Thank God for Disney, The Wire Services, and the Record Labels!

Fortunately, for we lone photographers, awash in a sea of a litigious society, our rights stand equal to that of the mighty behemoths - Disney, Sony Music, and all of the news photography wire services. Now, don't get me wrong here, but there's an old adage - the enemy of my enemy is my friend. I greatly dislike what the record labels have done to independent musicians, and the contracts that the wire services dictate to the freelance community is crushing self-employed photographers like Steinbeck's Joads were. While I want to tag them as Steinbeck did when he wrote "I want to put a tag of shame on the greedy bastards who are responsible for this", in reference to the Great Depression, there'll be enough time to sort out things and finger point later. Right now, these folks, with their deep pockets, and unreasonable demands for our intellectual property will be the defenders of intellectual property in general, and thus, in a strange twist of fate, the IP of yours and mine as well.

How so?

(Continued after the Jump)

We need only look a few years back, when the hooligans that ran Napster were, quite literally, running amok with the creative talents of musicians everywhere. More than one professional photographer I knew had streams of Napster-sourced music running in their studio, and they seemed to see nothing wrong with it, until I pointed out the hypocrisy, but then I was the killjoy. Too bad. Call me Kilroy, or Killjoy, stealing music was stealing from artists. Period. Then, someone (ahem - Apple) invented a way to properly manage music, and Napster was lobotomized into a lifeless parody of itself, all legal, of course. All, thanks to the music industry's deep pockets and lawyers on retainer.

Now, we have the imbecile Lawrence Lessig, who, from the ivory tower of Harvard University (by way of a video festival awards ceremony), attempted to decree that the thieves of the world "can teach this culture how this form of expression is essential." By "this form" he meant, the mash-ups and repurposing of others intellectual property, and he goes on to say "When we've taught the culture, the law catches up..." Really? Is that what they're teaching at Harvard these days? Teaching the general public to break the law, and eventually it will be ok? Gosh, that sounds a lot like the early arguments for the 12,000,000 illegal aliens undocumented immigrants, and they're close to getting just that. Lessig posits "We need to stand up and acknowledge what we're doing, give people credit, and thank them, but not ask permission". Fortunately, what's good for the goose is good for the gander.

With we as the goose, enter the gander. While I didn't like that Disney mickey-moused with the copyright laws to protect their aging-into-public-domain mouse, it did demonstrate their might, when they wanted it to be exercised. Photographers will likely be among the beneficiaries of the platoons of lawyers the intellectual property industry entertainment industry brings to bear against ill-concieved pronouncements like Lessig's. When the wire services, music, or movie industries leverage their might against the mash-up madness, the laws (and yes, the constitution) will rear up its ugly head and lop off Lessig's Medusa-like head. Lessig can pander to the masses, who no doubt cheered his cute little idea, but if he has any sense at all, he knows it'll never happen, but he gets points and street cred from the mash-up artist for these ideas. How's that working out for you so far, Mr. Fairey?

Lessig, according to the PDN article on this, is quoted as saying "Respect in the 21st century is acknowledgment. When you use someone else’s work, you give them credit." Ok, and I can pay my mortgage with....credit? Mr Lessig, are you saying "let's screw the creative community now, and you'll respect them in the morning?" If so, who's wearing the beer goggles now?

While the concept of Creative Commons was a good one, Lessig has essentially named himself Creative Evisceration Officer, and anyone who now supports CC is aligning themselves with his as-yet-unstated-until-now position. ASMP, who has previously associated themselves with Lessig (here) should immediately disassociate themselves from Lessig in no uncertain terms. Plagarism Today, asked in a piece - Is Creative Commons a Rights Grab? - and it seems that that was the smoke, and Lessig's latest comments reveal the fire. Who will he burn next?

