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.

QUESTION:
I’ve been following your blog closely for some time now, and I’ve found it very helpful in seeing what others charge for advertising shoots, but I have had virtually no luck in applying the same sort of rates (scaled down) to my business. One of the requests I get most often from business owners and lawyers is for headshots, full-length portraits, environmental portraits, retouching either on-location or in-studio.

I’m finding that almost everyone who contacts me is confused by the idea that they must pay to actually use the images and that they don’t own them, so it’s this constant uphill battle to educate potential clients. I’d love to get a sense from you whether I’m going about this the right way, if I’m charging too much or too little, if I should be rolling the usage fees for specific number of images into the Photographer’s Fee instead of giving Usage it its own line-item… I need help here.

I’m in [redacted], TX and my work tends to be directly for the clients and not for ad agencies who understand how things work. For your reference, I’ve attached an estimate I sent out just today. When I was talking on the phone with the client, as soon as I mentioned that a ‘full buyout’ of the selected images would be more expensive than specific usage, I was told ‘Oh, well we may not be able to use you then’ – I sent the estimate and the response was simply ‘No thanks.’

Job Description
Fee for [redacted] to produce portraits of two lawyers on-location at a law firm in [redacted] in one half-day shoot and for the
following licensing to be conveyed to Clients: Unlimited Time Usage, Unlimited use of up to 2 photos, across all communication
vehicles/mediums/media, forever.

Fees
1 Photographers Fee @ 750.00 ea. (Half-Day): 750.00
2 Usage Fees @ 900.00 ea. (Unlimited Usage – Full Buyout): 1,800.00
2 Retouching Hours @ 125.00 ea. (Editing and Clipping Mask for Final Image): 250.00
Fees total: 2,800.00

Crew
1 First Assistant @ 100.00 ea. (Half-Day): 100.00
Crew total: 100.00

Sub Total: 2,900.00
TX TAX (8.125%) 8.125%: 235.63
Total (USD): 3,135.63

Amanda and Suzanne:
Advertising and Local Consumer (even professional type imagery) speak 2 different languages. It’s not that they do not understand the terms, but the different client types need usage terms to be addressed differently (less of a blow to put it mildly).

ANSWERS:

MARKETING DIRECTOR OF GLOBAL LAW FIRM:
The price really varies depending on the market, but an average would be about $125 – $150 per headshot. The rights that we negotiate are: unlimited rights for electronic use, but prints and reprints must be ordered from photographer.

ESTABLISHED PHOTOGRAPHER 1:
You are certainly not alone. I know of many photographers who have gone through this same “song and dance” with clients (me included). Recently I have found that many non-advertising/editorial clients (lawyers, business owners, etc…) are beginning to understand, or accept, the way photographers price their work. This might be due to the way we are organizing our estimates or explaining our pricing structure during the initial conversation.

The numbers in your estimate are certainly within the norm, but as you stated the client balked at the usage fees. As you probably know, photographers are now combining the usage and creative fee into one line item – which I think is a good idea. This doesn’t always alleviate the problem, but it’s a start. In the initial phone conversation I ask many questions – what type of portraits, studio or on location, etc… I also bring up the subject of usage by asking how long they would like to use the images and for what purpose. Their response usually is “forever and don’t I own them?.” Here is where I educate them on how photographers price their work. I explain that “my pricing for portraits is structured by how many people need to be photographed, how the images will be used and not based on how long it takes (1/2 day or full day). If they continue to be confused, I calmly explain to them that photographers price their work very similarly to how cell phone companies structure their phone usage – you can own the phone, but you have to pay to use it. You are charged based on how many minutes per month you want and how many texts you send, and even more if you want to use it internationally. Since most have cell phone, I always hear “oh, okay I get it.” If they then say it is too expensive, then I ask what their budget is and try to work within that. It’s all about creating a win-win situation. I will usually send two or three estimate with different usage rights and pricing – one year usage, three year usage and unlimited, with the option to re-license the images. This way they can see the breakdown. Most go with the three year estimate.

ESTABLISHED PHOTOGRAPHER 2:
In my experience, when you are dealing with a small client like this one, it is best to combine the usage fee and the photographer’s fee into one, especially when dealing with a “buyout” situation. Most clients like this (and it is sad to say) do not want to understand or learn about usage. They just want to know if you can get in, do the job, deliver the images quickly and on time and on budget. Why complicate it by adding an additional usage fee? They are not an agency, they don’t pretend to be an agency, it’s not like there’s going to be a relicensing fee here ,because of the full buyout and to be perfectly honest, why should there be? What is the resale value on these images? They are not going to be put into stock, correct? Most likely they will be out of date in 2-3 years and the law firm will call again when they hire more lawyers or when the shots need to be updated. So, why risk alienating them by making your estimates more complicated than they need to be?

Secondly, why did the photographer not handle these questions and explain the fee structure before the estimate was sent and address the client’s concerns? As part of the sales process (and let’s face it, unless you have an agent, photographers are sales people) all of this should have been covered in the initial conversation and follow up conversations. An estimate should be a confirmation of the what was discussed and verbally agreed upon as to prevent a situation like the one that happened. Collaboration and mutual respect.

ESTABLISHED PHOTOGRAPHER 3:
Unless a client has commissioned media on a regular basis, it doesn’t make sense to do an itemized bid like this. A high powered law office is still on the consumer side of things, and they won’t be used to terminology or typical photo bidding practices. This isn’t good sales practice to itemize like this, because it draws undue attention to usage, mysterious line items such as assistants etc. Treat this sort of client like a wedding/portrait client: give one fee for the job. Explain separately what the usage rights are, but don’t break them out as line items. A headshot client is going to assume, much like any other consumer-level client, that they own the images (makes sense to them, they paid for them!). Better to state the usage without hitting them over the head with it, so the client doesn’t freak out.

And that’s a lot for a couple of headshots!

To Summarize:
Often it’s all in the wording, but it’s also what a specific market is used to paying. Often quantity can make a small fee multiply quickly. Ask the right questions and decide how to best approach this type of client. An estimate is a visual/verbal communication – make it as simple and clean to read as possible. Some need it very simple – while other’s need every detail spelled out – but it should all be kept to the point and clean.

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.

If you want more insight from Amanda and Suzanne you can contact them directly (here and here) or tune in once a week or so for more of “Ask Anything.”

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.

QUESTION:
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.

ANSWERS:

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.

Part A:

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.

Part B:

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?

Part C:

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.

To Summarize:
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.

If you want more insight from Amanda and Suzanne you can contact them directly (here and here) or tune in once a week or so for more of “Ask Anything.”