Questionable Photo Contract line item...

Discussion in 'Business of Photography' started by daniel_p|4, Nov 13, 2011.

  1. Hello, thanks for reading my post..

    I was just sent the photo contract for a shoot I've got coming up and there are two items that concern me..


    1: "The entire world copyright in all the pictures taken by You pursuant to the engagement hereunder, the proofs and finished photographs (collectively the “Work”) shall belong to XXXX and our successors, licensees and assignees; and You as beneficial owner hereby assign such copyright to us absolutely for the full period of copyright therein."

    ...but they do not list a "period of copyright"

    And this item..

    2: "You agree irrevocably and unconditionally to waive all rights which you may now have of which you may in future become entitled to pursuant to the provisions of any applicable moral rights legislation now existing or which may in future be enacted in any part of the world."

    ...this reads to me like I can't even use the photos in my portfolio, is that correct?

    The shoot is for a publisher that is launching a website. I was told the photos would be for the website. The photos will be more "instructional" than fine art but I still want to legally be able to use them in my portfolio. There's even a line about leaving it up to them to include a photo credit or not.
    Also, I gave my quote before I was sent these terms. To truly "waive all rights," I would charge much more than my original quote.

    I haven't signed anything yet but knew you could help me sort this out - thanks so much in advance!
     
  2. From the look of it ... you would not be able to use these photos for anything at all, and you would be in violation of the copyright assignment if you retained a copy of the photos.
    Modify the contract so that they get a non-exclusive right to publish the photos for a limited period (say 5 years) for use on their web site and insist on a photo credit with your name and the usual "all rights reserved" clause. Then it back to them for signature.
    "full period of copyright" is whatever the legislation in your country grants for a copyright term.
     
  3. Modify the contract so that they get a non-exclusive right to publish the photos for a limited period​
    ... and they will go and look for another photographer.
     
  4. The period of copyright is defined in the federal law.
    Your option is to withdraw your quote, or raise the price substantially.
    You can also cross out whatever you want on the contract and initial the changes. I assume the fees are part of this new contract.
     
  5. "... and they will go and look for another photographer." - that is a possibility, but unless the OP wants to sign over all rights to the work, the contract as proposed is not suitable.
     
  6. Talk to your customer contact and point out that the quote you gave assumed that you would retain copyright and give them a non-exclusive license, and that you would have to charge a great deal more to turn over the copyright to them in perpetuity. It could be that the contrast was written up by their lawyer and that the customer doesn't really care about the copyright, in which case they may agree to change the contract.
     
  7. It looks to me like they simply want to pay you an hourly wage to shoot for them and they want to deny you any rights at all, including use in your portfolio. It may not be worth hiring a lawyer, but you are either working with someone who has one... or someone who is working with someone who thinks they have one. It's all very one-sided... and not YOUR side.
     
  8. Spearhead

    Spearhead Moderator

    What is the value of the photos to you? There is the knee-jerk tendency here to say that photographers need to retain copyright of everything they do, even when paid at standard rates. You need to think about whether or not you will ever want to use them and for what usage.

    For example, I have done product shoots for catalogs. I have no interest in the photos, they serve no value in the future. I only ask for the right to use as samples of my work, I could care less. I haven't looked at any of them once after submission, I haven't even used them as samples since I have plenty of personal work that I can use. The only effect of refusing the work over copyright would be a loss of income, nothing else. It's important to look at what will be valuable to you over time rather than some absolute policy.
     
  9. Jeff, I totally agree with your question... I have wondered that too in many postings of this ilk. I'm not much of a fan of retaining copyright rights simply to retain rights without a notion of what the future use/value might be. In this situation, though, is seems that the desire to use in portfolio (I assume as example fo prior work) is the goal and apears to be totally impossible with those clauses in the contract.
    As I almost said... if they are paying enough and that will help make the car/house payment, or keep you from eating pork-and-beans again for supper then a paying job is a paying job.
     
  10. Spearhead

    Spearhead Moderator

    Yes, but one can give up copyright with a right to use for portfolio, as I said about samples.
     