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Pitching the Photographic Client - On the Phone

Often what it comes down to when calling a prospective client is the introduction. Suppose, for example, you want to call Jason Adams* at Spin magazine to shoot portraits for them. Your objective is to engage him with your creative talents, right? Wrong. Your objective is to get his permission to send an email to him with a few images, and a link to your website. How do you do this? Well, break down your call into what happens.

First - find out his direct dial number. How do you do that? Well, first things first - what's the main number? A Google search for "Spin Magazine" turns up this - and once there, they conveniently have a "masthead" link - here. Their direct dial number turns out to be 212-231-7400. That'll get you to the receptionist. You can first call that number and say "Hi, can you please tell me the direct dial number for Jason Adams?", and maybe you'll get lucky. If they say "oh, we don't give those out...but I'll connect you..." say "no thank you, not right now" and hang up. You can also ask what his extension number is, and they may give you that. You can also call after hours, select the company directory, and enter Jason's name, and often that automated system will say "connecting you to extension 312, please wait while I connect you", and now you have somewhere to begin.

So, you now now that Jason's extension is 312. That'll get you to him when you dial the main number after hours, and key in his extension, or when you're in their lobby, and want to stalk Jason from the phone on the side table. Don't do that. The next resource is the jobs, PR, or advertising sections of the website. Unlike all the other sections of the website designed to keep the hundreds of thousands of readers from bugging the staff, the advertising department (and thus, that section of their website) is chock full of contact information and direct dial information. So too, the PR section. So, let's delve a little deeper, shall we?

(Continued after the Jump)

The "contact" section of the advertising section of the website (here) lists all sorts of emails and direct dials that were missing from the main "contact us" section of the site - here! Surprise Surprise!

In the ad section, we learn that while the main # is still 212-231-7400, the publisher's direct dial number (obviously, to his secretary!) is 212-231-7302. We also learn that one of the account managers there has the direct dial number 212-231-7355. Other people listed on this page have the suffix of the phone number 7421, 7426, 7450, 7440, 7470. So, it seems, Spin owns the 7300 and the 7400 exchanges for the 231 prefix, of the 212 area code. So, Jason's direct dial number is most likely 212-231-7312. Bingo! Now, don't dial it just yet, TEST it during off hours. Say, around 10:30 at night, call the number and see if it's Jason's voicemail. Be careful, in today's day and age, many people are forwarding their work numbers to their mobiles, so if he answers, apologize for the wrong number, and hang up! You're not ready to actually talk to Jason yet!

Now, you need to learn Jason's email address. Why? Because you don't want to ASK him for it - you should be saavy enough to have figured it out BEFORE you talk to Jason. Do some more research. Often, as before, the advertising, PR, and Human Resources section of the site has peoples' email addresses. BUT WAIT! You shout, I don't want a job - I want to do a shoot for them! Patience there, friend. heading back to the advertising URL - here - we see that the publisher's email - Malcolm Campbell is mcampbell@spin.com, and the Fashion Director - Kelly Rae is krae@spin.com. Seeing a pattern there? That's right - Jason's email is likely first initial then last name, @spin.com. In other places, it's firstname.lastname@company.com, and then it can be lastname_firstinitial@company.com. In other words, learn the email nomenclature. Now, be careful, because if the person's name is John Smith, there may be more than one "JSmith@company.com", so it'll either be first two letters of the first name then the last name, or it could be jsmith2@company.com. It can get a little tricky there. You an also try doing a search for his email address "jadams@spin.com" and see if it comes up.

Ok, now that you have the contact information, head to the website, or the local bookstore and check out what they're doing now. DO NOT call and offer them something you do that they don't! See what they're doing and think about if you are a good fit or not, and be honest - don't waste there time or yours. If you're spending all your time doing this research, I am assuming you've already been pining about how your work is just as great as what they are running, or better, and you could do that too, so that's why you're doing this research, but, really, be honest!

