# Licensing an Image



## lennon33x (Feb 26, 2014)

So I'm doing a shoot of a veterinarian that I work for/with. I am having him sign a contract (and this thing covers EVERYTHING). I have a question about licensing. 

I've included a disclosure about licensing in the contract. It reads as such:

"Licensing of images by the Client is strictly prohibited. Client may not, without the expressed written consent by the Photographer replicate, edit, crop, or otherwise alter the image in anyway. Any alterations made to the images without express written consent of Photographer are subject to federal law, and Client will be held responsible for any and all applicable fees, including attorneys fees and court costs."

I am allowing him to use the images for replication and promotion of his business (i.e. his website, his social media, personal Facebook, etc.) with specific restrictions. 

In regard to licensing, if a magazine wants to do an article on him to promote his business, but wants to use _my_ image, that's a restriction of licensing by the contract correct? And that they would have to get my permission? Or is this one of those gray areas of law, and without expressed language to include it, they can use it and get away with it?

I know someone's answer will be consult an attorney, but I didn't know if anyone had experience with this. Thanks


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## tirediron (Feb 26, 2014)

It would depend on the wording, but I would think that you could make a case for self promotion by using the story in a magazine.


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## KmH (Feb 26, 2014)

reavesce said:


> "Licensing of images by the Client is strictly prohibited. Client may not, without the expressed written consent by the Photographer replicate, edit, crop, or otherwise alter the image in anyway. Any alterations made to the images without express written consent of Photographer are subject to federal law, and Client will be held responsible for any and all applicable fees, including attorneys fees and court costs."


Yep. Have a qualified attorney review and re-write your contract.

That is a contract clause that mostly reiterates some of the rights included with your copyright.

"Sub-licensing of the images to 3rd parties is prohibited." 
"Revelia Photo retains copyright and all other rights, and without the expressed written consent by the Photographer Dr. Doolittle Veterinary Clinic and Hospital is not allowed to  edit, crop, or otherwise alter the image(s) in any way."

Use license - "Revalia Photo grants Dr. Doolittle Veterinary Clinic and Hospital non-exclusive use of these images on the business web page(s), and in online social media.
Images may be no larger than 400 x 400 pixels for any online use."

I highly recommend also specifying a time limit for the use.

For more information about use licensing and access to a use license generator visit Business Resources | American Society of Media Photographers


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## lennon33x (Feb 26, 2014)

KmH said:


> That is a contract clause that mostly reiterates some of the rights included with your copyright.  "Sub-licensing of the images to 3rd parties is prohibited." "Revelia Photo retains copyright and all other rights, and without the expressed written consent by the Photographer Dr. Doolittle Veterinary Clinic and Hospital is not allowed to  edit, crop, or otherwise alter the image(s) in any way."  Use license - "Revalia Photo grants Dr. Doolittle Veterinary Clinic and Hospital non-exclusive use of these images on the business web page(s), and in online social media. Images may be no larger than 400 x 400 pixels for any online use."  I highly recommend also specifying a time limit for the use.  For more information about use licensing and access to a use license generator visit Business Resources | American Society of Media Photographers



So my example is more of a sub-license?


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## lennon33x (Feb 26, 2014)

reavesce said:


> KmH said:
> 
> 
> > That is a contract clause that mostly reiterates some of the rights included with your copyright.  "Sub-licensing of the images to 3rd parties is prohibited." "Revelia Photo retains copyright and all other rights, and without the expressed written consent by the Photographer Dr. Doolittle Veterinary Clinic and Hospital is not allowed to  edit, crop, or otherwise alter the image(s) in any way."  Use license - "Revalia Photo grants Dr. Doolittle Veterinary Clinic and Hospital non-exclusive use of these images on the business web page(s), and in online social media. Images may be no larger than 400 x 400 pixels for any online use."  I highly recommend also specifying a time limit for the use.  For more information about use licensing and access to a use license generator visit Business Resources | American Society of Media Photographers



Keith, in that website, they talked about editorial licensing. Could I just put a restriction on editorial licensing?

And how do I look up the current size of the images on their website?


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## Gavjenks (Feb 26, 2014)

Not letting them sublicense it or restricting where it is used? Fine, great! But:



> I highly recommend also specifying a time limit for the use.


Um, gross, no. I would never work with a photographer that tried to pull crap like that.
Are video game DRMs not draconian and arbitrary enough for you, that PHOTOS now need to have built in time bombs for no apparent reason other than making a photographer more money?

Photos are non perishable goods and don't require maintenance from the photographer so there's no reason why they should ever expire other than greed. And it comes across exactly that way to a client reading that clause. Which would be a huge red flag and make me run for the hills personally.


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## lennon33x (Feb 26, 2014)

Gavjenks said:


> Not letting them sublicense it or restricting where it is used? Fine, great! But:
> 
> 
> 
> ...




I'm with you on this one. I don't want to be greedy. And truthfully, I'm not sure I want to restrict size either. The truth is, I still own the images. And he has the ability to use them. I just don't want them being published/used in places without my knowledge or permission.


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## Gavjenks (Feb 26, 2014)

reavesce said:


> I'm with you on this one. I don't want to be greedy. And truthfully, I'm not sure I want to restrict size either. The truth is, I still own the images. And he has the ability to use them. I just don't want them being published/used in places without my knowledge or permission.


The only _reason _you still own the images is because you didn't write in your contract that you sold the rights to the client.
As a client, I expect a *discount *for that, and for *any *other restrictions you place on me. Restrictions make me less money, so your images are worth less to me, and I'm not going to pay you as much.

Even saying "only business webpages or social media is a potentially HUGE restriction that depending on the business, might warrant me demanding a 40-50% *discount *over competing photographers in the area who do not require such restrictions. Because basically you're telling me I can only use this image in like half of the situations I might want to use it in (no posters, no flyers or direct mail, no business christmas cards or whatever, no advertising on other websites besides my own that aren't social media, like pet forums or whatever, etc. etc. etc.).

So I'm only willing to pay you for the essentially half an image that you're giving me, compared to the other guy who lets me use it however I want. And don't think that you still get to charge full rate for your time either. As a client, I don't care about your time versus your equipment versus your licensing. I care about my final product and how much money it's going to make me. Your restricted product makes me half as much money? I pay you half as much, for the _entire _cost. If that doesn't leave you enough money for your time, then maybe you should reconsider your licensing...



And if you put a time limit on it, if you expect me to not be insulted, then I expect a *discount *again proportional to how long I plan for that photo to be relevant to my business. For example, let's say you have a 3 year time limit on your photos, and you're giving me a picture of a cute dog for my veterinary business. Dogs will always be relevant: I could and very well might use that photo for the next 30 years. So if it expires in 3 years, I would have to schedule 10 photoshoots with similar licensing to get the same value out of it as I would a competitor not requiring that restriction.

Thus, your photos should cost 10-20% (20% because I might retire sooner or whatever, covers the odds a bit mroe fairly) as much as the competitor's who doesn't require that restriction, otherwise it's a dumb business decision for me to go with your services.





Does that make sense?
Hopefully the theme of this post is clear by now


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## KmH (Feb 26, 2014)

reavesce said:


> Keith, in that website, they talked about editorial licensing. Could I just put a restriction on editorial licensing?
> 
> And how do I look up the current size of the images on their website?


You can restrict whatever you want to restrict, and allow whatever you want to allow.

On their web page you can right click and look at the web page source code. The source code will tell you the size of the image
You can also get a good idea of the image pixel size based on the resolution your computer display is set to.

Defining a time limit for an advertising use is a common _commercial_ photography business practice.


