An emerging art photographer wrote, “An author has asked to use one of my images for the cover of her e-book and for exclusive rights. She would also like to have a custom shoot (with a model), where she’ll have exclusive rights to the new images to use in advertisements for the book. I’m unsure as to what would be a fair price to charge for this.”
The Berne Convention of 1886 protects an artist’s copyright from the moment the work is “fixed” — that is, from the moment you make it. As of 1978, an artist need not register the work, nor have a contract or trademark in order to be protected. The artist holds onto the publishing rights after the work is sold and her estate holds it after her death. Knowing this, an artist can strike any deal she likes with anyone who’s interested. The “fair use” clause already allows for galleries and museums to publish for ads, reviews or pictorials for the purpose of selling. Maybe you’ve donated the use of a print for a charitable cause, or a collector’s home has been shot for a magazine — this is okay, too. You’re probably posting sold or unsold work online, promoting future creations. But what about selling images for commercial use? And how should the terms be structured? Here are a few ideas:
First, now is a great time to put together a price list. A photographer will need to include other services like shoots, rights and prints. When setting your prices, you’ll find it’s a bit like walking a ridge between two slopes: On one side are riches and dreams-come-true, but setting the price too high poses the risk of low sales. On the other side, your imposter syndrome could have you working for a demanding client for next to nothing, bankrupting time and supplies. Be reasonable with expectations at first and set your fees based on demand and any previous sales. Keep in mind that prices should go up over time, not down.
After making a price list — and reveal this list early on in any inquiry — ask for the client’s budget and gauge the fit.
You might consider offering a “work for hire” scenario. Copyright law in the United States and elsewhere deems that if a work is “made for hire,” the employer is then considered the legal author — think creatives working in agencies, sacrificing authorship of their ideas for the peace of mind of a steady wage. If appropriate, you may feel it worthwhile to set a day, hourly or job rate, as a graphic designer would do for a book design and branding campaign.
If you’re going the art route, grant your client permission to use your images and charge a fee. Draft terms for specific use, consider a time limit and establish separate terms for advertising.
Lastly, if your client is also just starting out, consider the possibility her project is something that aligns with your own creative vision. Perhaps you can strike a deal that will grant you both the opportunity to enhance and grow your art — magic can happen when working together.
PS: “Maybe the price wasn’t good at the time, they paid what I charged though, you know. I’ve gotten so many referrals from the people I worked with at the time. Geez, it’s been great.” (Carolyn Davidson)
Esoterica: In 1971, twenty-eight year-old Portland State University graphic design student Carolyn Davidson was scrambling to pay for oil painting classes and so agreed to some freelance work for local accounting teacher Phil Knight. Knight paid Davidson $2 an hour to come up with a logo for his fledgling sports company. “What else you got?” he asked, after she presented him with a sketch, then, “I don’t love it, but I think it will grow on me.” He handed her a cheque for $35 — 17.5 hours of work — and told her not to cash it right away. Today, Carolyn Davidson’s Nike Swoosh is worth $26 billion. It is, and has always been owned by Nike.
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“I’m more interested in being good than being famous.” (Annie Leibovitz)