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The Biz: Understanding the Agreement

So when do you walk away? We had a recent situation, you know, there's (laughs) there's your, oh what are we gonna do now, sort of slide. And we'll show you this. Which didn't have to do with the walk away part of this, that was another, but it's a good image you chose to put there, like, I don't know. I don't know, what we gonna do now? You know, but I'll let Lynn, talk about this. It was, so joyful. Wasn't a big job, as you can see. The numbers are not huge here, it's not a big job. And the reason why we actually included numbers on this, as opposed to some of the other stuff you've seen which we've stricken from the record, just for proprietary purposes, I got a call on a Friday, late on a Friday from a woman calling from an organization in the city of Manhattan. Saying that she loved Joe's work and would love to have him do a shoot for them, the shoot was gonna take place the following Thursday, they already had their date decided and the location, which would be at their...

headquarters in Manhattan. And I asked her a little bit about it, okay what would Joe be photographing and it was a lot of portraiture, maybe five or six different situations within the course of this half day that she said it's gonna be a half day. Right away I hear half day nothing is a half day. It's just not. By the time you pack the gear and get on the road and we're about an hour and a half outside the city without traffic, and you get to the location, and find the loading dock, you load the stuff in and not even for a big shoot Joe's still gonna have a decent sized pack just to be prepared for anything because we were not gonna be able to do a location scout out ahead of time, so you load everything in and the assistant goes and parks the truck then comes back you go up you do a quick assessment of the situation, set things up, meet the talent which is really real people who they were needing Joe to photograph, and then you do the shoot and then you do the same in reverse, you pack out, you walk out, you load the truck, it's not a half day now we're at it's eight hours. There's no question. But I said "Okay that's fine yep", I looked at the calendar real quickly I though Joe was available. What, you know, what type of budget do you have, and she said "Well we have $2400", and I thought okay well that'll be a decent fee depending on the licensing, so I said "What type of licensing are "you looking for?", and she said "Oh well I'm not sure "what do you mean by that?", and that's when I was like oh here we go, so this is a perfect example of what I was mentioning earlier. Had I been speaking with someone who was more well-informed, art director, art buyer, producer, photo editor, they'd understand that lingo. So I said "Well are you looking for imagery for a "specific purpose, what's the media that you're, "you know, gonna be putting these photographs into?". "Oh it's just website, just website and then maybe "some brochures.", and I keep thinking are you gonna add to that or are we gonna end right here. So I said "Oh, okay that sounds good, and what would be "your term of use, length of time?", and she said "Oh well, we'd want,", she sounded like she was confused by me even asking that question, but she said "Well we'd want to use them forever, I mean, they would "be ours.", so now I'm hearing these keywords and I'm thinking "Are you looking for transfer of copyright by any "chance?", and she said also, "I don't know what that means" and I'm like here well this is really (laughs) So I gave her a whole quick 101 on copyright, and she said "Oh, no, no, no, no, we don't need that, "no definitely not, no it's website and brochure. "but we do wanna have the use of them forever." So I'm thinking okay well the $2400 could probably, well, maybe we could work this out because again this would be a new client, it was an interesting potential client that I knew that once Joe and I spoke about it he'd say "Yeah you know why don't we do it. "I'm available that day, and I wouldn't mind getting "involved in that company cause maybe who knows "who you can meet, you know through that." So it sort of a entry card if you will type shoot. So then I said to her "Okay well I'll work up an estimate "of expenses, and then put it all together and I'll get you "that by Monday morning.", and she said "Oh, no but $ "is the fee.", so I said "Well yes, the fee, but then "there's expenses, because Joe will be bringing his "assistant, and then there's mileage and a couple, it's "not a big production by any means but there will be some "expenses.", and she said, "Oh, no, no, $2400 is really "everything.", so I thought okay this is gonna be a tough one, but I didn't wanna close the door before I spoke to Joe about it so I said "No worries let me speak "to Joe." I think he was away on a trip and by the time we would speak would be either over the weekend or first thing Monday morning. So fast forward to Monday morning, Joe and I spoke, and we figured okay well you know what maybe let's just do it, again, it's one of those shoots that he figured he could do it, do it well, be in, be out, again it'll be eight hours but it's not gonna be a big ordeal for him, and would come away with some pictures that he really would enjoy having the ability to use. So Monday rolls around, I contacted this potential client I explained, fine the $2400 will work well, she said "Please send me the estimate anyway though, the way "you're gonna break that all down.", I thought why, but okay, so I did, by the time she got back to me it was Tuesday with a relative approval just basically saying this is fine, but then she said there