Licensing an Image

[Gavjenks]

Then, new question. How long should I hang on to the negatives?

Forever, why not?
The cost of a file cabinet is utterly trivial compared to the combined profits from a file cabinet's worth of shoots's negatives, and it offers huge brownie points and business opportunity later on when they might be needed.
If you end up selling a bunch more services to even one single person 10 years from now from old negatives, you've already paid for your file cabinet and then some and probably majorly bolstered how impressed they will be and your reputation.

 

[lennon33x]

Ok, let me rephrase. DIGITAL.

Stupid iphone...writes so small...forgets important words

 

[Gavjenks]

Ah well, same difference. Even cheaper to store digital "negatives" than physical ones, so that's all even more true.
Amazon glacier is something like a penny a gigabyte a month, and distributes your data across the country. It costs a lot if you need to routinely retrieve most of your data, but you wouldn't be doing that here. You'd be retrieving much less than 1% of your data on a monthly basis probably, which is most likely free or very cheap. It is made just for situations like this.

Or an external hard drive or DVD system is also pennies a gigabyte, store it at your office if you have one and in your home to protect against fires, etc.

 

[vintagesnaps]

I keep all my negatives but for this, I don't know how far into the future there would be a use for business photos (for weddings I can see that someone years later could want photos on an anniversary etc.). I'm thinking more along the lines of what if something changes? if he moves, sells the business, takes on a business partner, etc. I don't know that you can be sure an unlimited contract would cover any potential changes down the road.

 

[lennon33x]

I initially designated a minimal time I would keep the negatives, but I removed it. It's one of those things that I would set myself up for breach of contract if my computer crashed. By removing it, I remove the liability. I keep all of my digital negatives now, but forcing myself is going to have Murphy knocking at my damn door

 

[Gavjenks]

Perhaps there is a miscommunication here. For something like "you have the right to purchase XYZ prints from me whenever you want" or "I will keep the negatives for X amount of time" then YES absolutely throw a time limit on that, that's totally reasonable (although I'd keep them ANYWAY forever if you can, even if you aren't promising to. And you should say that in the contract "I may still be able to offer these services afterward, but do not guarantee it"). But that is not the example listed earlier in the thread. He said:

I highly recommend also specifying a time limit for the use.

Emphasis mine.

I cannot think of a single reasonable situation where usage of the photo (within agreed upon contexts) should have anything to do with a timer. Including them retiring or dying or being abducted by aliens. Ordering prints or offering extended services or guaranteeing negative storage? Yeah, it matters if you retire, sure. Me using the photo I already have in hand for what we already agreed on me using it for? Uhh... ? The only reason I can think of for having that clause is simply forcing me to purchase more photos as a pure money grab.

Two different things. Maybe it got mixed up in the two different questions in the thread, sorry.

 

[lennon33x]

Perhaps there is a miscommunication here. For something like "you have the right to purchase XYZ prints from me whenever you want" or "I will keep the negatives for X amount of time" then YES absolutely throw a time limit on that, that's totally reasonable (although I'd keep them ANYWAY forever if you can, even if you aren't promising to. And you should say that in the contract "I may still be able to offer these services afterward, but do not guarantee it"). But that is not the example listed earlier in the thread. He said: Emphasis mine. I cannot think of a single reasonable situation where usage of the photo (within agreed upon contexts) should have anything to do with a timer. Including them retiring or dying or being abducted by aliens. Ordering prints or offering extended services or guaranteeing negative storage? Yeah, it matters if you retire, sure. Me using the photo I already have in hand for what we already agreed on me using it for? Uhh... ? The only reason I can think of for having that clause is simply forcing me to purchase more photos as a pure money grab. Two different things. Maybe it got mixed up in the two different questions in the thread, sorry.

I did out a stipulation on online access (mainly because I don't have unlimited space on my Zenfolio acct) of 6 months. Which is plenty of time for them to download the images

 

[orljustin]

"Licensing of images by the Client is strictly prohibited. Client may not, without the expressed written consent by the Photographer replicate, edit, crop, or otherwise alter the image in anyway. Any alterations made to the images without express written consent of Photographer are subject to federal law, and Client will be held responsible for any and all applicable fees, including attorneys fees and court costs."

I am allowing him to use the images for replication and promotion of his business (i.e. his website, his social media, personal Facebook, etc.) with specific restrictions.

How is he supposed to use it to promote his business if he can't replicate it? How is he supposed to fit it into a brochure if he can't crop it? How can he put his text over it if he can't edit it?

Now you're worried about how long to store the images? Why not just sell him the files outright to do what he wants. Then you don't have to worry about storing them, and you won't come across as the kind of person he won't want to recommend to anyone anyways?

 

[lennon33x]

"Licensing of images by the Client is strictly prohibited. Client may not, without the expressed written consent by the Photographer replicate, edit, crop, or otherwise alter the image in anyway. Any alterations made to the images without express written consent of Photographer are subject to federal law, and Client will be held responsible for any and all applicable fees, including attorneys fees and court costs."

I am allowing him to use the images for replication and promotion of his business (i.e. his website, his social media, personal Facebook, etc.) with specific restrictions.

How is he supposed to use it to promote his business if he can't replicate it? How is he supposed to fit it into a brochure if he can't crop it? How can he put his text over it if he can't edit it?

