Publishers Need To Put A Premium On Content

Now, I ask you—the publisher—whether you’re devoting enough corporate energy, resources and financial backing to your editorial staff in order to actually produce an indispensable editorial package? If the answer is yes, then why are you charging so little for such a valuable product? Ask the Economist how it feels about its edit and its worth. Why do you think it can charge a premium and you can’t? What makes it so special? You guessed it—its edit is worth that price, or so the reader believes, and that is all 
that matters.

The answer to the publishing industry’s woes is to provide something worth paying for. For far too long we have been lured with the easy money and wicked ways of our advertising mistress. Well, in the past few years we got dumped. And it hurts. But I say we pick ourselves up out of the gutter and find our self-worth once again. Stop firing the editors and writers, and start paying for the production of excellence. There is no other choice.

via  Publishing Executive.

Printed Portfolio Videos

Here’s something cool over on Wonderful Machine again. They’ve got a handful of their photographers printed portfolios as videos on their youtube channel (here). Very cool for anyone wanting to see how books are put together and not a bad idea for reminding an AB or AD of a book they liked.

Time Is Running Out on Legacy Media Brands

Old media, even highly focused old media, simply cannot keep up. Look at almost any vertical and the story is the same: There are huge discrepancies between offline reach and online visitors. Too often the legacy publisher continues to think about the brand’s Web site as an extension of the base product and therefore something smaller in reach and ambition than the mother ship.

via AdWeek..

Negotiating The Editorial Contract

Bill Cramer has an excellent piece on negotiating an editorial contract with a new client over on Wonderful Machine (here).

It’s pretty amazing that people starting out on the publishing side know so very little about the appropriate terms to include for hiring photographer. Inevitably it starts with boilerplate language handed to them from some well meaning lawyer looking to protect the company but you got to wonder why companies think they need all these rights and all that protection in the first place. It’s not like there are examples where the lack of an indemnity clause took down a media company or the lack of all encompassing rights prevented them realizing their true profit center, selling mouse pads with cover photos on them.

When starting a new job photo editors have a couple big hurdles to sort out if they want access to the high end talent of the industry. Your rates and your contract are deal killers on all but the biggest of jobs. I’ve never had a problem raising rates after starting a new job but I always ran into insane roadblocks with the contracts. At one company I worked at they had such a lock down on contracts that any changes had to be run by a very busy lawyer who was in charge of multiple titles. And, they refused to pay an invoice if the company didn’t have a signed contract on file. We ended up knocking on the lawyers door so many times in the first couple months that she finally called a sit down meeting to modify the contract. Of course any changes we made had to be approved by the owner of the magazine so I was very careful to insert language where I could instead of wholesale rewriting because he would be less likely to strike the entire change if it was small words instead of entire paragraphs. Anyway, half the modifications were passed and half were rejected leaving me in the position to let photographers know the terms were only negotiable in extreme circumstances, because now the lawyer instituted a policy of once a week modification discussions (too much door knocking I guess). Combine that with the fact that editorial could be slow in handing over assignments for each issue and working with new photographers could become a real high wire act if they didn’t like the terms of the contract.

Back to Bill Cramer’s piece (here), he shows incredible aplomb after striking the offending passages and receiving the loaded reply of “I know the photo editors are excited to work with you. Can you reconsider your positions and sign our standard terms and conditions ‘as is’?” and instead of flying into a rage, taking the time to calmly educate the client on why the changes are necessary.

In the end he prevailed, but it seems so insane that people would want to spend an ounce of time mired in contract negotiations defending terms that as far as I’m concerned have zero value to the media company instead of producing content that will attract readers and advertiser to their product.

Ask Anything – How Do You Get Started Photographing Fashion?

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 would like to know the best strategies for non-established photographers pursuing fashion. I find it very difficult to find practical information about pursuing fashion specifically. Maybe you can touch on advertising as well.

If it helps, I will explain my path. My primary income comes from developing models with top agencies in NY. Modestly, I make $2000 – $3000 per month depending on seasonal variables. That’s not so much if you live and work in a studio in NY.

I started out assisting (for one year) but found it shockingly difficult to progress with my work. I knew assistants who had not shot anything of their own for 8 months and beyond. It was like that for me as well. I also knew assistants who were coming off 5 years assisting but they still had to develop their work. I have a really strong itch to work, so I cut my losses.

Beyond model development, what is the next best step for someone in my position? I mean to make money. I’m avoiding stupid magazines, and pursuing hip magazines, which fit my particular style. This however doesn’t really pay.

Emerging Photographer Help!