  11. Agreed. That should be negotiated by the OP as far as I'm concerned!
     
  12. The question, as pointed out by Jeff and others, is what is the value of the photos to you?
    If you have done 50 shoots of the same type and have rights to all of them - what is the harm in giving up your rights to this shoot?
    I've done enough product photos that I don't even blink at this type of wording. I've got some that I use as samples from one of my early shoots. It's good enough that clients can see that I know lighting, exposure and product staging. If they are real pushy and ask for something shot in the last x months or year - I have the names of the clients and their websites.
    And yes - by signing this you are surrendering the rights to use the photos.
    Dave
     
  13. I often hand over all copyright. As Jeff points out - not all work is actually of any use to the photographer other than as a 'sample' for personal promotion. But there are other reasons....
    Its worth considering this from the client's perspective: I've done a lot of work for the Scotch whisky industry, and have virtually always had to sign over all rights. The reason is very simple, the work is going to be the backbone of a major advertising campaign, Europe-wide, or even world-wide, and the client needs absolute assurance that after spending perhaps $250,000 (at least!) on printed materials, web and print ads etc that these images are not going to pop up in a competitor's ads and 'spoil' their exclusivity.
    I ask if its ok for the images to be used in my portfolio AFTER the ad campaign has launched and never been refused.
    Its not always about companies trying to screw the photographer, its simply sound business sense and done for a very good practical (and financial) reason.
     
  14. Thanks so much for the responses so far.

    As for the question of what is the value of the photos to me? I shoot body/movement/dance and this shoot will be of a person performing a category of movement that I have not shot before and I would like to use this category of movement to round out my portfolio. This is not product photography (not that there's anything wrong with that).

    So yes, I most definitely want to use some photos from this shoot for my portfolio.

    The question is, will the proper way to ask for the right to use the photos in my portfolio be to propose non-exclusive rights?

    Alternatively, I could propose a higher rate to match the new exclusive terms. I could see them passing on me as a result - but so be it. To not be able to use my photos for what I'm charging right now is not acceptable.

    Just want to make sure I go about this the right way..

    Thanks so much again..
     
  15. As a professional you are in the business of selling rights to your images. You should have a schedule of pricing for different kinds of rights: one-time rights, advertising, journalism, other commercial, unlimited, etc. Those hiring you are typically interested only in the image. If it is an image they intend to be associated with their product, service or goodwill, they will not want it used elsewhere.
     
  16. Part of being a good business person is capturing the full value of your work. As others have pointed
    out, when it comes to copyright, you need to ask what future value the work holds for you. But you
    ALSO need to think about what future value the work holds for the client—a value you are creating and
    should be compensated for. If they are going to insist on perpetual exclusive rights to the images, then
    they must see some future value in them, which they should be willing to pay for it. If they don't see a
    future value in the work, then they shouldn't need to own the copyright.

    Most often people put this kind of language in a contract because they don't want to deal with the future
    and think the photographer won't have enough spine to contest it. It is slowly becoming the default
    language and we should resist it because it is very difficult in many situations to predict the future
    value of work. For instance, although it's unlikely, the person you are shooting could become a celebrity
    in the future. If that happens these images would either become your retirement or theirs depending on
    the wording of this contract.

    If you are in the business of photography for the long haul, then you will probably be shooting for a few
    decades. At the end of your career the only thing you will have to show for your time is a body of work
    that you have created. You should try as hard as possible to make sure that body of work belongs to
    you. It's your legacy.
     
  17. Mark: I take a small issue with your approach. Depending on what kind of professional photographer you are. If you are truly successful all of your work will belong to your customers who will have paid you well for it. You, as the photographer will have the reputation of having created the work. The value of what you create as a professional is only what someone else will pay you for it. In your hands it is worth nothing. Unless you are shooting stock shots that get resold many times, the images should belong to those who paid you. I did the catalogue work for a very large retail chain. I had no interest in those garment and product shots, but my customer did. They bought my time and owned the shots. They bought all the rights. The same was true for virtually every ad I shot. The customer was buying my talent to deliver the image they wanted. Your legacy as a commercial photographer is your reputation to be able to deliver to your customer. That is why they hire you.
     
  18. John: Consider photographers like Irving Penn or Ernst Haas. They created images for clients whose
    future value far outweighs the value they created for their clients. Irving Penn could have easily thought
    of his work as nothing more than garment shots—it's very unlikely that he could have foreseen the
    future value of his images as platinum prints, books, museum collections, etc. It's only in hindsight,
    when you can see the work as a life-long effort do you begin to see the extraordinary value that they
    have created.

    There are many stories like this. Think about Berenice Abbott: she was hired to shoot illustrations for a
    physics textbook in the late 50s. I'm sure those images served the purpose of the book well and she
    was probably paid accordingly. But her scientific images have since become iconic. Who should own
    this lasting value of the work? A textbook company? The value of this work far exceeds what a
    publisher would have paid. There is no reason a publisher should retain the perpetual rights to all future
    value of an artist's work when they only need (and paid for) for a particular use.

