If you’re an experienced photographer, the following probably won’t shock you. The rest of the world doesn’t value what we do. No respect, I tell ya.
Humanity’s current default is a daily deluge of pictures. Those images are easier to take, easier to procure, and easier to ignore than ever before. When something is everywhere all the time, it’s too easy to take it for granted.
Ignorant and malicious individuals alike scroll through images on Google like they’re snacking on peanuts at the bar, thinking they’re free and unlimited.
As a result of photography’s democratization, photographers ( and other creatives) are struggling to get paid not just for the creation of their images, but their usage as well. Every week it seems brands big and small, celebrities, models, presidential candidates, and even monkeys find themselves embroiled in scandals and lawsuits over misuse of photos. Ironically, these are often people who should know better, or who in turn have their own intellectual property that they'd go to war in court to defend.
Despite being over 200 years old in America, for some reason people can’t seem to grasp the concept of copyright.
The excuses are endless:
“But..but… why should I have to pay for something that’s already out there?”
“It’s on the internet, so it must be free, right?”
“ But you already took the photo. The work’s been done. You’ve already been paid for it. Why should I have to pay to use it? That’s just greedy.”
“You should be grateful that (insert big-name brand/celebrity influencer) decided to use your photos! It’s going to be seen by millions of people. Think of the exposure you’ll get!. Now you’re just being greedy”
“ I paid for the photos! I own them! I can do whatever I want with them! ( Wrong on all accounts).
I could go on...
Unfortunately, because there is no barrier to entry (I say that with no judgment), many photographers become “pro” without first learning how the business of photography works. A lot of them don’t even know that they own their images.
And of course, there are far too many in this world drooling to take advantage of ignorance.
Why do I need to pay/ charge for licensing?
If you’re buying photography, the answer is simple, because it is no different than any other type of intellectual property, and the cost is completely predicated on usage. The same concept of restricted usage appears in other forms of licensing agreements whether you’re buying a song, a movie, or leasing a car.
You're not paying to own the photos indefinitely, exclusively and in perpetuity. If they’re original photos, you’re paying for the commission of the work (the photographer’s fee for his/her time), below the line project expenses, and whatever usage terms you agree on. Copyright transfer (buyout) isn’t part of the deal unless it specifically is.
Paying a $250 for real estate photos doesn’t mean you own the photos any more than paying $25 for a blu-ray means you own the rights to The Avengers. The terms and conditions (they’re there, trust me ) strictly and specifically state where you can display that film. You can watch it as many times as you want at home, on your laptop, iPad or television. But if you decide to play it on a projector for your whole neighborhood to watch, you better hope nobody snitches. And trust me, Disney does not fuck around. They went after daycares. They’ll come after you.
Cable television is another great example. Just because you pay your bill every month doesn’t mean you own the broadcast. If you ever watch a basketball game you’ll likely hear the same legal jargon throughout the broadcast warning against unauthorized use “without the express written consent of the NBA.” That’s not gibberish. The league is actively enforcing its copyright. In fact, bars and restaurants often have to pay higher rates for broadcast rights on sporting events since they’re actively profiting from displaying this content. (I mean could you imagine a sports bar that doesn’t show live sports?)
“But Why…” I hear you asking. “ Why does it need to be this way?”
The answer (Photographers are you also listening?) comes down to value. The same exact photo is significantly more valuable on a billboard in Times Square, where millions of people may see it on any given day than it would be on someone’s personal blog. The more you stand to gain from using an image, the more it’s going to cost, and that formula is consistent across all forms of media.
There are dozens of variables that are taken into consideration when quoting for usage fees, and they deserve their own article for a different day. But just be aware that everything from the size of a target audience to the medium of the broadcast will affect the cost.