So, say, you see a great portrait of Fat Joe and Jay-Z in the magazine, and you light your stuff like that, but it says in the credit "Photographed on location in Jay-Z's Atlanta studio, August 12, 2010." And, say, you're a detroit photographer, and the car executives aren't calling these days for updated portraits. So, prepare your pitch. You have 20 seconds. Write it down. Refine it. It might go something like this:

"Hi Jason, I hope I'm not catching you at a bad time, but I wanted to just call and get your permission to send you an email promo. I hate spam, and I didn't want you to think I was spamming you, but I saw that amazing portrait the magazine ran of Fat Joe and Jay-Z, and I work in the Detroit area and wanted to share with you some of my work if that's ok?"

When Jason says "sure, no problem". You can either say "thanks, I'll send it right along", or say "I have your email as JAdams@spin.com, is that correct?" Either way, don't ASK for it, but you could confirm it's right.

There are a dozen ways you can script your call, but the key is to script it, and read it a dozen times to yourself to ensure it's smooth, and you don't stumble, and you sound natural. My first read of that script took 15 seconds. Some might dissect that and say the "I hate spam..." sentence fragment is negative, and should be avoided, but the positive side of that is you're trying to point out that you don't want to spam him. The point is - think, and then re-think your pitch on the phone.

When he says "sure", send it right along - as in, within 5 minutes or so. Don't call first thing in the morning, or at the end of the day. Right before lunch time (remember time zones changes from yours!) or midday - between 2 and 3:30.

Don't leave messages. If he doesn't answer, call back 20-30 minutes later. Don't call right before an "on the hour" or "on the half-hour" time, because he's likely headed to a meeting. So, call between the :10~:20, or the :40~:50 time windows.

How many times does Jason need to experience your name/offering before being ready to do business with you? Nine times. The problem is - for every three times you do put your name/offering infront of him, he's actually only paying attention once. Yup. Don't believe me? Check this link for more insights, and then go buy it as it's a book I highly recommend - Guerrilla Marketing. So, you've just done it twice, and maybe he'll remember it once. You've now got 8 more conscious experiences for Jason to have with your work before he's ready to work with you. Maybe less, if you're really all that you think you are.

What else could you do? Well, you could look up Jason on Facebook and LinkedIn, to see if you can learn more about him. Read his wall postings, and really get to know Jason. Yes, I know you might think this is stalking, but, in reality, it's called gathering business intelligence about your prospective clients, so they become your clients. Once you get to know Jason, you'll want to note in your smart phone things like his favorite drink(s), birthday, kids names, spouse's name, the neighborhood where he lives, where he grew up, and so on. Again, this isn't stalking, it's getting to know more about your client, over time, and then not forgetting that he's, say, an alcoholic, so you don't send him a nice bottle of wine for the holidays. Or, knowing that he's jewish, and would likely take offense at your "Christmas" gift. The above personal client "data" are things you learn from them, over time, whether they share that information with you directly, or post about it on their facebook account - i.e. publically! Either way, be careful how you use the information, as it could come across as really creepy. For example, if you say "hey, my kid just joined Babe Ruth baseball, does your son Timmy like it?" And when Jason says "how do you know my son Timmy plays Babe Ruth?!?!" You can say "oh, I remembered you posted on facebook about the game..." - be honest wherever possible.

You could, of course, get all sorts of contact information from Agency Access, or AdBase. Back in July of 2008 we wrote Getting Clients - A Few Options, and in November of 2008 we wrote Marketing 201: AdBase - A Timesaving and Valuable Tool, which does a lot of the initial research for you, for a fee, of course.


next up? What to write in that email!

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(* Jason Adams, by the way, is a made-up name. He's fictional. I have no idea of there ever was a Jason Adams at Spin, but, you get the point.)

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Photographer Prevails in Wedding Lawsuit

In November of 2009 we posted Wedding Photography Contracts - A Cautionary Tale - about the risks on assignment, as well as the possibilty of a tarnished reputation when things go south. Photo District News posts today - Blushing Bride Loses Underwear Photos Lawsuit - with the update that the photographer prevailed in court. The problem now, is that "One of the Best 10 Wedding Photographers" (according to his website, ranked by American Photo) has to restore his reputation, tarnished by this brides's suit.

