Although the archive’s database and search software will be an agency tool whose copyright is owned by or licensed to the agency, and the agency will own the “collective work” comprised of the software and stored material, the advertiser may not own all the individual photographs or artwork to be stored in the archive. Some of this digitally stored material will be “works for hire”, such as the results of financed photo assignments undertaken by the agency for the benefit of the advertiser under appropriate work for hire and/or assignment contracts, which clearly vest copyright and all rights in the advertiser. What about the balance of the digitally stored material? The other material may have been acquired by the agency or advertiser from a photo stock agency or directly from the photographer, and only with limited rights – for example, "one year, print uses, all magazines, newspapers (trade, consumer)". There will obviously come a time when these rights have totally expired and no rights are retained.

Does the agency need to seek a further grant of rights to input, store and access the material in the digital photo archive? Digital storage and use for research and analysis purposes only can clearly be defended as a fair use under the Copyright Act. No one would suggest that, in the pre-digital era, it was an infringement problem if the agency or advertiser retained files of tear sheets of old ads and, from time to time, reproduced limited numbers of copies for the purposes of research and analysis by the agency and its advertiser in connection with reviewing what was done in the past and planning for the future. Indeed, the agency's client team might indicate their preliminary proposals for new ad campaigns by marking up the old ad copy with sketches and comments. The advertiser might respond with its own sketches and instructions based on such agency markup. No agency would normally request rights to create a derivative work under these circumstances; this is just another step in the over all research and analysis process in this industry. The fact that this research and analysis process is now digital should not alter the copyright analysis or the infringement risk. Nevertheless, some stock agencies will license (for little or no added fee) what is often labeled as "electronic storage and intranet rights." In such cases, the specific purchase of these rights should eliminate any possible infringement risk while the image is stored internally.

In addition to the risks of maintaining and accessing the digital photo archive, use of the digital photo archive certainly increases the practical risk of reuse of the digitally stored photographs in a manner which does require a license at a time when no such license continues to exist. Digital alteration of the stored photograph, for example, requires a license and leaves a complete electronic record of infringement as the image is manipulated and changed in a trail of derivative works based on the original image. Although some creative employees have difficulty accepting the fact, if their own "newly created" manipulated image still contains substantial similarities to all or part of the underlying original image, a further license will be required to avoid the infringement risk upon publication.

This risk is exacerbated by the fact that rights management information is often not input and stored with the image. This means that the person who is accessing the archive and reusing and/or manipulating the image cannot easily learn whether a new license will be required prior to first publication of the new use, and where to go to negotiate a further grant of rights. Rights management information is all too often located (if it still exists at all) in separate hard copy files of purchase orders/invoices between the agency and the rights holder. Even the copyright sensitive and well-intentioned creative employee, therefore, will have practical problems seeking necessary additional rights under these circumstances.

Clearly, all digital archives should contain, at least in summary form, some basic rights management information – for example, "Corbis Image No. ______, XYZ ad, print only, one year 6/15/00 – 6/15/01". Moreover, all digital archives should post cautionary statements for users, preferably in the form of click through "contracts" which must be "accepted" when the user name and password are assigned and, in any event, must be accessible at sign on or on request, prominently labeled as an "acceptable use policy". This acceptable use policy should limit use of the archive to internal research and analysis, and warn that any results of such research and analysis are not for further distribution or publication without legal clearance of rights and, where necessary, acquisition of any additional rights required for reuse.

The entire situation becomes more complicated as non-agency personnel obtain access rights to the digital photo archive. Access may be granted to the client, its other outside ad agencies, independent creative contractors, and individuals participating in focus groups. The list of those "connected" to the digital photo archive can become longer every day because electronic access is quick, easy and cheap and helps people work together effectively on creative projects. The risk of infringement, which increases with each additional third party given access to the digital photo archive, results not only from an increased likelihood of improper publication, but also from the giving of access to such third parties. The prudent ad agency, therefore, will apply a rigorous "need to view" analysis (and an even more rigorous "need to download" analysis—or a total copying prohibition enforced by appropriate software) in order to avoid a claim of copyright infringement as a result of electronic republication or distribution at a time when it holds no rights or its rights are limited to “internal” electronic uses. All third parties given access to the archive should be required to the “accept” the acceptable use policy and undertake to indemnify the agency whose digital photo archive is being accessed in the event that the employees and agents of the third party exceed acceptable use and this results in an infringement claim against the agency that owns and operates the archive. Consideration should also be given to licensing "client extranet" rights.

The message is clear: do not permit your digital photo archive to become a legal time bomb.