A Conversation on Copyrights

Note: Below is the question that led to the writing of this blog. While the request was made in private, I asked permission to share this conversation, and permission was granted. I promised the person who raised this question on copyrights that I would not mention names or give any identifying descriptions.

Question: Hi mam Harvey! How are you? I hope you’ve been doing well =)) …mam, I just wanted to PM you to ask in private about a topic… I was just wondering if you could kindly tell me the difference between owning the copyright to an image, vs. not owning the copyright but having full usage rights? … I spoke to a wedding photographer who is looking for a second shooter, she said that if I shoot for her, her studio gets the copyright of my images but that I would still get full usage rights…I was just wondering what, in layman’s terms, that would mean for me? Thanks mam! =))

Answer: Re your question – I am not a lawyer so this is not legal advice, but as far as I know, the difference between owning the copyright versus not owning the copyright but having full usage rights is this – the copyright owner may sell his image, or be paid for the use of his image, while the recipient of this license (the one who does not own the copyright but has full usage rights – maybe for having paid usage fees to the copyright owner) may use the image, but may not sell it, or to license it to another.

From what I remember from listening to the Intellectual Property talks given by the local IPR office, a copyright is an economic right. The creator of an image can derive economic gains from his creation for his entire lifetime, and his heirs, for another 50 years after the death of the copyright owner. I think that’s the law in the Philippines. The number of years could vary in other countries.

A photographer who is employed as a photographer or does photography as part of his regular duties (such as studio photographers, in-house photographers), or a photographer who signs a work-for-hire agreement, loses his claim on copyrights on the photos that he creates.

If the job contract that you sign as a second shooter indicates that you, by accepting the job, accept the assignment on a work-for-hire basis, then you lose your copyright claims on the photos that you will take at that wedding. Since you don’t own the copyright, you can’t even use those photos to promote your photography without asking permission from that photographer’s employer. It’s possible that your contract -subject to terms and conditions that you negotiate – grants you limited rights, such as using them only for self-promotion. Some contracts are not as generous. Work-for-hire contracts are usually what cover the relationship between an employer and a non-employee, but where the non-employee is treated like an employee, at least as far as copyrights are concerned.

Actually, that photographer whom you talked to, if he is an employee of that studio, by the nature of his employment (as a photographer in a photography studio) really does not own the copyrights to the photos he creates for his employer. But you, as second shooter, do not have an employer-employee relationship with his studio, so you can negotiate the terms of your contract. If your contract says you have “full-usage rights,” that probably means you may use your photos for your advertising, marketing and promotions, including social media. However, your “full-usage rights” may be limited by the conditions set in the models’ releases or agreement that the wedding party may have with the main photographer or his studio. Since you may not be privy to or not covered by the rights that are being granted to the main studio/photographer who is covering this wedding, you may need to ask the people in your photos to sign models’ releases. That can be quite a hassle. I know one lawyer who is getting married soon who is demanding copyrights to all the photos to be taken at his wedding.

Everything now depends on your negotiation skills. I’d like to add that the results of your negotiations also depend on the law of supply and demand. If they are intent to get you, they may accede to your demand not to sign a work-for-hire agreement, and to keep your copyrights; but if the other photographers are signing away their rights and they are just as good or better than you (I am not saying they are), then the studio just might sign them up instead of you. You have better bargaining/negotiating powers if you are better than your competitors. In short, you can ask for more if you can do more, or you are better, or best. Or the only one who can deliver the job.

Question: If it’s a wedding shoot anyway, I don’t think I’m going to be selling those images? So… I am wondering if I should just sign it?

Make sure you understand the terms of your contract. Don’t rely on verbal assurances that you would be granted “full usage rights.” Read all the terms and conditions in the contract between you and the main photographer’s studio, and as far as you can inquire, get to know the formal contract terms between that studio and the wedding party. Make sure that you are not restricted from using the photographs that you will create in order to promote your works.

Also, you may not be thinking of selling those photos, but by signing away your copyright, they could sell it (especially if the bridal couple/wedding party signed releases), without need to further compensate you. There are commercial needs for bridal photos – such for businesses related to weddings – so you can’t say that you will not have the opportunity to sell a wedding photo.

Consider possible long-term gains that can come from exercising your copyrights. You may or you may not, but only you – not I – can decide if you should or shouldn’t sign away your copyright. But if you are signing away what is yours by law, you might as well make sure that you’re properly compensated for what you are giving away.

Ten Questions to Ask Your Client Before You Bid for a Photography Project

Okay, so you’ve impressed prospective clients or editors with your photography portfolio, and now they would like to know how much you would charge for a photography project.

They’ve called you to submit your costing – but before you write down numbers, get some things straight. Did they ask you for a quotation or a cost estimate? What does the project involve, and what are the expectations – yours as well as theirs?

First, let’s differentiate between cost estimates and quotations. As the name implies, a cost estimate is an estimate, and while you have a final number (expected cost of project), you are allowed to indicate variances – plus or minus, usually ten percent, to the amount you indicated that you would charge.

A quotation, on the other hand, fixes what you can charge to the amount you indicated on your proposal. You are guaranteeing the amount of billing, whether you saved on costs, or if unfortunately, your expenses exceeded your computations, or if the shoot is more complicated than you thought.

