Licensing: It’s Just Like Going to Ruth Chris Steakhouse

Undocumented Immigrants scramble up the fence dividing the U.S. and Mexico.

A friend of mine and I were laughing the other night when we started talking about the similar requests we get. Corrado does beautiful retouching in Photoshop for high end clients and I shoot images for a variety of publications and eventually license those images to others on an as needed basis. We both receive requests on a regular basis that start with one of the following:

  1. We’re a start up with no budget but we’d like to use your image……..”
  2. We’re a non profit with no budget but we’d like to use your image……”
  3. We’re a small company with no budget but we’d like to use your image….”
  4. We’d like rights in perpetuity, all media, worldwide but we don’t have much of a budget…..

Now, I can’t speak for Corrado, but I figure it’s time to post something about the basics of intellectual property. First, let me start by saying (or, maybe, yelling) that INTELLECTUAL PROPERTY IS REAL PROPERTY WITH REAL VALUE JUST LIKE THE STEAK YOU BOUGHT AT RUTH CHRIS STEAKHOUSE.

Where does my desire to write about this come from? Today I received a message from a film production company that wants to use the image above in a full length, feature film starring Rob Lowe. But, as happens all too often, the email began with ” I am working on a low budget, independent……..I know our director would like to include your image, but we are in a bit of a cost crunch.”

Cost crunch? Low budget? Then why Rob Lowe? Why ask to license the image for worldwide distribution, in perpetuity (a fancy word that means “forever”), in all media (you know, dvd, film, iPad, streaming, websites) as a Full Frame image (yes, it will fill the movie screen) if you are “low budget” and in a “cost crunch.”

I’ll answer that! Because it’s Economics 101 to try to get everything for nothing. It’s a negotiation. And like all negotiations in which YOU are the buyer and I am the seller, I have my price. What’s my price? Glad you asked……….

The value of my images is based on many factors. If you want to license an image, you select from the “menu” of options that is designed specifically to give a fair price for the type of use you plan for the image. This is no different from opening a menu at Ruth Chris and selecting what you want based on what you can afford. Now, PAY ATTENTION, because this is the key part………only select a license that you can afford! Wow, not brain surgery, is it?

Now, let’s look at it from another perspective. If you go to Ruth Chris Steakhouse and you only have $20, then common sense would dictate that you only order a small appetizer and drink water so that you can pay your bill with the $20. Irrational sense would dictate that you order a appetizer, drinks, Filet Mignon, dessert and coffee and ask if you can just pay $20 because you “……have no budget.” If you don’t think that’s fair then (and this is the beauty of living in a free, Democratic country) take your a– to Wendy’s or McDonalds and order a couple burgers and fries.

A few of the factors that determine a license are listed below. The idea is to create a license that breaks down exactly what you need so that you are not paying for extras (you know, like DirecTV or Time Warner Cable where you license the 300 channels even though you watch about 10 of them):

  1. Duration of the license. Using an image in perpetuity is costlier than one-time use.
  2. Geographic location. Securing Worldwide Rights is costlier than North American rights.
  3. Category: Usage that falls under TV/Film is costlier than Editorial usage.
  4. Use within the Category: In other words, within Editorial use, Magazine use is usually costlier than a Newsletter.
  5. What type of media? Consumer magazine, mock up use, trade publication, in house newsletter.
  6. What size will the image be used? A full page use is costlier than an 1/8 page use. A cover image is costlier than a image used on pg 83.
  7. Circulation Size (if printed material). A image used in a printed publication with a 2 million print run is costlier than an image with a 200 print run.

These are basic parameters that are put in place for the art buyer to get specifically what they need. It also protects the copyright holder (me) by keeping control of the work and licensing it for specific use. The prices are industry standard prices, not some arbitrary figure I come up with off the top of my head.

Whatever the situation, just remember that if you can’t afford a particular license, then downgrade until you find what you need. I’d love to eat at fine restaurants every night, but I can’t afford to, so I make my selections based on affordability.

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Bits and Bytes Bouncing in My Head

Some days, my mind seems hyperactive, bouncing from one thought to another. Is it a mood? A result of caffeine (I haven’t ventured off my norm)? The weather? I don’t know, but I do want to jot down some thoughts careening throughout my cranium today:

  1. Been reading some comments about photo editors and art buyers being tired of viewing portfolios on the iPad. The way I see it is if an editor is hung up on the how I show my portfolio instead of the work itself, then my images aren’t getting it done.
  2. Do blogs and websites routinely post copyrighted written material (say, from a substantiated author), or do they know that’s illegal? If so, why do most claim they didn’t know a photo was similarly protected by copyright? Because they do know, they just mostly try to get away with it.
  3. Five months to receive payment for work done for a large, respected law firm, yet my smaller, relatively unknown clients pay extraordinarily fast. Hmmmmm……
  4. How’s the iPad working out for magazines?
  5. Seems a few years ago the saving grace for photographers hoping to gain assignment work was a quick transition into video. Now everyone seems to be a multimedia specialist and I’m not so sure the quantity of assignment work is measurable for the vast majority.
  6. I enjoy the mix of work I get from non profits, magazines and teaching.
  7. Rights Managed images appear to be licensed for a mere fraction of what they were just a decade ago.
  8. You may not see their work as much in mainstream media these days, but many of my friends and colleagues continue to make meaningful, beautiful and important images.
  9. Met and photographed a well known, award winning author recently. We traded emails and he’s going to read a book I suggested. How awesome is that? Not the typical behavior of the rich and famous.
  10. The Social Media experiment: I’ve been using Twitter, LinkedIn and Facebook for a year now (LinkedIn longer) and as the fine folks a Photoshelter assured in the guide they produced, it works to raise awareness of your work. Like anything, use it responsibly!

Reaching Out to the Next Generation of Photojournalists

I spoke the other day to a group of students at the Greater Los Angeles Press Photographer’s Association about their career expectations. Had a great time, saw a number of my former colleagues, all of whom I respect and admire greatly.

It was a short presentation. I tend to shy away from the quintessential “let me show you my work” approach usually found at these seminars. I remember vividly being in their shoes years ago and having so many questions yet not really knowing what to ask. Speakers at various workshops like the San Jose Mercury News Graphics Conference or the NPPA’s Flying Short courses, to say nothing of the Eddie Adams Workshop that I attended in 1989, would show their award winning work and I would sit and wonder how the hell do I put together a portfolio? In an effort to make things practical, whatever image I projected I talked about the expectations from the assigning publication, the result of the shoot and a few interesting stories associated with the image.

Forty five minutes is a quick presentation and I really wanted to go more deeply into the business aspects of freelancing. I told them that the likelihood of them freelancing straight out of college these days compared to a decade or two ago is quite high. With fewer publications and fewer staff positions, it’s important that the emerging photojournalists not only have multimedia story telling skills, which most universities now offer instruction in, but that they understand how to present a portfolio, how to make appointments and what to expect from the publication. No one knew what a Work for Hire agreement was, though the vast majority of them will be presented one when they seek freelance work from major publications. That’s just a fact of doing business, I told them, and they need to understand what arrangements they are agreeing to. I made a point of not “telling” the students what to do, but instead guided them to seek an understanding of contracts, licensing and income avenues that’s necessary to stay relevant in the freelance market.

I like the chance to give back a bit especially when it involves helping younger photographers find their way. I was there once and had wonderful mentors and friends guide me into the freelancing world. It’s only right I do the same for others when given the opportunity.

Are Rewards Programs Screwing Photographers?

Let’s take a look for a moment at industry wide pricing for stock photographs, shall we? For simplification reasons, let’s agree on the process by which photographs are fed into the giant labyrinth of photo agencies and archives. Essentially, the photographer creates the images, processes them digitally, applies the metadata and uploads them to an agency. The agency (take your pick) has in place a network of buyers and other agencies and provide the platform for distribution and payment for the photographer for a percentage of the sale. In other words, the agencies simply function as brokers between photographers and buyers.

Let’s also agree for the sake of space (you’re already probably bored, so let’s speed things up here) that the photographer and the agency incur significant expenses while fulfilling their end of the arrangement. Photographers are encumbered by rapidly changing technology and have to keep pace to remain relevant and the agencies must maintain a stable, smooth and easily accessible archive of images to appease their clients. All that takes money. Lots of money, most will agree.

Like in most commodities markets, prices rise and fall. With respect to photographs specifically, prices have been in a general free fall for years and there’s no signs of it letting up. In fact, there is pressure on the agencies to maintain nearly unsustainable prices in the form of Preferred Vendor agreements. These agreements are in place to provide volume discounting and encourage buyers loyalty to a particular agency. In other words, once a buyer asks for and receives Preferred Vendor status, they will pay less per image so long as they regularly purchase images. Of the three parties involved in the agreement, who benefits the most and who suffers?

  1. The Buyer: The buyer, typically a large publishing company with needs for many images each month, benefits from a type of rewards program and receives discounted pricing on images in return for their loyalty.
  2. The Agency: The agency benefits from enticing repeat, volume based buyers with discounted pricing on images. The agencies receive less per image but attempt to make up for that with increased volume. (the Getty model)
  3. The Photographer: Not much benefit here at all for the person actually creating the content. The photographer’s image sells for far less than normal but the photographer does not participate in the agency’s volume based revenue that is designed to make up for the discounted pricing. In other words, XYZ buyer comes to BCD agency and purchases my image at a discounted price, then goes on to purchase a 10 more from 10 other photographers. The agency benefits from the volume of all ten sales, the buyer benefits from the volume based discount, but each photographer receives no portion of the other sales, hence the photographer’s revenue decreases.

