by Jess Dudley Wonderful Machine Producer
A well-known publisher recently commissioned one of our New York photographers to shoot the exterior of a building for the cover of a non-fiction book. The publisher initially agreed with the photographer on a price just to execute the shoot with the understanding that if they decided to use one of the images, they would then negotiate a separate licensing fee.
It’s somewhat unusual for a client to pay for a shoot and not get any reproduction rights to the photos (or at least the option to use the photos at a predetermined price). This is normally a recipe for an awkward negotiation. But in this case, the publisher wanted to get moving on the art, and they were comfortable that they could come to an agreement with the photographer once they saw the photos and once they knew how many copies they were going to print. Worst case scenario, the client wouldn’t license any of the images and the photographer could put them into her stock archive.
The shoot fee the photographer had already negotiated was 3000.00, plus digital capture and web gallery (500.00), equipment rental (315.00 for her own camera body and two lenses), transportation (50.00), meals (50.00) and misc. (50.00).
As it turned out, the publisher loved the pictures and wanted to license one for the front cover of the book, with an initial printing of 500,000 copies. At that point, the photographer asked me to help negotiate the usage fee. The publisher sent over the following contract:
Rights Granted – In consideration of the payment of fees as outlined below, you grant Publisher and its affiliates, exclusive rights to use and reproduce the Artwork, in whole or in part, on the cover of all print and digital world English editions and formats of the Work or derived from the Work, throughout the world, now known or hereafter devised, and for such other uses as set forth below, and for use in advertising, publicity or otherwise in connection with the Work for the life of the Work as set forth below (“Book Use”), and such other formats and uses as outlined below. You will retain copyright in the Artwork itself and all other rights to the Artwork, except that you will not license or sell any rights in the Artwork (including any other photographs from the same photo shoot or artwork substantially similar to the Artwork) for any Book Use. Publisher will own the copyright in the cover of the Work. In the event Publisher receives a request from a foreign publisher to use the Artwork for its foreign translation editions of the Work, Publisher will direct such foreign publisher to negotiate directly with you.
Fees – (a) Book Fees: For all rights granted herein with respect to all Book Use, Publisher will pay you a fee of $ [insert fee here] (the “Book Fee”), following acceptance of the Artwork to Publisher (together with any required releases) in accordance with Publisher’s instructions plus preapproved and documented travel expenses in a form acceptable to Publisher. (b) Fees for Additional Formats/Uses: In the event Publisher elects to publish, use or grant to a third party the right to publish or use the Work in formats set forth below, Publisher will pay you the following additional fee, which will thereafter cover all exclusive uses in that category: (i) CD, DVD and other physical audio and/or video editions: $750.00. (ii) Ancillary/Merchandise: [insert fee here]
In simple terms, they wanted use of the picture in English language editions of the book, in any format, world-wide. They want to use the picture to promote the book. The photographer will retain the copyright to the photograph (including the right to negotiate separately with foreign language publishers of the book), but can’t license it to any other book project. The publisher wants to own the copyright to the cover art containing the photograph. They want to split the licensing fee into three parts: print (book) use, digital (cd/dvd/audio/video) use and merchandising use. They specified that they want to pay 750.00 for the digital use, but have asked us for a price for the book use and the merchandising use.
There’s a subtle difference between a printing and an edition. A new edition happens when there are revisions to the content. There can be multiple printings within a given edition.
The fact that they’re printing 500,000 copies on the first go-around gives us a good sense of the value. But since they’re asking for the right to use the picture on all future printings and editions makes it hard to know what it’s ultimately going to be worth. It’s not unusual for clients to ask for very broad usage. But it’s up to the photographer to figure out whether to quote a big price for big usage or to offer a more moderate price for more moderate usage. In this case, I was concerned that the price for all editions might be too steep, so I chose to amend that language and work up a price for just the first printing (keeping in mind that part of the value of the picture is that it would be used in advertising to promote the book). I also crossed out the line stating that the Publisher would own the copyright in the cover of the Work which would conflict with my “first printing” revision.
To determine the “Book Fee,” I consulted a number of estimates I had done in the past as well as BlinkBid, Fotoquote and Corbis. BlinkBid’s pricing consultant doesn’t seem to cover book publishing and Corbis and Getty require you to contact a sales rep to get pricing. The projects I’d worked on previously were stock quotes for somewhat smaller projects, with print runs of 5000-10,000, and the negotiated fees generally landed around 1500.00. Fotoquote provided a lot of options and good information for this particular use (English language, front cover, 500,000 print run) and suggested a licensing fee between 2173.00 and 4397.00. Considering our revisions, the fact that it was a much better than average photograph, the fact that the publisher had already paid the photographer 3000.00 to shoot the picture and that an additional 750.00 fee would be paid for digital use, we decided to price the book use at 3000.00 for the first printing. The 750.00 fee for supplemental CD, DVD, Audio and/or Video Editions was fine considering all of our pricing sources included the concurrent digital use in the base fee. Lastly, we wanted to negotiate Ancillary/Merchandise fees as needed, since the term is so vague and could include any number of uses. So, instead of inserting a fee, we wrote “to be negotiated separately.”
