Licensing an Image

[Gavjenks]

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

I don't. But I have made money from photography on many occasions, and wrote up contracts. And have written contracts for non photography related things, and have quite a lot of experience READING photography contracts -- because all my friends tend to come to me to give advice when they are hiring photographers since they know I'm a robotic hyper-logical nerd and a photographer.

I can't say I've ever actually seen a TIME limit in any photography contract I've read. However, I have seen an awful lot of other similar squirrely stuff that makes no sense other than greedy photographers. And probably literally about 9 times out of the 10 when I have advised the person not to work with the person after finding crap like that, they've thanked me later when the photog did something like try to bad talk them behind their back in retribution or fly into an incomprehensible rage when they questioned the contract, etc. etc. There seems to be a VERY strong correlation between "crap that doesn't make any sense or strike a fair balance at all" and "crazy photographers you wouldn't want to do a shoot with"

I can't speak to the dynamics of photography with huge corporations like Apple. That may or may not be standard there, and obviously Apple is not going to gossip about you, etc. They will politely accept or decline your contract, and it's a whole different world.

My experience is with the sort of thing that the OP is actually dealing with: small businesses contracting with individuals or other small businesses. And so far, nobody has offered any reasonable explanation of why a time limit makes any sense in those circumstances.

How do you feel about royalties paid to musicians?

A royalty is a completely difference concept to a time limit. Royalties make perfect sense. And I have definitely seen royalties in photography contracts where it says stuff like "+2% of sales on anything with this photograph displayed on the sales page" etc. I have no problem with that. The image incrementally works harder the more it sells for you. So the photog's work is incrementally worth more to you. Fair enough.

That's a world of difference from "At some arbitrary point in the future, this photo randomly becomes obsolete, and you need to hire me again to come in and take the exact same image for you and pay all my expenses and time all over again for no apparent reason"

 

[grrr8scott]

Maybe I misunderstood what this deal is all about, but the vet wants photos to use for ads, and you want the head shots (I assume for a portfolio). Why not sell him the photos and digital negs, and reserve the right to use the same for your portfolio? are you going to have any other use for these shots? And assuming these are shots of him and his business, what bad can come of selling him the images, assuming you are adequately compensated. Just a thought.

 

[lennon33x]

Maybe I misunderstood what this deal is all about, but the vet wants photos to use for ads, and you want the head shots (I assume for a portfolio). Why not sell him the photos and digital negs, and reserve the right to use the same for your portfolio? are you going to have any other use for these shots? And assuming these are shots of him and his business, what bad can come of selling him the images, assuming you are adequately compensated. Just a thought.

Bingo. I've thought about selling him the negatives, and may approach him about it.

 

[vintagesnaps]

Because usage might be for a certain amount for the first year, then a somewhat lesser amount for the second, etc. If for example a photo would be used in a brochure to be made available to first time or potential customers of the vet's office, the usage might be for a specific time frame, number of brochures, etc. Then the client would pay for further usage if they wanted to continue to use the photo(s).

Especially if the payment isn't at a competitive rate then I think it seems like indefinite terms could further underprice the work. If there's a specific time frame then if the client wants for example later on to do a new brochure it could lead to either a payment for further usage or even a future assignment to take more photos for the client.

The client is using the photos towards helping his business make money so selling all the original files/negatives usually is priced pretty high to be comparable to what a photographer would charge for a number of assignments/usage.

 

[Gavjenks]

Especially if the payment isn't at a competitive rate then I think it seems like indefinite terms could further underprice the work. If there's a specific time frame then if the client wants for example later on to do a new brochure it could lead to either a payment for further usage or even a future assignment to take more photos for the client.

But if the lower-than-competitive rates are justified by the restricted nature of the license, it ISN'T "underpriced." it's priced appropriate to how much you're chokeholding me on the usage (as you point out yourself in the last sentence of your post). And that's fine. But if that's the case, then it doesn't make sense to raise the price later, even though the image is still just as restricted...

Nothing changed over that period of time, so why am I paying more later? The only explanation appears to just be "well because that would make the photographer look better and/or get them more money." Sure. So would just handing the photographer a briefcase of money no strings attached. Not gonna agree to that as a client either for no reason.

I'm happy to continue paying royalties later, but if you want more money per use from me suddenly you have to give ME something in return, like fewer restrictions over time.

You don't earn higher rates just for surviving 3 years...

Because usage might be for a certain amount for the first year, then a somewhat lesser amount for the second, etc.

