviously he is not in capiable of acting as your agent and any further licensing arrangement for those pictures must be agreed with any new agent or yourself. However if the original license agreed with Coleman states that the fee Coleman received for the use of the image also allows subsequent publication of the image for the same purpose at a later date then this is a closed case. This scenerio is more than likely the case.
That said if it is not i.e. no further reuse is explicitely granted in the original license ( and the following may be wrong) I would suggest that upon liquidation all assets that Coleman had that where owned by anybody else (i.e. on lone) would revert to their owner - the key here is that Coleman did not own your images therefore they did not form part of his estate and therefore cannot be sold by any liquidator to recover any loss. Any new print run would require new licensing with the owner of the photo.
The final twist will be if the original license allows re-use but at an additional fee payable at time of reuse - who does that fee become payable to. Since this further fee is not a credit or debit at the point of insolveancy I am curious if it could be claimed it was part of his estate at that time. If not, then I would suggest that because the photography was not owned by him and reverted to its owner at that time that any fees would be payable to the photographer for further reproduction..
The above may be bollocks - but it would appear logical to me.
Nick beat me to it - you need to see a copy of the license to reproduce as recieved by the publisher, so ask for it.
T
Posted by Nigel Blake on November 7, 2007 at 8:24 PM
Thanks for the replies
The issue is not one of ownership of copyright, that has always (even under the terms of the BCL contract) remained mine, the issue is the license that was agreed by BCL and whether it included re-use.
Nick and Tom have covered all the things that I am currently persuing; I have in my reply to Mr Morgan already asked to see a copy of the license, the reason for the posting was so anyone else within the forum who might have the same issue arising out of the BCL demise can follow up the problem too.
Quoting Tom
"The final twist will be if the original license allows re-use but at an additional fee payable at time of reuse - who does that fee become payable to. Since this further fee is not a credit or debit at the point of insolveancy I am curious if it could be claimed it was part of his estate at that time. If not, then I would suggest that because the photography was not owned by him and reverted to its owner at that time that any fees would be payable to the photographer for further reproduction.."
Certainly my solicitor suggests that if the original license required the publisher to make a further payment of fees such time has elapsed since BCL went bankrupt that a new license should be agreed with the photographer.
Posted by Mike Smith on November 8, 2007 at 2:29 AM
The benefit of the license between BCL and WoB is worthless now, and so cannot be sold on by the liquidators PROVIDED the agency between the photographer and BCL has been severed by BCL becoming insolvent - if that is the case BCL no longer has rights to "market" the photographers images now.
The ability for the BCL marketing contracts remaining in force is entirely dependant up the agency agreement between BCL and the photographer and any terms dealing with the insolvency of BCL AND the copyright ownership/benefit clause.
If there are no insolvency clause in the BCL/Photographer agency agreement, then the liquidator is perfectly entitled to novate (for consideration/money) the WoB contract to any interested party. - But that is only step 1 - if the Liquidator does manage to sell the "business of BCL / novate contracts in progress" the acquirer still has to enter into a new agency agreement to supply images from the photographer - as the photographer still has over-riding copyright to the images - ASSUMING that the photographer hasn't assigned all copyright to the image under the original agency agreeement.
It is not quite as simple as BCL has gone bust therefore all rights revert back to photographer. - as has been pointed out on numerous occassions - beware supplying images to anyone until you have read the small print - you may unwitttingly be assigning away your full copyright ownership to the image. - eg the BBC and other online news agencies
BCL is a legal entity - liquidation does not affect that status until such time that the liquidation process has been finalised and the company is dissolved (even then any unrealised assets fall bona vacantia to the Crown/the Prince of Wales via the Treasury Solicitor). All legal contracts remain in force provided there are no determination clauses triggered by insolvency. The liquidator has teh legal power to enforce all contracts in progress to collect assets and benefits in kind due to BCL
I would bill them: bill them now for an amount that seems right for the usage then if the don't pay on time use the late payment laws to deal with the cost involved. If he is talking about copyright rather than a licence he either dosn't know what he's talking about or is taking the mike. I can't imagine any agency giving free reuse.
This is the information from Companies House about Bruce Coleman Ltd
Name & Registered Office:
BRUCE COLEMAN LIMITED
18 SAPCOTE TRADING CENTRE
374 HIGH ROAD
LONDON
NW10 2DH
Company No. 00855727
Status: Liquidation
Date of Incorporation: 02/08/1965
Country of Origin: United Kingdom
Company Type: Private Limited Company
Nature of Business (SIC(03)):
9251 - Library and archives activities
Accounting Reference Date: 31/08
Last Accounts Made Up To: 31/08/2003 (TOTAL EXEMPTION SMALL)
Next Accounts Due: 30/06/2005 OVERDUE
Last Return Made Up To: 22/06/2004
Next Return Due: 20/07/2005 OVERDUE
Last Members List: 22/06/2004
It is currently listed as being in liquidation, not dissolved.