After reviewing the changes with the photographer and initialing the amendments, we sent the contract to the publisher. They flatly rejected it, saying they did really want those terms. So that left us to decide what the value was, not knowing how many copies the book would sell. Fotoquote suggested a range of 3600-7200.00. My gut instincts told me to double the book rate to 6000.00 for the unlimited number of printings (we left the digital at 750.00). Almost immediately, the publisher came back and offered 5000.00. The photographer accepted the fee and signed the agreement.
The 3000.00 shoot fee and 5750.00 licensing fee brought the total fees for the project to 8750.00. That might seem like a lot of money to some people, but considering that an author’s advance for a big non-fiction book can be $500k, $8500 is reasonable and proportional. Also, as useful as the pricing guides are, they don’t in themselves justify (for better or worse) the value of a photograph. The value ultimately comes down to how much the client is willing to pay for it and how much the photographer wants for it.
One little detail I’m still not sure about are the ramifications of the publisher owning the copyright to the book cover (which of course contains the photographer’s photograph). I can understand that they would want that. I’m just not sure that they need the photographer’s permission in order to resister the copyright to the whole package or to defend an infringement. (See more about derivative works.)
If you have any questions, or if you need help estimating or producing one of your projects, contact Wonderful Machine.
when I stand in the middle of those vast plains and prairies I do not see or feel “emptiness”… to me, the volumes of space, the wind rippling the grass, a breeze on my face, the birdsong, the flight of crows – this is the exact opposite of emptiness: it is a fullness, a richness that I just want to drink in, that I want to have envelop me… on the other hand, if you drop me into the middle of Manhattan, I just want to shut down – the hordes of people, the noise… it’s just maddening to me, and something I’ve chosen to avoid as much as possible in my life…
Lincoln Barbour has a great post on Cost of Doing Business for Photographers.
Being in business as a photographer, you have to know your CODB, because that’s how you set your Baseline Creative Fee (BCF). If you take jobs that are below your CODB, you are operating at a loss. You should also do your CODB every year to make sure you’re staying on track and to set sales goals.
In a very simple formula, this is how you calculate your CODB:
(YOUR SALARY + YOUR EXPENSES) ÷ SHOOT DAYS PER YEAR = DAILY CODB
Fortunately, there’s an easy way to calculate your CODB and it takes less than 30 minutes to do. You will need two things: Your Profit & Loss Statement from last year and NPPA’s Online CODB Calculator. If you use accounting software like Quickbooks (PC / Mac) or AccountEdge (Mac), it’s really easy to generate you P&L report. Make one and print it off. Then click over to NPPA’s Online CODB Calculator.
Not only discussing how to calculate it but also how to base your fees on it. Go here to read the post.
“ever since I standardized my pricing, I’ve gotten more jobs that pay better.”
Why should a meaningful piece of artwork take two days, two months, two years, or possibly much longer, to create? Why do we need to wait for the right inspiration, the right moment, or gather materials we have no idea how to use to create a piece of individual expression to hang on our walls?
…the constraints of time, finances, and physical or mental disposition no longer need to be our barriers. Braintone Art offers an alternative means of creating art…
via Braintone Art.
My photographs, almost always Include people. Pictures of most ‘things,’ even lovely landscapes or seascapes, I find overwhelmingly boring. Rarely are these pictures of anything that I haven’t seen before. People pictures, on the other hand, are never the same.
My father reads this column each week. He enjoys it, though he’d probably read even if he found it boring. He’s proud, sure, but he says that he learns things about me and my life that he wouldn’t otherwise know. I suppose that’s a solid, 21st Century definition of irony, as the two of us live in the same town.
He mentioned the other day that he likes the style I’ve slowly adopted. A few paragraphs that initially seem random, or perhaps self-absorbed, then a sexy segue, and finally an actual review of an actual book. My first thought was to burn the house down, if my tropes were so obvious, but he advocated for stability. People, he felt, appreciate the mix of repetition and renewal. Perhaps that’s true.
But I don’t mention my father simply to conduct one more meta-riff on the absurdity of writing about myself and photo-books at the same time. He’s in a tough spot right now, my old man, currently battling the triple-whammy of tooth infection, shredded-knee, and ruined back. He can’t have surgery on the knee until the infection clears, and then needs an operation on his back, but not until the knee heals. He’s gritting his teeth (Sorry, horrible pun,) and dealing the best he can. Not-quite-stoic-suffering runs in the family, a genetic chain back to ever-miserable relatives in the ghettos of Eastern Europe.