were other people she needed to speak with and wouldn't be able to get back to me until Wednesday. Now the shoot was gonna be Thursday, so Wednesday, in the meantime we're all geared up for this. Put it on the calendar, everything's good to go, got the pack list going, everything. Wednesday, day before the shoot, again, emphasizing that for a reason, she sends me in an email final confirmation, not a cancellation, and there's this little pdf I see attached, I'm like "Huh, wonder what that is." So I open it up, and sure enough it's a work for hire contract. How many of you are familiar with work-for-hire? Okay, basically that is a transfer of copyright. So, people will also use, interchange the word, buy-out. Buy-out technically is also a work-for-hire. The terminology, the term buy-out should be stricken from everyone's language, if used loosely, it basically means all rights in perpetuity with no intention of copyright transfer in many cases. But technically it really is a transfer of copyright. So you want to stay away from that. But she didn't even use buy-out, she used work-for-hire, which is really just saying you're gonna give me your copyright, and that's when I'm like, but we had this class on that last Friday. Did you not do your homework? Right, did you not take notes? So I called her up and I said "Gee I just opened up that "pdf and I noticed it's a work-for-hire contract and we "talked about that transfer of copyright not being "something that we rarely, rarely, if ever, agree to. "Certain circumstances and they have to be extenuating." And she said "Oh..." she was very confused and we had to do this whole recap, work-for-hire is the same as copyright transfer, at the end of it all the day before the shoot, and she was just sweating it out thinking that we're gonna bail. And I did say to her not that we're gonna bail, because I thought to myself, we know how we work, and we're very professional, a day before a shoot we are not gonna bail on a shoot because that would be in very poor form. We did sign on to it, we did not sign on to work for hire. That would have to be worked out, but we will do the shoot. So I called her back and I said I discussed all this with Joe, if there's any way we can change some part of that work for hire to at lease enable Joe to be able to use his images for his own, you know, to his own benefit, marketing, promotion, website, in a lecture, any type of work like that, if he writes a book, use those pictures, then that is something we would have, it would be a bit of a deal breaker at that point we do need to have that, because one thing that you have to understand about work for hire is if you sign an agreement that says it is work for hire you are literally giving them that's it, you no longer own any part of that photograph or any of the images involved. Because that is their property now. To use those images you have to get their permission. It's like selling your house and you wanna go back in and stay a night. You can't do that, you have to be able to get their permission and that's sort of horrible, right, you don't wanna ever do that. So fast forward to the end of story, she was able to incorporate that language into the contract that basically said yes it's a work for hire, these are your pictures to use in whatever way you want, forever and ever, which is something I'll elaborate a tiny bit about which is one of the reasons why it wasn't horrible, but that they wrote into it that we can use the images for Joe's website and marketing and promotion, depending on the releases also that we would have signed. Where it becomes a bit of a deal breaker is the whole notion of in perpetuity. No one is gonna use pictures forever. They're not, they're not. If people are in the pictures it's gonna become dated within five years. Because everything changes, fashion changes, technology changes, we have pictures where there's a cell phone or a laptop or something, no one's gonna use that after a period of time because it's already obsolete. So they want it forever, but they don't really need it forever, and we knew that there was no way they were gonna use these pictures forever. They might get a good duration out of them, but that's not gonna be long-term. Does anyone have any particular questions on work for hire or that type of... So for photographers, pricing and all this stuff is very hush hush between all of us, nobody really talks about it too much so what kind of resources are out there for us, you know, there are all these different forms of photography that you wanna price for, so how do we know? Where should we start? Sure I mean it shouldn't be hush hush really. There's... Well it's interesting, I mean it's a good question. For sure. A few years ago and I don't wanna misspeak here, but I believe it was Photo District News did a huge survey of the photographic marketplace of the United States. And what, the way they did it is they solicited kind of business practices and pricing from photographers who are regionally dispersed all over the country. And I thought it was actually a really good thing that they did. The disparity was astonishing, you know, people are charging thousands of dollars here that they're charging hundreds of dollars down here, etc. So it really impacted upon me the fragmented nature of our marketplace, and how each individual marketplace regionally speaking, is different from the other. Now, that's if it's still online, that's an excellent sort of overview, and I don't want to misspeak, might have been American Photo, but I'm pretty sure it was Photo District News. They're really good with that, with dispersing that type of information, there's also Blinkbit. I don't happen