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Photo Copyright

Okay, let's talk a little bit about copyrighting, okay? 'Cause it's something that's important to people, and I've already talked about this. I broke it in by saying that I am diametrically opposed to work for hire arrangements. I don't think they benefit anyone, 'cause I honestly as a photographer, you're not retaining any of your intellectual property, and that is a problem, and I think it's a problem in our industry that there are people who are willing to do that type of work, because what you're doing is you're training the clientele to think that that's the way it works. That's why I'm happy that this was something that was really popular and people were looking forward to hearing, because I want to get that message out. I want photographers to understand that if you don't retain your copyright and you don't understand usage, that you're gonna get used. Go ahead. Could you just define work for hire really quick? Let me just see if I understand. Basically an hourly rate and then...

they own you basically, and you have to give them-- You become staff photographer for the day. Like a contractor. Yup, and you don't keep your copyrights, meaning you can't resell those images, and you can't really use them any way you want to use them, because they own them. I think that's a terrible business practice, and I understand it. Look, I understand if you gotta make money, and this is the only opportunity you have, but the reality is that if you are... We are not unionized, we're not collective. We don't have a set of rules, we don't have structured pricing. We're individual business people but on some level, we all operate in the same industry, and if you don't respect the idea of intellectual property, you're hurting the industry. You're hurting yourself and you're hurting everyone else who does this business. If you're selling yourself cheap, if you're giving it away, you gotta get something back in return, and if it's a work for hire situation, one day you might regret it, and I'll give you an example is that picture, right? I retained the copyrights on that picture of the chef who worked in Las Vegas. I used the picture on my website because I liked it and a couple other things that I had it with, and I wasn't intending on selling it to anybody, but the reality is I retained the rights to that picture. If I had just given up the rights to that picture, and now it's a life size poster at a restaurant in Las Vegas, I lost. That's a lose. That's the whole issue there, right? Is everything that comes out of your camera belongs to you and your mind and your brain. These are the things that created that image, your hard work. So if you don't insist on retaining your copyright, you're losing potential earnings in the end, and a negotiation with an advertising company, And I told this story at the lunch table the other day, right, we were sitting there talking, is how I shot a job for a major international brand, two, almost three years ago now, and because I retained copyright on all the images, they have to continually relicense the pictures to use them. So it's like getting a new job every time they want to use the pictures. That's why it's important to keep your copyrights. Yeah? When you do a job like that, you own the copyright, but then those are also images of you know, something that they may object to you using outside of their brand, and likewise with the chef, do you need model releases and so forth that give you the rights to use, even though you own the copyright, the rights to use-- Yeah, well model releases is another argument, but I think that this brings me to the next point in my notes, is shared copyright. When you work with a lot of people, like I work with the New York Times. They obviously own the pictures I shoot. There's not question about that. But I do too. I own them as well. So I can sell them independently without having to consult them, and vice versa. Now, there's a... There's a contract and it's a little bit more complicated than just that, but the reality is that I still retain the rights to my pictures, as well as they retain the rights to use them in any of the publications that they own, whether that's online or whatever. And that's pretty standard. A shared copyright is a pretty standard procedure, because the idea is that it's not only your property, but it's theirs as well. That particular arrangement ends with advertising though. When it's editorial, that's one thing. Advertising is something completely different, and publishing as well, because you negotiate a lot of this stuff ahead of time. Most of the time when you enter into an arrangement for a photo shoot, there's a contract, and that contract will spell out exactly what your rights are, and if you don't like what's written in that contract, strike it, send it back, renegotiate. Don't just accept it just because they send it to you, and read the fine print, because they will sneak in these little things, where all of a sudden you're sitting there going, "Oh, I don't have. I can't do that, that's terrible, I never thought of that." Read the contract, understand what they mean. If you don't know what it means, get somebody in your life who does. Have a lawyer read it. If you know a lawyer or a friend who's a lawyer or somebody who's familiar with reading photography contracts, another photographer, and then try to understand the terminology that's there, like the way we just talked about work for hire, right? That's a term that appears on contracts. "This is work for hire." You need to know what that means. These things that we're talking about with copyright and shared copyright and usage, now when you talk about licensing pictures, you're talking about an entity's legal right to use the image that you've created. That's usage. Now every contract, whether it be editorial or not, there is sometimes a moratorium on the picture. And that's usually what happens in editorial photography, like newspapers and magazines, there's a moratorium on it, meaning they can use the picture in their whatever they want. You have to wait a certain amount of time before you're allowed to use it in another venue or resell the picture, because it needs to