Another factor that used to drive pricing but has been rendered less significant when Vendor Preferred is applied is the uniqueness of the image. I photographed a Nobel Prize scientist years ago who has not been photographed many times and is hard to contact. His image is in fair demand and has sold many times over. However, last month I had his images licensed four times to magazines in France and the Netherlands. One sale was for $25.60, another for $57.09 and the last two for $92.15 and $102.39. I receive, as is standard with agencies, 40% of those sales. Grand total for licensing the four images was about $137.Yikes…….

Nothing is ever as simple as it seems. Some will argue that without Vendor Preferred the photographer would receive 40% of nothing. Some, like myself, would prefer to find a model that rewards the photographer, not just the buyer and agency, for engaging in volume discounting. Perhaps a yearly dividend sent to each photographer so that all the photographers benefit in a small way from the discounting.

When too much power is wielded by one side in a business deal, someone gets the short end. It’s been a buyer’s market for years and it’s not going to change. The buyer’s wield the power, the agencies are adapting to survive and the photographers are watching their royalties continually decline. We just have to figure out how to fix things before the prices get so low that we hit 40% of nothing anyways.

“You’ve Received a Request………”

Is it the economy, or are they opportunists taking advantage of the economy?

Is it the result of Royalty Free or is it the result of low pricing models?

Whatever the case, it’s increasingly common to receive licensing inquiries only to discover that the request involves a very low price for a very high usage. A couple examples from the past two weeks:

  1. A division of a major publishing company, contacted me regarding using an image for the audio book. I had previously licensed an image for use in the printed book only. (This alone is a lesson why to write detailed licenses. Had I not, the division might have used the image for the audio book without contacting me). After the standard back-and-forth whereby I asked how the image was to be used, it became clear immediately that the owner of production company wished to have unrestricted use of the image for advertising, marketing, package printing, etc. Once he made that clear via email, I wrote the license for such, warning in advance that unrestricted, perpetual use of an image in any known or unknown formats would

    Book Cover License

    significantly increase the price. The reply to the quote was that the company could offer a very low fee (by industry standards) but had to have the unrestricted rights. In fairness, the person I dealt with was very kind and respectful, yet asked for a license that was worth way more than they were offering. This is increasingly the case these days.

  2. A health care company contacted me regarding images of crowded emergency rooms. The caller identified himself as working for a “start up” company. Now, I can’t say for sure, but a company that went into business in 2006 likely no longer qualifies as a “start up,” but it’s increasingly common to have that slipped into the conversation these days. Obviously, the implication is that they have no real budget to work with. The company was interested in using an image as a trade show panel to help sell their appointment management services and software presumably to ER’s, doctor’s offices and health care clinics. The owner also mentioned that he’s previously dealt with Corbis and is used to paying “a couple hundred dollars” to use the image as much as he wants. That led to a amiable discussion and time spent preparing a fair market quote.

    The crowded waiting room at the South Central Family Health Center in Los Angeles, CA as patients wait for medical care.

Both scenarios resulted in no license. That’s part of the business, but I’ve seen a continual rise over the past year or two of requests for unrestricted or multiple use licenses for fees more in line with small, restricted single use. I’m sure there are a myriad of factors at play driving such requests, but among them are surely the rock bottom pricing driven by the large stock houses like Getty and Corbis as well as the proliferation of photographer’s who regularly sign away their copyright and licensing options.

One other factor that has reared it’s ugly head is the demands by publishers to receive “preferred vendor” status and, thus, receive steeply discounted licenses in exchange for volume purchases over prescribed periods of time. This seems to be a standard agreement between stock agencies and publishers these days. The result, however,  is trickling down to us little guys who don’t license hundreds of images per month but are still expected to deeply discount the licenses.

Keeping in mind that not every customer who walks into the proverbial “store” will walk out having bought something, it’s worth noting that market trends don’t typically shift overnight and the continual drive downward in pricing is alarming.

Pomp & Circumstance: The Future for Photojournalism Grads

I’ve seen a lot of really talented, young photographers coming out of various colleges and universities in the past few years, their portfolios showcasing meaningful images of social concern such as poverty and drug use. Their slick, digital portfolios transition from classic reportage to subtle portraiture and on to sports related imagery effortlessly as soft music guides the viewer along. Such a presentation reflects the clear direction of photojournalism programs to prepare the next generation of photographers for the world that awaits them once the cap and gown come off.

Too bad that world is poised to chew them up and spit them out.

There’s no argument that students today are aptly prepared to create quality images. They take classes ranging from photojournalism to audio/video, from lighting to sports action. They learn quickly how to create beautiful presentations of their work before graduating. But that’s merely the technical side of the equation. Important, yes, but less so if the business part of the education is neglected.