Established Photographer 1:

Anything is possible anywhere if someone is talented. Fashion is a very, very difficult thing to succeed in, sort of like the NBA. I can’t stress how hard it is. The person should start somewhere they can put a team together and make brilliant photos. They could be in Bangkok or Seattle or NYC. I have never ever known anyone to go from shooting model tests to the big time, but I have known several who have gone from assisting a great photographer to being a great photographer. It gives you the in that you need. But the photographer you work for needs to be a great one. The main thing is that you need to be ambitious to the point of it being worth more to you than anything in life, and then you may have a chance.

Established Photographer 2:

Are you talking about real fashion or small catalogs? If you’re talking about a real career in fashion I wouldn’t even think about it if you weren’t living in NYC, Paris, or Milan. LA is better than anything outside of those cities, but still nothing is close to NY. To be in the fashion industry you have to immerse yourself in it, and it all happens in NYC. I actually laugh when people live in any other city than the above try to be “in fashion.” Plus, these cities are the only cities you can even get top tier fashion models of which companies won’t even think about you unless you have them in your book. The high-level fashion world is very gay (literally) and concentrated in NYC. My straight climbing the ranks fashion photographer friend and I always joke about how you have to be “in the gay” to climb the chains of fashion. Even if you’re straight, you still have to play the game.

Just my 2 cents.

Established Art Buyer:

I think that expanding into Lifestyle or even non-couture fashion gives photographers more options to make money. Real (but good-looking) people in everyday situations; it’s that “aspirational” style that many clients ask for. And if you can test with any top models that you’ve developed relationships with, that’s even better. Based on the current economy, it means starting small, with a smaller hot agency. It doesn’t mean not continuing to build a fashion portfolio, but it means refocusing efforts on projects that will pay for groceries while your portfolio is evolving.

Of course, the questions that need to be asked are:

  • What is the current state of your portfolio?
  • How are you promoting yourself?
  • Have you established relationships with outstanding stylists and retouchers as well as with top models?

More questions than answers…

Big Name Rep In NYC:

When I asked this rep the question, they had a lot of insightful information. They felt that it would be very hard for a photographer to make it in fashion if they were not in New York City or Paris or had a presence or studio there. You must align yourself with a great crew- stylist, hair stylist, make up stylist and top models. They mentioned one young up and coming fashion photographer who befriended a BIG name model and having photos of she and friends, put him on the map. Start with editorial; get great tear sheets and photo credits.

Amanda and Suzanne:

When you are starting out it is really important to work on your portfolio and make sure you have a defined unique style since the fashion world is looking for the next new thing. If you really want to shoot high fashion, New York, Paris and Milan are the biggest towns but LA does have some work. Others have done well in other cities like San Francisco, Miami or Chicago but it is a really hard business to break into. Lifestyle fashion is an easier area to break in, but still making sure you are using the best in talent from models, stylists, make up and hair. Wardrobe is so important. Do not rely on the model for their wardrobe because you have to be in control of the shoot. If you shoot great work then it is easier to get a great talent base for free. The problem with shooting comp cards is that you are scaling back to shoot what the model needs therefore losing control and getting work that represent you. Keep a positive attitude and network like crazy. Get tear sheets with photo credits and PR the hell out of yourself. You should create a “buzz” about yourselves, this is the fashion hype!

Call to Action:

Please let us know tips you have for emerging photographers not only in fashion but other areas as well. A virtual mentorship as it could be known.

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.”

Do you know what is the most valuable asset you possess?

It’s your creativity. It’s what sets you apart from every other photographer; it’s the distinguishing value that is added to any great image you create. Without it, you could be replaced by a machine.

Ironically, this extremely valuable asset can’t be covered against loss by an insurance policy.It’s up to you–and only you–to take precautions that you don’t lose your creativity.

Read the rest on Strictly Business.

Times Are Changing – Less Books, More Video and Profits Are Up

Speaking with an agent recently (small to mid-size, top shelf roster) who told me that last year 20 or more books would go out the door each week and now it’s more like 2.

Also, 80% of jobs now come with requests to see a video reel. They commented that it reminded them of when the internet got hot and everyone wanted web rights but they had no idea what they were going to do with it.

Finally, they told me last year’s profits were up. This was chalked up to clients wanting to go with safe, proven photographers.

The books slowing down I would have predicted but that’s a pretty dramatic drop. I didn’t really think video woould take-off so quick but it makes sense that clients are asking for it even if they don’t need it or have any clue what to do with it. The profits? There are still big campaigns up for grabs each year so I’m guessing while most people are flat or down if you are a small shop and land a few of those, things are looking pretty good.

Photographers- How To Deal With Infringements

I received this note from a reader:

Hi Rob,

I’m a photographer, regular reader and occasional commenter on your blog. One thing that I have been struggling with since starting my freelance career is legal issues. Two specific problems that have plagued me in the last six months are

– A top national news organization reprinting my work (at least four times that I have caught) and not paying, or responding to my calls.