    Do you really think the legacy of Ernst Haas, Irving Penn, Berenice Abbott, Jay Meisel, Sam Abell, or
    any other good commercial photographer of photojournalist is their reputation to be able to deliver
    images rather than the images themselves? I don't. Their legacy is their body of work.
     
  19. If you are truly successful all of your work will belong to your customers who will have paid you well for it.​
    As a market standard, it is normal for the photographer to own the copyright to the image, and for the client to buy determined usage rights. The amount the client varies depending on the rights they buy. This is the industry market standard, what most clients expect (except perhaps at the bottom of the market, or possibly in very specific circumstances, such as certain types of photography in the film industry), and photographers who automatically hand over copyright are at risk of giving the impression of being inexperienced or amateurish.
    It's normal to give clients a variety of quotes depending on their intended usage. Handing over copyright is one of the options that can be quoted, but it is usually so expensive that clients normally go for a more defined license. If I remember correctly for example, the AOP recommend multiplying a standard usage right by 10x for a copyright buyout. If clients are only offered a copyright buyout without more limited usage options, it can be extremely expensive for the client.
     
  20. I am in business but not a photography business. I would most likely walk away from the job. Giving up rights to images you have taken. That is awarning sign to me.
     
  21. Mark: For every Erving Penn there are 5000 working photographers. Most working photographers will never achieve the fame of a Penn or a Karsh or an Adams. Ansel actually made very little from his photography during his lifetime and struggled to make a living. I remember when I first met Ansel in the late '60s. You could buy an original 8 x 10 for $100, back then and he wasn't selling many of them. I think of Cal Berstein as the epitome of working photographers. I doubt Cal retained any rights in some of his most famous works.
     
  22. Spearhead

    Spearhead Moderator

    As I said, there is a knee jerk reaction on copyright. Then there is one that makes business sense, which is that whatever deal you cut, it should reflect the value on both sides. There's no point keeping rights for images you don't care about, especially if the money is good.
     
  23. There's no point keeping rights for images you don't care about, especially if the money is good.​
    And there's no point in the client paying for rights to images that they don't need.
    It's not unheard of for photographers to give up copyright to images, but it's unusual among full time professionals and there have to be very good reasons. It's just not the norm in the market, particularly among educated commissioners of photography, like ad agencies, magazines etc. It tends to be clients who don't commission photography often and don't know the market and don't understand what copyright means who ask for it - and photographers who are just starting out, students etc. who agree to it because they're afraid of the client walking away. For those photographers who unusually do offer copyright, it can work against you as the better clients will realise that you don't know what you're doing and won't take you seriously.
     
  24. Spearhead

    Spearhead Moderator

    It tends to be clients who don't commission photography often and don't know the market and don't understand what copyright means who ask for it​
    Why not give us some documentation on this. It would be good to see what constitutes a "tendency."
    In the US, "work for hire" is fairly common, especially for production jobs like catalogs. I know the clients, I know the photographers. None of them meet your criteria.
    Knee-jerk and undocumented.
     
  25. Why not give us some documentation on this. It would be good to see what constitutes a "tendency."​
    Sure, no problem. Here is what the AOP, the main organisation representing professional photographers in the UK have to say about it:-
    "It is rare for a client to insist on unlimited use of the images they have commissioned, as this can be a costly affair. The price of the job includes the agreed media – an unrestricted licence would include every possible media including billboards, videos, TV, CD’s, t-shirts etc - worldwide for the term of copyright, which is 70 years after the photographer dies. If professional models are needed for the shoot their charges also reflect the use to which the image is to be used. The price for this type of licence would be enormous and you would be paying for use you do not need. This is like buying a car to make one journey when you could have hired a car at a fraction of the cost."​
    They don't even mention clients asking for copyright, it's so unusual.
    And again:-
    How do photographers charge?
    There are no set rates in commercial photography. The majority of commercial photographers will charge a day rate. Some may charge by the hour. The type of commission and specialisation will generally dictate the fee - photographers will also take into account a number of other factors to determine the cost including:
    • Where the work is to be used eg on packaging, annual reports, billboards, national press, website
    • The length of time the work is to be used by you
    • The territory or territories in which the work is to be used
    This is how most of the photography market works. There are occasional exceptions to it, like movie production stills, where film producers are used to getting copyright. Pack shots - perhaps occasionally that does happen. And Craiglisters. But it would be very wrong to give the impression that that is how the photography market as a whole works.
    I'm a full time pro, and would never surrender copyright, except in the most unusual circumstances. I work closely with lots of other full time pros, and they certainly claim never to surrender copyright. I work with many clients, and they never ask for a surrender of copyright. New clients always come with a specific license they have in mind, because they know how the markets work. It's only clients who don't normally commission photography who need it explaining to them.
     