This sounds like the opposite of a time limit, and makes sense to me: as the photos get stale over time and clients have already been exposed to them, they get cheaper, okay. That's logical. They're doing less to sell my stuff, so I pay fewer royalties. Fine with that as a client, obviously. I like paying less. not gonna complain. I certainly wouldn't DEMAND it either, though.

If for example a photo would be used in a brochure to be made available to first time or potential customers of the vet's office, the usage might be for a specific time frame, number of brochures, etc. Then the client would pay for further usage if they wanted to continue to use the photo(s).

I don't follow the logical jump here. Why does "for first time customers" logically imply "therefore a specific time frame or number of brochures" ??
These seem like totally unrelated concepts to me. I will always have new customers as long as my business is open, be it for a year or for decades. Nothing about that inherently suggests or hints at a limited time frame or number of copies.

If you want royalties to continue indefinitely as long as I use the image, okay great. Reasonable request. Some random cutoff after 300 usages though? What? Why? Bizarre and arbitrary. What exactly am i supposed to do then? Hire you to come back in and take a completely identical photo so i can continue to use it in the same way as before and continue to pay you royalties, even though there was absolutely nothing wrong with the first one?

Um, no thanks. I'm not gonna pay you to drive over and for your time and everything to do a job that was not at all necessary in the first place / was already done.

That's like buying a car with cash up front (fine) and paying for ongoing OEM maintenance on it (fine), but then also having a clause that says "If the car is still running after 10 years, even if it's in great shape, you have to drive it into a river and come buy a new one." (not so fine).

 

[Steve5D]

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

I don't.

YOu could've stopped there...

I can't say I've ever actually seen a TIME limit in any photography contract I've read. However, I have seen an awful lot of other similar squirrely stuff that makes no sense other than greedy photographers. And probably literally about 9 times out of the 10 when I have advised the person not to work with the person after finding crap like that, they've thanked me later when the photog did something like try to bad talk them behind their back in retribution or fly into an incomprehensible rage when they questioned the contract, etc. etc. There seems to be a VERY strong correlation between "crap that doesn't make any sense or strike a fair balance at all" and "crazy photographers you wouldn't want to do a shoot with"

"Incomprehensible rage"??

LOL!!!

You do have a flair for the dramatic, I'll give you that...

I can't speak to the dynamics of photography with huge corporations like Apple. That may or may not be standard there, and obviously Apple is not going to gossip about you, etc. They will politely accept or decline your contract, and it's a whole different world.

But the basic premise is the same...

My experience is with the sort of thing that the OP is actually dealing with: small businesses contracting with individuals or other small businesses. And so far, nobody has offered any reasonable explanation of why a time limit makes any sense in those circumstances.

There's no need to do that when you consider that there's never been a reasonable explanation as to why a time limit shouldn't be a part of it...

A royalty is a completely difference concept to a time limit. Royalties make perfect sense. And I have definitely seen royalties in photography contracts where it says stuff like "+2% of sales on anything with this photograph displayed on the sales page" etc. I have no problem with that. The image incrementally works harder the more it sells for you. So the photog's work is incrementally worth more to you. Fair enough.

I own a bar. I buy the latest Foo Fighters album and play it in my bar.

Should I have to pay someone every time I play that CD in my bar?

That's a world of difference from "At some arbitrary point in the future, this photo randomly becomes obsolete, and you need to hire me again to come in and take the exact same image for you and pay all my expenses and time all over again for no apparent reason"

That's not what it says at all. It says that if you want to continue using the image after the initial licensing period, you'll have to license it again. It's pretty standard stuff...

 

[orljustin]

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.

Applause. I don't think the OP appreciates the cost of being hard to work with. He says he works for this guy, so one would assume they're on at least amicable terms. Then he comes in with this hostile stack of documentation. "What if the equipment malfunctions"? What if it does? "Hey Bob, my camera shut down, we'll have to do this another day, ok?" It's not a once in a lifetime wedding you're talking about, it's a guy you're friends with who runs a small business.

 

[lennon33x]

Applause. I don't think the OP appreciates the cost of being hard to work with. He says he works for this guy, so one would assume they're on at least amicable terms. Then he comes in with this hostile stack of documentation. "What if the equipment malfunctions"? What if it does? "Hey Bob, my camera shut down, we'll have to do this another day, ok?" It's not a once in a lifetime wedding you're talking about, it's a guy you're friends with who runs a small business.

Very true. I need referrals to attain more clients. If giving up more rights gets me those referrals, then I'm for it. There's no need to damage a relationship on the "what-ifs." I can cut my losses and sell him more rights. I don't want to be difficult to work with, or seem greedy, especially when I still have to work with this guy.