retain the integrity of the original story. And I don't know that that's gotten any trickier because of the web, which I would've thought it would have, because I think that the entities would've been like, "Well let's extend the moratoriums, because we're gonna use this for a lot longer on the web," but it really hasn't changed. Read that in your contract. And if you feel that the moratorium is way too long, if it's like a year or two years or things like that, you can negotiate that back, it's a bargaining chip. Anything in a contract is a bargaining chip, and you'll know, you'll figure out which ones you run up against that have stone walls and which ones are bendable. But it makes you feel and present yourself way more professional when you understand what's going on in the contract. Read it, understand it, negotiate it, strike things, send it back, just so you know, and then people know they're dealing with somebody who knows what they're doing. Steve? What are reasonable moratorium times? Well I think the newspaper moratorium takes about 60 days. I think magazine probably a little longer, especially depending on whether it's a monthly or a bimonthly or a weekly, it just depends. I wouldn't say that the moratorium should be anything longer than three months in an editorial column, or something like that. It usually expires fairly quickly, before you even really have a chance to send it off to your stock agency or sell it to somebody. But that's the main key right? Is that you want to sell it to... If you have a stock agency, you want to put it out there so that it could be resold. In the case of shared copyright, are you required to share revenues as well? Sometimes, yeah. It depends. It depends on the contract and it depends on the client. The way the Times does it is that there is a reciprocal arrangement, where they have... They have a stock agency called Redux, and they relicense pictures and then you get a percentage, and that's an inverse relationship. If I sell pictures, you know. That's how that works. And y'all use the same stock agency? No actually, I don't. I'm represented by Stock Food, and then Redux. Sometimes there's a little bit of a conflict, so you gotta be careful about what you send to the stock agency. I try not to send the pictures that were published. I usually try to send the other ones, the outtakes or the secondaries. Yeah? Is there ever any paperwork on end use as far as when things expire? Or is it just-- No, most of the stuff in editorial is in perpetuity, you know? 'Cause the web, stuff's gonna live forever. Most of it's in perpetuity, it's forever, you know? Yeah? So then back to your international brand that relicenses every year, you know kind of relating to that question, is that the majority of your clientele? They're continually paying to relicense? Or was that just kind of a-- No, in advertising that happens often. You know, a lot of really successful commercial photographers, they're receiving continual payments for things that are being relicensed for years and years and years. I mean, if you took a picture of, I mean, it's not a picture, and it's a horrible story, it's about the Gerber baby, right? You know the story about that. And that should be the gold standard of understanding about this particular issue is the person who did the image of the Gerber baby, or the person who was in the image, I forget exactly what the circumstance was. But that picture was licensed and bought out like that, like work for hire or whatever, and that person was never compensated. And that image was worth multiple millions of dollars in resale, you know, in relicensing fees, and that person never received anything for it. That's the horror story you don't want to be part of. You don't want to take that picture and then all of a sudden it's worth millions and you got nothing. Yeah? So then are your contracts annual? Do your contracts have a 12 month length where at the end of that 12 months, I mean is it written into the contract that at the end of this year, you have to relicense this image? Yes, yeah, there'll be a usage image, a usage built into the contract. So it'll be, let's say print, global web usage, FSI for two years. And then after that expiration date, they either have to relicense the picture or stop using it. That's what the advertising agency is there to enforce. They work with the clients and their contractors to make sure that those things happen. Again, that's advertising, and quite honestly, those rules apply, if you're not shooting for a magazine or a newspaper, because those contracts are all really kind of complicated and you kind of know what you're getting yourself into when you're dealing with editorial. But when you're negotiating personal contracts, like for a restaurant or a private client, all that stuff needs to be spelled out, and you say to them, "Okay, you can use these," 'cause you know, you've got a company, local company, but they're gonna do bus advertising, you know? You want them to be able to use it but not forever. You want them to have to come back and then relicense the image or make you shoot again. So, yeah. So for the original usage of an image do you put that cost into the original contract, the original rate? Well, when you're negotiating for an advertising contract, you have a day rate, and that's for you to show up and open the bag. Everything else is extra. So do you then sell the images afterwards? Well no, what you do is you do a line item, "Here's my day rate, here are my expenses, studio, blah blah blah blah blah. Here's your usage fee. This is what it's going to cost you to license these images for this amount of time," and there's a number and then at the bottom is your total. My day rate, all my expenses, usage fees. Yeah, yeah, go ahead. So say they originally said they wanted two photos with variations, but then after the shoot, "Oh, we need five." Then you charge more money. You add to that, okay. Yeah, that's it, you just negotiate right back and say, "Two is going to cost this, five is going to cost this." And if you feel like you want to give them a little, because you're grateful for the fact that they want to buy more pictures, then you give them a better price. Paola? You said before that shared copyright