  26. And try going to a stock agency and asking for copyright. They won't give it to you. And clients don't expect it. It's not the way the market works even in the bottom end 'royalty free' end of the stock agency market.
     
  27. If your shots include products, bear in mind that the client owns the rights to the use of the image of their own product, not the photographer. It may be a bit of splitting hairs, but if the product you photograph is a unique product of the client, just like a model, the image of that product may not be resold without the permission of the owner of the product. The product itself may have its own copyright. When I was shooting trademarked garments the client got the negs and all prints.
     
  28. My experience aligns quite closely to Simon's.The closest I've ever come to relinquishing copyright is the
    occasional NY Times assignment for which I've signed a contract giving joint copyright to the images.

    Requests for "all rights" do sometimes come up, but it's usually pretty easy to make people realize they
    don't need and certainly don't want to pay for "all rights." As I mentioned above, most of these requests
    come from a desire on the part of the client to not have to worry about usage—a convenience. There are
    better ways, however, to deal with this concern than by giving way all future prospects of an image.
     
  29. I had one client ask for 'joint copyright'. On closer questioning of why it turned out that what they really wanted was a joint mention in any picture credits. They didn't really know what copyright meant. Generally with a bit of explanation, all is well, and not giving copyright is seen by clients as an advantage - because they're not buying something they don't need. If necessary, one can give two quotes, one with copyright and one with the license that they actually need. Even the least understanding client should come round at that.
     
  30. Simon, the Times is, of course, a special case. When they came out with their new freelancer contract it
    made a bit of a ruckus. I thought pretty hard about it, but the upside was better than the downside. Either
    way, this isn't a client that doesn't understand copyright. They understand the value of images quite well,
    and their desire to capture this value is reflected in the contract they ask freelancers to sign. It's a much
    different situation than the potential client who doesn't understand copyright and just wants to make it go
    away by asking for all rights.
     
  31. Okay, spoke with my contact.. sure enough, they would like to use the photos for the website - at first. Then they would want the flexibility to use the photos on posters, calendars, books, or anything else they think of - for as long as they want.

    Signing this contract as is, of course, would allow for that.

    I explained just what the terms meant and she understood my concern. She also said they're on a "tight budget," btw.

    I'm basically going to say that for the very reasonable rate I'm charging, waiving all rights and surrendering copyright is not an option but am happy to discuss a usage license for the website, alone. I know I might lose the gig but I'm just not prepared to sign away everything.
    We'll see..
     
  32. Simon, the Times is, of course, a special case. When they came out with their new freelancer contract it made a bit of a ruckus.​
    Understood Mark, I understand there was a newspaper here in Scotland that tried to get copyright, and it also caused a kerfuffle. More recently an English paper that was demanding the ability to get additional usage for free (not copyright though, happily), again a dispute.
    sure enough, they would like to use the photos for the website - at first. Then they would want the flexibility to use the photos on posters, calendars, books, or anything else they think of - for as long as they want.​
    It sounds like what they're asking for is a very wide license, rather than actual copyright. One fundamental difference is that, if you gave a wide license, that you could license the images to other people - provided the license wasn't exclusive. It's not uncommon at least to have an exclusivity period eg. of a month or two or three or more.
    Giving a very wide license isn't ideal, but it's a question of whether the amount being paid makes it worth it, and whether you have other reasons you want to take the pictures eg. to sell them to other people too. It sounds like it probably isn't worth it, but you can balance all the factors. You could also make them an offer eg. web use for X years would cost so much, the additional license for all the other uses they have in mind for Y years would cost an additional $Z. Breaking it down like that can help focus their minds.
    Alternatively, save time and pain by walking away. :)
     
  33. "She also said they're on a "tight budget"​
    Gee, that's a rarely uttered statement.
     
  34. Spearhead

    Spearhead Moderator

    Here is what the AOP, the main organisation representing professional photographers in the UK have to say about it:-​
    The OP is in the US. Thanks for the international edition, but it isn't relevant here.
     
  35. Gee, that's a rarely uttered statement.​
    ...indeed. But I included that to highlight the irony of their terms.
     
  36. The OP is in the US. Thanks for the international edition, but it isn't relevant here.​
    If you look at guidance provided by ASMP, editorial photographers, or any number of organizations supporting photographers in the U.S. you will find that they support the same position.
     
