Perhaps Many Photographers Don’t Understand The Value Of Usage

A reader sent me this story, so that it might instill confidence in young photographers like herself. I think you will find that it does that:

I worked with one of the local college’s ex-students on a shoot for a magazine editorial about a year ago. The ex-student lied about having my permission and gave the image to the college, which then used the image on a billboard advertisement that wraps around a 20 story building on a very busy road in the city. It is a recognizable image of mine, and shows the faces of two models from a local agency. It was actually one of the models who spotted it first and I received a very embarrassing phone call from her agent who asked me how that shoot ended up on a billboard.

I went online and researched some suggestions of how I could handle this, but I couldn’t find much available. Crawling through some forums, I found that a few photographers had their images stolen and placed on a billboard, and they charged $500 for the use. The billboard was already up there for 1.5 months and it was supposed to be up there for 3 months total. I called the model agency and they told me that they ended up with $1500 for each girl for a year’s usage. They said that they knew the figure was low, but at least they would receive some pocket money.

I also consulted with a couple of local creative agencies who also offered some advice. They were helpful at first, although once they started talking to the college they decided to back off. I think they probably thought it wasn’t worth it (despite that I offered them the incentive of a commission). They were perhaps scared of losing a potential client over a nobody photographer like me.

So I spoke with the college directly and they asked me to come in to discuss this and negotiate a pay-out. I didn’t want to go in – I couldn’t see a reason to apart from them using this opportunity to intimidate me. They were a little manipulative over the phone, suggesting that my photograph would potentially be featured there for 12 months and it would be great exposure for me if I didn’t charge too much. I offered them $1500 per month, which they thought was ridiculous (I thought what they paid the model agency was ridiculous!). They told me the billboard space was only costing them $2700 per month. So I said I’d seek further advice and come back with a figure. They were desperate to get me to come in.

After much research, I found that it’s tricky to put a price on usage. I found the best advice to be 10 – 30% of the marketing budget (from small to large scale). In this scenario, they hadn’t commissioned this shoot and it wasn’t just about using my image, it was also the humiliation I went through explaining to my team members (particularly the model agency) how the image got into the advertiser’s hands. It also concerns the disassociation of my image to me (now known as the face of that college and it impacts my professionalism – even the creative agency that I sought advice from assumed I stupidly gave the files to the college (I had given them to the ex-student to use for his portfolio).

So I went with my gut instinct, and ended up charging them a figure that I thought was fair. I wrote them a letter a week later, explaining my situation, the inconvenience this has caused me, my humiliation to those involved, and that I thought after all this the figure was fair. I stuck with this:
2.5 months and they take the image down – $1500 per month = $3750
3 months – $1500 per month, $4500
12 months – $1250 per month, $15000

In the end, they decided they wanted my image for 12 months. After a few emails back and forth, I ended up settling on $9000. That’s ok, it’s a little less than what I was asking for but it’s a little more than 30% of their budget for the billboard space, I didn’t want to pursue this any further so I was happy to settle on that. They even offered me the incentive for future work with them.

After a google search, it seems like this problem occurs often and perhaps many photographers don’t understand the value of usage.

There Are 56 Comments On This Article.

  1. Yes…they don’t understand usage, especially in small markets like mine. When I have a potential client, it is often that they (The Client) play dumb when I ask about usage, and when I talk about things like agreements or contracts and copyright, they say thank you and hire someone else….there are many available, even on Craigslist. Over the past few years especially, I have lost a few major sales over this. There is a place for solidarity…even among competitive photographers.

  2. You shouldn’t worry too much about being intimidated when it comes to the usage of your work. The copyright laws are overwhelmingly on your side. If you have an understanding of what is and is not legal in regards to usage you’ll feel a whole lot more confident when going into meetings like that. A great resource I’ve referenced numerous times and bookmarked heavily is BEST BUSINESS PRACTICES FOR PHOTOGRAPHERS by John Harrington. Grab the second edition for the most up to date information… best $20 I ever spent.

  3. I don’t understand how the friend’s copy for portfolio use (say, at most 9×12 @ 250 ppi) could make it up to the size of a 20 story billboard.

