Wednesday, December 06, 2006


Image usage, charging, rights etc.


Well, lately that's come under the spotlight quite a bit among South African photographers and artists. Generally our musician friends have got things right by subscribing to SAMRO, a great organisation administrating the movement of royalties etc.As photographers, we're pretty much left to our own devices, serving such a wide variety of clientele, that most of us don't even know the beginning or the end of what our images are doing, promoting, or what our rights to these images are.For years photographers have been told that "Copyright lies with the commisioner". This means the client owns the images. It seems though, through those who have read the law, that this would mean the FINAL image(s), and not the variations leading to the final selected image. Those remain the property of the photographer. Graphic designers, for instance, don't, to my knowledge, supply all variations of designs to the client, but only the final selected one. Photographers are not afforded the same courtesy often. Since the time was paid for, according to clients (who are often designers), all intellectual property generated under that time also belongs to them. Is this how it is meant to be? I dunno. There are problems with this scenario.
If you don't specify the amount of final images in the quote, you are then expected to reshoot any variation of the client's choosing, spend hours on this, spend hours retouching the variation etc.
As author of any work, should I not have knowledge to what the images are used for and intended for, unless I grant a royalty free license? Under current laws (or application thereof as above), the commissioner owns the rights but the responsibilities of model releases and consequences of usage, such as law suits etc, lies with the author! This has been set out in a contract to me from such a client. I the author except then all liability, but have no rights to the images. Surely this is not right.
You are expected to supply retouched final images of all versions, since these belong to the client anyway, no matter which images will be used.
Clients now are able to sell and re-sell your intellectual property. They use the final image and sell variations. Trust me, this has happened to me. This leads to possible misrepresentation. I can be shooting images for a project, not realizing I'm building a decent stock library for the client.
Most intellectual property media, i.e. software, music, literature, paintings, and designs have conditions. Currently, a lot of photographers have no conditions on which they supply images.As one can see - a lot of this can be avoided already by proper briefing and communication and reaching an agreeament with the client beforehand. Yet, at the same time, South African legislature have signed treaties with other countries, merged things, expanded things, forgotten things, and it seems the result is that there are some clauses hanging around that nobody knows how to enterpret. This brings us to exclusive rights of the photographer. Some of the treaties we have signed gives photographers the rights to their images, with the client paying for licensing, usage or copyright of the image, dependant on the contract. This means the client rather pays for usage than time. I've received quote requests in this format from government institutions, i.e. the Post Office. This is pretty much the model followed worldwide, and enables photographers overseas to incorporate their commercial commissions into stock image libaries etc. This has been tricky for us local lads, since these images "belong" to someone else. Yet, the moment images leave the country, the country where they are sent to governs the rights of the images, which means suddenly I have exclusive rights to this image and have a claim on usage royalties in that particular country. This exclusive rights format ties in better with the way that most other intellectual property transactions are dealt with. It also seems more professional and more clear. However, most photographers don't communicate this clearly and are left with very angry and irritated clients, who now realize they pay for every time they use the image. In most cases, a daily fee is also negotiated in generating these images. I'm not sure if I'm totally in favour of this though. It makes sense to me that the final image should belong to the client and that some exclusivity of usage is assigned to the images. It would be unfair of the photographer to now sell the very same image the client possibly helped conceptualise and give these resources to possible competition. Some photographers have taken this stance, but to me that seems counterproductive to any business relationship and is not sustainable. What I am thinking of incorporating from now on is a ROYALTY FREE license to all images, with myself owning all variations. A client can then purchase the exclusive royalty free license to use, but not resell, the image as many times or however needed. I'll quote on the time it takes to produce enough variations for the client to choose a final image from. The final fee will be for the negotiated FINAL IMAGE only. Further variations can then be purchased at a reduced (or not) fee. All this will however be communicated to the client beforehand. In the case of retainers or project fees, this might need to be altered. This also paves the way for the client to have the option to BUY OUT an image. This means they buy ownership of the image, and not simply a usage license. I then may not store or keep any copy of that particular image.These are ideas I'm throwing around. What do you think. Don't hesitate to contact me, as I would like to hear your response.