Reading all the links above serve as a good reminder of the risks to our business by clients who feel wronged, even, as decided by the court in this case, the client was wrong.

Thus, ample proof that the client isn't always right. Want more insights into this?

The Client Isn’t Always Right: Dealing with Abuse as a Freelance Writer

Just Say No: Three Reasons the Customer Isn’t Always Right

10 Freelancer Mistakes that Damage Your Success

(Comments, if any, after the Jump)

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Morel v. AFP, AFP v. Morel - Which Way Blows the Wind?

Much has been said critical of Agence France Presse (AFP), and Twitter (and the unrelated yet seemingly related site TwitPic), in the case where, in the early hours following the devastating earthquake in Haiti, photogapher Daniel Morel "tweeted" 13 of his photographs to the outside world via the TwitPic network, and AFP distributed those same photographs to their worldwide network of customers, without compensating Morel for their use of his photographs. To date, much of that criticism has been directed towards AFP and TwitPic/Twitter, admonishing them because they "stole" the photographers work.

To the contrary.

(Continued after the Jump)

Morel signed up for a TwitPic account, which is free, and which has a lengthy set of terms and conditions under which he may use the account, and further, what TwitPic may do with material he transmits across their network (text or visuals). He agreed to these terms and conditions. Whether he conveniently forgot what he agreed to, or whether he never read them before clicking the metaphorical "I accept TwitPic's Terms and Conditions" button, the photographer is in the wrong. TwitPic has a network, and the tangent to TwitPic has a network, Twitter, which is bearing the brunt of this suit, and alleged wrong-doing. They both provide the service for free, for reasons that are mostly unknown right now. It may be that they are mining data from tweets about trends in society, age groups, or otherwise taking the pulse of the collective consciousness, and that may be a marketers dream data set. However, the Twitter network spends millions of dollars a year to operate itself, and in exchange for making that multi-million dollar network available to it's users, Twitter gets rights to content it carries over it's proprietary network. Their conveyance of those rights to third parties - in this case AFP, is perfectly within the bounds of their rights, and Morel is out of line.

Jean Francois Leroy, the Director of Visa Pour L'Image has a similar take on this. Over at Duckrabbit, (here) they use similar language - "AFP took Morel’s pictures without the photographer’s permission" and "they thought the photos belonged to somebody else". The operative word in the first quote is "took", and it's wrong. "Took" implies without permission, and they make it clear that's what they meant, when they say just that. The fact is, Twitter's T&C give AFP permission, granted to them by Morel, when he accepted them as a condition of his use of Twitter.

Leroy was quoted as saying:

"Anyone who puts images on Flickr or on Twitter, and then sees them being used, well too bad for him… a photographer should never put his images on a social networking site. If you put your image on Twitter or Flickr and find that it’s been stolen by someone else, well… tough. You can’t ask me to defend you. What I’d like is for all photographers reading this is that they stop putting images on such sites."

The only objection I would have to that quote is that Leroy characterizes the action as "stolen", and, as I have detailed above, AFP did NOT steal them, they have a license (permission) to use them. Otherwise, Leroy is spot on.

What if Morel had been smarter about his images, and used the internet to transmit his images to, say, a service like Photoshelter, where people can access and license images immediately, and which are search-engine friendly so the photos get found easily? They might not have seen the distribution and publication depth and breadth that they did because AFP has thousands of subscribers worldwide, but Morel would have maintained control of the licensing of his images, and likely profited significantly from controlling his rights.

I stand with Leroy, and common sense - don't use free internet services when your own intellectual property is at risk. Not only do you risk losing control of your work, but also, it's just not professional.