 

[tirediron]

First of all, licensing for a specified period is absolutely normal in commerical work, in fact, probably far more common than not. Second, eight page contracts are NOT at all common unless you are doing a huge number of images for multiple campaigns for a Fortune 500 company. This is something, that IMO, should be very simple. If I were to license this, (bearing in mind the differences between our respective laws), I would take a draft something like this to my lawyer for his review: "The Photographer grants the client a non-exclusive license to use the image(s) <file names, descriptions>, copies attached for a period of one year from <date> to <date> for any purpose relating to the promotion of his business <Name, description of business, DBA> in printed form up to <maximum print size>, and in electronic form <maximum pixel dimensions>. The photographer retains copyright to all images as well as the right to use them for any purposed including, but not limited to self-promotion, etc, etc. The client acknowledges that he may not alter the images in any way from their provided format and size."

 

[tirediron]

I own a bar. I buy the latest Foo Fighters album and play it in my bar.
Should I have to pay someone every time I play that CD in my bar?

If you adhere to the terms and conditions printed on the packaging/EULA of most music albums, then yes, you should.

 

[Gavjenks]

"Incomprehensible rage"??

LOL!!!

You do have a flair for the dramatic, I'll give you that...

No. I'm not being dramatic. An incomprehensible rage. I told my brother to question and suggest changes to a number of questionable terms on a photographer's contract for his wedding (for instance she wanted to be able to sell his wedding photos later to anybody, even if it's like him smiling in a hemorrhoid ad). When he tried to negotiate, she immediately screamed at him at the top of her lungs "THAT'S NOT WHAT YOU DO." and sort of threw the contract at him and went on a garbled tirade about this is a small town, and you trust people here [unless you're a photographer apparently and give your clients 10 page super paranoid contracts like her], you don't question things, etc. and stormed out. Then refused contact.

But the basic premise [with Apple] is the same...

Apparently it isn't the same, if you do this for a living and have never had anybody flip out at you, for instance, whereas I just help out my friends when they get shoots and have already heard of this over half a dozen times already. Or the "karma" threads posted by somebody else recently, where the photog scowled at her constantly, and then led her on a 20 minute walk to his car and got in without a word and drove off and didn't contact her with her photos.

Individuals and small businesses are run by people with emotions that often dominate, or bizarre personality issues, they may or may not actually be making money, they may have all kinds of weird agendas, lawyers usually have NOT looked over their contract at all, etc. Especially in photography with a ton of quasi-businesses around. Apple, by comparison, can be expected to act in a vastly more stable and logical fashion.

First of all, licensing for a specified period is absolutely normal in commerical work

Can you please give some explanation as to why, TiredIron?

That's not what it says at all. It says that if you want to continue using the image after the initial licensing period, you'll have to license it again. It's pretty standard stuff...

And why do you deserve or require control over being able to deny me in the future (even if I want to keep paying)?
The reason why not to do it is the potential of, for example, me needing to scramble to get new images from somebody and pay some graphic designer to redo ALL my stuff if for some reason you say "nope" after the time limit.

That risk is a liability. I have no reason to agree to a liability unless I'm getting reimbursed for it (appropriate discounts off of people with no time limits) or a good reason why it's necessary/logical.

And if I am getting enough discount for it, then I don't really care, I'll agree regardless. But I'm still curious, why would the photographer even particularly want this in the first place? I'm sure there are reasons in commercial photography! Just curious what they are.

 

[Gavjenks]

And here, this post might be more directly relevant to the OP.

When I keep saying "compared to other photographers without restrictions" that means locally (due to transit costs if not local), and in my local community, I have worked with or personally know the majority of the really successful portrait/wedding photogs. ALL of them that are actual viable businesses around here are examples of those "without restrictions" people. Their contracts have the following features:

1) Absolutely zero restrictions on what you do with your images. They will offer their edited versions to you, but do not hold you to using those edits, and I believe all of them at least give the option of having all the negatives (at least non blurry/junk ones). And none of them say you can't alter them or put clown noses on all the people if you feel like it, or anything else. You can resell your images too, for at least a couple of them.
2) At least one successful photographer in town gives you the copyright on your wedding/portrait negatives and edits and everything as part of the standard package. The rest keep copyright but still have in their contracts restricted usage for themselves (e.g. "only portfolio / advertising my photography business" etc.)
3) Their rates are indeed slightly higher than some cut rate folks in town, but still affordable to students, as a ballpark description.