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## lennon33x (Feb 26, 2014)

Gavjenks said:


> The only reason you still own the images is because you didn't write in your contract that you sold the rights to the client. As a client, I expect a discount for that, and for any other restrictions you place on me. Restrictions make me less money, so your images are worth less to me, and I'm not going to pay you as much.  Even saying "only business webpages or social media is a potentially HUGE restriction that depending on the business, might warrant me demanding a 40-50% discount over competing photographers in the area who do not require such restrictions. Because basically you're telling me I can only use this image in like half of the situations I might want to use it in (no posters, no flyers or direct mail, no business christmas cards or whatever, no advertising on other websites besides my own that aren't social media, like pet forums or whatever, etc. etc. etc.).  So I'm only willing to pay you for the essentially half an image that you're giving me, compared to the other guy who lets me use it however I want.  And if you put a time limit on it, if you expect me to not be insulted, then I expect a discount again proportional to how long I plan for that photo to be relevant to my business. For example, let's say you have a 3 year time limit on your photos, and you're giving me a picture of a cute dog for my veterinary business. Dogs will always be relevant: I could and very well might use that photo for the next 30 years. So if it expires in 3 years, I would have to schedule 10 photoshoots with similar licensing to get the same value out of it as I would a competitor not requiring that restriction.  Thus, your photos should cost 10-20% as much as the competitor's who doesn't require that restriction, otherwise it's a dumb business decision for me to go with your services.  Hopefully the theme of this post is clear by now



The only real restrictions he has is licensing. He can use it for his business, pamphlets, cards and any business paraphernalia associated with his business that he initiates (i.e. Another company can't come to him and ask to use the image for their business without my consent). He has no restrictive uses in regard to the business. It's the licensing or portrayal that he owns that I have an issue with. 

I've known him for years, and this contact is borderline ridiculous. But because I know he has the potential to do some crafty sh*t, I want to make it clear as to what he has permission to do. And truthfully, he's a client that, if he doesn't want a contract, I don't care doing business with. 

I'm giving him a HUGE discount, comparative to others in the area. I need the headshots for my portfolio, but I'm not just going to do it for free.


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## Gavjenks (Feb 26, 2014)

To be clear, I was responding to this quote from KmH regarding the "no christmas cards" part:


> Use license - "Revalia Photo grants Dr. Doolittle Veterinary Clinic and Hospital non-exclusive use of these images on the business web page(s), and in online social media.
> Images may be no larger than 400 x 400 pixels for any online use."



But yes, okay. If you're giving him a deep discount, then you have good leverage to make whatever licensing demands you see fit to prevent his craftiness. And I don't think you should be afraid to tell him that in person as explanation if he coomplains (not the "you're a crafty SOB" part, lol.  Just something like "This helps make sure I get fairly compensated for the extent that the images are used. I am giving you a large discount in part because of your images being partially restricted.")

Go for it!


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## vintagesnaps (Feb 26, 2014)

A contract for usage should be for specific use and could be for a particular time limit; it depends. A contract could be for one time usage or multi use. There could be a possibility as technology changes that you may want or need to change the format or re-edit your photos, or his business could change, etc. so I don't think a contract being unlimited and lasting from now on is necessarily a good idea. 

I find what you wrote to be rather wordy and repetitive yet not clear enough. I'd look at sample contracts to find out how to phrase what you want to include in the contract. I was going to offer the same resource that Keith did - thru ASMP's site I found a book by Tad Crawford I bought that has sample forms. 

Reading that you feel the guy has the potential to do some crafty sh*t is a red flag - maybe you're too far into this to consider cancelling but it doesn't seem like it'll be worth it for a head shot - that you're underpricing. I'd let him find another photographer (who he might just have to pay the going rate) and then find someone else that you can work with to get a portrait for your portfolio. With this type person having a lawyer advise you on the contract would be something to consider.

I think usually if a magazine or newspaper uses a photo given to them by the person or company featured in an article, it will indicate Provided or Submitted under the photo. I'd think such usage would mean a specific contract for one time use for publication (or the paper or magazine may want to send their own photographer).


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## lennon33x (Feb 26, 2014)

vintagesnaps said:


> A contract for usage should be for specific use and could be for a particular time limit; it depends. A contract could be for one time usage or multi use. There could be a possibility as technology changes that you may want or need to change the format or re-edit your photos, or his business could change, etc. so I don't think a contract being unlimited and lasting from now on is necessarily a good idea.  I find what you wrote to be rather wordy and repetitive yet not clear enough. I'd look at sample contracts to find out how to phrase what you want to include in the contract. I was going to offer the same resource that Keith did - thru ASMP's site I found a book by Tad Crawford I bought that has sample forms.  Reading that you feel the guy has the potential to do some crafty sh*t is a red flag - maybe you're too far into this to consider cancelling but it doesn't seem like it'll be worth it for a head shot - that you're underpricing. I'd let him find another photographer (who he might just have to pay the going rate) and then find someone else that you can work with to get a portrait for your portfolio. With this type person having a lawyer advise you on the contract would be something to consider.  I think usually if a magazine or newspaper uses a photo given to them by the person or company featured in an article, it will indicate Provided or Submitted under the photo. I'd think such usage would mean a specific contract for one time use for publication (or the paper or magazine may want to send their own photographer).



Is 5 years long enough?


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## Gavjenks (Feb 26, 2014)

> A contract for usage should be for specific use and could be for a particular time limit; it depends. A contract could be for one time usage or multi use. There could be a possibility as technology changes that you may want or need to change the format or re-edit your photos, or his business could change, etc. so I don't think a contract being unlimited and lasting from now on is necessarily a good idea.


Can you maybe give an example of a situation where that would actually be _necessary_?

Services like re-editing or changing format seem like they should be offered as just that: services that the client can opt for if they so choose later on, perhaps for additional a la carte fees. Not weirdly mandated by a time limit expiring. If I don't WANT to have my images re-edited or reformatted, I can't think of a reason why I should be forced to. 

Framed as an optional service, it becomes an attractive feature of your business and makes me want to do business with you. Framed as a time limit introduces liabilities and leaves me with less control and makes me want to avoid you like the plague. It is completely analogous to video games: Installing DRMs in the game that make it unplayable unless I have a verifying internet connection with you is horrible and I never buy things from companies that do that, and it has sunk many games' potential due to other people feeling the same (for instance Spore). If they sold it for way less than a normal game to compensate for me essentially renting it from them, *then *maybe that would be okay. But they never do. They charge full price and act like it's just common sense/no big deal that you shouldn't own a game you buy... No thanks.

Again, deep discounts to compensate for the fact that I now have to rent your images? Sure, maybe. Just throwing it into a contract with no major concessions to make up for it? Not so much.




"One time use" is a totally different concept that seems much more reasonable. Like "only for this magazine's cover photo" or something. But notice the difference between that and a time limit: If I want to reprint the magazine later in, say, an anthology or collector's edition or something, it seems completely bonkers to have a contract where I am not allowed to do that just because 5 years have passed. I'm hamstringing my business by agreeing to such things, whereas the limited one-time-use thing isn't a problem there and is much more intuitive WYSIWYG.


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## lennon33x (Feb 26, 2014)

Then, new question. How long should I hang on to the negatives?


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## Gavjenks (Feb 26, 2014)

reavesce said:


> Then, new question. How long should I hang on to the negatives?


Forever, why not?
The cost of a file cabinet is utterly trivial compared to the combined profits from a file cabinet's worth of shoots's negatives, and it offers huge brownie points and business opportunity later on when they might be needed.
If you end up selling a bunch more services to even one single person 10 years from now from old negatives, you've already paid for your file cabinet and then some and probably majorly bolstered how impressed they will be and your reputation.


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## lennon33x (Feb 26, 2014)

Ok, let me rephrase. DIGITAL. 

Stupid iphone...writes so small...forgets important words


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## Gavjenks (Feb 26, 2014)

Ah well, same difference. Even cheaper to store digital "negatives" than physical ones, so that's all even more true.
Amazon glacier is something like a penny a gigabyte a month, and distributes your data across the country. It costs a lot if you need to routinely retrieve most of your data, but you wouldn't be doing that here. You'd be retrieving much less than 1% of your data on a monthly basis probably, which is most likely free or very cheap. It is made just for situations like this.

Or an external hard drive or DVD system is also pennies a gigabyte, store it at your office if you have one and in your home to protect against fires, etc.