For those of you curious, here are the respective Terms of Service (i.e. the terms under which you may use the service, and further, agree to):

From Twitter's TOS:

- You may use the Services only if you can form a binding contract with Twitter

- The Content you submit, post, or display will be able to be viewed by other users of the Services and through third party services and websites...You should only provide Content that you are comfortable sharing with others under these Terms.

- You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).
- You agree that this license includes the right for Twitter to make such Content available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use.

- Such additional uses by Twitter, or other companies, organizations or individuals who partner with Twitter, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services.

- We may modify or adapt your Content in order to transmit, display or distribute it over computer networks and in various media and/or make changes to your Content as are necessary to conform and adapt that Content to any requirements or limitations of any networks, devices, services or media.

From TwitPic's TOS:

- By uploading your photos to Twitpic you give Twitpic permission to use or distribute your photos on Twitpic.com or affiliated sites

- you retain all of your ownership rights in your Content. However, by submitting Content to Twitpic, you hereby grant Twitpic a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and Twitpic's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service.

What part of that's not clear? Photographer “A” delivers images to party ”B” (TwitPic and then Twitter) and in doing so, accepts terms expressly providing that party “B” has the right to sublicense his work to third party/ies “C”, then the photographer must abide by terms to which he/she agreed. As to Party "C" being Lisandro Suaero, who downloaded the images from TwitPic and reposted them on Twitter under his name (see FastCompany article here for this gem of information), nothing in TwitPic's terms require photo credit, let alone, an accurate photo credit. Setting aside Suaero's ethical breach for taking credit for someone elses' work, AFP has obtained their rights from Twitter who legitimately got them from Twitpic who legimiately got them from Morel. AFP did the right thing, as they learned that Morel was in fact the photographer, and not Suaero, so they corrected the photo credit to attribute Morel. Morel is not some newbie, or someone unschooled in how to transmit photographs - he used to be an employee of the Associated Press as a photographer, so any claims of "I didn't know..." will, for me, fall on deaf ears.

Any questions?

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Related:

AFP sues Morel for defamation (PDF)

BJP - AFP v. Morel: The debate rages on

BJP - AFP v. Morel: The Important Questions

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Property Releases - Not Necessary One Court Rules

For years, it has been espoused that, in order for you to use someone else's property in a commercial way, you needed permission from the owner of that property in the form of a Property Release, much like a Model Release. No so, says the U.S. District Court in Northern California, in a rare case that likely will have far reaching consequences.

In the case of Robinson v. HSBC USA, Mr. Robinson's home, an often-photographed Victorian-era home in San Francisco, was used in advertising for the HSBC bank. (Read the decision here). The case, interestingly enough, was brought against the bank, one can assume, because they had the deep pockets for an award, as opposed to being brought against the photographer, who had far shallower pockets than a multi-national bank.

The front of the brochure, is at right, where Robinson's home is the yellow one.

(Continued after the Jump)

With the court's decision, it was dismissed "with prejudice", which barrs Robinson from bringing another case on the same claim. At right is the inside of the brochure - a second use of Robinson's home.

Over at the Property, Intangible blog, there is an excellent dissection of the case by an intellectual property lawyer that's well worth the read. Carolyn Wright, over at A Photo Attorney, discusses that there is almost no need for property releases in the United States, and she writes a bit about it here.

Essentially, there was no libel or defamation, nor even the suggestion that Robinson had a home loan with HSBC. Further, there was no trademark issue (like a logo visible in the image), nor a copyright issue. Further, the image was taken without trespassing on private property.

While I'm not a lawyer, and further, this isn't legal advice, it seems that unless you're going to use an image of someone's home and say "hey, here's a great place to open a brothel", or "this house looks like a crack house", a property release isn't as necessary as we have all been led to believe in the past.

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Paying Attention to your backgrounds - Avoid 'Photobombing'

As professional photographers, paying attention to all the elements of your photograph is critical. Now, I'm not talking about studio work, or situations where you are in control of the entire environment, for this blog post. Instead, what I am talking about are uncontrolled situations are the regular experiences of wedding photographers, photojournalists, event photographers, and so on.

