The failure to put an agreement in writing can have ramifications years, even decades, later.

I am sure that all of you have, or know someone who has, completed deals, assignments or jobs, with minimal or no paperwork. You may also have had situations where proposed agreements were actually prepared but never finalized before performance was completed, and never finalized because you were paid, or were on to the next assignment, or simply through inertia.

This can be a very costly oversight, as a recent decision points out.

The case, Ward v. The National Geographic Society, brought in the United States District Court for the Southern District of New York, involved National Geographic's digitalization of its archive of all past issues of National Geographic Magazine, and claims that the production and sale of that product infringe the plaintiff's copyrights in and to his photographs which appeared in the archival issues of the magazine.

The photographs were created on assignment between 1964 and 1978 and the rights were thus controlled under the old (1909) Copyright Act.

The issues therefore concerned ownership of the images and licensing rights in situations where there was no written agreement as to usage.

The Court found conflicting evidence as to whether most of the images were created as work made for hire, and what the custom and usage in the industry was at that time. It therefore left these issues for trial. The Court also found that a clear written change by National Geographic as to its policy precluded a finding that custom and usage applied on a different series of images, and since the photographer could not produce any other evidence in his favor, the Court dismissed these claims.

On the other hand, National Geographic conceded that one of the images was not a work made for hire. Since the copyright for that image belonged to the photographer, the court granted plaintiff's motion, finding an infringement to his copyright on that image. Clearly, the parties had relied in their dealings from 1964 to 1978 upon the common and customary business practices in effect, and they were content with (or at least accepting of) this relationship.

They obviously never considered the possibility that literally decades later, with the advent of new technology, these images, and the old issues of the magazine, would have significant commercial value.

On the other hand, if they had clarified their agreement in writing, litigation would have been avoided and due consideration would have been paid to the photographer for these newly contemplated usages.

The moral of the case: put it in writing even if the job is completed and you have been paid. There is always the possibility of additional payments down the line.

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