Very small business commercial contracts I have seen (mostly from the same exact people) are similar, but with occasional reasonable terms like royalties, only-business-usage in general, no resale, etc.

So maybe that's just Iowa, but these sorts of conditions are what I use as a comparison. Would I want to have terms like that if I shot weddings? God no. Part of the reason I don't want to shoot weddings. But that's where the bar is set currently, so even if it seems maybe reasonable at face value to say "Yeah you don't get to choose B&W or color versions of the photos I give you. I choose." Or a time or number of uses limit in commercial. Compared to the standard in town, the more terms like that you have without offering discounts over the local giants in return, the more it is a red flag that you haven't done you homework and are incompetent, OR probably slightly crazy. And that prediction seems to pan out.

 

[tirediron]

Can you please give some explanation as to why, TiredIron?

Would you settle for 'because'?

Because if the image that the photographer created is going to keep generating revenue, than the photographer wants a cut of that revenue. For instance, you do a shoot for Ford; they use the image in an ad campaign which helps them sell thousands of new cars. If you license that in perpetuity, then they pay a one-time cost and get revenue out of it forever (or as long as they want). If however you only license it for a year, and the ad campaign is still going strong and they're selling a lot of this particular model of car they have two choices; they can either stop the ad campaign cold, OR they can continue it by sharing a bit of their increased sales revenue with you.

 

[Gavjenks]

Tirediron, there's a seemingly simple way to do that without a time limit that is significantly more fair anyway. Just write in "For every commercial where these photographs are aired, I get ___. For every print ad, I get ___. For every online click through I get ___." etc. Your profits scale exactly to the size of the ad campaign and only to the extent that your photographs are actually helping the ad campaign. And of course if it is relevant, you can scale royalties to number of viewers on that channel when it was aired. A simple way I would assume would be a % of the cost of renting the ad time.

What you're describing makes sense I suppose if the project is minor enough to not warrant the effort haggling over properly weighted numbers in royalties. But on the other hand, if it's a minor project/business/whatever, there's also fewer numbers to agree on (my dentist doesn't run TV ads and online ads and blah blah) and lower stakes for either of us if they're slightly suboptimal, so you don't NEED as much time haggling over royalties.

I can see a utility there, though.

 

[tirediron]

And here, this post might be more directly relevant to the OP.
When I keep saying "compared to other photographers without restrictions" that means locally (due to transit costs if not local), and in my local community, I have worked with or personally know the majority of the really successful portrait/wedding photogs. ALL of them that are actual viable businesses around here are examples of those "without restrictions" people. Their contracts have the following features:

1) Absolutely zero restrictions on what you do with your images. They will offer their edited versions to you, but do not hold you to using those edits, and I believe all of them at least give the option of having all the negatives (at least non blurry/junk ones). And none of them say you can't alter them or put clown noses on all the people if you feel like it, or anything else. You can resell your images too, for at least a couple of them.
2) At least one successful photographer in town gives you the copyright on your wedding/portrait negatives and edits and everything as part of the standard package. The rest keep copyright but still have in their contracts restricted usage for themselves (e.g. "only portfolio / advertising my photography business" etc.)
3) Their rates are indeed slightly higher than some cut rate folks in town, but still affordable to students, as a ballpark description..

Excellent post Gav, and IMO, very relevant to the OP of how NOT to structure your business. Here's my take on it: Licensing images without restriction means that the client, can, if they wish, indeed 'shop a clown noses on to people in their wedding formals. Now, let's say they've done this and have the picture on their mantel. Their unmarried friends come over and are seeking references for a photographer for their upcoming wedding; they see the images with the clown noses and think, "NO WAY would I hire their photographer!". Granted, that's an extreme and ridiculous example, but something like an unpleasant crop, poor monochrome conversion or *Shudder* selective colouring is very likely.

Alternately... you shoot their wedding turn over the high res files on a disc and walk away. Unknown to you, you've captured one spectacular shot. The bride puts the images on facebook where they're noticed by the manager of XYZ Advertising who thinks that would be a PERFECT shot for their new national campaign advertising the all-new Acme wedding garter. They buy the image from the bride for $10,000.00. You have no claim nor entitlement to that any of that money.

I don't know about you, but either of those situations would bother me. First of all, my work is MY work and I don't want it messed with. Am I going to complain if they crop an image so it looks better on their facebook page? No, not likely, but I certainly would if the bride decided to experiment with selective colour. The same goes for selling the image; it's MY image, if it's worth that much money, I feel I'm entitled to the lion's share as I created it.

Just my $00.02 - YMMV