– A Dutch Bank buying one of my photographs for a calendar and promptly stopping communication after receiving the file.

Today I emailed several photographer friends about this and all said that they have to use attorneys regularly to deal with the frequent use without compensation and misuse of their work. Given that this is a larger problem, I’m interested in your thoughts on it and gathering resources/recommendations for lawyers who specialize in copyright law in general and photographers in particular. I’ve seen your posts recommending the Online Media Legal Network who I am currently attempting to work with and discussion of fair use on the internet. This is an important, increasingly complex and ongoing conversation as the rules continue to shift and social networking makes digital images all the more ubiquitous and difficult (if not impossible) to control.

Any thoughts, referrals or opening up the discussion to the group at large would be very helpful.

All the best,

[Redacted]

So, I contacted Carolyn E. Wright, Esq. of the Photo Attorney Blog to see what she thought and wow, she did not disappoint:

Infringements are rampant these days, both because it’s easier for the infringers to find and copy your images and because too many people think that they have a right to use your photos when they don’t or think that they won’t be caught. Fortunately, you can take steps to combat infringement. But the steps you take may limit your ultimate remedies so be sure to first understand what are your options.

Make Copies of the Infringement
If you think that the use is likely an infringement, make copies of it – both in electronic and print forms. Once the infringer realizes that she is caught, she will do what she can to get rid of the evidence of the infringement. You may need that evidence later.

Make Sure That the Use Is an Infringement
Not all uses of your photographs are infringements. Do you use a licensing agency that may have authorized the use? Could the user be related to an entity to which you authorized the use? Is the use a fair use? While only a court can ultimately decide what fair use is, the law gives us guidelines as to what may qualify and an attorney can help you with the analysis. You also may check Stanford’s Copyright and Fair Use website (here) for explanation and examples. While some uses by newspapers are fair use, others are not. The NPPA reports on a case where CBS’ use of Christopher Fitzgerald’s photo was not fair use (here).

Research the Infringer
Next, find out what you can about the infringer. Research the infringer’s website to find their name and contact information. If the infringer is a corporation based in the United States, you can find information about it on the website of the Secretary of State for the state where the infringer is based. You also may be able to find a contact name by searching the website’s “who is” information (here).

Option #1 – Do Nothing
Now that you’ve documented the infringement and have some information about the infringer, you always have the option of doing nothing. If the infringer is in a foreign country where infringements are rampant and difficult to enforce or is a small website with little traffic, you may decide that it’s not worth your time and effort to fight the infringement.

Option # 2 – Request a Photo Credit
If the website would provide a marketing outlet for you, you may only want the infringer to give you proper credit. If so, write the infringer a letter officially giving them the right to use the image. Be sure to designate the parameters of that use and include the condition that the infringer post a photo credit with a copyright notice on or adjacent to the use. You may also require the infringer to add a link to your website.

Option #3 – Prepare a DMCA Take-Down Notice
Pursuant to the U.S. Digital Millennium Copyright Act (”DMCA”) enacted in 1998, the Internet Service Provider (”ISP”) that hosts a website is not liable for transmitting information that infringes a copyright only if the ISP removes the infringing materials from a user’s website after receiving proper notice of the violation. The notice must: be in writing, be signed by the copyright owner or the owner’s agent, identify the copyrighted work claimed to be infringed (or list of infringements from the same site) and identify the material that is infringing the work. Additionally, the notice must include the complaining party’s contact information, a statement that the complaint is made in “good faith,” and a statement, under penalty of perjury, that the information contained in the notification is accurate and that the complainer has the right to proceed (because he is the copyright owner or agent). Use this great tool to stop an infringer whose ISP is in the U.S. from using your work.

Option #4 – Prepare a Cease and Desist/Demand Letter Yourself
When you don’t want to alienate the infringer (the infringer is a potential client and/or appears to be an innocent infringer), you may want to contact the infringer to explain that the use is not authorized and either request payment of an appropriate license fee, a photo credit with a link to your website (as discussed above), or that the infringer cease use of the image. It’s best to do this in writing – a letter by surface mail seems to have more clout than email correspondence.

Photographers sometimes send an infringer an invoice for three times their normal license fee in an attempt to resolve the infringement issue. While the 3x fee may be an industry standard and some courts have used it, is not a legal right given by any court of law or statute. Instead, U.S. law states that you are entitled to actual or statutory damages for infringement as provided by 17 U.S.C. Chapter 5, specifically section 504. The damages that you can receive from infringement – especially if you timely register your photographs – sometimes can amount to a lot more than three times your normal license fee.