Now you're worried about how long to store the images? Why not just sell him the files outright to do what he wants. Then you don't have to worry about storing them, and you won't come across as the kind of person he won't want to recommend to anyone anyways?

This is one section of an 8 page contract, with other disclosures that talk about his use. And furthermore, reread the disclosure: it says he can't do it without written consent, which he can always send me an email. My point is to not replicate or alter the image. His business manager has PS, so I want to caput that real quick.

Furthermore, this post detracts away from my OP, which was about licensing.

 

[Gavjenks]

This is one section of an 8 page contract, with other disclosures that talk about his use. And furthermore, reread the disclosure: it says he can't do it without written consent, which he can always send me an email. My point is to not replicate or alter the image. His business manager has PS, so I want to caput that real quick.

Furthermore, this post detracts away from my OP, which was about licensing.

Written consent is very dangerous. What if you get hit by a bus tomorrow? Bye bye images and however much I paid for them, cause I can't use them for anything ever again since I can't get your written consent.
Or less dramatically, you just retire from photography or lose interest and stop responding quickly to emails.

Like I said before, if you truly are offering DRAMATIC discounts over your competitors, then I might still consider putting up with all this junk in your contract (by dramatic, I mean like 5-10% of your competitors' rates, for as much restriction as you're piling on).

But I think in the long run, you're probably losing way Way WAY more money this way than if you just stopped micromanaging what he does with his images to such a silly extent, and charged closer to competitive full price instead. With just one or two of the less draconian, basic restrictions that are MOST important here.



For example:
1) You can't sell this image to anyone else, only use it yourself for purposes related to this one particular business.
2) If you want a digital negative copy you can have it, but you have 6 months to download it conveniently, then I clear the Zenfolio space for other stuff.
3) I offer re-editing and other support services regarding these photos, including sending you a backup copy in a less convenient non-zenfolio fashion for up to 3 years. Possibly longer, but no guarantees.

The end. No other restrictions. Photoshop and do whatever the hell you want with it from now until the end of time within those restrictions. Then charge 80% of what your competitors would charge who request no restrictions, and you make more money.

What exactly would you be worried about happening with the above restrictions ONLY?

This is one section of an 8 page contract

Whaaaa? Frankly the mere fact of an 8 page contract, regardless of its content, for a simple photoshoot would probably make me look for another photographer in and of itself.
If you're shooting something super dangerous legally like minor children in a bubble bath where they might be nude on set (not on film), or something then Yes. Have a frickin 80 page contract and a team of lawyers at your back.
But for cute dog pictures for a vet? Come on. 1-2 page document should be plenty sufficient. Including space for signatures etc.

 

[orljustin]

8 pages? Seriously? I think you're overestimating the importance of the work here.

 

[lennon33x]

8 pages? Seriously? I think you're overestimating the importance of the work here.

First, thanks for all of your input.

It wasn't necessarily that I was overestimating the importance of work, but the importance of covering my assets. I thought of worst-scenarios for every possible outcome. What if there is a malfunction of equipment? What if there is this? Or that? Or he wants this? Or blah blah blah. I have to include it all in the contract.

I think I'm gonna scale it way back. Basically give him an edit, with a couple of revisions. Truth is, ambiguity in a contract falls on the drafter of the contract to bear proof of breach of contract - it favors the party who did not draft it. Additionally, omission in a contract looks at intent of the contract. By including more I offer more liability in the event that a breach of contract is made.

End result - if I reduce this down drastically, and he doesn't like the images, and sues (potentially), the burden of proof as the plaintiff will be that I did not hold my end of the bargain in the contract.

 

[Gavjenks]

End result - if I reduce this down drastically, and he doesn't like the images, and sues (potentially), the burden of proof as the plaintiff will be that I did not hold my end of the bargain in the contract.

Well one way to definitely make sure you won't get sued is by offering your clients half a ream of paper when they consult with you. They won't sue you, because they'll walk out the door before you even start. Especially if your "protections" make the images they purchase virtually useless to them by being restricted and micromanaged into oblivion.


"Not losing a lawsuit" is by no means your only consideration here. The contract determines whether your services are a good deal in the first place, which is generally way more important.

So what if he sells your images and you fail to sue? You lose profits from one set of images. But you come out way ahead because by not having a terrible contract, you made up all that money and more by now being able to charge full price to other clients. f your contract is so draconian that you need to offer 90% discounts to get people to sign, then you're still losing money overall if any more than 10% of your clients are honest!




Long story short: your contract creates more liability by far in lower negotiable wages for you than the amount it protects you from with legalese.

 

[Steve5D]

Um, gross, no.

"Gross"?

I would never work with a photographer that tried to pull crap like that.

Last year, I was contacted by Apple. They were interested in a photo I had taken of a Siberian Lynx. Their offer was for them to license the image for one year. As it turned out, another photographer's image was selected but, presumably, Apple made him the same offer.

You might not work with someone who does that but, make no mistake, others (and many with very deep pockets) do...

Photos are non perishable goods and don't require maintenance from the photographer so there's no reason why they should ever expire other than greed. And it comes across exactly that way to a client reading that clause. Which would be a huge red flag and make me run for the hills personally.

That's insane. You must not do this for a living.

I've never had anyone complain about licensing for a specific period of time. Not ever.

How do you feel about royalties paid to musicians?

 

[lennon33x]

Like I said, I put more in because I feared every scenario. Lesson learned. Glad I asked though