by Jess Dudley Wonderful Machine Producer
A well-known publisher recently commissioned one of our New York photographers to shoot the exterior of a building for the cover of a non-fiction book. The publisher initially agreed with the photographer on a price just to execute the shoot with the understanding that if they decided to use one of the images, they would then negotiate a separate licensing fee.
It’s somewhat unusual for a client to pay for a shoot and not get any reproduction rights to the photos (or at least the option to use the photos at a predetermined price). This is normally a recipe for an awkward negotiation. But in this case, the publisher wanted to get moving on the art, and they were comfortable that they could come to an agreement with the photographer once they saw the photos and once they knew how many copies they were going to print. Worst case scenario, the client wouldn’t license any of the images and the photographer could put them into her stock archive.
The shoot fee the photographer had already negotiated was 3000.00, plus digital capture and web gallery (500.00), equipment rental (315.00 for her own camera body and two lenses), transportation (50.00), meals (50.00) and misc. (50.00).
As it turned out, the publisher loved the pictures and wanted to license one for the front cover of the book, with an initial printing of 500,000 copies. At that point, the photographer asked me to help negotiate the usage fee. The publisher sent over the following contract:
Rights Granted – In consideration of the payment of fees as outlined below, you grant Publisher and its affiliates, exclusive rights to use and reproduce the Artwork, in whole or in part, on the cover of all print and digital world English editions and formats of the Work or derived from the Work, throughout the world, now known or hereafter devised, and for such other uses as set forth below, and for use in advertising, publicity or otherwise in connection with the Work for the life of the Work as set forth below (“Book Use”), and such other formats and uses as outlined below. You will retain copyright in the Artwork itself and all other rights to the Artwork, except that you will not license or sell any rights in the Artwork (including any other photographs from the same photo shoot or artwork substantially similar to the Artwork) for any Book Use. Publisher will own the copyright in the cover of the Work. In the event Publisher receives a request from a foreign publisher to use the Artwork for its foreign translation editions of the Work, Publisher will direct such foreign publisher to negotiate directly with you.
Fees - (a) Book Fees: For all rights granted herein with respect to all Book Use, Publisher will pay you a fee of $ [insert fee here] (the “Book Fee”), following acceptance of the Artwork to Publisher (together with any required releases) in accordance with Publisher’s instructions plus preapproved and documented travel expenses in a form acceptable to Publisher. (b) Fees for Additional Formats/Uses: In the event Publisher elects to publish, use or grant to a third party the right to publish or use the Work in formats set forth below, Publisher will pay you the following additional fee, which will thereafter cover all exclusive uses in that category: (i) CD, DVD and other physical audio and/or video editions: $750.00. (ii) Ancillary/Merchandise: [insert fee here]
In simple terms, they wanted use of the picture in English language editions of the book, in any format, world-wide. They want to use the picture to promote the book. The photographer will retain the copyright to the photograph (including the right to negotiate separately with foreign language publishers of the book), but can’t license it to any other book project. The publisher wants to own the copyright to the cover art containing the photograph. They want to split the licensing fee into three parts: print (book) use, digital (cd/dvd/audio/video) use and merchandising use. They specified that they want to pay 750.00 for the digital use, but have asked us for a price for the book use and the merchandising use.
There’s a subtle difference between a printing and an edition. A new edition happens when there are revisions to the content. There can be multiple printings within a given edition.
The fact that they’re printing 500,000 copies on the first go-around gives us a good sense of the value. But since they’re asking for the right to use the picture on all future printings and editions makes it hard to know what it’s ultimately going to be worth. It’s not unusual for clients to ask for very broad usage. But it’s up to the photographer to figure out whether to quote a big price for big usage or to offer a more moderate price for more moderate usage. In this case, I was concerned that the price for all editions might be too steep, so I chose to amend that language and work up a price for just the first printing (keeping in mind that part of the value of the picture is that it would be used in advertising to promote the book). I also crossed out the line stating that the Publisher would own the copyright in the cover of the Work which would conflict with my “first printing” revision.
To determine the “Book Fee,” I consulted a number of estimates I had done in the past as well as BlinkBid, Fotoquote and Corbis. BlinkBid’s pricing consultant doesn’t seem to cover book publishing and Corbis and Getty require you to contact a sales rep to get pricing. The projects I’d worked on previously were stock quotes for somewhat smaller projects, with print runs of 5000-10,000, and the negotiated fees generally landed around 1500.00. Fotoquote provided a lot of options and good information for this particular use (English language, front cover, 500,000 print run) and suggested a licensing fee between 2173.00 and 4397.00. Considering our revisions, the fact that it was a much better than average photograph, the fact that the publisher had already paid the photographer 3000.00 to shoot the picture and that an additional 750.00 fee would be paid for digital use, we decided to price the book use at 3000.00 for the first printing. The 750.00 fee for supplemental CD, DVD, Audio and/or Video Editions was fine considering all of our pricing sources included the concurrent digital use in the base fee. Lastly, we wanted to negotiate Ancillary/Merchandise fees as needed, since the term is so vague and could include any number of uses. So, instead of inserting a fee, we wrote “to be negotiated separately.”
After reviewing the changes with the photographer and initialing the amendments, we sent the contract to the publisher. They flatly rejected it, saying they did really want those terms. So that left us to decide what the value was, not knowing how many copies the book would sell. Fotoquote suggested a range of 3600-7200.00. My gut instincts told me to double the book rate to 6000.00 for the unlimited number of printings (we left the digital at 750.00). Almost immediately, the publisher came back and offered 5000.00. The photographer accepted the fee and signed the agreement.
The 3000.00 shoot fee and 5750.00 licensing fee brought the total fees for the project to 8750.00. That might seem like a lot of money to some people, but considering that an author’s advance for a big non-fiction book can be $500k, $8500 is reasonable and proportional. Also, as useful as the pricing guides are, they don’t in themselves justify (for better or worse) the value of a photograph. The value ultimately comes down to how much the client is willing to pay for it and how much the photographer wants for it.
One little detail I’m still not sure about are the ramifications of the publisher owning the copyright to the book cover (which of course contains the photographer’s photograph). I can understand that they would want that. I’m just not sure that they need the photographer’s permission in order to resister the copyright to the whole package or to defend an infringement. (See more about derivative works.)
If you have any questions, or if you need help estimating or producing one of your projects, contact Wonderful Machine.