There are some risks in sending the letter yourself. First, the infringer may attempt to preempt an infringement lawsuit and file a request for declaratory judgment that the use is authorized. This may involve you in a legal action for which you may need legal counsel in a jurisdiction (court location) where you don’t want to litigate. Second, your demand for payment may be admissible against you if an infringement case is filed. If you demand too little, then it may limit your ultimate recovery. To avoid this possibility, include in your demand letter that “these discussions and offer to settle are an attempt to compromise this dispute.”

Option #5 – Hire a Lawyer to Send a Demand Letter
When an attorney gets involved, the matter is escalated and tensions rise. While the infringer may be more defensive, the weight of your demand letter is dramatically increased if it comes from an attorney and the infringer generally takes the matter more seriously. Some attorneys charge a flat fee to send a letter; others may charge a “contingency fee” which is based on the percentage of recovery. Or the fee may be a combination of both.

Option #6 – File a Copyright Infringement Lawsuit
Your most aggressive option is to pursue your legal remedies by filing suit. Unless you created the work outside of the United States and in a country that is a signatory to the Berne Convention for the Protection of Literary and Artistic Works, you must register your copyright with the U.S. Copyright Office, hopefully before but at least after the infringement. (If you created the photo in a country that is a signatory to the Berne Convention, you do not have to register in the U.S. to protect your copyright or to file an infringement lawsuit in the U.S. However, if you do, then you may be entitled to statutory damages and attorneys’ fees.) If your photo was not timely registered for this infringement, you may want to register the photo for future possible infringements, as well, to be eligible for statutory damages of up to $150,000 per willful infringing use for each photograph. See 17 USC Section 504(b) and (c). Legal fees and costs also may be recovered from the infringer. See 17 USC Section 505.

In most jurisdictions you need to have received your registration certificate to file a complaint. Unless you have a breach of contract or some other state claim, you must file your infringement claim in a federal district court. To file suit, it is best to hire an attorney to help you because the legal procedures are complicated. Note that you have three years from the date of infringement to sue for copyright infringement.

When a photo is not registered with the U.S. Copyright Office prior to the infringement (or within three months of the first publication of the photo), a copyright owner may recover only “actual damages” for the infringement (pursuant to 17 U.S.C. 504 (b)), instead of statutory damages. Courts usually calculate actual damages based on your normal license fees and/or industry standard licensing fees.

Additional Claims
While many photographers place “watermarks” including their name and/or their copyright notice on their images or in the metadata of the file to prevent someone from infringing them, it’s fairly easy to crop or clone over the mark, or to remove metadata. Fortunately, the DMCA section of the Copyright Act provides a remedy in addition to the infringement claim when the infringer removes your CMI to hide the infringement.

Additionally, when you can prove that the infringement was done willfully, then you are entitled to enhanced statutory damages. “Willfulness” means that the infringer either had actual knowledge that it was infringing the owner’s copyrights or acted in reckless disregard of those rights. Evidence that the infringed works bore prominent copyright notices supports a finding of willfulness.

What You Can Do to Best Protect Your Images
To be eligible for maximum damages for copyright infringement and violation of your DMCA rights, put your copyright notice on each page of your website and put your copyright notice on or at least adjacent to each photo as well as in the metadata of your files. Further, register your photos with the U.S. Copyright Office so that you will be eligible for statutory damages. It’s also important to put all of your licenses in writing, even if by email, and make the license contingent on payment of your invoice in full.

Where to Get Help
Legal help is expensive, but there are alternatives. First, an attorney is more likely to be willing to help you on a contingency basis (for a share in the recovery) when you are eligible for statutory damages. So be sure to register your copyrights timely. Some photography organizations provide legal assistance, as well, with educational materials and/or personal assistance.

As mentioned, the Online Media Legal Network is an option. In addition, most states have Volunteer Lawyers and/or Accountants for the Arts (”VLA” )organizations. As in New York, they serve “low-income artists and nonprofit arts organizations. VLA’s many other programs are more widely available to the entire arts community.” Each VLA organization provides a variety of services, such as a lawyer referral service, free legal clinics, mediation and arbitration, wills drafting, and a speaker program in Georgia. St. Louis’ VLA’s website provides a list of helpful publications and other great links, including other states’ VLAs. Find a VLA near you by searching on the Internet for “Volunteer Lawyers for the Arts” and your state. Some VLAs, such as those in Kansas City and Massachusetts also provide accounting services.

Also check with photographers in your area for recommendations for who they use. Since infringements have increased, more photographers have retained legal assistance.

__________________________________________

Carolyn E. Wright is a licensed attorney dedicated to the legal needs for photographers. Get the latest in legal information at Carolyn’s website, www.photoattorney.com.

NOTE: The information provided here is for educational purposes only. If you have legal concerns or need legal advice, be sure to consult with an attorney.