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## vintagesnaps (Feb 26, 2014)

I keep all my negatives but for this, I don't know how far into the future there would be a use for business photos (for weddings I can see that someone years later could want photos on an anniversary etc.). I'm thinking more along the lines of what if something changes? if he moves, sells the business, takes on a business partner, etc. I don't know that you can be sure an unlimited contract would cover any potential changes down the road.


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## lennon33x (Feb 26, 2014)

I initially designated a minimal time I would keep the negatives, but I removed it. It's one of those things that I would set myself up for breach of contract if my computer crashed. By removing it, I remove the liability. I keep all of my digital negatives now, but forcing myself is going to have Murphy knocking at my damn door


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## Gavjenks (Feb 26, 2014)

Perhaps there is a miscommunication here. For something like "you have the right to purchase XYZ prints from me whenever you want" or "I will keep the negatives for X amount of time" then YES absolutely throw a time limit on that, that's totally reasonable (although I'd keep them ANYWAY forever if you can, even if you aren't promising to. And you should say that in the contract "I may still be able to offer these services afterward, but do not guarantee it").  But that is not the example listed earlier in the thread. He said:


> I highly recommend also specifying a time limit for the *use*.


Emphasis mine.

I cannot think of a single reasonable situation where *usage *of the photo (within agreed upon contexts) should have anything to do with a timer. Including them retiring or dying or being abducted by aliens. Ordering prints or offering extended services or guaranteeing negative storage? Yeah, it matters if you retire, sure. Me using the photo I already have in hand for what we already agreed on me using it for? Uhh... ? The only reason I can think of for having that clause is simply forcing me to purchase more photos as a pure money grab.

Two different things. Maybe it got mixed up in the two different questions in the thread, sorry.


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## lennon33x (Feb 26, 2014)

Gavjenks said:


> Perhaps there is a miscommunication here. For something like "you have the right to purchase XYZ prints from me whenever you want" or "I will keep the negatives for X amount of time" then YES absolutely throw a time limit on that, that's totally reasonable (although I'd keep them ANYWAY forever if you can, even if you aren't promising to. And you should say that in the contract "I may still be able to offer these services afterward, but do not guarantee it").  But that is not the example listed earlier in the thread. He said:  Emphasis mine.  I cannot think of a single reasonable situation where usage of the photo (within agreed upon contexts) should have anything to do with a timer. Including them retiring or dying or being abducted by aliens. Ordering prints or offering extended services or guaranteeing negative storage? Yeah, it matters if you retire, sure. Me using the photo I already have in hand for what we already agreed on me using it for? Uhh... ? The only reason I can think of for having that clause is simply forcing me to purchase more photos as a pure money grab.  Two different things. Maybe it got mixed up in the two different questions in the thread, sorry.



I did out a stipulation on online access (mainly because I don't have unlimited space on my Zenfolio acct) of 6 months. Which is plenty of time for them to download the images


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## orljustin (Feb 26, 2014)

reavesce said:


> "Licensing of images by the Client is strictly prohibited. Client may not, without the expressed written consent by the Photographer replicate, edit, crop, or otherwise alter the image in anyway. Any alterations made to the images without express written consent of Photographer are subject to federal law, and Client will be held responsible for any and all applicable fees, including attorneys fees and court costs."
> 
> I am allowing him to use the images for replication and promotion of his business (i.e. his website, his social media, personal Facebook, etc.) with specific restrictions.



How is he supposed to use it to promote his business if he can't replicate it?  How is he supposed to fit it into a brochure if he can't crop it?  How can he put his text over it if he can't edit it?

Now you're worried about how long to store the images?  Why not just sell him the files outright to do what he wants.  Then you don't have to worry about storing them, and you won't come across as the kind of person he won't want to recommend to anyone anyways?


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## lennon33x (Feb 26, 2014)

orljustin said:


> reavesce said:
> 
> 
> > "Licensing of images by the Client is strictly prohibited. Client may not, without the expressed written consent by the Photographer replicate, edit, crop, or otherwise alter the image in anyway. Any alterations made to the images without express written consent of Photographer are subject to federal law, and Client will be held responsible for any and all applicable fees, including attorneys fees and court costs."
> ...



This is one section of an 8 page contract, with other disclosures that talk about his use. And furthermore, reread the disclosure: it says he can't do it without written consent, which he can always send me an email. My point is to not replicate or alter the image. His business manager has PS, so I want to caput that real quick.  

Furthermore, this post detracts away from my OP, which was about licensing.


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## Gavjenks (Feb 26, 2014)

> This is one section of an 8 page contract, with other disclosures that talk about his use. And furthermore, reread the disclosure: it says he can't do it without written consent, which he can always send me an email. My point is to not replicate or alter the image. His business manager has PS, so I want to caput that real quick.
> 
> Furthermore, this post detracts away from my OP, which was about licensing.


Written consent is very dangerous. What if you get hit by a bus tomorrow? Bye bye images and however much I paid for them, cause I can't use them for anything ever again since I can't get your written consent.
Or less dramatically, you just retire from photography or lose interest and stop responding quickly to emails.

Like I said before, if you truly are offering DRAMATIC discounts over your competitors, then I might still consider putting up with all this junk in your contract (by dramatic, I mean like *5-10%* of your competitors' rates, for as much restriction as you're piling on). 

But I think in the long run, you're probably losing way Way WAY more money this way than if you just stopped micromanaging what he does with his images to such a silly extent, and charged closer to competitive full price instead. With just one or two of the less draconian, basic restrictions that are MOST important here.



For example:
1) You can't sell this image to anyone else, only use it yourself for purposes related to this one particular business.
2) If you want a digital negative copy you can have it, but you have 6 months to download it conveniently, then I clear the Zenfolio space for other stuff.
3) I offer re-editing and other support services regarding these photos, including sending you a backup copy in a less convenient non-zenfolio fashion for up to 3 years. Possibly longer, but no guarantees.

The end. No other restrictions. Photoshop and do whatever the hell you want with it from now until the end of time within those restrictions. Then charge 80% of what your competitors would charge who request no restrictions, and you make more money.

What exactly would you be worried about happening with the above restrictions ONLY?








> This is one section of an 8 page contract


Whaaaa? Frankly the mere fact of an 8 page contract, regardless of its content, for a simple photoshoot would probably make me look for another photographer in and of itself.
If you're shooting something super dangerous legally like minor children in a bubble bath where they might be nude on set (not on film), or something then Yes. Have a frickin 80 page contract and a team of lawyers at your back.
But for cute dog pictures for a vet? Come on. 1-2 page document should be plenty sufficient. Including space for signatures etc.


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## orljustin (Feb 26, 2014)

8 pages?  Seriously?  I think you're overestimating the importance of the work here.


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## lennon33x (Feb 26, 2014)

orljustin said:


> 8 pages?  Seriously?  I think you're overestimating the importance of the work here.



First, thanks for all of your input. 

It wasn't necessarily that I was overestimating the importance of work, but the importance of covering my assets. I thought of worst-scenarios for every possible outcome. What if there is a malfunction of equipment? What if there is this? Or that? Or he wants this? Or blah blah blah. I have to include it all in the contract.

I think I'm gonna scale it way back. Basically give him an edit, with a couple of revisions. Truth is, ambiguity in a contract falls on the drafter of the contract to bear proof of breach of contract - it favors the party who did not draft it. Additionally, omission in a contract looks at intent of the contract. By including *more* I offer more liability in the event that a breach of contract is made. 

End result - if I reduce this down drastically, and he doesn't like the images, and sues (potentially), the burden of proof as the plaintiff will be that I did not hold my end of the bargain in the contract.


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## Gavjenks (Feb 26, 2014)

> End result - if I reduce this down drastically, and he doesn't like the images, and sues (potentially), the burden of proof as the plaintiff will be that I did not hold my end of the bargain in the contract.



Well one way to definitely make sure you won't get sued is by offering your clients half a ream of paper when they consult with you. They won't sue you, because they'll walk out the door before you even start. Especially if your "protections" make the images they purchase virtually useless to them by being restricted and micromanaged into oblivion.


