I've been doing freelance photography for a number of years based on verbal agreements. Now everyone is telling me to get contracts written up front. Do I really have to go to all the trouble to get a contract in writing?
It's to your advantage, and in the best interest of the client, to have the contract in writing. Written contracts avoid miscommunication.
OK then, what should the contract contain?
That depends on the type of job. Many potential employers will request an estimate. Estimates are flexible and are based upon the information supplied by the prospective employer. A bid, competitive or comparative, establishes both a fixed price and a fixed set of job requirements. A change in the job parameters means a change in the price the photographer will charge. Some things that should be considered for inclusion include the following:
How much will you charge per day?
What expenses will be added on?
What will the photographer supply upon successful completion of the assignment (slides, prints, negatives, digital files, etc.)?
What will the photographer be required to supply (lights, equipment, models, studio, etc.)?
Where will the photographs be used (advertising, editorial, Internet, broadcast)?
Will the photographs be published locally, nationally or internationally?
Who can use the photographs?
For how long can they use the photographs?
Can you sell the images and/or out-takes to others?
What are the terms of payment?
I've read the section on copyright, but what's the bottom line? Do I own the copyright or not?
Unless you transfer to someone else (either through a formal transfer arrangement or a work-for-hire arrangement (such as employment)), you own the copyright.
If I own the copyright to a photo, how do I allow someone else to use it without giving up my ownership?
As Alan Carey of The Image Works said, "By its nature, a license has a limit. A proper license is built from an extensive menu of rights that puts limits on how an image may be used." You license the specific rights to them, preferably in writing as part of your contract. By licensing usage rights, you retain ownership of the image. As part of the licensing arrangement, you can specify the rights to a certain publication or sister publications (including Web pages, television stations or other print publications), for a certain time period, for a specific geographic area or within a certain media. For example, a photographer might include a clause such as "Loehman Photography grants unlimited, non-exclusive use by BW Communications, Inc. all images selected for publication in Media magazine on or before Sept. 1, 1999".
I know that according to the Copyright Law, I can sell my ownership of a photo. Should I?
If you own the copyright to a photo, you can sell it just like you can sell another other personal asset (subject to local laws) in accordance with Chapter 2, §201 of the Copyright Law. However as Carey says, "You never want to transfer copyright. By maintaining copyright you still have the right to show it in your portfolio and exhibit the image." You do not have to transfer the copyright for someone else to publish your photo. Most photographers raise their fees if they are required to transfer all or part of a copyright. Photographers can negotiate the terms under which rights are transferred. Be specific. According to the American Society of Media Photographers, "There is no law that says you have to transfer copyright to a client. Remember, even though the client might be the originator of the concept or idea, this does not entitle them to the copyright of the photograph which you, the photographer, originate."
But what about work-for-hire arrangements, do I have any rights?
According to the copyright statutes, in a work-for-hire arrangement, the individual photographer never owns the copyright--the employer does. Work-for-hire agreements automatically exist when employees take pictures for their employers. For freelance photographers to qualify for work-for-hire arrangements, the assignment must be specifically ordered or commissioned for use as a part of nine specific items noted in the legislation. These nine items include a "contribution to a collective work" such as a newspaper, magazine, Web publication or broadcast. In addition, both parties can agree, in a written instrument signed by both, that the work shall be considered a work made for hire. In a work-for-hire arrangement, photographers do not have the right ever to negotiate for the rights to the photos taken as part of the assignment. According to attorney Kurt Wimmer, "Importantly, either employment or a written contract is required to create a work for hire. If you take a freelance job and don't sign a written contract assigning the copyright to the publication, you own it. The publication only has a license to print/telecast/webcast it. The publication has to come back to you (for another license) for permission if it wishes to use it again or in a different medium."
Neither NPPA nor any other organization can give you an exact answer to this question. There are simply too many variables involved. The American Society of Media Photographers publishes some guidelines for a minimum day rate, pointing out that, adjusted for the Consumer Price Index, the editorial day rate went down 32 percent between 1973 and 1990. As a independent businessperson, don't forget to consider all of the overhead costs associated with any assignment such as use of your car, the cost of your camera equipment, the use of your office space, telephone and mailing costs, envelopes, office supplies, etc. All too often, photographers forget to figure in the cost of all of these items and end up undercharging.
The NPPA's Cost of Doing Business calculator is an excellent tool to help you get a handle on costs.
Why would I ever want to negotiate a work-for-hire arrangement?