Time Warner’s Bewkes: perform or hit the road

Of course, he stressed, he expects the publishing division to show earnings growth and make significant progress in its digital transformation. Long story short, Bewkes will hold on to Time Inc. — or any other asset — “if it fits Time Warner.”

But what if Time Inc. doesn’t meet his objectives?

“If they can’t,” he said with a shrug, “they’re better candidates for private ownerships.”

via Jon Friedman’s Media Web – MarketWatch.

Commercial Photographer Income

I decided to move the updates from the post on “How Much Money Do Commercial Photographers Make?” here and add a few more that have been submitted:

Photographer 1:
My individual gross revenue* from assignment and stock photography was $362,000
I had $57,000 in out-of-pocket assignment expenses*
I had $120,000 in fixed overhead* costs
My net profit* on my photography was $185,000 ($362k – $57k – $120k)

I’ve been in business for 24 years (started out as a photojournalist working for newspapers and wire services, now I shoot portraits for magazines, corporations and ad agencies). I share facilities, staff, equipment, supplies and insurance with a number of other photographers. The number I quote above was my share of the fixed overhead.

While it’s useful to know what “the budget” is for a particular project, and to know your “cost of doing business” as background when you’re putting together an estimate for a job, those numbers don’t have any impact on the value of a project for a particular photographer. They simply determine whether the photographer is going to be too expensive for the client, or whether the job is going to be too cheap for the photographer.

The value of commercial photography is dynamic. It changes moment to moment, and varies widely depending on who the client is, how unique the photographer is, how busy the photographer is, how badly the client wants that photographer, how badly the photographer wants the project, how much time, energy, and money it will take to accomplish, and of course what the usage is. A smart photographer is going to take a fresh approach to each estimate, just as they would expect to take a fresh approach to the assignment itself.

gross revenue* is the total amount of money you collect in a given tax year
out-of-pocket assignment expenses* are your actual costs for subcontractors, travel, props, rentals (that are specific to an assignment)
fixed overhead* are the costs for your rent, utilities, business insurance, supplies, portfolio, advertising, accountant, etc.
net profit* is what’s left over after you pay all of your business expenses in a given year – it’s what you pay income tax on

Photographer 2:

2009 kinda sucked, I made 30% of 2008!
My billings were $90,000
My net was $54,000
I am an advertising & editorial photographer, lifestyle & portraits
stopped assisting in 2002, so been in biz 8 years.
2010 is starting out much better……… knock on wood.

Photographer 3:

as a commercial photographer who has made between $600,000- 1,000,000 in fees every year for the past half dozen years, i think there are aspects of how you run your business to keep it lean and minimize overheads. as previously talked about, running a corporation allows you to fund and write off capital investments, cars, flights, employees, production and even some ‘entertainment’ pre tax. so it becomes very difficult to judge the true bottom line of where your company expenses end and where your personal income begins. the lines are perfectly and legally blurred. so determining your actual salary is not an exact science.

again, as stated, we all try to make it look as though we make as little as possible and write off as much as is legal, but be for warned, when you then go and try to buy your 2 million dollar dream loft in tribeca, it will really work against you as although your company has billed much, your personal salary will appear to be much smaller. this is a good catch 22.

keeping it lean and not ‘doing an annie’ is critical. for example, i run a still life studio where we have preagreed flat rate fees on studio, cameras, digital capture. so if i use 1 flash head or 20 it is the same price. clients love it cause there are no surprises, but i love it cause there is no cataloging of what was used. no studio manager spending endless hours logging in equipment and then making invoices. people cost money.

i also suggest not doing your own production. in my experience, there simply is not enough of a margin to be made (if at all these days) in doing production and it is a waste of a photographers time to attempt to suck 10-15% out of a budget. you are a photographer. be a photographer. if you are making 50K fees on an ad job and the production is say another 50K, it is simply not worth trying to make another 5K out of the production. as you are holding a lot of overhead which if it goes wrong and/or over budget, you and your business will be held responsible. not to mention the headache. production is for producers.

Photographer 4:

I am a commercial photog in Brooklyn shooting editorial, publishing, some advertising and now doing video producing with partner. I have been in business for myself for 6 years. I do not have a studio, or employees, so overhead is fairly low. I still feel like an “emerging photographer” :) This year has been better a bit because of video work, which is new to my business.

2009 – gross fees: $113k, net will probably be 40-50k – hopefully I can get all my deductions so I am not taxed crazily. I am not incorporated. The past few years have been approx gross 70k fees and net 30-50k.

Ad Agency Guide To Photography Usage Terms

BASIC INFORMATION
With the current US copyright laws as they are applied now, artists own all rights to their created images and sell/transfer rights to agencies and their clients. All questionable negotiations have historically defaulted in favor of the artist. Technically, even minor modification of the art requires the artists’ permission. You are RENTING, not buying an image unless explicitly stated on the contract.