"Not losing a lawsuit" is by no means your only consideration here. The contract determines whether your services are a good deal in the first place, which is generally way more important.

So what if he sells your images and you fail to sue? You lose profits from one set of images.  But you come out way ahead because by not having a terrible contract, you made up all that money and more by now being able to charge full price to other clients. f your contract is so draconian that you need to offer 90% discounts to get people to sign, then *you're still losing money overall *if any more than 10% of your clients are honest!




Long story short: *your contract creates more liability by far in lower negotiable wages for you than the amount it protects you from with legalese.*


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## Steve5D (Feb 26, 2014)

Gavjenks said:


> Um, gross, no.



"Gross"?



> I would never work with a photographer that tried to pull crap like that.



Last year, I was contacted by Apple. They were interested in a photo I had taken of a Siberian Lynx. _Their _offer was for them to license the image for one year. As it turned out, another photographer's image was selected but, presumably, Apple made him the same offer. 

_You _might not work with someone who does that but, make no mistake, others (and many with very deep pockets) do...



> Photos are non perishable goods and don't require maintenance from the photographer so there's no reason why they should ever expire other than greed. And it comes across exactly that way to a client reading that clause. Which would be a huge red flag and make me run for the hills personally.



That's insane. You must not do this for a living.

I've never had anyone complain about licensing for a specific period of time. Not ever.

How do you feel about royalties paid to musicians?


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## lennon33x (Feb 26, 2014)

Like I said, I put more in because I feared every scenario. Lesson learned. Glad I asked though


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## Gavjenks (Feb 26, 2014)

> That's insane. You must not do this for a living.


I don't.  But I have made money from photography on many occasions, and wrote up contracts. And have written contracts for non photography related things, and have quite a lot of experience READING photography contracts -- because all my friends tend to come to me to give advice when they are hiring photographers since they know I'm a robotic hyper-logical nerd and a photographer.

I can't say I've ever actually seen a TIME limit in any photography contract I've read. However, I have seen an awful lot of other similar squirrely stuff that makes no sense other than greedy photographers. And probably literally about 9 times out of the 10 when I have advised the person not to work with the person after finding crap like that, they've thanked me later when the photog did something like try to bad talk them behind their back in retribution or fly into an incomprehensible rage when they questioned the contract, etc. etc. There seems to be a *VERY* strong correlation between "crap that doesn't make any sense or strike a fair balance at all" and "crazy photographers you wouldn't want to do a shoot with"

I can't speak to the dynamics of photography with huge corporations like Apple. That may or may not be standard there, and obviously Apple is not going to gossip about you, etc. They will politely accept or decline your contract, and it's a whole different world.

My experience is with the sort of thing that the OP is actually dealing with: small businesses contracting with individuals or other small businesses. And so far, nobody has offered *any* reasonable explanation of why a time limit makes *any* sense in those circumstances.




> How do you feel about royalties paid to musicians?


A royalty is a completely difference concept to a time limit. Royalties make perfect sense. And I have definitely seen royalties in photography contracts where it says stuff like "+2% of sales on anything with this photograph displayed on the sales page" etc. I have no problem with that. The image incrementally works harder the more it sells for you. So the photog's work is incrementally worth more to you. Fair enough.

That's a world of difference from "At some arbitrary point in the future, this photo randomly becomes obsolete, and you need to hire me again to come in and take the exact same image for you and pay all my expenses and time all over again for no apparent reason"


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## grrr8scott (Feb 26, 2014)

Maybe I misunderstood what this deal is all about, but the vet wants photos to use for ads, and you want the head shots (I assume for a portfolio).  Why not sell him the photos and digital negs, and reserve the right to use the same for your portfolio?  are you going to have any other use for these shots?  And assuming these are shots of him and his business, what bad can come of selling him the images, assuming you are adequately compensated.  Just a thought.


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## lennon33x (Feb 26, 2014)

grrr8scott said:


> Maybe I misunderstood what this deal is all about, but the vet wants photos to use for ads, and you want the head shots (I assume for a portfolio).  Why not sell him the photos and digital negs, and reserve the right to use the same for your portfolio?  are you going to have any other use for these shots?  And assuming these are shots of him and his business, what bad can come of selling him the images, assuming you are adequately compensated.  Just a thought.



Bingo. I've thought about selling him the negatives, and may approach him about it.


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## vintagesnaps (Feb 27, 2014)

Because usage might be for a certain amount for the first year, then a somewhat lesser amount for the second, etc. If for example a photo would be used in a brochure to be made available to first time or potential customers of the vet's office, the usage might be for a specific time frame, number of brochures, etc. Then the client would pay for further usage if they wanted to continue to use the photo(s).

Especially if the payment isn't at a competitive rate then I think it seems like indefinite terms could further underprice the work. If there's a specific time frame then if the client wants for example later on to do a new brochure it could lead to either a payment for further usage or even a future assignment to take more photos for the client.

The client is using the photos towards helping his business make money so selling all the original files/negatives usually is priced pretty high to be comparable to what a photographer would charge for a number of assignments/usage.


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## Gavjenks (Feb 27, 2014)

> Especially if the payment isn't at a competitive rate then I think it seems like indefinite terms could further underprice the work. If there's a specific time frame then if the client wants for example later on to do a new brochure it could lead to either a payment for further usage or even a future assignment to take more photos for the client.


But if the lower-than-competitive rates are justified by the restricted nature of the license, it *ISN'T *"underpriced."  it's priced appropriate to how much you're chokeholding me on the usage (as you point out yourself in the last sentence of your post). And that's fine. But if that's the case, then it doesn't make sense to raise the price later, even though the image is still _just as restricted_...

_Nothing changed_ over that period of time, so why am I paying more later? The only explanation appears to just be "well because that would make the photographer look better and/or get them more money." Sure. So would just handing the photographer a briefcase of money no strings attached. Not gonna agree to that as a client either for no reason. 

I'm happy to continue paying royalties later, but if you want more money per use from me suddenly you have to give ME something in return, like fewer restrictions over time. 

You don't earn higher rates just for surviving 3 years...



> Because usage might be for a certain amount for the first year, then a somewhat lesser amount for the second, etc.


This sounds like the opposite of a time limit, and makes sense to me: as the photos get stale over time and clients have already been exposed to them, they get cheaper, okay. That's logical. They're doing less to sell my stuff, so I pay fewer royalties. Fine with that as a client, obviously. I like paying less. not gonna complain. I certainly wouldn't DEMAND it either, though.




> If for example a photo would be used in a brochure to be made available to first time or potential customers of the vet's office, the usage might be for a specific time frame, number of brochures, etc. Then the client would pay for further usage if they wanted to continue to use the photo(s).


I don't follow the logical jump here. Why does "for first time customers" logically imply "therefore a specific time frame or number of brochures" ??
These seem like totally unrelated concepts to me. I will always have new customers as long as my business is open, be it for a year or for decades. Nothing about that inherently suggests or hints at a limited time frame or number of copies.

If you want royalties to continue indefinitely as long as I use the image, okay great. Reasonable request.  Some random cutoff after 300 usages though? What? Why? Bizarre and arbitrary. What exactly am i supposed to do then? Hire you to come back in and take a completely identical photo so i can continue to use it in the same way as before and continue to pay you royalties, even though there was absolutely nothing wrong with the first one?

Um, no thanks. I'm not gonna pay you to drive over and for your time and everything to do a job that was not at all necessary in the first place / was already done. 

That's like buying a car with cash up front (fine) and paying for ongoing OEM maintenance on it (fine), but then also having a clause that says "If the car is still running after 10 years, even if it's in great shape, you have to drive it into a river and come buy a new one." (not so fine).


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## Steve5D (Feb 27, 2014)

Gavjenks said:


> > That's insane. You must not do this for a living.
> 
> 
> I don't.



YOu could've stopped there...