A good photographer will do more than just properly expose and focus the image, but taking it to the next level, they will actually compose a good image too, so the subjects are properly framed as well. Once again, taking it to a higher level, eliminating static "photo bombs" like glowing exit signs, lamp posts and trees coming out of peoples heads, and other odd objects makes for a much more professional photograph. One of the few remaining road blocks to a good image is the human 'photo bomb'. That is, when there's someone in the background doing something distracting, either by happenstance, or with the intention of ruining your photograph. In news coverage, waiting for the other people in the photograph to either be a part of it by looking at your subject can take seemingly forever. Few things irk me more than photographing a subject at a podium only to have the people on either side of the speaker looking down, looking away, or otherwise not paying attention to the person whom the entire audience is expected to be listening to!

So, for some inexplicable reason, it is with a good chuckle that I saw this tounge-in-cheek new 'feature' in Photoshop. Enjoy the video, and for more examples of photobombs, check these out on YouTube, and Flickr!

(Comments, if any, after the Jump)

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Beware Your Copyright Infringements - Case in Point

Your copyrights, and those of your colleagues, are under constant attack. It's critical to not just police yours, but to help out your fellow photographers, where it seems likely an infringment might be possible.

Today, while in-between assignments, I was in Washington DC's Union Station. There, I stumbled upon Images 4 View (listed here), a kiosk operating a green screen business. Most of the images appeared to be snapshots they could have taken themselves, or, in a few cases, White House public domain images. However, one image stood out for me - the image from the cover of Sarah Palin's book. Set aside your opinions of Sarah Palin, the fact is, this was the one image I thought was a candidate for having been infringed.



First, I made several images of the booth scenery, and it being operated.

(Continued after the Jump)

Then, a quick online search turned up the photographer - Seattle photographer John Keatley. Fortunately, his cell phone was listed there, and a quick call to him confirmed what I suspected - he was being infringed. While no one likes learning this, I think what they like even less is that people are profiting off of their work and they are not being compensated. What's interesting here - is that while locations like Union Station must be certain that their vendors are not selling illegal drugs, and are operating with a license to do business, they should also be making sure that their vendors are not violating federal laws like Copyright. I get this same type of frustration when I see a kiosk in the mall where a sketch artist has "sketched" famous images like John Lennon with his arms crossed, or other iconic images of celebrities. I can't wait to stumble upon one of my images that has been infringed - I will have a field day with that vendor.



In this case, I sent along all of the images I shot of the booth. Next, I went to the hourly photographer working the booth, and asked for the company owner's name, and she provided it, and his email address, which I promptly sent along to Mr. Keatley.



If each of us, when we see what could well be an infringement, or, well, just looks odd, spend a few minutes on your smart phone, make a few images, and help out. The more we police this, the better our community will be.

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Practice Makes Perfect

Every so often, I post over at the blog of my agent, Black Star. My most recent post is - "In Both the Craft and Business of Photography, Practice Makes Perfect".

I come across so many photographers who seem to think good things should just happen to them — and if they don’t, it’s their “bad luck.”

To that, I counter with one of my favorite sayings, by the Roman philosopher Seneca: “Luck is what happens when preparation meets opportunity.”

Even the Declaration of Independence doesn’t promise you happiness. It only says you have a right to pursue happiness. That’s very different; it puts the responsibility on you to make it happen.

When it comes to your photography business, that means professional success and fulfillment are up to you.

Continue reading at Black Star Rising.

(Comments, if any, after the Jump)

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The Power of One

One of the most hotly discussed issue among professional photographers, is "to combine, or to not combine? Whether 'tis smarter to join together fees for creative and use, or to separate them out." Here, I shall endeavor to address this issue with several concrete examples, and some insights into the issue.

