Part Two – Licensing usage
Now that we’ve determined that artists are entitled to profit from their creations, we’ve got to answer the question of who actually holds the copyright, ie who owns the work. US copyright law was originally codified in 1790 but for practical purposes, the Copyright act of 1976 and the Digital Millennium Copyright Act (DMCA) are the laws that currently affect us.
Basically, the mantra of copyright is “He who creates it, owns it” (cut me some slack on the sexist slant, it was the 70’s after all.) If you’ve clicked the shutter, you can claim ownership and usually have a good case to make. The big exception to the rule is work for hire (sometimes referred to as work made for hire) and work made as an employee. Any works you create while engaged as an employee are considered to be the creations of the employer, not you. So if you work as an employee of a newspaper, all your shots taken while on the payroll belong to the paper, not you. Also, if you’ve agreed to a work for hire arrangement, the same holds true, regardless of your employment status.
When I work for a client it’s usually as an independent contractor, not an employee. It’s also very rare that I’ll sign a work for hire agreement. So usually I (or more accurately, my company, of which I’m an employee) is the copyright holder of the works that I create. I then license that work to my client based on discussions held before the job. Typically when I shoot for a magazine I grant them one time, non-exclusive, rights in the USA for a set press run, a a size not to exceed such and such a size, inside only, no reprint rights. If the want to run it on the cover, cool, it will be $x more. If they want to sell reprints to the subject of the story, cool, it will be $x more. If the want to run it online, if they want to make a poster out of it, if they want to put it on a cell phone, whatever. Any use outside of what’s spelled out in the license is reserved and must be licensed separately. Now this may seem to many like nickel and diming my clients, but the reality is that by parsing up the rights, reserving the rights that they won’t need and charging them only for what they do I’m able to do the job for the small budget that they have. Most publications understand this and are fine with it. Occasionally you come across those that don’t (or won’t) and you have to decide how to handle that.
That brings us to pricing. When I determine how much to charge for a job a lot of factors come into play. I think about how long with the job take to complete, what kind of production costs will their be, how cool will this job be (a shoot in Jamaica sounds really good right now) and I think about how the client will use the work. An image that runs in a small regional magazine might get seen by 50k people. That exact same image running in Time or other national magazine will be seek by 3 million or so. More eyeballs equals more money.
Writing a usage license can be tricky as it requires you (and your clients) to think about how the image will and will not be used. I like to use the PLUS system for writing licenses and go as far to include a link to their site when I send an estimate over. If you’re unfamiliar with PLUS (Picture Licensing Universal System) visit their site to learn more. The photography industry is notoriously arbitrary and there are a lot of unprofessional, unethical and just plain bad photographers out there. Using an industry standard on something like usage is a big help when it comes establishing credibility with clients (both in particular and in general.)
Many clients will request all rights, a buyout (neither term has any meaning, but they get thrown around a lot) or an outright copyright transfer. In many cases that’s warranted, although those cases are rare. In 14 years of doing this I’ve never transferred copyright to a client, although many have asked. I will regularly grant unlimited rights but still retain the copyright. If you transfer copyright to a client you lose complete control over that image. You can’t relicense it, you can’t make prints from it, you can’t even put it in your portfolio or on your website.