> I can't say I've ever actually seen a TIME limit in any photography contract I've read. However, I have seen an awful lot of other similar squirrely stuff that makes no sense other than greedy photographers. And probably literally about 9 times out of the 10 when I have advised the person not to work with the person after finding crap like that, they've thanked me later when the photog did something like try to bad talk them behind their back in retribution or fly into an incomprehensible rage when they questioned the contract, etc. etc. There seems to be a *VERY* strong correlation between "crap that doesn't make any sense or strike a fair balance at all" and "crazy photographers you wouldn't want to do a shoot with"



"Incomprehensible rage"??

LOL!!!

You do have a flair for the dramatic, I'll give you that...



> I can't speak to the dynamics of photography with huge corporations like Apple. That may or may not be standard there, and obviously Apple is not going to gossip about you, etc. They will politely accept or decline your contract, and it's a whole different world.



But the basic premise is the same...



> My experience is with the sort of thing that the OP is actually dealing with: small businesses contracting with individuals or other small businesses. And so far, nobody has offered *any* reasonable explanation of why a time limit makes *any* sense in those circumstances.



There's no need to do that when you consider that there's never been a reasonable explanation as to why a time limit shouldn't be a part of it...



> A royalty is a completely difference concept to a time limit. Royalties make perfect sense. And I have definitely seen royalties in photography contracts where it says stuff like "+2% of sales on anything with this photograph displayed on the sales page" etc. I have no problem with that. The image incrementally works harder the more it sells for you. So the photog's work is incrementally worth more to you. Fair enough.



I own a bar. I buy the latest Foo Fighters album and play it in my bar.

Should I have to pay someone every time I play that CD in my bar? 



> That's a world of difference from "At some arbitrary point in the future, this photo randomly becomes obsolete, and you need to hire me again to come in and take the exact same image for you and pay all my expenses and time all over again for no apparent reason"



That's not what it says at all. It says that if you want to continue using the image after the initial licensing period, you'll have to license it again. It's pretty standard stuff...


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## orljustin (Feb 27, 2014)

Gavjenks said:


> > End result - if I reduce this down drastically, and he doesn't like the images, and sues (potentially), the burden of proof as the plaintiff will be that I did not hold my end of the bargain in the contract.
> 
> 
> 
> Well one way to definitely make sure you won't get sued is by offering your clients half a ream of paper when they consult with you. They won't sue you, because they'll walk out the door before you even start. Especially if your "protections" make the images they purchase virtually useless to them by being restricted and micromanaged into oblivion.



Applause.  I don't think the OP appreciates the cost of being hard to work with.  He says he works for this guy, so one would assume they're on at least amicable terms.  Then he comes in with this hostile stack of documentation.  "What if the equipment malfunctions"?  What if it does?  "Hey Bob, my camera shut down, we'll have to do this another day, ok?"  It's not a once in a lifetime wedding you're talking about, it's a guy you're friends with who runs a small business.


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## lennon33x (Feb 27, 2014)

orljustin said:


> Applause.  I don't think the OP appreciates the cost of being hard to work with.  He says he works for this guy, so one would assume they're on at least amicable terms.  Then he comes in with this hostile stack of documentation.  "What if the equipment malfunctions"?  What if it does?  "Hey Bob, my camera shut down, we'll have to do this another day, ok?"  It's not a once in a lifetime wedding you're talking about, it's a guy you're friends with who runs a small business.



Very true. I need referrals to attain more clients. If giving up more rights gets me those referrals, then I'm for it. There's no need to damage a relationship on the "what-ifs." I can cut my losses and sell him more rights. I don't want to be difficult to work with, or seem greedy, especially when I still have to work with this guy.


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## tirediron (Feb 27, 2014)

First of all, licensing for a specified period is absolutely normal in commerical work, in fact, probably far more common than not.  Second, eight page contracts are NOT at all common unless you are doing a huge number of images for multiple campaigns for a Fortune 500 company.  This is something, that IMO, should be very simple.  If I were to license this, (bearing in mind the differences between our respective laws), I would take a draft something like this to my lawyer for his review: _ "The Photographer grants the client a non-exclusive license to use the image(s) <file names, descriptions>, copies attached for a period of one year from <date> to <date> for any purpose relating to the promotion of his business <Name, description of business, DBA> in printed form up to <maximum print size>, and in electronic form <maximum pixel dimensions>.  The photographer retains copyright to all images as well as the right to use them for any purposed including, but not limited to self-promotion, etc, etc.  The client acknowledges that he may not alter the images in any way from their provided format and size."_


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## tirediron (Feb 27, 2014)

Steve5D said:


> I own a bar. I buy the latest Foo Fighters album and play it in my bar.
> Should I have to pay someone every time I play that CD in my bar?


If you adhere to the terms and conditions printed on the packaging/EULA of most music albums, then yes, you should.


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## Gavjenks (Feb 27, 2014)

> "Incomprehensible rage"??
> 
> LOL!!!
> 
> You do have a flair for the dramatic, I'll give you that...



No. I'm not being dramatic. An *incomprehensible rage*. I told my brother to question and suggest changes to a number of questionable terms on a photographer's contract for his wedding (for instance she wanted to be able to sell his wedding photos later to anybody, even if it's like him smiling in a hemorrhoid ad). When he tried to negotiate, she immediately screamed at him at the top of her lungs "THAT'S NOT WHAT YOU DO." and sort of threw the contract at him and went on a garbled tirade about this is a small town, and you trust people here [unless you're a photographer apparently and give your clients 10 page super paranoid contracts like her], you don't question things, etc. and stormed out. Then refused contact.



> But the basic premise [with Apple] is the same...


Apparently it *isn't* the same, if you do this for a living and have never had anybody flip out at you, for instance, whereas I just help out my friends when they get shoots and have already heard of this over half a dozen times already. Or the "karma" threads posted by somebody else recently, where the photog scowled at her constantly, and then led her on a 20 minute walk to his car and got in without a word and drove off and didn't contact her with her photos.

Individuals and small businesses are run by people with emotions that often dominate, or bizarre personality issues, they may or may not actually be making money, they may have all kinds of weird agendas, lawyers usually have NOT looked over their contract at all, etc.  Especially in photography with a ton of quasi-businesses around. Apple, by comparison, can be expected to act in a vastly more stable and logical fashion.



> First of all, licensing for a specified period is absolutely normal in commerical work


Can you please give some explanation as to why, TiredIron? 



> That's not what it says at all. It says that if you want to continue using the image after the initial licensing period, you'll have to license it again. It's pretty standard stuff...


And why do you deserve or require control over being able to deny me in the future (even if I want to keep paying)?
The reason why not to do it is the potential of, for example, me needing to scramble to get new images from somebody and pay some graphic designer to redo ALL my stuff if for some reason you say "nope" after the time limit.  

That risk is a _liability_. I have no reason to agree to a liability unless I'm getting reimbursed for it (appropriate discounts off of people with no time limits) or a good reason why it's necessary/logical.

And if I am getting enough discount for it, then I don't really care, I'll agree regardless. But I'm still curious, why would the photographer even particularly want this in the first place? I'm sure there are reasons in commercial photography! Just curious what they are.


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## Gavjenks (Feb 27, 2014)

And here, this post might be more directly relevant to the OP.

When I keep saying "compared to other photographers without restrictions" that means locally (due to transit costs if not local), and in my local community, I have worked with or personally know the majority of the really successful portrait/wedding photogs. ALL of them that are actual viable businesses around here are examples of those "without restrictions" people. Their contracts have the following features:

1) Absolutely zero restrictions on what you do with your images. They will offer their edited versions to you, but do not hold you to using those edits, and I believe all of them at least give the option of having all the negatives (at least non blurry/junk ones). And none of them say you can't alter them or put clown noses on all the people if you feel like it, or anything else. You can resell your images too, for at least a couple of them.
2) At least one successful photographer in town gives you the copyright on your wedding/portrait negatives and edits and everything as part of the standard package. The rest keep copyright but still have in their contracts restricted usage for themselves (e.g. "only portfolio / advertising my photography business" etc.)
3) Their rates are indeed slightly higher than some cut rate folks in town, but still affordable to students, as a ballpark description.