T
Posted by Mike Smith on November 8, 2007 at 8:27 AM
Delving into this a bit more deeply (and sorry to contradict anyone) - the liquidation process was recently finalised, BCL is listed for dissolution on 1st January 2008 - there is a 3 month cooling down period from when the liquidator presents his final report to the strike off date (it is an automatic process) - ie liqn final meeting was held at the end of September 07.
It is a dead duck, looking at the statutory returns filed by the liquidator, if you came away with your slides you have done well out of this one and it is time to move on. Book debt realisations were derisory, and all proceeds have been taken by the liquidation process (and I am being kind here) - a typical small firm "bury it" type of liquidation.
Posted by Nigel Blake on November 8, 2007 at 12:44 PM
Thanks Mike and Tom, as one of the creditors I have been kept fully informed by the liquidators of all the issues raised in the two posts above.
Whilst I am not really expecting any joy in this matter, it leaves a sour taste knowing that a good number of my images are being used, without me seeing a penny, for a second time around.
Posted by Paul Ashton on November 8, 2007 at 2:36 PM
I've been here myself on a number of occasions. Belive me the best thing is to write it off and move on. What ever you do don't spend money on solicitors. They're more interested in your fee than your case and receivers make a packet. Both are to be avoided at all cost.
The most alarming aspect of this is that WoB aren't clear on the scope of the licence from Bruce Coleman, which suggests an unorthodox approach to publishing copyrighted material.
Your agreement with BCL is not critical to the issue (you will not have assigned copyright and neither will they, merely licensing the reproduction of your images). You may have already been paid for this second use if it was covered in the original agreement between WoB and BCL. Its also worth checking that the company that produced the original WoB is the same as the current publisher - check this carefully as a slight name change may indicate a new company which may have no agreement with anyone at all. This can be complicated and depends on the terms of the transfer of publishing rights.
If the partwork has changed this may not be classed as a re-print. Is it an exact copy or are there changes? A new ISBN number (or partwork equivalent?) would be a useful marker for this possibility.
Discussion
11 repliesSome of you may remember a posting from several weeks ago regarding the reissue of "Wildlife of Britain" a partwork magazine.
There were some other photographers on here who had also had work used in the original incarnation of the magazine, images that had been supplied by Bruce Coleman Ltd, now in liquidation, my enquiry was regarding the payments for the re-use of said images. Would they be made to the photographer, as there is no longer a binding agency/photographer agreement as a result of liquidation, or would payments go to the insolvency practitioners, meaning the photographer will see nothing of it.
Below is the reply that I received today.
I have the contact details, so if anyone else who is 'in the same boat' wants to follow up this issue with them please contact me for the e-mail address etc
---------------------------------------------------------
Dear Mr Blake
My name is Robert Morgan. I am the Project Manager of Wildlife of Britain. I have been passed this enquiry by the company who manage our subscriptions.
We are investigating this and will get back to you. I am currently awaiting a response from our picture rights manager. We need to find out:-
1. what the arrangement was with Bruce Coleman Ltd. It is likely that, aside from special circumstances, we are not required to pay anything for a reprint of Wildlife of Britain in the same partwork form as before
2. whether any debt that is due is to Bruce Coleman Ltd or to the original photographers
Bruce Coleman Ltd is in liquidation. I need to find out whether any sums due are due to the company to pay back the creditors, or if copyrights have now reverted to the original photographers. I'm afraid it's not our choice who we pay.
Was your arrangement with the company a licence of your photographs or an assignment? Have you heard from the administrator that any such licences have been terminated?
I'm sure you're aware that in theory any sums that we do pay to a company in liquidation are available for distribution to the creditors, including the photographers. It sounds from your email like in practice, there isn't enough money to pay the photographers once the usual banks and so on have been paid back.
I'll be back to you once I've confirmed the position.
Any debtors to the company will have to pay to the company. It would be elegal for them to divert payment to anyone else.
In my experience, when a debtor goes into liquidation, your very unlikely to see any of your money and final details of any settlement are likely to be very protracted.
My advice would be to forget it. Certainly don't spend any money chasing.
If it didn't include the rights for further runs/repro, then the use is a new use and the rights should be renegotiated with the individual photo sources - with any fees going to them, not BCL administrators.
Makes me wish I'd carried on with the IP law stuff when I was at uni!
Firstly, is curious he talks of copyright and not license. The former is automatically assigned to the creator of 'a work' for the period of his life + X years (depends upon the country) unless the orginator of said 'work' assigned the copyright away for whatever reason or cirmcumstance (this is a seperate topic), where as the latter is a mechanism that allows a third party to use said 'work' under certain conditions for an agreed recompense. If this was an assignment to you by Coleman to take these specific pictures the issue of copyright may be blurred.
Assuming that you ( or Bruce Coleman on your behalf) did not sell the copyright (which I doubt he could have done as it was not his to sell) then this is simply a licensing issue. In my humble opinion it has nothing to do with copyright.
Because Mr Coleman is now not trading obviously he is not in capiable of acting as your agent and any further licensing arrangement for those pictures must be agreed with any new agent or yourself. However if the original license agreed with Coleman states that the fee Coleman received for the use of the image also allows subsequent publication of the image for the same purpose at a later date then this is a closed case. This scenerio is more than likely the case.