We’ll go back to the sports bar scenario. If you pay a hundred dollars on pay per view for the next Floyd Mayweather fight, it’s reasonable to expect that you can watch it at home. Heck, you can even host a party with your friends to watch it. But what if you start charging an entrance fee? That suddenly changes everything. Now you’re profiting from it, and if you think that your hundred dollars equate to an even exchange, you’d be dead wrong. Just ask the man who was slapped with an 85,000 dollar bill for streaming a fight to 4,000 of his followers on Facebook.
It’s fair to say that a bar is going to significantly increase its patronage on fight-night if it’s showing the fight, or the NBA finals or the Superbowl, so their fee for broadcasting it is going to be significantly more than what you might pay for on your basic cable package. The more you stand to gain from a piece of content, the more you should expect to pay. Consider that the next time you think about stealing a photo for your next Facebook Ad campaign.
If you insist on the rights to do as you wish with a piece of intellectual property, then you have to expect the copyright owner to be compensated accordingly. If that was the case by default, the cost of photography would explode overnight as photographers would need to compensate and charge for every type of usage scenario you could imagine. They would need to make up for the fact that they would no longer exclusively control their property. Suddenly those $250 real estate photos would cost you thousands, on the off chance that you decide to sell them to the architect or interior designer two years down the road.
What if your company becomes the next Nike one year from now? Suddenly those photos dramatically surge in value as the audience you’re reaching with them grows respectively. Think of Nike’s logo. It was purchased and designed for $35 dollars in 1971 when Nike was just a dream. How much do you think that swish is worth now? I’d argue that it’s priceless. And yes, the graphic designer has since been compensated appropriately.
This is why photographers rarely grant usage rights in perpetuity. Believe it or not, it actually protects both the client and the artist.
Rates are renegotiated after a period of time so they reflect the current value of the image. If the client’s platform or company sees tremendous growth during that period, and the image is still relevant, fresh, or has become iconic/ irreplaceable to the brand, then the photographer reserves his/her right to profit accordingly and doesn’t have to worry about the consequences of underestimating the value of the work (since there is no way to know ahead of time). Likewise, the vast majority of pictures these days lose their relevance rather quickly. Businesses will usually refresh product lines annually, open new locations, upgrade their branding etc. So there is no need to own usage rights indefinitely most of the time, and thus no need to pay for a perpetual license. Setting term limits saves the client money by preventing them from having to pay for something they might not need tomorrow.
You have every right to insist on full ownership rights or what’s known as a “buyout,” but it’ll come at a cost. Given what we just discussed, what do you think would happen if you bought a copy of Black Panther and then asked Disney if you could edit some clips from it into an online Ad for your online toy store, so you can sell Black Panther action figures? Hint: You’ll get a very fat invoice.
The bewildering factor in all of this is that most people inherently already know the limits to their rights when purchasing other forms of media, but they won’t think twice about downloading an image from Google for their company’s blog post or stealing a photographer’s photo for a social media post. The accessibility of photography as a craft has programmed the public into thinking photos belong to everyone. Education is also to blame. People just aren’t being taught to value art and it gets worse every year as art, in general, is the first victim of budget cuts in the public school system.
But here’s what everyone needs to know. A photographer owns his photos the same way that Disney owns Mickey Mouse.
Copyright is granted to the creator of an image the second that shutter is pressed. You do not need to register it with the United States Copyright Office (although you should. More on that later) to be granted that right. It’s automatic. The photographer owns any photo he/she takes. Period.
When you use an image without permission, you’re committing copyright infringement. Whether you know it or not, intentional or not, you are breaking the law and are leaving yourself vulnerable to some potentially expensive legal action.
Photographers are starting to fight back with sharks like Richard Leibowitz taking no prisoners in courtrooms, and services like Binded and Image Rights making it easier for photographers to track the usage of their photos and sue any perpetrators.
If you’re a photographer, you have to train yourself to view your work as an asset. Your work is intellectual property. It has value, and it is yours. Protect it with the same Kung-fu grip the Colonel keeps on his secret blend of herbs and spices. And for Chrissake, conduct all of your transactions in writing. This is not the time for “handshake” agreements. Hint: Anyone who doesn't want to deal with contracts is someone who regularly goes back on his word.