A bid simply means that you are not the only one being asked – you had not been handpicked to do the job. You are being asked to submit a quotation or a cost estimate (you should clarify which kind of bid – cost estimate or quotation – you are expected to submit) that would be compared with those from others. This makes it imperative for you and your competitors to have the same interpretation of the work to be done.

A word of warning – since biddings for photography services are not necessarily decided to favor the lowest bidder, don’t jump to conclude that somebody’s winning bid is lower than yours. When you submit your bid, make sure you indicate some selling points. Highlight the benefits of working with you – such as your expertise and experience in doing such projects, or having the right equipment or facilities for the job at hand – as such may persuade your client to award the project, even if your bid is higher than those of other photographers.

Here are ten questions that you need to ask in order to have a basis for doing cost estimates or quotations:

1. What are the elements to be photographed – product? group of products? food? models? building? Backgrounds? Locations? time of day of shoot?

Organize requirements into what is called a Shot List – this is a list of images that you are expected to produce. Imagine what the final images would be like, and describe them. An Excel, Numbers or any spreadsheet is useful in preparing your Shot List. Add columns for details such as backgrounds, locations, props, talents, and even time of day (especially for location shoots). The first column could be for visual pegs that client would supply, or that you can recommend (better if the pegs came from client or their ad agency). If formats (horizontal or vertical, landscape or portrait) vary, you may add another column for format/orientation. If you would be using different cameras, it would help to add another column for cameras to be used.

Preparing a Shot List may seem time-consuming, but after you’ve sorted them out in the preferred shoot sequence, you could use this list as the main body of your Job Order.

2. Where would you use the photographs?

Let your client tell you what they need the photos for. Their answers would indicate “Usage” or “Applications” –such as brochures, calendars, print ads, annual reports, displays, social media, murals, etc. Applications or usage may not be the same for all the images that you are being asked to do – so you may want to add a column in your Shot List for Usage/Application. Be consistent in sequencing the usage – preferably from the biggest application to the most minor.

3. What file sizes would you need?

Inquire or confirm the required file size(s). Your client may or may not know, so you might need to recommend the file sizes that you would submit. This often depends on the usage/applications, and how big the images will be reproduced, or what kind of printing will be done. While billboards are possibly the largest applications (have you seen those billboards as high as multistory buildings?), they do not usually require large file sizes, as they are seen from a distance, where pixels are not discernible. A mural or a poster, on the other hand, may be smaller than billboards, but because they are viewed at close range, it is important for them to be sharp and of the highest resolution, therefore requiring large file sizes.

4. What creative treatments do you foresee or plan to have? Are special effects needed?

Ask your clients what images, lighting or effects they imagine. Ask to see their compres (short for comprehensive illustrations – or drawings/renderings of expected photos/layouts) or pegs, and get copies. Get some explanation as to how strictly they will adhere to their compres, or if the compres are just basic guides, with art directors or clients taking a free hand in having them interpreted. When they do, who will have the final say? Who will be attending the shoots and calling the shots?

In addition to lighting treatments, find out:

a. What special information should you know – is the talent a celebrity? Is the product highly reflective?
c. What effects does the art director want? Any special effects? Will you be photographing “movements?”
d. Will there be variations? What are the expected variations?
e. What backgrounds will be used? Will the images be dropped out?
f. How will the photographs be used in the end product – with other images? With text, perhaps, or with special backgrounds?
g. Will they need special photo retouching, and are you expected to do that?

5. What are the other logistical requirements?

Are there other responsibilities for you to handle – doing location hunts or securing permits? Sourcing or building props, locating for talents, printing services, etc.? Will you provide food or transportation for talents and company? How many people do they expect to attend the shoot? Will there be onsite or remote (done online) approvals?

6. When do you expect to shoot? What are your schedules/timetables?

Ask about schedules/timetables or estimates thereof. Will they be photographed in one or several sessions? Is this a rush project?

7. Where will the photography be done?

Ask about locations. Where will the photography be done – in the studio, or location or in several locations? Who will provide transportation, accommodations, meals?

8. To whom, where and how would the images be submitted?

Are you expected to submit more than one set of images – on DVDs or external hard drives? You may need to indicate costs for additional sets.

If you are expected to archive images, ask how long, and manner by which they want to access files – online or on digital media (DVDs or external storage). You may want to indicate cost of digital data management, if you are being asked to archive images. Protect yourself by indicating that you are not guaranteeing against technological failures – such as being unable to access stored files.

9. When do they want the bids to be submitted? To whom? In sealed envelopes?
If this is a bid, aim to submit as close as possible to the deadline – but definitely before and not after. Unfortunately, unlike bids for say, construction projects, bids for photography projects are not opened at the same time and in the presence of bidders. However, as mentioned before, this practice may actually be advantageous to photographers, as bids are not automatically awarded to the lowest bidder, and merits of each photographer, not just price, are considered.

10. Do you have any other instructions?

This is your final opportunity to get more helpful information, hints and clues on how you could win this bid. You may very gently ask what kind of upper limits they are considering for this project, or where in a range of bids you should place yourself to get a chance to be considered. Very politely, you could also ask whom they have invited to bid for this project. If this is your first time with this client or customer, ask what they like and do not like with the photographers they work or worked with, without asking for names of those photographers.

Good luck. Remember not to be discouraged if you don’t win your first, second or third bids. Be grateful even for the fact that you are still being invited to bid or submit your cost estimates or quotations. Persevere, and one day, that client will choose you to be their photographer.