Very small business commercial contracts I have seen (mostly from the same exact people) are similar, but with occasional reasonable terms like royalties, only-business-usage in general, no resale, etc.

So maybe that's just Iowa, but these sorts of conditions are what I use as a comparison. Would I want to have terms like that if I shot weddings? God no. Part of the reason I don't want to shoot weddings. But that's where the bar is set currently, so even if it seems maybe reasonable at face value to say "Yeah you don't get to choose B&W or color versions of the photos I give you. I choose." Or a time or number of uses limit in commercial. Compared to the standard in town, the more terms like that you have *without offering discounts over the local giants in return*, the more it is a red flag that you haven't done you homework and are incompetent, OR probably slightly crazy. And that prediction seems to pan out.


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## tirediron (Feb 27, 2014)

Gavjenks said:


> Can you please give some explanation as to why, TiredIron?


Would you settle for 'because'?  

Because if the image that the photographer created is going to keep generating revenue, than the photographer wants a cut of that revenue. For instance, you do a shoot for Ford; they use the image in an ad campaign which helps them sell thousands of new cars. If you license that in perpetuity, then they pay a one-time cost and get revenue out of it forever (or as long as they want). If however you only license it for a year, and the ad campaign is still going strong and they're selling a lot of this particular model of car they have two choices; they can either stop the ad campaign cold, OR they can continue it by sharing a bit of their increased sales revenue with you.


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## Gavjenks (Feb 27, 2014)

Tirediron, there's a seemingly simple way to do that without a time limit that is significantly more fair anyway. Just write in "For every commercial where these photographs are aired, I get ___. For every print ad, I get ___. For every online click through I get ___." etc. Your profits scale exactly to the size of the ad campaign and only to the extent that your photographs are actually helping the ad campaign. And of course if it is relevant, you can scale royalties to number of viewers on that channel when it was aired. A simple way I would assume would be a % of the cost of renting the ad time.

What you're describing makes sense I suppose if the project is minor enough to not warrant the effort haggling over properly weighted numbers in royalties. But on the other hand, if it's a minor project/business/whatever, there's also fewer numbers to agree on (my dentist doesn't run TV ads and online ads and blah blah) and lower stakes for either of us if they're slightly suboptimal, so you don't NEED as much time haggling over royalties.

I can see a utility there, though.


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## tirediron (Feb 27, 2014)

Gavjenks said:


> And here, this post might be more directly relevant to the OP.
> When I keep saying "compared to other photographers without restrictions" that means locally (due to transit costs if not local), and in my local community, I have worked with or personally know the majority of the really successful portrait/wedding photogs. ALL of them that are actual viable businesses around here are examples of those "without restrictions" people. Their contracts have the following features:
> 
> 1) Absolutely zero restrictions on what you do with your images. They will offer their edited versions to you, but do not hold you to using those edits, and I believe all of them at least give the option of having all the negatives (at least non blurry/junk ones). And none of them say you can't alter them or put clown noses on all the people if you feel like it, or anything else. You can resell your images too, for at least a couple of them.
> ...



Excellent post Gav, and IMO, very relevant to the OP of how NOT to structure your business. Here's my take on it: Licensing images without restriction means that the client, can, if they wish, indeed 'shop a clown noses on to people in their wedding formals. Now, let's say they've done this and have the picture on their mantel. Their unmarried friends come over and are seeking references for a photographer for their upcoming wedding; they see the images with the clown noses and think, "NO WAY would I hire their photographer!". Granted, that's an extreme and ridiculous example, but something like an unpleasant crop, poor monochrome conversion or *Shudder* selective colouring is very likely.

Alternately... you shoot their wedding turn over the high res files on a disc and walk away. Unknown to you, you've captured one spectacular shot. The bride puts the images on facebook where they're noticed by the manager of XYZ Advertising who thinks that would be a PERFECT shot for their new national campaign advertising the all-new Acme wedding garter. They buy the image from the bride for $10,000.00. You have no claim nor entitlement to that any of that money.

I don't know about you, but either of those situations would bother me. First of all, my work is MY work and I don't want it messed with. Am I going to complain if they crop an image so it looks better on their facebook page? No, not likely, but I certainly would if the bride decided to experiment with selective colour. The same goes for selling the image; it's MY image, if it's worth that much money, I feel I'm entitled to the lion's share as I created it.

Just my $00.02 - YMMV


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## tirediron (Feb 27, 2014)

Gavjenks said:


> Tirediron, that's a simple solution without a time limit. Just write in "For every commercial where these photographs are aired, I get ___. For every print ad, I get ___. For every online click through I get ___." etc.
> 
> What you're describing makes sense I suppose if the project is minor enough to not warrant the effort haggling over properly weighted numbers in royalties. But on the other hand, if it's a minor project/business/whatever, there's also fewer numbers to agree on (my dentist doesn't run TV ads and online ads and blah blah) and lower stakes for either of us if they're slightly suboptimal, so you don't NEED as much time haggling over royalties.
> 
> I can see a utility there, though. Still one I would demand a lower up front rate for of course.



How are you going to track that?  Especially 'Pay per click' use...  IMO, it's much simpler to say, "For the next year, you can do this, this, and this with the image for a price of $...."


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## Gavjenks (Feb 27, 2014)

> How are you going to track that?


How are YOU going to track it? This is not a relative advantage or disadvantage either way. Both our methods require an awareness of the state of their ad campaign. I need to know the general magnitude in order to estimate if they're honest and giving me the right amount of royalties. You need to know in order to decide whether to ask for a higher fee if the campaign has gone up in popularity. Or offer a lower fee if it's weakened (you should rather get fewer dollars and zero dollars). Failing to keep track potentially loses either of us money.

Still seems like the expiring license might be quick and easy and the right choice maybe for the local dentist, whereas I would want to put in the time to do proper royalties and not gamble on years of activity at a time, if it's a national car ad campaign that might dictate my salary for quite awhile.

But whatever, chocolate and strawberry ice cream. It's certainly a logical usage of time limits.


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## tirediron (Feb 27, 2014)

At the end of the day, both will work.  One has become more commonplace in the industry, simply I suspect because it requires less follow-up.  The moral of the story is, however:  Don't give it away if you can license it!


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## Gavjenks (Feb 27, 2014)

Also, a good way to avoid problems with any of these things--if you're working with private individuals who don't know the standards--is to explain what you mean in the contract. Especially *examples*. Examples are perfectly fine in a contract and make it way less of a headache to understand, negotiate, or deal with in court if it comes to that (the phrase "including but not limited to" is your friend, though).

Or offer a legal contract along with a plain English description alongside of what it practically means. You can see things like this on many website ToS for instance. Sometimes even in two parallel columns.

You can offer probably the wackiest terms you want, and if you explain why, it's unlikely for people to be pissed off at you for it at the very least, and you can have a civil and productive negotiation if necessary.


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## vintagesnaps (Feb 27, 2014)

I skipped on ahead but John (Tirediron) knows the business. To me the initial cost reflects the time and talent of the photographer in going out and taking the pictures and providing the photos; after that the payment would be for extending the _use_ of the photo(s). 

Seems like it would be underpricing if it's below the going rate, which seems to usually be a range so you could price at the lower end and not be underpriced. I would think if you need to underprice to get referrals there might be a need to think about how you're getting referrals and how beneficial it will be in the long run to be stuck at having to price low (because why will future clients pay a higher or even mid-range cost if their buddy got photos from you really cheap?). 

Having to continue to work with/for this client besides taking photos for him seems to be the problem; from what's been described I wouldn't necessarily expect just because your cost was low end that this guy will go out of his way to refer you to other potential clients (if he will then maybe this will be worth it but the impression I'm getting is that it might turn out to have been more trouble than it was worth).

You might want to look up ASMP or PPA or websites for other professional photographers organizations and get some professional advice and info. on doing retail/commercial work. Or start reading PDN (Photo District News). I think getting informed can be a good way to be able to make good decisions.