    But in any event, the friend inadvertently helped make the photographer $9000 for an image that sounds like it might have such sat there on the hard drive otherwise. And since the friend didn’t try and pass if off as his or her own to get the usage fee, I don’t really see it as an image “theft” story, but more as a tale about how to use friends for business development.

    • If your models agent calls and says “WTF Tim? There’s a billboard with your picture that your idiot ‘friend’ gave away that you don’t know about. Where’s my $$$?” You had better be ready to get your rage on. If not you are most certainly taking a big nasty dump in the pool.

  4. I use to do work for a design firm that also did work for GNC. One day I got a call from a model I had shot for a magazine that the design firm was redesigning. The model told me he hoped I made a lot of money from selling the picture of him for the Ad. because I was going to need it to cover my legal fees since the model release he signed was very specific to the project we had hired him for. I had no idea what he was talking about. After a few phone calls I figured out the design firm mixed the film up (or so they said) and the image got worked into a layout for the nutrition company.
    At no fault of my own I was facing being sued. So I made a bunch of phone calls to explain the situation to all parties involved and everybody worked it out with out going to court. It is a sticky situation when your regular client makes an error that potentially causes you to be sued.
    FYI that design firm didn’t survive the economic meltdown.

    • This is what that indemnification clause is for. If you signed a contract that says you will indemnify the client against all claims, liability, damages, etc., you’re on the hook even if they made the mistake. Your contract should always have a clause where the client indemnifies the photographer for their mistakes.

      • Steve Skoll

        Another, and maybe more important, level of protection is to have Errors and Omissions (E&O) as part of your insurance coverage.

  5. Usage is a four letter word and a bargaining tool at best. Magazine’s have forever used Usage as an excuse to pay assignment photographers less; and it works – in most cases – for both parties involved; one-time use and then you get to resale = win/win. Generic Mom & Pop clients have no idea what Usage is – and could really care less – they just want you to take pictures and give them to them. “What’s Usage? I get a CD of all the images right?” On the other hand – ad agencies will nickel and dime you to death just to save a couple hundred dollars; forget you are the best fit for the job – it’s usually about money. My advice; just assume “clients” want ALL rights, ALL usage, but be quick to explain – that Unlimited Usage doesn’t include Copyright Transfer, is not in Perpetuity and is going to cost them more in the long run. My advice.

  6. Not exactly the best example, since the value of this image was exponentially higher given the infringement. The photographer here has all of the leverage. This negotiation would have looked a lot different if the college had commissioned the work and was considering multiple options.

    • This example was provided to help others who may have had their work stolen.. This is not a ”how to calculate usage” post

      • If it’s not a post on ‘how to calculate usage’ then it’s a post on how to get screwed! – cos that’s exactly what happened here.

  7. These numbers are very low for this kind of usage. I don’t like the example for that alone.

    Moreover, this was an infringement. If the photographer had registered the image prior to the infringement, the potential damages were up to $30K (plus attorneys’ fees)–or more if willfulness could be proven. That’s just for the unauthorized use. Without registration, actual damages (loss to photographer + direct profit of the infringer) would be available (and no attorneys’ fees).

    Then, a license for continuing/future use could have been discussed.

    Also, the photographer could easily have been sued by the modeling agency.
    _________
    Yes, I am an attorney, but the above is not legal advice. It’s offered for educational purposes only.

    • Leslie, from what I gather this is one use , on one billboard – for a year ? According to fotoquote an appropriate range would be $1770-$3540. Why do you say $9000 is low ?

      • This is a building wrap, not just a simple billboard, and the location appears to be a prime one. The cost for the space is very likely not the tiny number they said it was–building wraps often cost tens of thousands per month for the space alone.

        Also, it is unlikely that is the sole use of the image.

        Finally, the “incentive of future work” is likely total BS. Photographers should never put any value on that when offered, particularly by an infringer.

        • I agree that while it is likely that the image was used in other places, with the information we are given in this example, that’s still a pretty big presumption.

          Thanks for pointing out about the building wrap, I failed to make note of that in my first read .

            • The infringed photographer

              In fact, I went in to the college after the payout and they offered me a job to teach photography. They also offered me to photograph their premises and a possibility for shooting their next campaign.

              I didn’t put much value into that statement, I wanted best to avoid a nasty end.