  37. Don't get me started on the definition of irony.
     
  38. Thanks for the nice post. This post is going to be useful to the person who asked the question.
     
  39. Jeff, the market is very international, it's pretty much the same everywhere in the Western world, with minor variations.
    Clients come from all over, lots of mine are US ones, everyone works the same way.

    As for the argument 'I'll have no further use for the pictures, why retain any rights in them?', it's a spurious one. For a
    start, even if your clients wants unlimited use of the images for their own purposes, the chances are that there will be
    other companies connected with that client who will want the images for their own purposes. Your own client would
    expect those other companies to pay for them, why should your client subsidise other companies? I find this happens in most jobs - there are usually other companies loosely connected with the client who want to use the images and who pay a fee for doing so. The client knows this (in fact, it is usually the client who puts the other company in touch with me), and it's part of the arrangment, the way things work.

    So for example, if you've shot a cereal packet for Kelloggs, you'd be surprised how often the manufacturer of the box, or
    the designer of the box, or the people who do the distribution, want a copy of the picture for their own marketing
    purposes. If you've just handed over copyright, which no self-respecting professional photographer would do, then your
    original client will just pass over a copy of the pictures with no questions asked. If you haven't, then the other company
    will have to come to you for a license and negotiate an extra fee.

    You're doing your own client a disservice if you get them to subsidise everyone else's use.

    On the typical magazine job, like the in the OP's case, magazines tend to pay low rates because it's understood that the photographer will get fringe benefits from it. The usual fringe benefit is, on a typical dull job, let's say photographing the MD of a company, that the company is going to want a copy of the picture - for its annual report, or just to hang in the office. That's where editorial photographers make a lot of their money, and why even for the least promising magazine commission, where you think you could have no possible further interest in the pictures, a copyright sell out still isn't on.

    If you hand over copyright, you're also giving your client the opportunity to sell the pictures on themselves. A lot of the
    larger companies set up image libraries, and make good money out of it.

    Selling out copyright also demonstrates a total lack of faith in ones own pictures, apart from a lack of professionalism, it's a warning sign for many clients.

    And so on. There are plenty of good reasons why photographers just don't give away copyright, except in the most
    unusual circumstances.
     
  40. Simon, I can't speak for Jeff but it seems clear that he already addressed these kind of scenarios when he wrote...
    "You need to think about whether or not you will ever want to use them and for what usage... ...It's important to look at what will be valuable to you over time rather than some absolute policy."
    In the examples you provide there is potential future value. As you can see, it was already suggested to consider that issue. Also there was recognition of the potential for not getting hired at all which is included as a factor in any weighing the value of future use.
    It seems you may be preaching to the choir.
     
  41. Daniel P. - it was a good idea to reach out to your potential client and talk to them. The contract you received was their offer, and you certainly should then have the opportunity to negotiate a reasonable outcome with them. If they choose to stubbornly stick with their initial offer language it is a warning sign about the potential relationship you would be stepping into. It is almost always worth pushing back on language you don't agree with, to see what the real requirement on their side is.
     
  42. I couldn't follow this thread yesterday. I'm glad to read that the situation is cleared up. It is an interesting situation.
    BTW, OP Daniel... was there no discussion of your desired portfolio usage when you talked to the client prior to seeing their contracts?
     
  43. WOW, just saw this and have not read any of the replies as yet but needed to contribute my tuppence worth.
    Or rather that should be my 6 figures at least worth as that is what you should be quoting for that sort of copyright grab.
    Neither of the two items you have quoted are acceptable, should be acceptable and would ever be acceptable.
    It seems they are trying to go back to the copyright grabs that were prevalent amongst publishing houses a few years ago in the UK (and they still try now and again).
    Amend any quote you have given them to a 6 figure sum or just strike out those bits (and any others like them) and resubmit the form to them.
    Now I guess I should read the responses.
     
  44. Why a 6 figure sum? Maybe an 8 figure sum would look more impressive? Both will have the same result - the job walks to someone a little more pragmatic and who isn't overly precious about something that they may not need to be.
    The fact is that working professional photographers have to make a living - as I have, exclusively from photography, for twenty years and still do. I sell limited usage rights, unlimited usage rights (but retaining copyright) and occasionally sell the copyright as deemed fit, on a job by job basis. Of course there is a value to additional rights, but the idea of something being "off the table" is not really realistic.
    I have large clients who insist on a transfer of copyright (I retain promotional rights) and it's more than worth it to me for the repeat business and to retain a good client. Most of the work is very specific and not something I would every make future stock sales from, so there is really no downside. Different clients approach purchasing in different ways and setting arbitrary rules only restricts your own business. Like it or not, the industry has changed over the last decade or so, you ignore that at your peril.
    I actually find that the semi-professionals and people who do not earn their entire living from photography tend to get more bent out of shape about these things than full time professionals - maybe because they can afford to and their outraged, slightly outdated views of ownership don't end up costing them their living.
     
