Exclusive rights

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Dear Artist,

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.”

RollingStones.0

The Rolling Stones on tour, 1970s
photo by Annie Leibovitz

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:

yoko-ono-john-lennon_photo by Annie Leibovitz

Yoko Ono and John Lennon
Dec 8, 1980, the day Lennon died
photo by Annie Leibovitz

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.

dancerannie.0

Mikhail Baryshnikov & Rob Besserer, 1990s
photo by Annie Leibovitz

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.

Sincerely,

Sara

susan-sontag_photo-annie-leibovitz

Susan Sontag, Paris, 2002
photo by Annie Leibovitz

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.

annie-leibovitz_2013

Annie Leibovitz, 2013

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“I’m more interested in being good than being famous.” (Annie Leibovitz)

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13 Comments

  1. Great articles Sara! Can you address the issue of using deceased photographers images as reference for paintings. For example, can I use the famed First Nations photographer Edward Curtis’s images in my work? Thanks in advance, Paul Van Ginkel

  2. One thing to consider… Yes your images are yours and protected by copyright as soon as you make them. But if they are not registered with the copyright office in DC you will have a difficult time getting a lawyer to work with you because of the expense of going to Federal Court which is where infringement cases are heard. Professional Photographers of America is on Capitol Hill right now fighting for some changes so smaller infringement cases can be brought in small claims court making it much easier for an artist to get judicial relief. you can help and/or get more info by going to http://ppa.com and signing in for updates and times that ALL artists, not just photographers, need to let our legislators know that this is important. Without a groundswell from all artists, graphic designers and visual artists of all types this legislation may not make it through. You do not need to be a photographer to join PPA has been working with many visual artist groups in getting this legislation worked on. best, Bob

  3. It has been awhile since I’ve purchased photography services, but it sounds like “the author” plans to work your photographs pretty hard–which, last I looked, translates to higher fees. Definitely do online research on industry standards for “excessive rights” work. If you see value beyond the cash that will change hands (opportunity to do good work for your portfolio, wide-spread exposure, etc.), then you might adjust fees down from industry standards. You could provide fee options, so the author understands the value of what is being discussed: fee based on non-exclusive rights, on exclusive rights with written credit, and on exclusive rights without credit.

  4. What a fine article! Thanksomuch!

    If you want to get into laws protecting artists….a minimum wage would be nice to see. One of the few jobs that does not have one.

    And my “Art With Heart” has raised good cash for good causes for a long time now, but it is better if my BUYER donates art he has purchased from me, because then, at least, he can deduct its value.

    I can only deduct the cost of supplies, when I donate art outright to events. I do ask for a report of how the fundraising went, for my files but it is nearly meaningless….worthless woman, me.

    But when I was younger, I used to donate a lot outright – mostly time and risk and labor and “stuff” …. anyway, so, I simply donate when I know I can do so and not catch cold…..or do a 50/50 or get great publicity on the event – like teh little one to the White House.

    Yet, I must say: Artists are fools to fail to obtain at least a minimum wage, all other self-supporting are taught the “pay yourself first” method to make their small business work .

    We are worth it , but less so to fail to obtain the legal/financial respect for that fact.

  5. I am not sure if you really answered the person’s questions. Personally, if someone wanted one of my images for a book, and exclusive rights, I would hum and ha. It would so depend on what that image was of, and if it was one of my best ever, etc. If it truly represented the best of everything I offer, I would have to say, No. It would represents my own self branding. If I was less attached, and know it would advertise me beyond my current audience, might be worth it. Could even be for a set time frame, with renegotiation involved, say 10 or 20 years? Then I would find out the going rate for such things. I guess it depends if you decided to ‘never’ give your copyright away or not. Knowing how you truly feel about that is important for future inquiries. As for the second question, to do pictures exclusively for her personal branding, using the author’s vision, then I would look at it as a job, and set fees based on my time, materials, expenses, and depreciation of my equipment. Any produced created ideas I have done on the job, have belonged to my employer, period. And there has been a lot of them. I, as an artist on my own time, only have two similar type contracts. And they are from personally arranged contracts. I was given exclusive rights over an image a previous employer no longer wanted so that I could use it for my company logo. He gifted it to me in a letter. The second one, was a friend of mine lent me a sum of money to help get my new business off the ground. Then a couple years later, she ask me to draft her a logo for her new company. I did so on my own time, and I also did a formal painting of the logo for her office. We agreed that my time, the painting, and the exclusive rights to the logo would be in lieu of interest on the sum she loaned me, and drafted a letter stating such, we both signed. it gave the exchange about a $1200 value. I doubt I would ever sell copyright to an original image I did on my own time, from my own inspiration, photography or otherwise.

  6. Hi Donna,
    The Painter’s Keys does not buy rights to images for the purpose of illustrating letters online. Artists are credited for images, which are used under “Fair Use” – (“Examples of fair use in United States copyright law include commentary, search engines, criticism, parody, news reporting, research, and scholarship.”) The Letters are offered free of charge with the hope that they can be beneficial. Readers are invited to share links to their own images for further fellowship and education. Thanks for asking, Sara

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