Generally, think of usage costs reflecting the amount of exposure a particular image may receive. The more exposure, the higher the price. Exact terminology may differ, but the semantics remain the same if all of the information is included in each negotiation. You can phrase it any way you want, but be clear about the INTENT by including information from all categories outline below. Talent usage is similar, but there are differences in how each medium is priced out: talent usage tends to be much more specific. Again, it is based on exposure. European terminology will differ from US terminology, particularly in the “Print” category. In Europe, “Print” includes anything that is not broadcast.

Usage is defined by the following:

TIME PERIOD or LENGTH OF TIME
This is the length of time an image or images will be used: one year, two year, one time, etc.. It is best to specify “from date of first use” when negotiating a contract for an image. Standard use generally defaults to one year use {from shoot date} in a specific medium unless terms are otherwise negotiated.

RIGHTS/QUANTITY
This is the number of times within the time period that the image will be used.
Limited: A limited number of times such as “2 insertions” or “run of 5,000” within the time period purchased. By the time you reach multiple insertions in publications such as People or USA Today, you may as well buy unlimited rights.
Unlimited: Can be used an unlimited (unspecified) number of times within the time period purchased. This does not allow a transfer of copyright to you or to your client, nor does it mean the same as “unlimited time.” You both have only the rights to use the image, not to resell it or allow a third party to use it.
Total Buyout: You have purchased the copyright to the image and have full rights to do whatever you want with the image. You own it, basically. In the case of illustration, you own the rights, but you do not necessarily own the final art. That usually requires a very specific, carefully worded purchase agreement. Expect to pay dearly for this usage!

EXCLUSIVITY
I recommend purchasing exclusivity of all images to prevent the resale of any images during the time period you’ve purchased. Unless otherwise stated, an artist has the right to sell an image to another client at any time—even if it is one currently licensed to your client. Usage defaults to non-exclusive of the selected images only if not otherwise stated.
Exclusive: The image (and the outtakes, if specified) cannot be sold to anyone else during the time period purchased.
Exclusive to Industry: The image cannot be sold to anyone else within the same industry (Liquor, Banking, etc.)
Non-Exclusive: The image (and the outtakes) can be sold to other clients at any time

GEOGRAPHIC REGION
This is the area in which the images will be seen.
National: US only. Includes provinces of the US such as Puerto Rico and the Caribbean.
North America: Includes the US and its provinces, Canada and Mexico.
Global or International: Throughout the world (internet is automatically global).
Local: Specific city or area (San Francisco Area, etc.)
Regional: Specific region (Midwest, Southeast, etc.)
Europe: Europe is often negotiated as a neat little package that includes Great Britain, Spain, France, the Netherlands, Scandinavia, Germany, Italy.
By Country: Specific countries can be purchased, but if the exposure is large, such as Europe, it may be wiser to go with Global to make sure you are covered.

MARKET
This category also gives the artist an idea of the degree of exposure. Consumer advertising generally receives more exposure and at a premium cost. Trade is not as expensive, nor as far-reaching in exposure. Editorial is relatively cheap.
Consumer: Markets to “people who buy things”; it is purely commercial (sells things) in nature and the artist want a piece of the action because of the high degree of exposure.
Trade: Markets to “people who sell things to others”; it is lower down on the food chain, and therefore not as expensive.
Editorial: Informational in nature, not commercial. Magazine layouts and textbooks fall into this category.

USAGE REALM
This category further defines how the images will be used. These categories are then segmented even further by defining specific mediums for each.
Advertising: A medium that sells something, like an ad or an outdoor board.
Promotional: A medium that promotes something, like a poster for an event like a concert.
Public Relations: Similar to Promotional, but more awareness-driven and less commercial.
Corporate: Annual reports or internal materials like sales kits.
Editorial: Again, informational in nature, not commercial. May accompany an article or be included in a textbook.