  45. I'm sure you're right, when you have your back against the wall I don't doubt that principles sometimes have to go out of the window in order to survive. It's definitely a difficult time to be a photographer, probably a difficult economic time to be almost anything. I've been very lucky, but I like to think that I made at least some of my luck.
     
  46. Hey Simon, I may have given the wrong impression. I don't have my back to the wall and am not (luckily) in survival mode. I have agents in both London and in the USA and am working pretty constantly - wordwide - mainly for ad agencies and major corporations.
    My point was that standing on principle actually gains you very little in this market if you are prepared to negotiate fairly for additional usage, including copyright buyouts. Taking that off the table only means that you won't get to take the images in the first place - there's nothing to be gained from holding onto the copyright of images that don't exist!
     
  47. John, I wasn't trying to imply you were, I was just reponding generally, as you'd mentioned that photographers might be forced to agree to a copyright giveaway otherwise it might "end up costing them their living".
    I didn't say copyright was always totally off the table, just that it is certainly not the norm in the market, which is what the thread was giving the impression it was. It is very unusual. Personally I've never given away copyright in a single picture. My own philosophy was to aim to do commercial work that was profitable enough that it then meant I could choose which work to take on, so I could do the work on my terms. Otherwise I think there's a risk of getting into a downward spiral. Doing work on my terms might include giving away copyright if the client offered enough or conceivably there were other reasons for doing the work (Mark mentioning giving joint copyright presumably because of the prestige and budget of a NYT commission - I don't know whether I would agree to that or not, but I would think about it), but commercial companies would really have to offer a lot (I suppose, a day rate of many thousands of dollars) for me to be happy with it. It's never happened yet, unfortunately.
    The main situation where photographers give away copyright is where they're employees. Or to be more precise, in that case they don't own the copyright in the first place. And then the other typical examples of film stills etc. - basically the exceptions listed in the 'work for hire' situations in the US. But they're relatively limited. For the freelance photographer, it's not the norm, and when the thread was giving the impression that it was it was, I believe, being dangerously misleading.
     
  48. I think we may be on the same page - I have never sold the copyright to a stock image that may have future sales - that's an economic decision though, not one of principle. I also agree that it's not the norm - however, a copyright buyout isn't that unusual in advertising, even if does, obviously, carry a price premium.
    If a job is commissioned and the images are brand specific, then future stock sales are either extremely unlikely, or sometimes impossible without the option of additional model or property releases. In those cases there is simply no downside to a buyout, as long as the price is right and promotional rights secured. I have no intrinsic need to own every image I take and I see no principle that would imply that I should.
     
  49. It may be a difference of emphasis rather than a fundamental different viewpoint. I concede (and have from the very start) that there are extreme cases where it might be appropriate, so no disagreement there. And I think that you seem to agree that delivering copyright is not the norm. So I think the different perspective is where to draw the line on how unusual the circumstances have to be before considering giving up copyright.
    From your point of view, for brand specific photos, you see unlikely stock sales, and no other downside to a buyout. For me, I feel that even where the photos aren't suitable for stock (and often you might upset the client by putting them into stock, it's part of the agreement, either expressly or understood, that you won't) and let's say the images are heavily branded, it's surprising how often a company that has a connection with the client asks them if they can use the photos too. So that's a downside to handing over copyright - lost extra income.
    It's also the case that the client might, whether intentionally or unintentionally, mislead you. The client may tell you that he needs the photos for a catalogue or website, and needs a copyright buyout so they don't have to worry about rights. And then you find that the images are used on billboards and television in a national advertising campaign. Your pricing structure might have been completely different if you'd known the true end purposes of the images. So unless you're charging the client a huge sum for a full blown national ad campaign as part of the buy out, you're taking a risk. If the client isn't keen to tell you the uses they need, why is that? Is it because they have grander plans for the images than they would like to admit, in case it would push the price up? That's a downside to a buyout even if you think the images will be of no further use to you, unless you're really being paid a fortune for the buyout.
    And then there are issues like moral rights. What happens if you find the images being used to promote the Managing Director's cousin who's setting up a photography business? Far fetched perhaps, but stranger things have happened, and if you've relinquished absolutely all your rights, then it's hard to complain if the images are used in unexpected ways that you don't like...
     
