Tuesday, 17 April 2012

I paid for them I 'own' the photographs!

I have had a very difficult situation to deal with recently with a trusted and valued client who started using images outside of the agreed contract, and despite requests for the contract to be renegotiated to include these extra uses, those uses continued, with the client refusing to pay for them because he believed that as he had paid for the images once, that he should 'own' them.

We are not talking about a fool here - one generally does not become an MD by being foolish, no this is a clever and intelligent businessman.  Possibly one who is inexperienced in the commissioning of photographers, although he would deny this vehemently of course.

How does one deal with a situation like this?

Well, one can simply give in and allow ones self to be bullied and ignore the extra uses.  That keeps the 'status quo' - for a while at least, but what happens when the next flagrant contract abuse occurs?

Or one can try and bring some understanding to the situation.

As someone who is a firm believer in both the integrity of contracts and of copyright,  I chose to take the second option, knowing that with some people reason and common sense are not always enough to win an argument...

My response:

"I absolutely respect your business experience, but I believe it is also fair that you have some respect for mine.  I have been a working photographer running businesses supplying both stock and bespoke imagery to a wide number of clients since the late 1970’s.  As I mentioned at our last meeting my more recent clients include Rolls Royce (in Derby), Royal Mail, Unison, Nottingham County Council and Farmers weekly.  A disparate group it is true, but all of whom use photographers such as myself on a regular basis.  In each case as a supplier, I have an agreement with them as the client.  The client specifies what is required and I agree to supply imagery to that specification, for an agreed fee. This is the way I have always conducted my business.  It is not usual to specify 'unlimited usage' of imagery, but when a business requires this, it forms part of the contract, and remuneration to the supplier will reflect this extra value.

Had your business made clear before the agreement was entered into, that it required an unlimited licence to use my images, then I would have been happy to oblige, (and still am), but I would have expected (and expect) an appropriate adjustment to the remuneration to cover the extra value this would give the images supplied.

In the UK created works such as photographs, music, art, are covered by the 1988 Copyright act. http://www.legislation.gov.uk/ukpga/1988/48/contents

In the Act it is made clear that the author of a work is the first owner of any copyright in it.  The rights to use that work is then licensed to users as required.  Even when work is commissioned, the ownership remains with the creator.  The only exception to this is if the creator is employed as a creator on ‘staff’ (PAYE).  In which case the company employing the creator, and supplying all the tools of the trade, paying the appropriate taxes, and monthly salary, is the copyright holder of the work.

The licenses granted to use created works such as photographs vary in cost according to the use made of that work: size of use, frequency of use, scale of use, and longevity of use - the greater the use, the greater the fee.

When commissioning photographic work the second element that affects the fee is the ‘cost of production’.  In the case of the photographer this will reflect the amount of specialist equipment required to achieve the technical specifications required, the amount of experience a photographer has, and also the amount of time taken to not only acquire the images in the first place (travel, time on site), but also the time taken to process and edit the images to bring them up to a suitable publishable standard.  Regrettably, even with digital images, ‘what you see’ is not ‘what you get’, and in most cases it takes much longer to process digital images than it does to acquire them in the first place.

It is very rare indeed for a client to require ‘unlimited’ use of imagery, partly because of the extra cost that this entails, but also because most imagery dates relatively rapidly.  It is almost always more cost effective to purchase the occasional exceptional use ‘out of contract’, as in most cases the supplier will give a discount based on previous use.

In the case of your business, (with regard to the original contract), there are far in excess of 100 images being used on the website, images are also used in local publishing, both editorial and advertising, the images are used for your business' own publications.  The photographer attends your business site on demand, for several hours each occasion, several times a month, and covers special events very intensely.  Images are located from the photographers Digital Asset Management system, resized as required and forwarded to publishers etc., on demand, and all for an inclusive monthly fee of £290.

For my other clients, the lowest fee I receive for my work (for a non-profit making union) is £350 for a days photography (including processing), giving a years unlimited use for the clients editorial and advertising publishing of (up to) 30 images.  Copyright remains with the creator, and licensing can be extended to three, or five years or beyond for payment of an additional percentage of the original fee.

As you will be aware I have been concerned that the agreement between your business and myself has expired, and that it required discussion so that the newly evolving needs of the business could be examined and catered for.  This includes billboard advertising.  Now that you mention that your business requires unlimited use of my work then this also can be discussed, although as I have mentioned, I think it would be beneficial to ascertain exactly what licence is really and truly required, and for how many images.  Whilst there may well be a nostalgia value to a very small number of the images that I produce for use by your business, I cannot envisage any other use of images taken (say) in ten years time.  However, if there are uses, and these can be specified then I will be pleased to come to an appropriate arrangement.

If as has been suggested, all that is actually required is the facility to store images for possible future use, then I have already agreed in principal to the storage of my work in a DAM system for recall as required, (it is already written into the original contract). 

Whilst a contract exists between us the images can be easily accessed.  Outside of contract, the images can be just as accessible and on the rare occasion an out-of-contract image is required for use the appropriate fee can be paid – at that time.

I do not believe that I work in anyway different to any other experienced photographer.  I go to great lengths to assist my clients in identifying their photographic needs and using the created works that I supply to their greatest advantage, and obtain the best possible value out of the high quality work that I provide.

It would be very easy indeed to accede to any request made by a client for extra work or uses, and simply invoice accordingly.  However, I resist this, and instead try to work out with the client the most efficient way to use my services.  This is what I am endeavouring to do with your business.

If your business still has to have unlimited use of imagery supplied under contract, then I will happily comply, but I will expect an appropriate increase in the fee paid, and of course a contract does have to be in place.  If your business wishes to purchase unlimited use on images not taken under contract then this can also be negotiated.

I value the work I do with your business, as I value all the services I provide, all of my clients, and would wish it to continue.  It is always a joy to see the excellent use that your business put my work to and to see the business expand as the marketing and presentation continues to improve.

I apologise that this letter is so long, but I feel that the matters needed proper explanation.  I hope that I have managed to clarify my position, and that we can recommence negotiations with regard to the photographic service I provide your business as soon as is convenient.

Yours sincerely"

Will this letter regain me a valued client - probably not? (I don't want to embarrass the client so I have made a few obvious changes). The client has made a decision based on assumption, and I have found out (by experience)  that on occasion when one is 'found out', one generally does not like to admit an error.  No doubt other local photographers are already being offered the opportunity to bid for the work, and I am sure there will be some out there who will abandon good business practice and copyright, simply to have a little money coming in.

Sometimes discussed and agreed contracts, dedication, good work and cost effectiveness are not enough.

Pete Jenkins

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