              • I will now eat crow!

                Heck, if that was the case, and they were offering decent rates, I would have shot their next campaign or explored the possibility! But you did what felt right to you in that situation, and sometimes that is the best thing to do.

    • There’s a fine line between doing what’s right for the long-term business and what is legally attainable by playing hard ball. In today’s business environment more than ever personal brand and integrity is a big asset, because everything you do will likely be known to the market – just like this story is now known from all sides to those involved. People do business with people they trust.

      I applaud the original post for the fact that she did her research, that she didn’t take the first offer but negotiated, that she stood her ground, but also was willing to find middle ground that seemed reasonable to everyone.

      Yes, it is a bit of a unique example because she had a lot more leverage than in most cases where we negotiate usage, because it was after-the-fact.

      Usage has it’s place. But I also believe that it over-complicates our business model where the buyers are no longer always well-trained art buyers well versed in these nuances. I wonder how much business established pros have lost to new comers, not over the $ figure, but because of an over-complicated/outdated pricing approach?

  8. Frank Petronio

    It was the college that should have felt intimidated and you should have gotten more for the infringement, but it sounds like it was a lot of money for you so congrats.

    I wouldn’t wait for them to call you though.

    As for small files being reproduced as billboards, you don’t need much. A 20mb file will more than adequately reproduce a large 14×44 board because they print them at 11dpi. Eleven. Remember the view distance and also how cheap the industry is – they aren’t exactly Glicee prints.

  9. Thanks for posting this Rob. We have to go through something like this once a year. Some of our work ending up in use because of some back channel. We’re surprised how many clients and agencies don’t fully understand what third party rights are.

    We find solid leverage by registering our work for copyright in a timely manner. Then if the offending party is not willing to negotiate reasonably, we just turn it over to an attorney and add 150% to the rate we were negotiating. An offending party would be crazy to call your bluff when you have the US CR Deposit paperwork in your hands. Pretty much works every time.

  10. It would also be important to remonstrate with the student–I realize there is nothing he or she can do at this point and little you can do to extract any kind of fee out of him or her, but you need to put that person on notice not to behave in this way again. I would also make a case to the college to teach students about the ethics of usage as well–it might even be a bargaining point.

    And I agree with Matt Hage about registering for copyright; it takes very little time, is free, and having that piece of documentation can be very persuasive.

  11. Instead of complaining about how ignorate young photographers are why not complain about the university’s ripping them off for a crappy education that teaches nothing about the business of photography.

  12. This stuff happens every day, but because I have taken the proper time to write a proper contract, issues like this are a thing of the past. Just because you are a ‘creative’ does not get you off the hook for being a responsible business owner. If you are complaining about stuff like this happening to you, then its time to re work your contract and terms.

    • Who are you writing a contract to in order to avoid this situation?

      Are you going to open a contract with every team member on your shoot?

      • The contract does not avoid the situation, but it does keep it from escalating to something like this.
        Working with honest, hard working, team oriented individuals who know what they are doing helps avoid situations like this.

        • How is that something you can foresee when you are at the bottom of the industry? When everyone is starting out too? You can’t really base that kind of judgement so easily with creatives who have not yet established a reputation.

          • Clearly you cannot foresee every situation, but remember, your reputation is all you have and you should take that very seriously from the very beginning.

  13. David Colwell

    This situation seems to have been handled relatively well by all parties. Unfortunately this kind of thing appears to happen more and more frequently. Over the past few years I have noticed an increasing trend by potential corporate clients who seek to avoid any contractual obligation at all. As Thomas pointed out, particularly in small markets, “When I have a potential client, it is often that they (The Client) play dumb when I ask about usage, and when I talk about things like agreements or contracts and copyright, they say thank you and hire someone else….there are many available, even on Craigslist. ” This begs the question, “Why should I hire a professional or even pay for photography at all?” In fact, if we cannot answer this question, we are doomed as creative businessmen and women. There are many scenarios developing. For example- surfing photo-sharing sites for usable images and offering $50 to the delighted amateur who now becomes a professional. Or possibly the corporate executive or researcher who might be an adequately proficient technician and talented hobbyist who contributes his or her images without any compensation at all. There is a theory circulating that suggests that if we have a pool of billions of photographs, certainly a few might be good enough for our purposes. Many Creatives love “Royalty – Free” image libraries. Robbing a previous editorial shoot is a trackable offense and I commend you for even discovering this at all. Had the billboard/building wrap been used on another continent or even another US city, chances are that no one would never have realized it. I realize my comment is a bit off topic but I think that you should open up this idea of using amateur images for commercial and editorial use. The market for professionals is shrinking as dramatically as the number of new photographers is growing. I imagine that ultimately this may improve the overall skill levels of surviving photographers everywhere in addition to improving the palate of art buyers and editors but there will be a lot of collateral damage to the business of photography.