Warren Buffett once said "price is what you pay, value is what you receive." This is true across every spectrum of business transaction. Is the price too high? Well, it may be for some, but no so much for another. While some may scoff at the cost of a smartphone, saying the extra data plan and phone features are just not worth it, almost every day the price of the phone and connectivity charges are a drop in the bucket compared to how having that phone keeps me connected to clients and booking jobs. Recently, I was on assignment, and booked for a shoot to photograph an auto accident that was staged and set up, because the client said they couldn't find good images of cars having an accident. To the client, it cost them tens of thousands of dollars to stage the accident, from stuntmen to actors to totaling a car. Could they have searched among the 70,000+ images on flickr (here) that turn up for the search term "car accident?" Sure, and they could have possibly gotten the image for next to nothing. However, to this client, the value of what we delivered was worth the investment of all that went into it. (And they did search Flickr,Getty, etc and did not find what they wanted - I asked.)

(Continued after the Jump)

Magazines value photography because it entices readers to subscribe of buy single-copies, which ensures that there are eyeballs looking at ads, which pay the bills. Advertisers buy ads and use images because almost always a well used photograph tells a story and sells a product better than any written words can. These advertisers make their investments in ads and images to sell products or services, increase their bottom line, and make a profit for the company owners, whether a private company, or one traded on the stock market. It's all business all the time, make no mistake about it.

While it used to be that breaking apart the costs to produce an image (creative fee) from the costs to use an image (usage/licensing fee) was common, more and more these fees are being put together, and not separated. Consider that the combined fee is not full compensation for the image's coming into existence, but rather, the least that the photographer will accept for the initial work and effort. On more than one occasion, I have done a stellar job or delivering far above a client's expectations, and the client (especially when they are on set) begin to see things far and away beyond what the original intent of the shoot was. Usually, I overhear a client saying to their colleague "oh my god, we could do a whole campaign around these images, instead of just the one we were planning - these visuals are great." Usually, the negotiations for the additional licensing fees for extended or expanded uses of the photography are handled after the fact, but not always.

Yesterday, we went into great depth about a license as a "window of opportunity." If the client wishes to expand their window of opportunity, then additional fees should be paid. However, if the photographer delivered as required, and then, say, the client does a focus group on the commissioned visuals, and decides to kill or scale back the project, they are not entitled to a refund. This is the client's right - to control the exploitation, or lack thereof, in the work you created. This does not mean that you can't give back money, or bill for less. If you determine that it is in your own best interests to do so, then, by all means, do so.

Here's a case where keeping the fees together made a huge difference. This is a real example, but I'll change the industry/client for the sake of the example.

The problem is taxes. The government is trying to impose taxes on a variety of snacks - chips, cakes, and cookies. Enter the American Snack Foods Association. I get hired to photograph all the snacks (which means that while my client is the ASFA, the end client is Frito Lay, Enteman's, Hostess, General Mills, Altria, and so on. You get the picture - a lot of people who usually compete, having to work together on an issue) together. We do, and we get sign off from ASFA. The bill - $10k for the creative and usage, combined. I do this job on a Friday. Sunday, I get a call - one of the Frito-Lay bags is the old branding, and we need to re-shoot on Monday. No problem. We send another contract for $10k. We get on set, ready to go, crew at the ready, computers and lighting ready. The client doesn't even turn up to the shoot, and scrubs the shot. No problem. Send a bill for $10k. We are told Monday afternoon we are to finally shoot Tuesday. Send another contract for $10k. We do the shot, and the client again signs off on the job, and this time, they mean it. Total bill? $30k. Paid in a week. This client is an ongoing and repeat client for me. If I had separated out creative and usage fees, it may have been more challenging to argue that they still needed to pay those fees.

When putting together estimates, keeping fees together, wherever possible, ensures a greater amount of revenue for your business, and thus, has a significant impact on your bottom line.