MEDIA
Media usage describes where an image will be seen and can be defined as precisely as you choose. As with photography, when negotiating with talent the specific media included will directly affect your price. Broadcast use is seldom needed, but can be purchased if necessary. Remember that sometimes being TOO specific may come back to bite you later.
Any And All Media: Covers EVERYTHING: all print, OOH, POS, Electronic and Broadcast. “Any” and “All” are somewhat redundant, but it drives home the idea that everything is covered.
All Print: Generally, anything printed onto paper that you can hold in your hand: newspaper, magazine, collateral, direct mail. You may expand your negotiations to include POS or OOH by adding it specifically, otherwise they are generally not included under this category. Exceptions may include GO cards or similar limited exposure items.
Newspaper: Use this category in conjunction with Geographic Region. Size also plays a role.
Magazine: Use this category in conjunction with Market and with specific publications.
Collateral: Includes anything in print that “goes along with” the campaign but is of secondary importance. Things like brochures, some mailers and bill stuffers fit under this category.
Direct Mail: Pieces that are mailed to people. Quantity of pieces and Geographic Region affects pricing. Where the image is seen also makes a difference, whether it’s on the cover, envelope, etc.
Point-of-Sale (POS) or POP (Point-of-Purchase): Things that will be seen where the product is sold. Banners, signage, counter cards, displays, in-store posters, table tents, hang tags.
Out-of-Home (OOH) or Outdoor: Virtually anything seen outside of your home: outdoor boards, bus sides, trans stops, rail cards, GO cards.
Trade Show: Trade show booths or materials used in a trade show. Show attendance and how the image will be used must be discussed.
Electronic: Media that is not printed: Internet, C Ds for distribution, Asset Management System, screensaver. Unless rights are specifically purchased, images cannot be resold.
Internet: Global internet use. Where it will be seen (home page or inside page)may affect pricing. Sometimes numbers of hits makes a difference also.
Miscellaneous: Things like Ad Planners must be negotiated apart from the other media because of the potential for wide-spread, undetermined use.

BODY OF WORKS
This means all of the images shot for the project, not just the selected image or images. Some photographers will automatically sell you the rights to the entire body of works, but most will sell you the rights to only the selects. You will need to clarify at the beginning of the negotiation because usage will default to the selected images only if not specified. You will also want to include a clause that outtakes may not be sold as stock until the rights on the selects expire.

REUSE
It is in your best interest to include verbiage in your initial use statement that covers future reuse. Legally, unless otherwise indicated, an artist can sell an image to another client at any time, with an increased risk after the original use expires. Because the exact date of first use may not be known at the time rights are purchased, it follows that the date of expiration may not be exact. With the proper verbiage, you can create a checks-and-balance system to at least have an opportunity to decide if you want to purchase reuse before your client sees it in another ad. I recommend stating that your “client reserves first option of reuse upon expiration of current rights.” If you and your client do not renew your option, then there is a possibility that the image will be purchased by someone else.

MISCELLANEOUS
You will want to include the right to use images for your agency to use in self-promotion. Those rights are technically not granted past the original usage period without express authorization. Although usually not a problem, it doesn’t hurt to have it stated officially. To get the maximum amount of usage time of an image, include the phrase “from date of first use” or “effective date of first use.” That way, if an image is not used for several months, your usage won’t begin until then. Otherwise, it may be a point of contention a year from the shoot date. This is especially important with talent. If the photographer is coordinating the talent, do not automatically assume that the usage for the talent matches the usage you are contracting with the photographer. You must clarify talent usage at the estimate stage.

EXAMPLES OF USAGE VERBIAGE
Here are some samples of how to phrase your usage statement:
One year unlimited exclusive international advertising and promotional rights and usage in any and all media for entire body of works, effective date of first use. Artist retains self-promotion rights forever, as does the agency. Client reserves first option of reuse upon expiration of current rights.

Two years unlimited exclusive regional (Minnesota, Wisconsin and Illinois) advertising and promotional rights and usage in any and all media for entire body of works, effective date of first use. Artist retains self-promotion rights forever, as does the agency. Client reserves first option of reuse upon expiration of current rights. Image will be
digitally enhanced in post-production.

Unlimited exclusive global advertising and promotional rights and usage in any and all print for an unlimited time. Includes entire body of works. All images, including outtakes, may not be sold as stock until all usage expires. Client reserves first option of reuse upon expiration of current rights. Artist retains self-promotion rights forever, as
does the agency. Total buyout of rights, usage and copyright. Artist retains self-promotion rights. {The word ‘buyout’ by itself is meaningless and will not hold up in court}

This information was provided to me by Former Art Buyers and current photography consultants Amanda Sosa Stone and Suzanne Sease. Usage terms guide created by Kat Dalager.

Ask Anything – Should Photographers be Unionized?

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 explore more of the commercial side of photography (not my area of expertise) and to solicit honest questions and answers through anonymity.

Established Photographers

Photographer 1:

I don’t think photographers could ever pull off a Union type situation. Never in a million years.

It is like trying to organize a million man march of independents. They are too much the loner mentality.

Many can’t even follow loose guidelines for rates or usage.

Photographer 2:

I would even love it if we could just get some standard licensing language and standard estimating forms like the film industry uses. Art buyers are already use to standardized forms from the film world. Why can’t we at least do that?