    • This example suggests the opposite of what you say. If there are so many great images available for cheap why didn’t they go get one and save $5000? Or why didn’t they find someone with a dslr to shoot a similar picture and save money?

      • A Photo Editor wrote, “If there are so many great images available for cheap why didn’t they go get one and save $5000?”

        “The ex-student lied about having my permission and gave the image to the college … ”

        The college thought they were getting one “for cheap.”

  14. David Colwell

    Good response – I dont know but, I suspect that time and/or convenience may have been part of it. Perhaps they saw this image in the original editorial and thought that it was perfect for their application. Also, It sounds as if there was some miscommunication on someones part that allowed the situation to develop. I don’t believe there are so many great free or cheap images out there and if there are any among the billions, it takes time and effort to identify them. I believe there are situations where clearly one needs specific professional photographic services but my experience has been that some publishers, editors do not see the value as something that their readers or consumers recognize, therefore why spend the money? Again, this I think this perception is usually limited to smaller regional markets, not national ones. I am not an advocate of this thinking, merely an observer. The impression I get is that good photographs that are executed well, copyrighted, model released, etc. are considered to be unacceptably expensive in many situations and if possible, royalty – free, stock or generic images or possibly amateur ones are being considered because of the cost and the publics apparent perception that their own pictures are getting so much better due to advances in technology and the falling cost of so-called pro-sumer cameras. I mean this happened previously when Kodak introduced the Brownie camera.

  15. David Colwell

    Most importantly, as you pointed out in the header, this is very smart behavior on the photographers part. I am impressed – I wish everyone shared her conviction with regard to ownership and usage. Good negotiating skills in a bad situation -

  16. This used to be an open and shut case, they used your work without permission, they pay a lot….

    The original poster indicated the humiliation, and the intimidation from the client, that’s the real issue here, that nowdays, we photographers are fearful of being forever blacklisted as “lawsuit happy, don’t work with him!” … and some clients who used to be civilized about usage are, through staff changes, lawyers,etc… becoming more and more likely to demand “all rights” without saying much about how they will use the images, and we have to take it or leave it…..

    i.e. the profession itself is humiliated by the treatment clients can get away with due to the numbers game, and people who think photography is just a numbers game…..

    there’s no easy answer, we need to be solid on things, but it’s good the modeling agencies are still hardline about usage, it helps us in a backhanded way…. at least the clients are scared of them, and more likely to remember what usage really is….

  17. If you believe your work has value then treat it as an asset. Do all that is necessary up front to protect it – register the copyright, let nothing go out the door without a written and signed agreement, signed receipt, and notations on files, negatives and prints. Have a standard price list. Deal only with those you know and trust.

    If you find a violation of the above, invoice them according to your standard price and if they don’t pay, hire a lawyer. Afraid of tainting you reputation? Why would you want a customer that violates written agreements and cheats you?

    On the other side, a purchaser/user of photography has an obligation to their organization to make sure they have legal rights to the material as it is being used. In writing. No one wants to learn in the middle of a marketing campaign that they can’t use the artwork or need to bust the budget to pay for rights they thought they already had.

    In the case above, the college thought that the photographer owned the image and gave it to the college for free. What about the models? Why didn’t the college require model releases? Even if they weren’t professionals working for hire, a release should have been required.

  18. The fee options you presented to them should have been as follows:

    2.5 months and they take the image down – $1500 per month = $3750
    3 months – $1500 per month, $4500
    12 months – $1250 per month, $15000

    0 additional months – $150,000 + attorney’s fees

  19. The infringed photographer

    Thanks for your support, I have read through most comments and I’m very interested to find such a wide variety of responses.

