Pricing & Negotiating: TV Network Work Made For Hire

By Craig Oppenheimer of Wonderful Machine

Shoot Concept: Environmental portraits of cast members from a television show, including landscape images of the town featured in the show

Licensing: Work Made for Hire

Location: A small city in the Southwest

Shoot Days: 1

Photographer: Up-and-coming conceptual portrait specialist

Agency: None (in-house creative team for TV channel)

Client: Specialty Television channel

Here’s the estimate:

estimate_terms_redacted_v2Click to enlarge.

Concept, Licensing:

The client was in the process of filming the first season of a new reality show, and they wanted to capture individual portraits and a group shot of the 5 main cast members, as well as landscape images of the town in which the show is filmed. The shoot would take place on a single day during the actual filming, so many of the production elements (like hair/makeup styling, props and wardrobe) would be provided by the film production crew.

After discussing the project with the production manager, I learned that the images would mainly be used to promote the show on the channel’s website and possibly in on-air advertisements for the station. However, we were told that the channel has a non-negotiable work-made-for-hire contract that they require all photographers to sign. In fact, we were made aware of this about a month earlier when the same channel asked this photographer to bid on a separate local studio portraiture shoot for a different show. That project didn’t move forward, but through a series of conversations we found that their bottom line budget for similar projects is in the ballpark of $10,000.

The vast majority of the projects we estimate allow us the ability to limit licensing in some way. Sometimes we’re able to have a tight hold on the licensing (for example, Collateral use for 3 months), and other times we need to include a much broader licensing (for example, Advertising, Collateral and Publicity use for 5 years). While these both include a range of usage, the copyright is retained by the photographer. The main difference between “exclusive use in all media forever” and a “transfer of copyright” is 3rd party use. By agreeing to a work-made-for-hire contract, the photographer would concede copyright ownership and the ability for the client to authorize 3rd party use. These contracts are common when working with clients in the television/film industry, and it stems from agreements between these clients and video production teams where transfer of copyright for video footage is standard.

We’ve worked on a handful of projects for photographers and TV channels and have been presented with similar contracts. In fact, we recently worked with the photographer featured in this project to obtain a portfolio meeting at another TV channel in NY, and before confirming a meeting, their photo editor sent over their contract in an effort to be as up front as possible in regards to their copyright requirements. Here is what that contract looked like:

Click to enlarge.

Now, typically I’d be inclined to integrate a hefty fee for a work-made-for-hire project since there is tremendous value for the client to own the copyright of the photos. However, since I knew their budget from that previous local studio shoot, I was able to extrapolate what their budget might be for a shoot with a bit more production and travel involved. Also, I knew their likely usage limitations from my discussion with the client, and I also took into consideration that the shelf life of the images would likely only be a year or two. Cast members could change, the show could be cancelled, and the promotions done by the channel could potentially change over the course of the following seasons. By integrating pricing more in line with their intended use (rather than requested use) and taking into account the likely budget, straightforwardness of the project and the eagerness of the photographer to get in the door with this client, I settled on a fee of $8,000.

After determining a fee, I like to also refer to pricing resources like BlinkBid and FotoQuote to see what they might recommend. In many instances the licensing options from these pricing resources don’t match up to the exact usage requested from the client, and they especially didn’t correlate in this case. For example, BlinkBid outputs a fee between $20,000 and $30,000 for international use of 1 image in all the categories listed for 1 year. FotoQuote also averages $20,000 for their most extensive “all advertising and marketing” pack for 1 image for 1 year. While it would have been great to charge 30k+ (and even appropriate in rare cases), I knew that in this instance, rates that high would blow the client’s budget and didn’t match up to the value of the client’s intended use.

Assistant: The photographer would be flying in with his assistant, and this accounted for the shoot day and travel days there and back.

Local Digital Tech: In order to save on travel, we planned on hiring a local tech. I’d typically include additional fees for a workstation (around $750 for a monitor, computer and cart) but the tech would be using a laptop and simply be dumping cards while reorganizing files.