Humans, incredibly resilient, have adapted different solutions to the problem of terminal misery. Heaven. Meade. Weed. Video Games. All share the common denominator of distraction. Look at the pretty red cloth, Mr. Bull, and ignore the sword heading right into your neck. Whatever the coping strategy, people keep pro-creating, and suffering persists.
Donald Weber seems to know a thing or two about suffering, and its lack of inherent nobility. People eat shit everywhere, every day, and do the best they can to aid in its digestion. With dignity. When possible. His new book, “Interrogations,” was just released by Schilt Publishing in Amsterdam. Pop it out of its intentionally generic cardboard shell, and its pink cover will surprise you immediately. As does its calender-like vertical orientation. (And its “poor”, or at least “not-slick” publication quality. Proletarian sensibilities and all.)
The photographs inside, along with a truly well-written essay by Larry Frolick, (In the Epilogue) were made in Russia and the Ukraine earlier in the decade. After a slew of establishment photos in the Prologue, bleak snow, junkyard dogs and the like, the main meal consists of a series of photographs of sad, terrified, and forlorn men and women in generic rooms. Given the title, they seem to be reliving or recounting tales of beatings, bitch-slaps and bedlam. One imagines the emotions to be real, regenerated upon reflection. But I suppose it’s never totally explained. Not necessary. Point taken.
I’ve reviewed several books already, and one MOMA exhibition, detailing life in former Iron Curtain. I think I even mentioned, last time, that it seemed to be one seriously ubiquitous subject, of late. No matter. Whether it’s mindless horror movies at the Mega-plex, dramatic dragon paintings in a British Museum (more on that later), or bleakly violent Eastern European photo-books, people will always, always be fascinated by the dark.
Bottom Line: Creatively made, striking publication
Full Disclosure: Books are provided by Photo-Eye in exchange for links back for purchase. Submissions are not accepted.
Still Images In Great Advertising, is a column where Suzanne Sease discovers great advertising images and then speaks with the photographers about it.
I came across this campaign and it really hit home for me. I remember a hotel I stayed at in Chinatown that looked great on the website, but when we checked in the Queens Bridge was right next to it- I mean, right next to it. Some rooms had the subway racing right outside your window. I reached out to the photographer, Jonathan May to find out more about this campaign. The interesting thing about Jonathan’s work on his site was that all categories are personal except for one for his advertising work. But, I could see the connection between personal images and the work he was hired to create. This is always the result of a brilliant art director or art buyer.
Google Maps Street View “Know before you Go” campaign awarded a silver for print in The Moscow International Advertising ‘Red Apple’ Festival 2011, it was also awarded a silver at The Epica Awards (Europe’s premier creativity award). And was also a finalist in the Eurobest Awards and featured on the Best Ads website.
Suzanne: I went to your website and like how you show mostly personal work but I see how it is the inspiration to the commissioned work you have been hired. Have you ever been hired by an American agency? Or do you find that if an American agency doesn’t see it, they aren’t sure how to hire you?
Jonathan: When I first started visiting agencies I had two portfolios, one was for personal work, and the other for commissioned. I quickly noticed how art directors and buyers were instinctively drawn to the personal book first. I realized the importance of having a strong body of personal work because that is what expresses your vision and creative ability. Further, it illustrates the point of difference that you can offer and that sets you apart from the next person who knocks on their door. I was very careful at picking which commission work I want to display on my website. I wanted to make sure that it is not too far divorced from my personal point of view and style. This is also the reason I decided to exclude branding and logos from my commissioned work.
In terms of being hired by an American agency I haven’t pushed myself too hard in that region, but I have worked with Goodby Silverstein and Partners (San Francisco) on a month long job, shooting all around Australia for the Commonwealth Bank. The images can be seen on my website under the division “Rural Australia”. I am originally from Sydney and have recently relocated to Europe so am currently focusing on that region. My long term goal, however, is to work in the States. About 8 years ago, my mentor http://www.photography-arc.com.au and good friend asked me: “What do you want to do with your life?” and my response was “I want to be a photographer in New York” and he said: “the only thing stopping you is yourself”. So I am driving myself in that direction.
Suzanne: I wish the agency had used you in the other two ads and see a difference in the style. Do you think you could have added a more human element to the other ones? And how did you shoot this one?
Jonathan: The Sex Shop image concept was by far the simplest. It was all shot in camera. The only element I had to shoot and then drop in is the hotel awning and sign. The beauty of photographing everything is being able to control the depth of field and overall sharpness of the images. When the agency is searching for photolibrary images they need to bear this in mind and then of course the constant struggle of trying to find images with matching light intensity and direction. I think the agency and retouchers have done a sterling job on making everything in the other concepts look believable.