  50. Your pricing structure might have been completely different if you'd known the true end purposes of the images.​
    That's the bit I have a problem with. Once you are paid for doing the job, that should be the end of it as far as the photographer is concerned.
    The price agreed should be based on the work done, not future use of the product. No other service or trade works in this way.
     
  51. The price agreed should be based on the work done, not future use of the product.​
    In photography, one of the most important factors in determining cost is the end use. If you ask me to take a photo of your kid for a passport photo, it might cost £10. If you ask me to take a photo that will be used to promote the latest Hollywood blockbuster, and my skill in making an attractive image is going to earn the client many millions of dollars by attracting crowds to cinemas around the globe, then the price is considerably higher. Both involve taking a photo, but the benefit to the client and the uniqueness of the skill put into it affect the market price.
    It works like that throughout a capitalist economy that people are partly paid by results. A banker with special skills who can make millions or billions for his company may be paid a fortune just to make an important telephone call that clinches a deal, whereas someone else might be paid little nothing to make a phone call. Both are making calls, but the end result of the call is different, and so is the market value to the client.
     
  52. Simon - the point you raise about value, rather than cost of input, is a good one. I work in a professional industry (IT services) where that is likely the major consideration in pricing. It is one of the lessons you learn early, if you are going to survive. Clients will pay a lot for something that's important to them, regardless of the amount of work input; but you can waste a lot of your own time and money doing something they just don't care about - and you end up eating those costs. I see photography as a profession, and when I charge for a photo it's based on what I believe the value to be. The amount of work I put into it is a consideration, but quite frankly the client often doesn't care that I spent an extra hour fiddling with the curves in PS - they care about what they believe it is worth, and that's usually based on previous experience and what they know about the competitive market.
    It's a little off-topic from the OP's original post, but there is a component of that discussion about the value of his work as it relates to future opportunities. It should be worth more to the client to have an exclusive "forever" right to the photo, I would think.
     
  53. It's also the case that the client might, whether intentionally or unintentionally, mislead you. The client may tell you that he needs the photos for a catalogue or website, and needs a copyright buyout so they don't have to worry about rights. And then you find that the images are used on billboards and television in a national advertising campaign.​
    This is very true, and if it's an advertising copyright buyout, the price is based on highest use and also factoring in future usage - an advertising copyright buyout is good day for me, if every shoot was structured that way I'd be thrilled. If a client wants to buy rights for web use and tells me that, there is no way he is going to be asking and paying for a full rights buyout - if he asks for it, we have clearly left web use well behind.
     
  54. I think there's an element of this behind it: if the client sees the photographer as essentially unskilled, then they're more likely to think in terms of an hourly rate and getting the pictures as a commodity, a bit like a production line worker producing a quantity of product per hour. If the client values the photographer as a skilled professional bringing value through unique skills, they're more likely to be thinking in terms of a benefit-to-the-client basis of calculating how much, and more likely to respect the photographer's status as author/owner.
    To the accountant, it may make no difference - all that matters is 'how much', not whether you're paid as manual worker or professional. But life is not just about accountancy, otherwise we would do something more sensible than work as photographers.
     
  55. an advertising copyright buyout is good day for me​
    Absolutely, I couldn't agree more, if the client is willing to pay for a full national all media advertising copyright buyout, then happy days! Time to take the rest of the year off head to the Bahamas and live off the interest ;) But I suspect that that isn't going to happen very often - not in the case of the OP's magazine for sure :(
     
  56. BTW, OP Daniel... was there no discussion of your desired portfolio usage when you talked to the client prior to seeing their contracts?​
    No, there was not as I had assumed that I would retain copyright like I always do.

    I've been in contact with the client. I gave them what my rate would be with full handover of copyright (as the contract now stands). This came out to be many multiples of my original quote - and is most likely way out of there budget.

    I then clarified that my initial quote assumes my retention of copyright and provides usage license to the client for use on the web only. I outlined the time-frame and renewal rate for such usage. Also explained that use of the photos in print would require the purchase of an additional usage license based on the specific use and extent of the publication run.

    Waiting for their official word but did hear back that they "wouldn't mind" if I used the photos on my site. I said that while that's a sweet notion, the contract as it now stands does not legally allow for such use on my part.

    This is my first dealings with this client. Speaking with my contact at the publisher, she said they used a "legal consultant" to draw up the contract, for what it's worth. I could easily see them going with somebody else that might not be as big of a "headache" for them - or someone that would actually be fine with the terms. I fully understand this and am prepared for it.