That said if it is not i.e. no further reuse is explicitely granted in the original license ( and the following may be wrong) I would suggest that upon liquidation all assets that Coleman had that where owned by anybody else (i.e. on lone) would revert to their owner - the key here is that Coleman did not own your images therefore they did not form part of his estate and therefore cannot be sold by any liquidator to recover any loss. Any new print run would require new licensing with the owner of the photo.
The final twist will be if the original license allows re-use but at an additional fee payable at time of reuse - who does that fee become payable to. Since this further fee is not a credit or debit at the point of insolveancy I am curious if it could be claimed it was part of his estate at that time. If not, then I would suggest that because the photography was not owned by him and reverted to its owner at that time that any fees would be payable to the photographer for further reproduction..
The above may be bollocks - but it would appear logical to me.
Nick beat me to it - you need to see a copy of the license to reproduce as recieved by the publisher, so ask for it.
T
The issue is not one of ownership of copyright, that has always (even under the terms of the BCL contract) remained mine, the issue is the license that was agreed by BCL and whether it included re-use.
Nick and Tom have covered all the things that I am currently persuing; I have in my reply to Mr Morgan already asked to see a copy of the license, the reason for the posting was so anyone else within the forum who might have the same issue arising out of the BCL demise can follow up the problem too.
Quoting Tom
"The final twist will be if the original license allows re-use but at an additional fee payable at time of reuse - who does that fee become payable to. Since this further fee is not a credit or debit at the point of insolveancy I am curious if it could be claimed it was part of his estate at that time. If not, then I would suggest that because the photography was not owned by him and reverted to its owner at that time that any fees would be payable to the photographer for further reproduction.."
Certainly my solicitor suggests that if the original license required the publisher to make a further payment of fees such time has elapsed since BCL went bankrupt that a new license should be agreed with the photographer.
The ability for the BCL marketing contracts remaining in force is entirely dependant up the agency agreement between BCL and the photographer and any terms dealing with the insolvency of BCL AND the copyright ownership/benefit clause.
If there are no insolvency clause in the BCL/Photographer agency agreement, then the liquidator is perfectly entitled to novate (for consideration/money) the WoB contract to any interested party. - But that is only step 1 - if the Liquidator does manage to sell the "business of BCL / novate contracts in progress" the acquirer still has to enter into a new agency agreement to supply images from the photographer - as the photographer still has over-riding copyright to the images - ASSUMING that the photographer hasn't assigned all copyright to the image under the original agency agreeement.
It is not quite as simple as BCL has gone bust therefore all rights revert back to photographer. - as has been pointed out on numerous occassions - beware supplying images to anyone until you have read the small print - you may unwitttingly be assigning away your full copyright ownership to the image. - eg the BBC and other online news agencies
BCL is a legal entity - liquidation does not affect that status until such time that the liquidation process has been finalised and the company is dissolved (even then any unrealised assets fall bona vacantia to the Crown/the Prince of Wales via the Treasury Solicitor). All legal contracts remain in force provided there are no determination clauses triggered by insolvency. The liquidator has teh legal power to enforce all contracts in progress to collect assets and benefits in kind due to BCL
H
Name & Registered Office:
BRUCE COLEMAN LIMITED
18 SAPCOTE TRADING CENTRE
374 HIGH ROAD
LONDON
NW10 2DH
Company No. 00855727
Status: Liquidation
Date of Incorporation: 02/08/1965
Country of Origin: United Kingdom
Company Type: Private Limited Company
Nature of Business (SIC(03)):
9251 - Library and archives activities
Accounting Reference Date: 31/08
Last Accounts Made Up To: 31/08/2003 (TOTAL EXEMPTION SMALL)
Next Accounts Due: 30/06/2005 OVERDUE
Last Return Made Up To: 22/06/2004
Next Return Due: 20/07/2005 OVERDUE
Last Members List: 22/06/2004
It is currently listed as being in liquidation, not dissolved.
T
It is a dead duck, looking at the statutory returns filed by the liquidator, if you came away with your slides you have done well out of this one and it is time to move on. Book debt realisations were derisory, and all proceeds have been taken by the liquidation process (and I am being kind here) - a typical small firm "bury it" type of liquidation.
Whilst I am not really expecting any joy in this matter, it leaves a sour taste knowing that a good number of my images are being used, without me seeing a penny, for a second time around.
Your agreement with BCL is not critical to the issue (you will not have assigned copyright and neither will they, merely licensing the reproduction of your images). You may have already been paid for this second use if it was covered in the original agreement between WoB and BCL. Its also worth checking that the company that produced the original WoB is the same as the current publisher - check this carefully as a slight name change may indicate a new company which may have no agreement with anyone at all. This can be complicated and depends on the terms of the transfer of publishing rights.
If the partwork has changed this may not be classed as a re-print. Is it an exact copy or are there changes? A new ISBN number (or partwork equivalent?) would be a useful marker for this possibility.
Andrew