Suzanne: Google is International and I would love to see this ad being picked up for a global campaign. Have you ever reached out to the other agencies that have the account?
Jonathan: I will be speaking to the agency down the track, once the award season is finished, it seems to be doing very well in Europe so far.
Note: Content for Still Images In Great Advertising is found. Submissions are not accepted.
Jonathan May studied photography in Australia where he received several awards for his work. Recently he has been voted into Lurzers Archive (2011, 2012/13) as one of the top 200 international advertising photographers and has relocated to Moscow where wife has an acting job for a year.
“Spoek used one of my images for a mix tape without asking my permission,” Hugo told me. “I phoned him up to berate him—turned out he was recording a new album around the corner from my studio. He came to the studio to discuss our dilemma, and by the time he left I agreed to do music video for him. He’s a super sweet talker.”
Pinterest, the hot new social sharing platform has a serious problem when it comes to the medium it’s designed to share. Despite careful wording on their about page that you agree not to post, upload, publish, submit, provide access to or transmit any content that infringes, misappropriates or violates a third party’s copyright… many (most) of the images on the site do just that. Several lawyers have weighed in on the controversy advising:
“…you should never pin an image on Pinterest for which you don’t own the copyright interest or for which you have not obtained a license from the copyright owner.”
— Jonathan Pink, a California-based intellectual property lawyer with Bryan Cave LLP via, WSJ.
Federal copyright laws give the author of any copyrighted work (which includes photographs and copyright attaches automatically as soon as the work is created) the sole and exclusive right to publish and reproduce such work. So, basically, when you see a photograph that you love, you do not have any right to publish or reproduce that photograph unless you took the photo or got consent from the photographer to use the photo.
…in my humble opinion, the only “safe” conclusion here, for me, is to either get off of Pinterest or pin only your own work or work you have a license to use.
— Kirsten Kowalski via, ddkportraits.com
If that’s not enough, Pinterest CEO and co-founder Ben Silbermann has completely deleted his boards: http://pinterest.com/ben/ even though he was named #2 in a list of 21 must follow Pinterest users on mashable.com.
On the flip side we have a very exciting way to share photography that some photographers like:
Photographers need to look beyond their own nose when it comes to social media web sites and copyright concerns. I’ve written about a fair number of photography rights grabs here on my blog and there have certainly been cases where there have been egregious violations of copyright that photographers should have been concerned about. By and large Pinterest has not proven to me they fit in that category. In addition social media web sites and the Internet as a whole are great tools to be exploited by photographers. Don’t be afraid of having your work seen. If you look beyond your own nose you’ll see these new tools and sites can be creatively applied to enhance your business versus kill it. Being creative isn’t just about taking photos its about creatively enabling your work to be found.
— Jim M. Goldstein via, Pinterest – Seeing beyond your own nose
I even have it on good authority that top creative directors are actively pinning and competing to have the most creative boards. My source tells me that it’s not impossible to imagine a future where your pin board is part of your resume.
So, I agree that there’s potential here to make a great service for sharing, driving traffic to, and bookmarking photographers. But they just haven’t figured out how to do it without running afoul of copyright laws.
Then there’s the separate matter of their heinous terms:
We may, in our sole discretion, permit Members to post, upload, publish, submit or transmit Member Content. By making available any Member Content through the Site, Application or Services, you hereby grant to Cold Brew Labs a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content only on, through or by means of the Site, Application or Services. Cold Brew Labs does not claim any ownership rights in any such Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such Member Content.
Facebook has similar terms:
For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.
And so does Twitter:
By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).
My prediction is that before they get sued into oblivion they will figure out a reasonable way to get it to work. But for those who think whiny photographers or outdated copyright laws are to blame, I’ll leave you with one last set of quotes to chew on:
For the first 1,500 years of the last two millennia, man was generally poor. Though there were empires and kingdoms, the gross world product (GWP) was largely flat. For generations, people did not experience any major change in their living standards.
And then something changed: the Western world introduced stronger property rights, including intellectual property rights, which allowed people to pursue new ideas, firm in the knowledge that success could bring financial rewards.
Today, all of the contemporary advanced economies have strong property rights, and data shows a strong correlation between property rights, productivity, living standards and innovation.
Congratulations to this years class of 30 photographers to watch:
Meiko Takechi Arquillos
Dominic Bracco II
LaToya Ruby Frazier
Peter Ash Lee
Chloe Dewe Mathews
Photojournalism has changed incredibly over the past decade and in many ways we have been bombed back to Year Zero. The thing is that most of us have been forced to reinvent ourselves as visual storytellers and for many (including me) this transition has not been easy.