Questionable Photo Contract line item...

<p>Hello, thanks for reading my post..<br /><br />I was just sent the photo contract for a shoot I've got coming up and there are two items that concern me..<br /><br /><br>

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."<br /><br />...but they do not list a "period of copyright"<br /><br />And this item..<br /><br />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."<br /><br />...this reads to me like I can't even use the photos in my portfolio, is that correct?<br /><br />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.<br>

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.<br /><br />I haven't signed anything yet but knew you could help me sort this out - thanks so much in advance!</p>

<p>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.</p>

<p>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.</p>

<p>"full period of copyright" is whatever the legislation in your country grants for a copyright term.</p>

<blockquote>

<p>Modify the contract so that they get a non-exclusive right to publish the photos for a limited period</p>

</blockquote>

<p>... and they will go and look for another photographer.</p>

<p>The period of copyright is defined in the federal law.</p>

<p>Your option is to withdraw your quote, or raise the price substantially.</p>

<p>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.</p>

<p> </p>

<p>"... 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.</p>

<p>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.</p>

<p>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.</p>

<p>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.<br>

<br />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.</p>

<p>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.</p>

<p>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.</p>

<p>Yes, but one can give up copyright with a right to use for portfolio, as I said about samples.</p>

<p>Agreed. That should be negotiated by the OP as far as I'm concerned!</p>

<p>The question, as pointed out by Jeff and others, is what is the value of the photos to you? </p>

<p>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? </p>

<p>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. </p>

<p>And yes - by signing this you are surrendering the rights to use the photos. </p>

<p>Dave</p>

 

<p>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....</p>

<p>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.</p>

<p>I ask if its ok for the images to be used in my portfolio AFTER the ad campaign has launched and never been refused.</p>

<p>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.</p>

<p>Thanks so much for the responses so far.<br /><br />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).<br /><br />So yes, I most definitely want to use some photos from this shoot for my portfolio.<br /><br />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? <br /><br />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.<br /><br />Just want to make sure I go about this the right way..<br /><br />Thanks so much again..</p>

<p>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.</p>

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.

<p>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.</p>

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.

<blockquote>

<p>If you are truly successful all of your work will belong to your customers who will have paid you well for it.</p>

</blockquote>

<p>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.</p>

<p>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.</p>

<p>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.</p>

<p>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.</p>

<p>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.</p>

<blockquote>

<p>There's no point keeping rights for images you don't care about, especially if the money is good.</p>

</blockquote>

<p>And there's no point in the client paying for rights to images that they don't need.</p>

<p>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.</p>

 

<blockquote>

<p>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</p>

</blockquote>

<p>Why not give us some documentation on this. It would be good to see what constitutes a "tendency."</p>

<p>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.</p>

<p>Knee-jerk and undocumented.</p>

<blockquote>

<p>Why not give us some documentation on this. It would be good to see what constitutes a "tendency."</p>

</blockquote>

<p>Sure, no problem. <a href="http://c4c.the-aop.org/faqs">Here is what the AOP</a>, the main organisation representing professional photographers in the UK have to say about it:-</p>

<blockquote>

<p>"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."</p>

</blockquote>

<p>They don't even mention clients asking for copyright, it's so unusual.</p>

<p>And again:-</p>

<blockquote>How do photographers charge?

<p>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:</p>

<ul>

<li>Where the work is to be used eg on packaging, annual reports, billboards, national press, website</li>

<li>The length of time the work is to be used by you</li>

<li>The territory or territories in which the work is to be used</li>

</ul>

</blockquote>

<p>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.</p>

<p>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.</p>