I am a member of the Director’s Guild, and the company I work through is a member of the AICP, which is a very strong and effective union. They have fantastic representation, and they are well respected by the Advertising agencies. They have a very strong voice, and they are quite successful at getting their voice heard and their agenda’s addressed. Witness the whole dust-up when a few of the agencies announced that they were no longer going to approve advances and they were going to go to a third party payment guarantee. The AICP President immediately announced that they would not support it, and that their members would not abide. Photographers on the other hand did nothing. In short it is a very good model, and there are many benefits for their members. Most of the (National) commercial on air … are Union spots. Most of the advertising agencies are Union Signatories, and therefore CAN NOT shoot non- union spots. Usually, only very small shops, and local companies can get away with non- union. So that said, I have no idea of the history, or how it got started. But one of the reasons that photographers are always dealing from a point of weakness is because they have no good solid representation. Here is a quick, off the cuff summary of issues that are already resolved by the AICP:

1. They have a standardized bid form.

2. Mark-ups are accepted and the norm- therefore when the scope of the job is increased, there is some additional profit, even if the fee is not increased.

3. Billing for Payroll tax and Insurance are standard.

4. AICP looks at and approves contracts.. No weird indemnities and other issues being passed off will nilly by the agencies to the backs of the photographers.

5. Payment is customary advance and final payments are scheduled.

One issue for sure is shitty purchase orders with indemnity clause, and work for hire clause written in. Which I ALWAYS STRIKE, I might add successfully. I have two previous employees that have recently struck out on their own, bad timing huh? But even though they were worried about being a small fish, they are usually successful at getting amended p.o.’s

Another huge issue as you know, that I have been railing on about, it is how hard it is to get insurance, how expensive it is, and how many people in our industry go with out it. If photographers were banded together they would have more clout in this area. Health insurance too…

Well off my soap box for now. I feel real compassion for those starting out now.

Photographer 3:

Only employees can form and be represented by unions.

Independent contractors can be members of unions but cannot be represented by unions. No collective bargaining by independent photographers. Illegal.

The one way around it is for photographers to work as employees. But if photographers work as employees, their employers are the “authors” and copyright owners of any images created.

Short answer: unions are a not the answer.

Art Buyers – International Ad Agencies

Art Buyer 1:

I’ll be honest with you. I would be against a union for Photographers. Right now, print is in a precarious place. We fight to convince clients projects need a print aspect as well as web and broadcast. In my experience, unions bring fees that would deter our clients from entertaining print. I’m not referring to photographer or crew fees. We know what the industry standards are and do everything we can to ensure they increase with the changing times. The fees I’m referring to are union dues, insurances, 10 – 20% production costs.

Unions would also create an uneven playing field. Photographers of different calibers would have the same fees. This would eliminate work to those photographers whose skill set does not match the norm.

This could also negatively impact our local market. Sorry to ask this, but how could I keep some jobs local? My local photographers allow me to of bringing work to the area because they’re fees are less than a New York based photographer. The proper term for this is not “under cut.” It’s “lower cost of living.” I’m fortunate to have amazing talent in my backyard. If they had to meet a National Rate, my creative would ask to see all National photographers right for a project instead of me being able to convincing them to stay right here.

Art Buyer 2:

This would be a terrible mistake. Unions within the Broadcast industry are having a terrible time keeping members. Agencies all over the country are dropping their union signatory status and actors are taking non-union jobs just to stay alive while unions look the other way. This is NOT the right time…

Amanda and Suzanne:

To Summarize, a union would not be approved in our current times. But believe us, something needs to be done to encourage talent to charge appropriately and to be taken care of properly on the client side. We need Insurance for our talent (I “Amanda” paid $2k a month for a family plan under a group plan – Highway Robbery). Photography is a demanding career and takes a toll on the body, emotionally and physically. Union is not the answer, but comradery and other creative collectiveness is. Standardized forms and usage and creative fees across the board verses underbidding fellow photographers. It is crucial to understand Agency Advances and fee structure, to know the tax laws in the city you live and the cities you shoot in as tangible property has become very grey. It is important to understand payroll services, since freelancers are not true independent contractors and the potential liability to the photographer on taxes and workman’s comp. The question we have to ask ourselves: “Are we print photographers running our business as if we were in a Union, are we running our business not only effectively but lawfully to protect ourselves?”

Call to Action:
Brainstorm with your colleagues, organizational groups and create ideas that can be shared and eventually (possibly) manifested.

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.”

News Corporation on ‘cusp of digital dynasty’

“Excuse the immodesty but News Corporation’s pre-eminence as a content creator comes as the debate over the primacy of content is over,” he said, referring to his campaign to get consumers to pay for online news and entertainment. “Content is not just king. It is the emperor of all things electronic. We are on the cusp of a digital dynasty in which our company and our shareholders will profit greatly.”

via The Australian.