Equipment Rental: The photographer would be bringing his own gear, so we included rental fees for 2 camera bodies (~$200.00 per camera per day), a few lenses (~50.00 per lens per day) as well as strobes, power packs and stands (~$250.00 per day). We feel that it’s important to charge for this because it’s not expected that he would own this gear, and it covers the cost to maintain and update his equipment.

Photographer Travel Days: This covered his travel time for one day there and one day back.

Airfare, Lodging, Car Rental: I used kayak.com to research and determine travel costs for the photographer and his assistant.

Meals, Misc: The film production team would provide catering, but I included $100 per day for the 3 days (travel, shoot, travel) for snacks and miscellaneous expenses.

Housekeeping: I made sure to note the items that the client would be providing along with the advance requirements. While the client would handle all retouching internally, they asked that we provide the photographer’s rate in case they needed to farm out the work to him.

Results: The estimate was approved and the first season of the show is now being aired. The images landed in print ads as well as on the client’s website.

Hindsight: This project was particularly interesting due to the work-made-for-hire agreement. This estimate isn’t a representation of rates for all instances of copyright transfer, but it’s an example of what we’ve seen from a few other clients in the television industry. Another photo editor for a separate TV client/project informed us that they also require a work-made-for-hire agreement, and in order to stay competitive she suggested a pretty healthy work-for-hire rate of $10K-$20K per day.

If you have any questions, or if you need help estimating or producing a project, please give us a call at (610) 260-0200. We’re available to help with any and all pricing and negotiating needs—from small stock sales to big ad campaigns.

 

Wonderful Machine

There Are 11 Comments On This Article.

  1. Would you include anything about the photographer being able to use the work in his/her own self promotion? As a WFH I would expect that would need to be discussed.

    • Thanks Tony,

      Yes, the photographer was able to use the image(s) in his portfolio and for self promotion purposes. It’s not uncommon to see contract clauses similar to the example shown in this post stating “you shall have the right to use the Material with (client) approval on a non-commercial basis as part of your portfolio, i.e, as an example of a work produced by you.”

  2. If you have no choice in the “work for hire” classification then so be it – you added enough money to cover it. Though should any of the subjects make the news for anything spectacular: rape/murder/terrorism… you’ll be kicking yourself.

    Question: did you add in that the photog could use the images for his own promotions?

    FYI – while a student at Brooks in the 70s I photographed a model who was later arrested at Heathrow Airport carrying weapons to terrorists… dozens of us students ran to the TV station with our prints. So it could happen.

  3. Unless the photographer is a full time employee that is not a “Work For Hire” situation. WFH means one is working for a firm and receiving benefits (retirement, dental, etc.) If you are working for someone for a day or other short time that is not a Work For Hire.

    To be sure, every quote and invoice I generate has the words “Not A Work For Hire” right there in plain sight.

  4. Update:

    I just noticed in paragraph 5 that it says the photographer is an “Independent Contractor”.

    That is what this relationship should be. Not one of a “Work For Hire”.

    The real question I have here is why this situation says that it is both a “Work For Hire” AND “An Independent Contractor”. It can not be both!

    There is an excellent website for photographers, rights and copyright:
    http://www.EditorialPhoto.com

    • Hi Terry,

      The “Photography Rights Agreement” document I showed was actually from another project, but I do see what you are referring to. It basically says that the shoot will be considered a work made for hire in that they will “own” the photos, but that the photographer will remain an independent contractor and will not be entitled to any employee benefits.

    • Terry,

      You can be both an Independent Contractor and Work For Hire if the following conditions are met:

      1. The work must come within one of the nine limited categories of works listed in the definition above, namely (1) a contribution to a collective work, (2) a part of a motion picture or other audiovisual work, (3) a translation, (4) a supplementary work, (5) a compilation, (6) an instructional text, (7) a test, (8) answer material for a test, (9) an atlas;
      2. the work must be specially ordered or commissioned;
      3. There must be a written agreement between the parties specifying that the work is a work made for hire.

  5. i wonder if the market forces are simply just forcing this type of work to become common now. little by little the market is making rights-grabbing commonplace. yesterday tolerance level has been moved further down, or lower. a person has to pay their bills. all the pretty language to make it sound palatable can not hide that simple truth. sad. but WFH is today’s reality. tomorrow is another day.