Questionable Photo Contract line item...

[simon_crofts]

<blockquote>

<p>The price agreed should be based on the work done, not future use of the product.</p>

</blockquote>

<p>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.</p>

<p>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.</p>

[David_Cavan]

<p>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. </p>

<p>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.</p>

[john_bellenis]

<blockquote>

<p>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.</p>

 

</blockquote>

<p>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. </p>

[simon_crofts]

<p>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.</p>

<p>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.</p>

[simon_crofts]

<blockquote>

<p>an advertising copyright buyout is good day for me</p>

</blockquote>

<p>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 :(</p>

 

[daniel_p4]

<blockquote>

<p>BTW, OP Daniel... was there no discussion of your desired portfolio usage when you talked to the client prior to seeing their contracts?</p>

 

</blockquote>

<p>No, there was not as I had assumed that I would retain copyright like I always do. <br /><br />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.<br /><br />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. <br /> <br />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.<br /><br />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.<br /><br />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.<br /><br /><br /></p>

[john_h.1]

<blockquote>

<p>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.</p>

 

</blockquote>

<p>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.</p>

<p>This seem reasonable given the unique nature of intellectual property.</p>

<p> </p>

[harmon]

<p>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.</p>

[john_h.1]

<blockquote>

<p>she said they used a "legal consultant" to draw up the contract</p>

</blockquote>

<p>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.</p>

[steve m smith]

<blockquote>

<p> 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.</p>

</blockquote>

<p>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.<br>

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.</p>

<p>However, for personal artistic work, I will defend the right of the photographer to control usage.<br>

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.</p>

[enlightened-images]

<p>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.</p>

<p>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.</p>

[salman_khan7]

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[david_henderson]

<p>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. </p>

<p>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. </p>

<p>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. </p>

<p>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--</p>

 

<ul>

<li>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.</li>

<li>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? </li>

</ul>

<p>There are plenty of photographers that do and will be happy with work for hire. </p>

<p> </p>