Former Art Buyers and current photography consultants Amanda Sosa Stone and Suzanne Sease have agreed to take anonymous questions from photographers and not only give their expert advice but put it out to a wide range of photographers, reps and art buyers to gather a variety of opinions. The goal with this column is to solicit honest questions and answers through anonymity.
I’m coming across a pretty common problem (and finding a lot of my peers are as well) with the subjects I photograph not understanding basic image copyright laws. In the last three months I’ve had my copyright infringed multiple times. Or, a previous subject has asked for high resolution files assuming they have the right to use the images for marketing or advertising purposes when those rights were not a part of our initial agreement.
In many cases, because I’m still in the fledgling stages of my career, a lot of my clients, or subjects, are not well versed in how image licensing works. Therefore, I don’t believe that they are purposefully trying to steal the images or use them inappropriately, I just think they don’t know the rules. So, what I think would be really helpful is a simple, non biased, explanation of how copyright for photography works. One that explains photographer’s ownership of their images, and more specifically why we own our images. Most of the literature I’ve tried to find on the subject is either A. too complicated with dense legal terminology which bores me, and most likely will not be thoroughly understood by clients. Or, B. documents that photographers have written up that are condescending, accusatory and confrontational. I find these to be just as bad, and alienate clients.
So basically I’m wondering if there is such a thing out there, or maybe with your vast readership, something can be made that fairly,
clearly and nicely says, “This is how photo images rights works, this is the reason, and when in doubt please contact the photographer prior to using these images.”
Amanda and Suzanne:
In regards to Image Rights it’s an area we have all dealt with or will deal with in our careers in this industry. We can’t expect our customers to always have knowledge about our careers. So we as professionals must first educate ourselves on the topic, second find a way we feel comfortable expressing the limitations of the artwork and lastly making sure it’s in writing and agreed upon by both parties. It doesn’t always mean the problem is solved or problems will not arise, but you have to do your best in the beginning to set boundaries with your clients.
ESTABLISHED PHOTOGRAPHER 1:
I have a foot both in the consumer portrait world and the fashion/commercial world. While the commercial clients who commission a lot of photography usually have a decent understanding of copyright, this is not always the case. And consumers generally have very little understanding. But to be fair, a lot of photographers don’t have a clear understanding of copyright either!
So here’s copyright law in a nutshell: whenever a photographer takes a photograph, he/she usually owns that image, and can decide what to do with it. It doesn’t matter if someone hired the photographer to take the image…the client pays for the service, not the copyright. Generally the client and photographer have agreed on how the client may use that image. But the client is only ‘borrowing’ the image, and doesn’t own it. Even if the image is actually of the client! The person who creates the image owns it, unless he/she gives up that ownership.
Portrait/wedding clients will often assume that, because they hired the photographer, and the pictures are of them, that they must own the images and can do what they want with them. Not so. They have paid for the services of the photographer, and whatever rights the photographer specifically gives them as part of the transaction.
The one exception to this automatic copyright is if the photographer has agreed contractually to give up copyright, or has created the images under a ‘work for hire’ of employment situation. That is a relatively rare occurrence though.
CELEBRITY PHOTOGRAPHER 2:
Yes, it’s simple, anyone requesting the file should be educated. If a photographer gives over a high res-file, and does not mention licensing, they are remiss.
ESTABLISHED PHOTOGRAPHER 3:
Simple answer is NO.
I need to state I don’t believe we have any real copyright protection (points 1 through 5).
1. 1st of all you have to file with the fancy office in DC in order to technically own the copyright to your own images (That process took 18 months to complete in my case.) If you don’t file, you don’t own your images.
2. And when you do have an infringement (assuming you caught it somehow), you can only go after infringers who have clearly made $ off your images (you have to be able to quantify that loss amount).
3. If you do decide go after an infringer, plan on mortgaging your house and risking it all, as it will cost a minimum of $30k to litigate and you are not guaranteed to win anything. If you loose…well… you pay their attorneys fees as well as your own.
4. By the way, did I mention that if you don’t get the registration done in 90 days of the initial publication of the image, you can only go for “actual damages”? Basically the $ you should have been paid in the 1st place. If you file within those 90 days, you can go for $150k more….but don’t get too excited… look at item 5.
5. Winning infringement case is a whole different ball of wax all together. In my case, I had a great graphic evidence, a provenance of the mis-use, all emails involved between all perties, and a confession from the ex-wife of the infringer stating what happened. I won on the 1st round and lost in the appeals process… Did I mention this is a 4+ year process? I just gave up in the end…. So, if you can’t reasonable enforce it and collect $$, you don’t have copyright protection. Case closed. That’s my $.02 worth on copyright law.
A lot of “green” photographers have been giving away their files. We all know that, right?… And other “seasoned” photographers have seemed to have forgotten what image ownership means, because of rough economic times. I have, on a daily basis, commercial clients asking (more like demanding) for unlimited, unrestricted usage rights to their files for FREE. Constantly, I find that I loose jobs to other photogs who do just give away the full rights to the images. I don’t understand why there is no clear answer to reproduction rights and usage fees, but there isn’t.. It’s been my biggest battle in the 10 years I have been a pro-photog.
On a side note; In addition to the still photogs who give away their image usage rights, we now have video guys with our same DSLR’s being asked to generate “stills” during a shoot. They are used to working on a “work for hire” basis, trade union, day-rate basis and they have always given away all rights to their work. They are just cogs in a machine. “You want me to push the button and give you the raw files…sure, I’ll do that!”
I personally have rules for my image’s usage fees, I try to explain them to my clients ahead of time… But do they care? Do they listen? Do they understand? Again, simple answer is NO. There is no standard for shooting fees. There is no standard for usage fees. There is no standard anything. The only thing that seems standard now is that our clients know that if we don’t just give up our rights, they’ll find another photog who will.
I think the question should actually be: “Given that residual income from usage fees for a photographers images is not standard, automatic, nor enforceable, will it be around in 5 years?” Having said that, will we even be in business in 5 years as photographers if we can’t charge for the use of our work?
Here is one example of I’m dealing with. I do a fund raising program during the month of October. My clients are families who hire me for portraits, holiday cards, albums, etc… The sitting fee is $50 for a 30 minute sitting, and it is actually 100% a donation to an educational program (that has signed up and promoted my services). It’s a win, win, win situation (the school gets $50 per sitting they book, the family gets a discount from my normal fees and I get new clients ordering prints, etc). This year I have had a huge amount of people ask: “Do I get a disk with the sitting fee?” How many do you think have found someone else who will just give away their work? Plenty I’m sure…
Do I give away my images? No.
Do I charge for my images (prints and digital files)? Yes.
Is explaining usage a pain? Yes, huge..
Would I be in business without the income generated by the usage and/or prints? NO. NO. NO.
The last statement is right, it is your business and it’s how photographers survive. Now, it doesn’t mean you have to formulate your business around any one direction; you have to educate your client on the limitations of the imagery set out by YOU. It’s never a comfortable topic to discuss money, let alone limitations set out on content you are delivering. But you have to decide what is important to you, what are your boundaries/limitations (legally and professionally) and how will you explain them. You can be professional, nice and creative – and still be a smart businessperson.
Call To Action:
Use this scenario and create a plan for future estimates. Have your estimate template together/ready, along with your questions, so when that that job comes in you are prepared.