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## Steve5D (Feb 28, 2014)

tirediron said:


> Steve5D said:
> 
> 
> > I own a bar. I buy the latest Foo Fighters album and play it in my bar.
> ...



Oh, I'm well aware. ASCAP is a pit bull, too.

I was interested in Gavin's take on it, though. After all, if I bought the CD, it's mine, isn't it?


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## Steve5D (Feb 28, 2014)

Gavjenks said:


> No. I'm not being dramatic. An *incomprehensible rage*. I told my brother to question and suggest changes to a number of questionable terms on a photographer's contract for his wedding (for instance she wanted to be able to sell his wedding photos later to anybody, even if it's like him smiling in a hemorrhoid ad). When he tried to negotiate, she immediately screamed at him at the top of her lungs "THAT'S NOT WHAT YOU DO." and sort of threw the contract at him and went on a garbled tirade about this is a small town, and you trust people here [unless you're a photographer apparently and give your clients 10 page super paranoid contracts like her], you don't question things, etc. and stormed out. Then refused contact.



So because one photographer goes off the reservation, all do?

Nice stereotype. Can we talk about blacks, rednecks, gays and Jews next?

But you know what? I'm gonna' say your story is just that; a story. It's BS. I don't know of any photographer who would act that way. I think you're making up a story in a failed attempt to prove a point regarding something you simply know nothing about.

It makes you look silly...



> Individuals and small businesses are run by people with emotions that often dominate, or bizarre personality issues, they may or may not actually be making money, they may have all kinds of weird agendas, lawyers usually have NOT looked over their contract at all, etc.  Especially in photography with a ton of quasi-businesses around.



Someone who allows emotion to dominate how their business is run is someone who shouldn't be in business...



> And why do you deserve or require control over being able to deny me in the future (even if I want to keep paying)?



Because it's mine, that's why. If you lease a car, you don't just get to keep it at the end of the lease. You have to give it back or give the dealer more money if you want to keep it.

Think of licensing as leasing, not as buying...



> The reason why not to do it is the potential of, for example, me needing to scramble to get new images from somebody and pay some graphic designer to redo ALL my stuff if for some reason you say "nope" after the time limit.



Um... Tough.

Here's a news flash for you, Chief: I care about my business more than I care about your business. It's always gonna' be that way. I don't care if you have to rehire some graphic designer to redo all your stuff, I really don't. I hope you find someone who'll give you a good deal on that. But you're outta' your mind if you think I'm going to want to see your business improve at the expense of mine. 

That's nuts...



> That risk is a _liability_. I have no reason to agree to a liability unless I'm getting reimbursed for it (appropriate discounts off of people with no time limits) or a good reason why it's necessary/logical.
> 
> And if I am getting enough discount for it, then I don't really care, I'll agree regardless. But I'm still curious, why would the photographer even particularly want this in the first place? I'm sure there are reasons in commercial photography! Just curious what they are.



You really don't know what you're talking about, do you?

I would still be interested in your response to my question about playing a CD in my bar. Should I have to pay someone every single time I play that CD in my bar?


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## Steve5D (Feb 28, 2014)

Gavjenks said:


> Also, a good way to avoid problems with any of these things--if you're working with private individuals who don't know the standards--is to explain what you mean in the contract. Especially *examples*. Examples are perfectly fine in a contract and make it way less of a headache to understand, negotiate, or deal with in court if it comes to that (the phrase "including but not limited to" is your friend, though).



If someone doesn't understand something in my contract, they need to as me about it. I will _happily _explain it to them. 

But I'm not Kreskin here. If they don't ask, it's perfectly fair for me to conclude that they understand it, as opposed to assuming they're afraid to ask about something. And, if they sign without asking, it's fair for me to conclude that they not only understand it, but that they agree with it, as well...


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## robbins.photo (Feb 28, 2014)

Steve5D said:


> Gavjenks said:
> 
> 
> > Also, a good way to avoid problems with any of these things--if you're working with private individuals who don't know the standards--is to explain what you mean in the contract. Especially *examples*. Examples are perfectly fine in a contract and make it way less of a headache to understand, negotiate, or deal with in court if it comes to that (the phrase "including but not limited to" is your friend, though).
> ...



But kreskin5d does have a really nice ring to it...

Sent from my LG-LG730 using Tapatalk


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## Steve5D (Feb 28, 2014)

robbins.photo said:


> Steve5D said:
> 
> 
> > Gavjenks said:
> ...



Ya' think? I wasn't sure...


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## robbins.photo (Feb 28, 2014)

Steve5D said:


> Ya' think? I wasn't sure...



Oh ya.. great ring to it. Of couse you would have to do one of those flourish thingies everytime you hit the shutter button.. lol


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## Gavjenks (Feb 28, 2014)

> But I'm not Kreskin here. If they don't ask, it's perfectly fair for me to conclude that they understand it, as opposed to assuming they're afraid to ask about something. And, if they sign without asking, it's fair for me to conclude that they not only understand it, but that they agree with it, as well...


Going out of your way to help people is called good customer service. I was simply suggesting it as an optional thing that would very much be appreciated by most people and make you look honest and like you have yourself together.  Also, only relevant for private individuals, corporations obviously won't care.



> I don't care if you have to rehire some graphic designer to redo all your stuff, I really don't.


Yes. You do. Because if you don't offer a discount to make up for liabilities you cause me, then your services are effectively overpriced, and I will go to a competitor. *Which affects YOUR business.*
This is not complicated stuff.



> Someone who allows emotion to dominate how their business is run is someone who shouldn't be in business...


No they shouldn't be. Of course.
BUT THEY ARE.
And I help my friends try to filter out those people to avoid working with them. Delusional contract terms that demand things out of sync with competition without offering anything in exchange have proven to be an excellent measure of whether somebody is this sort of "business" person. In fact, the most effective measure I am aware of.

Because it's not just ONE photographer. As I said, it's over half a dozen consistently where it turned out the prediction was correct. Doing other crazy stuff later on. Slandering the client in town who dared question their contract, things like that. I told you one story because I had time for one story.

It happens over and over. So if you're a photographer, it is probably good to keep in mind that *how rational and fair and sane you appear on your contract can be a more accurate advertisement of how you do business than anything you put out in ads or anything you say in correspondence.* That's all I'm saying here.




"I crammed in all the terms I could to help me and didn't consider you much in this contract."
"Why would you question this? Clearly it's purpose is to help me out. I wrote it, after all"
"I don't understand why I would ever give you any concessions in writing."
"ME! Me me me"
^
If that's the vibe you get from a contract, *run*.


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## tirediron (Feb 28, 2014)

I think we're wandering off track here folks...  this isn't terribly helpful to the OP.


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## lennon33x (Feb 28, 2014)

tirediron said:


> I think we're wandering off track here folks...  this isn't terribly helpful to the OP.



^This. 

Truthfully, I don't feel like licensing is a deal breaker anymore. This is for a small business, with seven employees. The licensing opportunities would be through veterinary journals and local business promotion. I don't feel like I would be losing out on thousands and thousands of dollars by not licensing the images. Plus the benefit is that I get to use them in a portfolio.  

I considered selling in the raw digital negatives as part of the agreement, with compensation for them. I don't know if he has any interest, but if he does it something that I'll approach him with. In order to use the contract from its gigantic size, and restructuring it so that I basically get rights to use them in a portfolio, he has exclusive rights to use them for all of his promotion, and I removing all of the licensing disclosures. The disclosures and exclusions make the contract extremely convoluted and can make him feel like he's at a disadvantage.

The veterinary industry has such a high turnover rate, but hopefully by producing high-quality images for him and his business, in the event he get some more or other personnel, he would come back to me to repeat any business.


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## lennon33x (Feb 28, 2014)

vintagesnaps said:


> I skipped on ahead but John (Tirediron) knows the business. To me the initial cost reflects the time and talent of the photographer in going out and taking the pictures and providing the photos; after that the payment would be for extending the _use_ of the photo(s).
> 
> Seems like it would be underpricing if it's below the going rate, which seems to usually be a range so you could price at the lower end and not be underpriced. I would think if you need to underprice to get referrals there might be a need to think about how you're getting referrals and how beneficial it will be in the long run to be stuck at having to price low (because why will future clients pay a higher or even mid-range cost if their buddy got photos from you really cheap?).
> 
> ...