Photojournalism programs need to evaluate how well prepared their students are for today’s environment because it’s drastically different from even five years ago. And the evolution is hardly complete.

Which begs the question that should be on everyone’s mind: How will the emerging class of photojournalists earn a living?

Twenty years ago it wasn’t difficult to find a staff photographer job at a local paper upon graduation. Today? Good luck. First, if a local paper still exists, it’s likely been trimmed to the point of near non-existence. Although some community papers are weathering the publishing downfall better than their big city brothers, many across the nation have disappeared. And their larger counterparts have suffered even more. Mid and large size newspapers with sizable photo staffs like the Rocky Mountain News, Seattle Post Intelligencer, Honolulu Advertiser (this week), Albuquerque Tribune, Tucson Citizen and The Christian Science Monitor are just a few named by the website http://newspaperdeathwatch.com/ that have vanished. Some have moved to online only, but the point remains crystal clear. Staff jobs, once a meaningful way to enter the photojournalism profession, have gone the way of the afternoon paperboy and the mom-and-pop hardware store. And rest assured they are not coming back.

That being indisputable, the vast majority of graduates will exchange their rented cap and gown for a career in freelancing. Mind you, the vast majority of graduating students I’ve personally taught and spoken with have absolutely no experience or knowledge about the most prevalent issues freelancers encounter on a daily basis.

Ask them about copyright, licensing, work-for-hire and other contractual issues and you’re likely to be met with stone cold silence. Inquire about their understanding of creative fees, expenses, flat fees, space over rate fees, guarantees versus day rates, and other assignment fees and you might as well be talking to a wall. Ask them about distribution arrangements and it’ll be like asking them to explain how a CMOS sensor works. “Huh,” they’ll grunt. “How do you plan to get your photos seen?”, the teacher will ask. “Oh, either Facebook or Flickr, I have accounts at both,” the student will likely respond.

Far fetched? Hardly.

The point is that a photojournalist’s education must include a thorough foray into the business world. Not a lecture or two, but an entire semester at the minimum. Doing otherwise is like graduating a mechanic with his new set of shiny, Craftsman tools but who has no idea how to start building a motor. What’s the point? You’re short-handing the student before their career even starts.

With freelancing careers by far the norm now and in the future, we owe it to our own profession to prepare them well. By doing so, we all contribute to the growth of the industry in a healthy manner. Too many of us already have seen the repercussions from photographers who don’t know the value of their copyright or who don’t understand what “use in perpetuity and in all mediums” actually means as far as dollars and cents. The institutions of higher learning owe it to their students to give them the business sense necessary to sustain themselves in today’s world. Otherwise, the majority of the graduates will face a uncertain career marked by an inability to provide for themselves, much less a family, without taking on a different career path.

And that’s no stretch at all.

Why Steal? My Letter to a Special Forces Website

Please, people, show some common dignity and respect and don’t pilfer work off of my site to put in your newsletters, blogs, websites, or social media.

Remember, just because you can doesn’t mean you should. The digital era with it’s ease of sharing doesn’t make it right to pilfer work that takes significant time, money and effort to create on my end.

I just discovered yet another person using a copyrighted image of mine without permission. To top it off, he’s a proud member of America’s special forces and runs a website called specialforces.com. His name, according to the website, is Dave Thomas. I’ve included below my standard response to him. I spend so much time informing image thieves these days that I simply saved a formal letter and copy it into an email. Sad, but true:

Mr Dave Thomas,


It has come to my attention that you are using a copyrighted image of mine in your newsletter posted online here http://www.specialforces.com/newsletter/2010_06/index.html. The image accompanies a story titled “On a California ranch, signs of a slowdown in illegal immigration”.

I appreciate your interest in my work, but please understand that the image is copyrighted and you are in violation of the law by using it without prior, written consent. If you would like to obtain a license to publish the image, please do so either by going directly through my website (link below) or contacting me via this email account.

Further, understand that I have put a lot of time, money and effort into documenting all perspectives of the border issue and rely heavily on licensing of my work to support my documentary endeavors. Using my images without permission is tantamount to taking a photograph from a store without paying. I am certain this was not your intention, yet nonetheless it carries the same legal weight.

Once again, I appreciate your interest and you are welcome to obtain proper permission to use my image. However, I am also obligated to state that the Digital Millennium Copyright Act of 1998 stipulates that I inform you of your violation and instruct you to either remove the image immediately, obtain a license or face a legal challenge for copyright violation.

Respectfully,
Show some restraint, people, and respect the work others put on the web to share. A simple link to my site is not only legal and respectful, it’s also very appreciated. If you want to put an actual  image of mine on your site, please just contact me for a license. And all of you creative professionals out there,  feel free to contact Mr Thomas on my behalf. Maybe he’ll take notice. His email is specialforces@specialforces.com

Thanks!!!