    I initially suggested to Rob to put this out there for any photographers who might come across a copyright infringement on their work. As I mentioned previously, I found some forums where photographers were only receiving $500 for their image found on a billboard. Another similar scenario – a young photographer I knew gave her images away to a major jewellery retailer to use on their store hoardings and Vogue advertisements, so it seems very clear to me that there are young photographers completely unaware of their usage rights and being taken advantaged of.

    With this case – I understand I was in a higher position and had leverage to charge more, but what I want to emphasise is that I believe I was being reasonable. I didn’t want to take full advantage of the situation to the extent of heavily benefitting from this. They are a college after all, employing many mentors (established creatives, designers) supporting the industry they are in. Dare I say it, but I have to consider the possibility that I could charge a larger amount and anger the college.. Word could go around that I am a leech, this would be much more damaging to me in the long run. But it might not happen that way, I just like to be cautious.

    Considering that the model agency only received $3000 for the two girls, and that the creative agency decided to stop helping me, with no other form of assistance I went with what I thought was fair. I may have undercharged, but I don’t think I did. I also asked for the opinion of two other creative agencies who quoted me lower (about 60%) of what I asked for.

    I would much prefer to settle the situation with both sides walking away happily. I believe legal enforcements should be the last resort to any dispute. I could have gone down that path and gained a lot more money, but there are other things (such as my time and reputation) that I place more value on.

    If word goes around that I enforced legal action and sued them, what client would want to hire me later on? (Mind you, it’s a very small industry)

    I never could see that my team member was such a character. Most people I have worked with have been lovely. This person was friendly and down to earth and looked up to my word whenever I had confronted them about an issue. Though after this, I certainly won’t be working with them again.

    And fortunately in my country, copyright laws apply as soon as the artwork is created.

  20. You need to know the value of your work, or nobody will ever take you seriously as a partner in a creative project. The fact that millions take photos as a hobby should not intimidate professionals to undervalue their own work. This is what this article brought out nicely. People who use images professionally need to abide by the rules, and you need to defend your rights if some don’t.

  21. On the topic of copyright registration, in the US, a photographer can register many many images for $35. Every two months I register the previous 2 months’ images electronically. I create small highly compressed jpgs and upload zipped folders of images. Total cost for the year–$210. I have registered as many as 12,000 images in one registration.
    Website for US copyright registration: http://www.copyright.gov/eco/

    On the benefits of copyright registration, from ASMP’s website: http://asmp.org/tutorials/copyright-overview.html
    What does registration do for you?
    You have the full weight of the law on your side if you are infringed.
    You can file an infringement suit.
    You can more easily secure an attorney to take your infringement case.
    If you register your work prior to infringement (or within three months of first publication), you can ask for statutory damages and attorney fees if you win an infringement case.
    You can use your registration as leverage to get paid by defaulting clients.
    You have added protection against anyone claiming your work is an “orphaned” work.
    You are adding value to the services you provide your clients by protecting the investment they have made.

  22. Please, if you are reading this post and these comments and don’t know how to price your work, do yourself and the industry a favor and buy Jim Pickerell’s book “Negotiating Stock Photo Prices”. He has the best explanation about pricing your work I have seen anywhere and he also has great info in there about how to negotiate as well as standardized pricing for just about anything that could ever come up. It is the book version of Fotoquote with a lot more information. Highly recommended…here is a link to it:

    http://www.jimpickerell.com/guide.asp

  23. This is a great story and I’m happy for the photographer for not falling into the traps that most of us have in our careers.

    Like the photographer said, the fee is not amazing but its not bad either. Sure, we all want the amazing numbers that Fotoquote gives us but I wonder if those numbers are even based in reality.

    At the end of the day you can have a conversation and make some business or you can hold onto your beliefs all the way into the poor house.

    It’s not 2006 anymore.

  24. …”They told me the billboard space was only costing them $2700 per month.”

    Was this price verified, I feel they may have under reported the amount based on what was posted about their actions.

  25. I guess like what everyone has said, its important to have faith in one’s self and not be undermined by big corporations just because one is still small. This also brings about to the idea of undercutting because they don’t feel worthy enough to charge and be firm about it. Meh. Nice story.