Just because he can be a smarmy guy doesn't mean that I don't want referrals, or return business. The potential cost of licensing an image to a veterinary journal or magazine (in these instances, somewhere in the couple of hundreds at best) is far less than the cost of the shoot and return client. Plus, if I limit the license, he already has a good headshot. No reason he couldn't do that (because I don't know the ownership/license rules of that image). 

The point is, I want to keep a good relationship between us, both on working terms (veterinary) and professional (photography). I don't want to create any sort of weird vibe with him. _*For me*_, it's worth it to let him use the images (not alter) in almost an unrestricted way.


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## Gavjenks (Feb 28, 2014)

Reav, I think those are good decisions. You could always offer an option, too.

Like "You can buy these negs and no restrictions for $X.00, or you can have just my edited versions for specific purposes (still way toned down from the original wording and page count) for $Y.00" etc. X being larger than Y, obviously.  Especially pleasant if you have like maybe 3 easy to understand "packages." Benefits no matter what he chooses:
1) If he chooses the restricted version, you get what you originally envisioned, but almost no chance he feels like he was taken advantage of, because he made that choice.
2) If he chooses the less restricted, then you get more money, but you don't come across as greedy or inconsistent at all like you might if you just randomly tried to start negotiating up after having a history of lower costs. Again, he CHOSE that option.


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## Steve5D (Feb 28, 2014)

Gavjenks said:


> Going out of your way to help people is called good customer service. I was simply suggesting it as an optional thing that would very much be appreciated by most people and make you look honest and like you have yourself together.  Also, only relevant for private individuals, corporations obviously won't care.



And when they ask for help, they get it to the Nth degree. I ask my clients, before they sign, if they understand everything in the contract or have any questions. If they say "NO", but they really do, well, they'd better not sign. If they do, it's on them. I've done my due diligence...



> Yes. You do. Because if you don't offer a discount to make up for liabilities you cause me, then your services are effectively overpriced, and I will go to a competitor. *Which affects YOUR business.* This is not complicated stuff.



And my competitor is going to do the same thing I do. If you expect to license a photo once, and be able to use it forever, he's going to tell you to walk.

Make no mistake: No one client is so important to my business that I'll move Heaven and Earth to keep him. I do what's reasonable, and I do what's fair. If a client isn't interested in being fair, as well, I don't want him as a client.

Period.

Now, discounts for continued licensing? Sure, I've done that many times. But your original point was that you believe you should only have to pay the photographer once. Unless we're talking a major-league style payday for a very unique image particular to that one client, it's just not something that any reasonable pro will do...



> Someone who allows emotion to dominate how their business is run is someone who shouldn't be in business...


No they shouldn't be. Of course.
BUT THEY ARE.[/quote]

And they won't be for long.

I don't worry about those people, nor do I worry about people, not unlike yourself, who believe that a one-time payment should satisfy your desire to have rights to an image forever. As I said earlier: That's insane...



> And I help my friends try to filter out those people to avoid working with them. Delusional contract terms that demand things out of sync with competition without offering anything in exchange have proven to be an excellent measure of whether somebody is this sort of "business" person. In fact, the most effective measure I am aware of.



Please give us some examples of "delusional contract terms"...



> Because it's not just ONE photographer. As I said, it's over half a dozen consistently where it turned out the prediction was correct. Doing other crazy stuff later on. Slandering the client in town who dared question their contract, things like that. I told you one story because I had time for one story.



If half a dozen photographers are reacting the same way to the same person, it really is time to allow for the very real possibility that the problem isn't the photographers...



> It happens over and over. So if you're a photographer, it is probably good to keep in mind that *how rational and fair and sane you appear on your contract can be a more accurate advertisement of how you do business than anything you put out in ads or anything you say in correspondence.* That's all I'm saying here.



You're talking about both sides of your mouth. You've stated that you shouldn't have to pay to re-license an image. You believe you should be able to continue using it.

That's not fair.

And how about that question about the CD? Are you going to try to tackle that one?


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## Gavjenks (Feb 28, 2014)

As per TiredIron's request I'm not going to dwell on this stuff.

The answer to pretty much all your questions at once though is that *it's contextual*. It depends on your local environment of competitors, and what they're charging. In Iowa City for wedding photography, trying to charge an average rate, but saying that you're going to artistically choose which photos you send to the client without them getting to see proofs would be an example of a delusional contract term. You are overcharging, and will lose clients.  In North Carolina, or in a different photography niche, maybe that's normal and you won't lose clients for it. Etc.





> If half a dozen photographers are reacting the same way to the same person, it really is time to allow for the very real possibility that the problem isn't the photographers...


Also briefly: Not the same person. Various friends, various shoots.  I am only seeing the contracts, and usually accurately predicting how crazy or not the photogs are from that, based on what I hear back about how it went. The type of contract is the common relevant factor.


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## Steve5D (Feb 28, 2014)

I've been keeping John's request in mind, believe me.

But you're saying things which no rational businessman would adhere to, so I think the continued discussion, so long as we keep it on topic, is valuable.

Then again, perhaps I've presumed too much.

How long have you been operating your photography business?


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## Steve5D (Feb 28, 2014)

Gavjenks said:


> As per TiredIron's request I'm not going to dwell on this stuff.
> 
> The answer to pretty much all your questions at once though is that *it's contextual*. It depends on your local environment of competitors, and what they're charging. In Iowa City for wedding photography, trying to charge an average rate, but saying that you're going to artistically choose which photos you send to the client without them getting to see proofs would be an example of a delusional contract term. You are overcharging, and will lose clients.  In North Carolina, or in a different photography niche, maybe that's normal and you won't lose clients for it. Etc.
> 
> ...



You continue to dodge the CD question...


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## Gavjenks (Feb 28, 2014)

> But you're saying things which no rational businessman would adhere to


Um, "No rational businessman" would pay attention to their competition and avoid terms that are more restrictive than what their competitors offer for the same price?  
Lolwut?



> How long have you been operating your photography business?


I have done supplemental income work for a couple of years now. But like I made clear earlier, my experience here is much more heavily in the client side of the equation. Due to a reputation as a person who is pretty good at evaluating contracts amongst my social circle of starving university types who can't afford lawyers (actually, I have LAWYER friends who ask for advice on contracts). Both client and photographer are equally important halves to a discussion of contract expectations, since they both need to be getting a good deal out of it and both have to sign it.



> You continue to dodge the CD question...


It has nothing to do with the conversation. You need to pay the royalty if your album EULA says you do. This is a thread about designing contracts, not deciding whether you can get away with illegally breaching them or not...


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## Steve5D (Feb 28, 2014)

Gavjenks said:


> > But you're saying things which no rational businessman would adhere to
> 
> 
> Um, "No rational businessman" would pay attention to their competition and avoid terms that are more restrictive than what their competitors offer for the same price?
> Lolwut?



No rational businessman is going to allow you to pay for indefinitely licensing for one payment...



> How long have you been operating your photography business?


I have done supplemental income work for a couple of years now.[/quote]

I'm sorry, are you a pro? I don't view "supplemental income work" as something a professional would do, but I'll allow for that possibility, I suppose. I don't know how many others here would, though...



> But like I made clear earlier, my experience here is much more heavily in the client side of the equation. Due to a reputation as a person who is pretty good at evaluating contracts amongst my social circle of starving university types who can't afford lawyers. Both client and photographer are equally important halves to a discussion of contract expectations, since they both need to be getting a good deal out of it and both have to sign it.



So, it's probably no surprise that you're coming down on the client side of things. You're biased towards them and, as a result, view any contract with a critical eye only towards the photographer and not the client. Unfortunately, what you want as a client is largely unfair to the photographer...


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## tirediron (Feb 28, 2014)

It's a nice day... go outside and take a picture.  I don't think the OP is likely to get anything more out of this.


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