was normal for editorial, but it was different for publishing and advertising, for publishing and advertising you-- Well there is no shared copyright in advertising unless they buy the-- You retain the copyright and then they have to license everything and the same with... You mean the shared copyright with an editorial client? Yeah, I'm saying the arrangement you have the New York Times. Well, they have the right to they have the right to sell the pictures any way they want, that's what the shared copyright means. And I get a piece of that, but they can do whatever they want with them. But then, say with a cookbook client or with an advertising client, you're the only one who can sell? You need to dictate the usage, yeah. Definitely, especially with any client that does not... See, the thing about publications, like magazines and newspapers, is there's an expiration date on the item itself. You read the newspaper, close it up, throw it in the trash, or read the article, move onto the next on. It doesn't appear on your iPad anymore because it's deeper into the thing, you'd have to go search for it. So the reality is there's a shelf life on that stuff already. But stuff that you do for publishing companies, you better spell it out, because that's gonna appear in another book if you don't, you know what I mean? So that's one of those things you gotta spell that out in the contract, because if you don't protect those images, they can be reused any way you want. And honestly, those are valuable commodities, especially for a publishing company. If they don't have to pay for any more imagery, they're happy. Any more questions here, 'cause we probably got time for maybe a couple more right, from the audience? Absolutely. Cool. Question from Cleo Boston. Do you ever market or resell images that the client did not get on the original shoot? Any images you possibly shoot for yourself? You mean outtakes? Yeah sure, that's what I was saying before is that the stuff I send to my stock agency is usually the outtakes that are not directly similar to the ones. So they may be from the same shoot, but they don't look like the pictures that were published. Yeah, 'cause I'll overshoot stuff so that I know, if it's something I know will sell in stock, I'll overshoot it in a different way and then send those images to the stock agency and these images to the client. [Woman With Laptop] What about not just a stock but shooting them for yourself for something else, like a blog or all that stuff? Oh sure, yeah. Yeah, absolutely, 'cause I'll use my outtakes or the variations for other things that I'm doing as well. I'll put it on my blog or I'll print a business card with it, or whatever. So sure, there's always the opportunity to shoot something that you think is well presented, well styled, and whatever in other venues. [Woman With Laptop] Great. Cool. And Cayenne from New Orleans asks this question: how do you keep up with the different copyright arrangements with the different clients? So you know what he has to pay to them, and what they owe to you, and how do you manage all that? Well, I think that some of it is trust, because you can't physically manage all of it, but you also keep a book of contracts. I have all my contracts that are current in a binder, and I kind of routinely look through them and know what is appropriate and when things are expiring. And also like I said, the ones that are done through an agency, the agency will pretty much monitor those, because they stand to make money on it as well. Now the other thing is if you have an agent, if you have representation, some of that can be taken care of by your representation as well. I currently am not represented. So it's I represent myself in most of my negotiations, and I can't imagine why. (audience laughs) So yeah, I'm here, and I negotiate a lot of my stuff myself. It's daunting at times, but I find that I like the client relationships that I've formed through doing it that way. And when you do negotiate, do you go heavy on the accent? No, I try not to go there, it's not... (audience laughs) I save that for when they don't pay me. (audience laughs) All right, well should we ask one more question before we go to break? Yeah, we're good, one more. All right, let's do that. This is from Karen Lawson, who asked on our Facebook page, and the question is in your early career, when you were building your client base, did you call restaurant owners, magazines, et cetera, asking to do photography for them or did you ever send advertising emails, printed material, et cetera? How basically did people find out about you early on? Well, I think I was lucky enough to be published in a pretty big newspaper that a few people have heard about really early in my career, so that helped. But yeah, I sent postcards out, I would send email blasts, I would send people over to my blog. I would reach out and take meetings with different magazines and newspapers. I would call up the... You know, go into a magazine and look at the masthead and figure out who the art director was, and figure out who the photo director was. Send them a post card, request a meeting. So it's a lot of legwork, for sure. And you gotta get out and take your iPad and your portfolio and get out and meet people, because you want people to see you, because part of it is how they think that they can work with you. It's not just about how good you are as a photographer, 'cause if you're a pain and you're a diva, it's hard. People don't want to do that, they just don't. And if you're an egomaniac or you're somebody who's really difficult to work with, you know, so that's why it's good to get out and meet people, because then they see if you're not that, and then you're not going to be a pain in the neck, then you'll be easier to work with. So basically work hard, be nice. Work hard, be nice. I love that, that was from yesterday on Shawna's wall, right? Shawna, yeah. Shawna's throwing us some knowledge. She's dropping knowledge. Dropping knowledge. Well, so are you. You have been dropping knowledge for the last few days, and this business section is just incredible. I mean, I've never seen so many hands either Jim, and the questions from the studio audience are just flying out, so it's very, very cool.