Thursday, September 16, 2010

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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