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Licensing - A 'Window of Opportunity'

Consider the license to a photograph a window of opportunity. For example, an image shot at a political rally this past weekend has, first, a window of a day as a news photograph for the daily newspapers. After that, the window of opportunity to generate revenue from this consumer of images closes significantly. For a news-weekly, the window is a week or so. For a monthly magazine, it's about 30 days. Following that, the window of opportunity for the use of most images from that rally have a window that closes significantly on election day - November 3rd. Then, it becomes a historical image, as fresh images will be needed for the political needs 2 years from now. As you license an image you close windows, and others cannot open. For example - if a photograph is licensed by the democrats for ads critical of the political rally, then that image is almost assuredly not going to be licensed by the republicans for ads in support of the issue. Other windows of opportunity abound.

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The broadest example of a window of opportunity is the term under which you control copyright. The term is life of the author plus 75 years (see here) . So, in the US, life expectancy is 78 years (source here), and assuming you start shooting professionally at 23, right out of college, your first images have a protected duration of 55 years + 75 years, or 130 years. The images you shoot at age 65 have a protected duration of 13 years + 75 years, or 88 years. So, you have a window of opportunity to exploit the value of your images for between 88 and 130 years, provided you live to the average age of 78. So, if you grant to a client a 10 year exclusive use of your photography, the window of opportunity for others to have exclusive use of the image (and you to generate revenue) is narrower after the first use expires.

A more narrow example of a window of opportunity applies when it comes to fashions and technology. For example, (cell phones - Game Changing Cell Phones Of The Last 30 Years) if you had shot a "generic" image of a business man using a Motorola flip phone back in 2003, as the Palm, iPhone, and others came out, that image looked dated, and has very few uses to illustrate a business man on a phone. So too, images that show CRT televisions and computer monitors - everything is flatscreens these days. So, for that flip-phone photo, your window of opportunity was about 4 years, before it "aged" out of the market.

When I license a window of opportunity to a client, I have no way of controlling the exercising of the rights I granted, beyond defining the maximum extent of the use. If I license an image to a client to produce 100,000 printed brochures for the next 6 months, I cannot force them to actually print them, for example.

When, for example, I rent a car, I am renting a window of opportunity to exploit my exclusive use of that car. I may opt to rent it and sleep in it overnight because it's cheaper than a hotel room, or I may decide to drive it for 24 hours straight, stopping only for gas. Just because I didn't exploit it the entire time as a car in the first scenario, I am not entitled to any pro-rated refund. Nor would I be if I just drove it for 4 hours and returned it. While it used to be that U-Haul treated their moving vans this way in the "24 hour period" approach, they found that they could narrow their windows to overnights, and even shorter periods of time, and still make money. If, however, you did rent a moving van for 24 hours, you would not have to pay more to the moving company if you moved yourself and two friends than if you just moved yourself. It was your prerogative to exploit your rental and the extent to which you did that is up to you.

So too software. Everyone pays, say, $200 for a Photoshop upgrade. However, some people use that software three times a week, others 8 hours a day 7 days a week. You are entitled to use it 24 hours a day 7 days a week on one desktop and one laptop (see here) provided you are only using one machine at a time. Are you entitled to a discount if you're only using it a few days a week for a few hours a day? Nope. Adobe does not control your exploiting of the window of opportunity, only you do.

Same goes for music. If you download a song from iTunes, you have a personal use license. You can listen to the song 24 hours a day, forever, or you can listen to it once a week, in your normal music rotation. The cost to do so is the same, regardless of the extent of your exploiting of the license. However, if you want to use it beyond your personal use license (i.e. selling your services as a DJ, as background music in your restaurant, in a commercial selling your products, etc), the costs increase because your use increases and your benefit increases, so, too, does the creative talent behind the music need to benefit.

When it comes to photography, your ability to leverage the narrow window of opportunity during which your images have value will be a cornerstone of the extent of your income as a photographer.

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Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.

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