I encourage all photographers to regularly register their work with the USCO. In fact, if there’s one concept above all else in this bloated piece that should stick into your thick skulls, this is it. I repeat: register your work with the USCO
YES ...you own your work regardless. But proper registration can make all the difference in your pursuit of damages should you ever have to go to court for infringement. With a default copyright, you would be entitled to “Actual Damages,” which are based on the current value of a similar image. You might get as little as $100 dollars if the court decides that’s what the photo is worth. The onus is on you to prove how much money the infringer made as a result of using your image, and how much you lost as a result. If you don't have a history of selling commercial photography, this can put you at a major disadvantage. It’s an unpleasant and difficult undertaking. Needless to say, it might not be worth anyone’s time to pursue damages … except maybe Mr. Leibovitz mentioned above. Without registration, you’re not entitled to the full extent of the court’s protection, and even if you can prove infringement, damages are limited to $30,000.
However, if your work is registered, you are entitled to punitive damages, which are the court’s way of sticking it to assholes who willfully demonstrate malice and reckless intent. These can be worth as high as $150,000. It also grants you the right to collect the massive legal fees you’ll definitely incur from pursuing these cases. Registration will also increase the chances that a lawyer is willing to take your case since he’ll have a higher chance to get a judgment.
Damage from an infringement isn’t limited to just financial loss. The infringers can use your photos with a brand, idea, or political movement that you might vehemently disagree with. If it’s something particularly unpopular, it might damage your reputation if word gets out that you’re the one who snapped it. Just think how fast memes go viral these days. An image that’s associated with a stupid grumpy cat from the internet will quickly lose all commercial value as most brands might not want to be associated with it. If a photo becomes associated with any specific cause, meme, or individual, it has likely lost its commercial value to everyone else, and thus the photographer loses the leverage to profit from his work.
Don’t take it from me. I urge everyone to watch this video from Monte Isom, a highly successful New York-based commercial photographer, where he offers a step by step breakdown on how to protect your work. You can also listen to his cautionary tale about how he was able to win compensation for the commercial losses suffered when one of his photos was stolen and used for a meme that went viral and diluted the image's commercial value.
Protect your Photos.
Do it as soon as you’re done editing the photos. Do it before you even give them to the client for final delivery. Don’t wait, as you only have three months until after the photos are “published” to be able to register them. And let the world know that your work is protected. Take advantage of Lightroom or Capture 1’s metadata tools to make sure the data in your files reflects your ownership. Nowadays, most cameras also let you input copyright info the second an image is created. Put copyright notices in the footer of your website and at the top of your social media profiles. This will make it easier to prove willful intent should someone infringe on your work someday.
I also encourage photographers to get into the habit of discussing usage with the same “matter of fact” conviction you would about other project expenses. This is normal. Usage is just another variable in a long list of variables that make up a photo shoot. It’s business as usual.
That doesn’t mean you need to make things complicated.
All of my estimates include a standard usage license for collateral such as social media, personal web use, internal documents etc. And I let them keep that usage in perpetuity. Most clients won’t need any rights beyond that. But the second those needs require the distribution to a third party e.g. A magazine editorial, a print or online ad campaign, then the conversation shifts into more extensive terms.
If you've ever wondered why you can't just take a photo from the internet to use as you wish, I hope this article has cleared the confusion and enlightened you a bit more on the concept of copyright and why it's important for artists to charge appropriately for it.
If you're a photographer who doesn't yet know the intricacies of how the business works, I hope you now understand that your work is yours and it has value and that it is important to set proper precedents in defending and establishing proper use. This is how we make our living, and every time you "give "your photos away," you're contributing to the erosion of our craft's perceived value. You're feeding the narrative that photography is cheap and should be free when in fact it should be given the same respect as all other forms of intellectual property.