As with any economic arrangement, if the terms are suitable to both parties, a deal can be made. For example, if the "cost" of giving up your rights to the photos is worth getting the assignment, making contacts, potential future jobs with the same client or perhaps even just experience, it may be worth the loss in potential earnings to have a work-for-hire contract. Similarly, if the contractor is willing to pay more for the copyright ownership, it may be worth negotiating such a contract. According to photographer Dirck Halstead, "the only time a free-lancer should sign a 'work-for-hire' agreement is when they are doing a project that would require a special relationship such as working as a unit photographer on a movie which takes months to do. Even then, it is common that if your photographs from your work are used for a different purpose (publicity vs. advertising), then normally there is an additional buyout fee for the additional use."
How much should my fees increase in a work-for-hire arrangement?
Again, it's impossible to give an exact figure. When negotiating a work-for-hire contract, the photographer should consider not only the present value of the photographs but their potential future value (i.e. potential sales in the future).
How would I begin to calculate future earnings?
Try to make some educated guesses about the demand for a photo in the future. If you think you might sell a photo three other times, perhaps once to a textbook, once to an encyclopedia company and once to a news show doing a retrospective of the 20th Century, decide how much you think those sales would bring in. "Our images are our legacy," Jim Graham said. "They provide us with a living now and later as stock sales. Our images are our partial retirement account. I have one friend that makes $50,000 a year in stock sales. If he had signed away his rights to those images upon their creation, he'd have nothing."
What terms should I give the client, payable upon receipt, net 30, net 60, net 90?
The terms should be negotiated with each client as part of the contract and should be agreed upon by both parties. There is no standard. "One of the big problems I've been having is getting companies to pay in a timely fashion," said Steve Warmowski, a photographer in Illinois. "One suggestion I've seen is to give a 0.5 to 1 percent discount if paid by a certain date." Payment is supposed to be made prior to publication although many publishers don't pay prior to publication.
Many print publications, and even television stations, have their own Web pages that recap the stories and images that appear on the nightly news or in the newspaper/newsmagazine. How do I negotiate rights for the use of my photos on the Internet?
Just like you would with the use of your photos in any other publication. While it doesn't apply in work-for-hire situations, free-lance photographers can license their photos for use only in print publications, only on the Web, only in broadcast, only on the Web or in any combination of the above. As free-lance photographer George Bridges said, "it's important to find out a lot of information before negotiating rights for Web usage. Is there extra payment for Web usage? How long does the Web page stay active? Can you sell to other Web sites after a certain period of time? Is the Web site archived? Who has access to the Web page? This is getting to where it is more or less part of a paper's usage."
Do I have to get model releases?
Typically, model releases don't apply in editorial photography. However, if you're taking pictures for non-editorial use (advertising, etc.), you may need model releases. Who is responsible for getting the model releases should be spelled out in the contract. If you're going to have the rights to resell your work as stock photography, you will want a model release.
What if my pictures aren't up to their standards? What do they have to pay me?
This too should be part of the contract. You should also consider whether or not they will still have to pay for your expenses should the images not be usable.
If I'm on an assignment, who pays for liability insurance?
This should be figured in as part of your "overhead" costs so you agree upon a rate that fairly represents what you need to make. Photographers should maintain business liability insurance. "Waiting for a client to pony up for 'agreed upon' liability claims can be disastrous for a small business. However, having your insurance company go after the client's usually resolves things faster, more favorably and in a less stressful manner for the photographer," according to David Cantor.
When I'm applying for copyright of a group of my images, can I register them all at once?
The Copyright Law does provide for the registration of a group of photographs taken by the same photographer and published within the same calendar year to be submitted as a group for a single registration. If the claimant does not wish to or cannot identify the specific date of publication of each photograph, a range of publication dates may be stated provided that all of the photographs in the group were first published within three months before the date the application, fee and deposit are received by the Copyright Office. A collection of unpublished images can similarly be published as a group. You cannot register a mixed collection of published and unpublished works. Contact the Copyright Office for more information.
What is fair use and how might it affect me?
The copyright laws within the United States allow for the "fair use" of copyrightable works. The Fair Use Doctrine was originally designed to permit use of such works in criticism, comment, news reporting, teaching or research. There is no clear-cut set of guidelines for what is fair use and what isn't. Each case must stand on its own merits. The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use such as:
use of a photo that was part of a collection as part of a review of that collection;
use of a photo as part of a scholarly analysis of the photo; or
reproduction by a teacher or student of a small part of a work to illustrate a lesson.
According to the Copyright Law, §107, Limitations on Exclusive Rights: Fair Use, four factors determine whether or not a particular use is fair, including:
the purpose and character of the use, including whether such use is of commercial nature or is for non-profit, education purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.
For more information on fair use, obtain publication FL102 from the Copyright Office.