    On a side note, I must say I am thrilled at the level of discussion this issue has spawned. This thread, on its own, has become a great resource. Thank you.
     
  57. The price agreed should be based on the work done, not future use of the product. No other service or trade works in this way.​
    Copyright protection serves to promote creativity by preventing others from copying work and making it worthless to the creator and will continue to help photographers. This creates a potential commodity in photos and there is no shame in exploiting it considering the purpose of the protection. This is why, reason other trades are about labor. The protection is not needed. That said, the market determines if buyers will accept such terms. There really isn't a should or should not. There just is what the market is. If you would do away with copyright protection altogether, you will have your world where photography is mostly ONLY a service and the market of imagery, itself, will collapse. As it stands now, parties are able to strike bargains for labor and/or rights over usage and ownership.
    This seem reasonable given the unique nature of intellectual property.
     
  58. In this economy, I wouldn't get too caught up in the legalities. You were selected because you were the best in the customer's view. Build on that. They will be a great reference. You don't need the photos. If you do, they will probably allow you to use some samples. Congratulations on your work and the reputation you must have based on your photography.
     
  59. she said they used a "legal consultant" to draw up the contract​
    That would be a either a lawyer or someone committing unauthorized practice of law. If a lawyer drafted it, they would have probably just said so. Of course such a resource is not necessarily consistent with a "tight budget".I doubt there was actually any 'legal consultant' and suspect it is merely someone involved in the project that cut and paste language found on the internet.
     
  60. If you would do away with copyright protection altogether, you will have your world where photography is mostly ONLY a service and the market of imagery, itself, will collapse.​
    I would most certainly do away with the idea of the photographer retaining copyright or usage rights where the images were product shots for advertising or instruction such as a catalogue or service/instruction manual.
    If I was hiring someone to photograph my products for me, there is no way I would allow the photographer to have any rights to usage or to retain the copyright.
    However, for personal artistic work, I will defend the right of the photographer to control usage.
    Both of these scenarios can exist with current laws. It just needs a single line in the contract to reverse or confirm the default condition.
     
  61. I would have just responded by providing three re-written drafts of their clauses written to say what I would agree to, and what I'd want it to say. Of course a lawyer that reviewed and help draft a contract would make it as completely one-sided as possible. It's your job to re-craft it to a two-sided mutual benefit.
    First re-draft option paragraph would explain rights and rates for limited rights and limited term. 2nd option; Unlimited Rights & specified term, but you retain copyright and certain uses. You can include exclusivity for the client as needed. 3rd option would be transfer of copyright, but with the client agreeing to your retention of self-promotional and fine art print display use.
     
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  63. david_henderson

    david_henderson www.photography001.com

    If their perception is that you are being hired to shoot specific images for them then they may well and understandably be viewing this as a "work for hire " arrangement whereby copyright goes to them. The moral rights thing is different- basically it means that you pass over the right to decide whether the images you provide are cropped, manipulated, combined with other material and so on. It is not remotely unusual to sign a moral rights waiver when putting images into a stock agency for example because buyers or licencees understandably don't want to have to clear with the photographer the creative nuances of every single usage or change they want to make within their licence agreement.
    There is nothing the matter with "work for hire" provided that the fees payable are acceptable to you as all that you will ever make from the job. The contract you have quoted from (insofar as we can see it) is not grounds for outrage or any feeling that you are being abused. Some stock agencies hire photographers to produce "owned content". They hand over the memory cards at the end of each day and play no part in the editing/deletion/selection process. A global foods manufacturer I used to work for insisted that every picture taken to advertise or promote their work had all rights handed over, period. It was fine because my agencies all knew this and incorporated set clauses into the contracts offered to creatives. Its as simple as this- if you really don't like "work for hire" then unless you are very lucky you will be limiting your success in commercial photography.
    In your situation I'd be deciding whether the fee offered is enough to pay adequately for the time and skill involved. If it is then I'd ask nicely whether I can use the photographs in my marketing activities on my own behalf.
    Like some others I believe that photographers have a tendency to believe that copyright is sacrosanct, or even just important when it isn't. I'd argue that--
    • If there was a downstream revenue opportunity available to the photographer and the company commissioning the work doesn't take steps to prevent that work being used elsewhere then they may themselves be irresponsible because it might affect the success of their campaign or their business.
    • If there is no obvious or realistically likely downstream revenue opportunity visible to the photographer, then on what basis do you justify the price including rights handover to be greater than it would be without it?
    There are plenty of photographers that do and will be happy with work for hire.
     

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