to use it but I understand it's a wonderful resource, that can give you the kinds of usages that are spelled out and based on the licensing what you would charge, most of the photo industry membership, PPA and ASMP is wonderful. ASMP I would highly recommend investing a pretty nominal amount of money to join the ASMP. They have fantastic resource. And they also have legal documentation that's available to you as well as legal resources that you could access. Photo Shelter is by and large, we use them for image transferring and storage and this and that but they are also very proactive members of the photo community and they regularly publish guides, and kind of overall overviews of marketing strategies, etc. So there are resources out there. A Wonderful Machine, is another one. It's very, very good. I don't want to forget to point out, and the reason why we have this bill here, that's actually the bill that went to the client, to show them, that Joe's fee at the end of this was $385. From the $2400 dollar fee that the client said that she had. Which was not a fee, it was basically this little bucket of money and chipping away at our legitimate cost that we spent that day, that is what Joe actually earned. So we probably could've, I mean, she wanted a detailed bill, and we could've sent in $2400 that's it. But Lynn I think specifically tried to further educate this person by enumerating the costs, what it costs you to be a photographer and what it is ending up available or accruing to you at the end of a day like that. That's kind of sad math, okay, right there. It is, and clients don't get they should charge for mileage and you're not gonna maybe pack your sandwich you're maybe gonna stop at a deli and buy one, that's part of your day you coulda been home eating. Another incumbent thing we, I recently had to we bid on a job, and increasingly clients, art directors, are asking the photographer to write a treatment. In addition to what Lynn does very effectively which is create a mood board, you guys find yourself creating mood boards at all? Are you familiar with them? So I like to use pages but there's PowerPoint, there's many different ways to go about it, and so incorporated in that is the first page which of course we left off who the client was, but then we follow with a treatment and that was Joe's approach that he would've taken to this particular job. And then Lynn will follow on with a mood board and then we go forward with budgetary estimations, and more detail, the thing that is very powerful that Lynn does is our estimates are highly detailed. There's no, I mean there is some guesswork because usually the client doesn't have a complete information package to give you at that point, but they do ask sometimes for this and that, Lynn will construct package A, package B, this amount of rights will cost you this, this amount of rights will cost you this. Give them sort of a range or feel like they are getting some options, so that's a very powerful and important thing to do. We go to, at that point, So this would've been the estimate for that particular client, which unlike the other illustration we gave you of the small job where Joe made $385, this would have been a much more elaborate shoot, where there were multiple locations and we were gonna be creating an image library for a client, which has become a much more frequent request now. They're asking for libraries of images so they can then pick and choose what they want over the course of time. Which is pretty cool on their end, I get why they wanna do that, we started doing that for a client many years ago. Where Joe went to how many different countries to create an image library for a client that they now can pick and choose from their various offices all over the world they just pull them down and use them and plug them in where they need to so this was similar to that. They wanted an image library. And what I put in there is just essential rights granted, you can see they wanted in the end, it was a smaller library so it was gonna be 25 assets, and then again of course it's not available right now to share with you but there was package A and package B. And then Joe if you can go to the next page. So you can see that this was a more elaborate estimate where there were many, many, many categories. And taking a crew from point A to B to C to D, we tend to like to travel with the same people. We will pick up local assistance or local stylists, whomever we need to but it's wonderful if you can travel with the same crew along the way. Because then it's, you've got it down. And the assistants know what gear is in what bag and the stylist knows what to do next, and you just segue from one situation to the next so, that was the basic game plan and if I need a second or third assistant for Joe those I will hire on location because they don't have to travel with us. You can see that this kind of goes on and on, this is one submission. And there's the disclaimer of the cancellation policy and terms and conditions, and Weather, you know all these things can come back and bite you so Lynn is a tremendous resource for our studio obviously, but she also has resources she relies on as we just indicated, you know ASMP for instance is dedicated to trying to keep photographers safe and out of the woods in legal and financial senses. So it's, there's also good books. Oh lots of good books. There was John Harrington, does a lot of business books on photography. And copyright and the intricacies that you could spend days reading. And this obviously, yeah, I mean, this is really. This really gets me going, this is the fun part of photography I just can't wait to see those bids and estimates you know.