Reader Question: All Rights Contract

- - Contracts, copyright

A reader asked me a question about all rights contracts and I thought I’d see if anyone wanted to offer advice in the comments. My initial reaction to anything like this is “what’s in it for you?” If you’re not getting paid to give up your rights and you can’t use the images to market yourself then you get nothing out of the deal. I also believe it locks you in to this type of deal with this client going forward.

Last year I got a call out of the blue from an ad agency in [Redacted] for a photo assignment. I eagerly took it, turned in the work, and before they paid me they sent me a contact. The contract required me to transfer all rights to the photos. The main part I objected to was that I wouldn’t be able to use the work even in my own portfolio.

I’ve not gotten another assignment from them, but they sent me another contact … a work for hire contact. Again, all rights. Is this normal with ad agencies? I just e-mailed my contact at the company and pointed out that my rates are reasonable, I do good work and I meet deadlines. It hardly seems like it’s much to ask that I at least be able to use my own work to promote my own work.

As a commercial photographer, I’m very inexperienced, so I thought I’d see what your advice would be.

There Are 16 Comments On This Article.

  1. If you do a shoot without an agreement stating that the work is a WMFH, then you own the copyrights to the photos (unless you’re an employee . . . ). But you likely have granted an implied license to the agency when you deliver the work. (The information here is for educational purposes only and does not constitute legal advice!)

    • I agree with Carolyn. Also, each agreement made should be reflected in the Terms and Conditions of all of you paperwork. This means your estimate, contract, and invoice. Giving your client multiple opportunities to read the agreement is always a good idea, and promotes clear understanding and communication about rights granted.

  2. This is obvious, but since the reader says he or she is “very inexperienced” I’ll point it out (although he or she may have figured it out in retrospect): Make sure you have an agreement in place that lays everything out, including usage rights, payment, etc., *before* you do the shoot.

    I once had a client come to me after images had been delivered with a rights-grab contract they insisted I sign before they can pay me. But before the shoot they had already signed off on my contract, which laid out what rights would be licensed, for how long, etc. It was reviewed by their legal department, and they ultimately retracted their rights-grab contract, paying me on time as they were supposed to, and for the limited rights they agreed to (which were really all they needed anyway).

    Post Script: the person I’d been working with got in trouble for not having me sign their rights-grab beforehand, and I’ve never worked for them again; I’m sure this is partly because she got in trouble and wouldn’t want to work with me anymore, and partly because I wouldn’t want to work with them anymore knowing that they’d demand all rights for a shoot that didn’t warrant it.

  3. In the future it may behoove you to spell out the usage rights licensed in the estimate and quote prior to the shoot. All projects should have a quote in advance, no matter how elaborate or simple the quote is. This can be an email with 4 or 5 sentences. If you are inexperienced, a good learning place is ASMP.org. or browse several of the articles contained here at aphotoeditor.

    If your project is with the same agency, and you know that they will be requiring all rights, the price should reflect this, typically +100%, sometimes more. On the same quote, give them a break down for partial licensing, to let them see what the price difference is. Even with all rights arrangements I will specify xxx photographer may use the resulting images for web presentations. No one has complained. All rights licensing accounts for a very small portion of my work, say 5 percent of all my projects.

    It is not below anyone to sell all rights licensing for projects, provided you are charging appropriately, and provided you are not signing a work for hire agreement. There is a difference. Companies will pay this additional amount. I have had no one walk away from a deal due to the increased cost of all rights.

    For the project already photographed and delivered, I believe you are pretty much stuck with signing it, getting your money and moving forward. There may be a way out of this, let’s see if others can chime in and help.

  4. Moore Cowbell

    Steve is spot on. But I’ll add to it. Always know the terms before you do the work. I generally try to have the client sign my contract opposed to the other way round. Secondly, I would be hesitant to work again for a client that pulls “we need you to sign this all rights contract before you get paid”. That’s is underhand and falls slightly in the blackmail category. It also sets the relationship forward to be an adversarial one. If it were me, depending if I really needed the money or not, I would have most likely told them to eff themselves and if they wanted the photos they’d have to work out a deal on my terms. Giving away 100% of your rights isn’t unusual, but as Steve mentioned the quoted cost of the job is different under that circumstance. Also please remember that if you let a client get away with this sort of thing that they will expect future photographers to fall in line with their underhanded practices (and it is underhanded to spring a 100% rights contract AFTER the work was completed).

  5. The key thing to remember: they don’t need all the rights. They just think it’s cheaper and more convenient. How cheap and convenient this is, however, is up to you.

    The images have a shelf life for their project after which they aren’t very valuable to them, but still may be valuable to you. They want the all the rights because they think it will be easier to strong-arm you into signing the rights away than to take the time to figure out what they actually need. In other words they think you’re a schmuck who’s easier to push around than negotiate with.

    Without all the details we have to make some assumptions, but I would bet that not every photographer works with them on these terms. To be the photographer that doesn’t sign rights away you need two things:
    1. Be the best person for the job who is hard to replace with a schmuck.
    2. Be able to give them the rights they actually need, explain why it’s better and cheaper for them, and ease their risk-averse, lilly-liver fears that they going to screw it up and have to ask their clients for more money if they don’t get the usage right.

    You don’t have to be an ass. You can do this in a business-like, polite way. But you need to be firm. They don’t need all the rights to do their job, and you’ll be more invested in the job if you’re not signing them away.

    In twenty years the agency will have totally forgotten about this work. The people who work there now will have moved on. But this contract will still be in force. As a photographer you don’t have a pension, nobody is making matching IRA contributions—at the end of it all the only thing you will have to show for your effort is a body of work. You need to make sure you value this.

  6. I agree 100% with everyone above.

    Also, you really need to contact, and develop a relationship with a good IP attorney. That does not mean you are going to sue anyone, but it means you will understand your rights better, and be able to make more sound decisions in the future. The attorney can also send very clear reminder letters to clients who feel like they have a right to take advantage of you. Sometimes that makes all the difference.

    Still, being new to the business, in all likelihood you are going to accept terms that other, more experienced photographers would not. There are also clients who will only hire those who are inexperienced or unsophisticated, because that is part of their business culture, and that’s how they continue to get away with contract terms that most experienced photographers would never accept. As soon as you get smart enough to negotiate terms, they move on to the next bright eyed and inexperienced photographer just dying to get into the business. I would not be the least surprised if this is precisely that sort of client.

    By the way, when a client says you have to sign their contract before they will pay you, it means they KNOW you have recourse against them, and they are trying to end run you by changing the terms. That’s very nasty and underhanded business, but I’ve come across it more times than I wish to think about.

    True story: About six years ago, I did some work for a client who had signed my contract, and paid me up front. It was just a little job, and they were in a hurry. Several months later I received a call from a lower manager in the company demanding that I do additional work for them on that project at no charge. I said no, but I would be happy to charge them a reasonable, reduced fee for continuing the work. The manager became very upset, and told me that I was obligated under their contract to continue working without additional compensation, and must do so immediately. Well, thankfully, I reminded him cheerfully that I had read their contract, and did not sign it, instead having them sign mine. He then said I would not get paid unless I signed their contract. Cheerfully again, I said I had already been paid for the work I had done, as that was a condition of my contract. Case closed.

    Ironically, they called me plenty of times after that for other projects, and on rare occasion they signed my contract, and paid me in advance. I always cheerfully accepted the work on my own terms. Of course, I knew that if I ever worked on their terms, I may never get paid at all, and could never trust them to behave in an ethical way.

    So the moral of the story is, know your client.

  7. I’d let a good producer handle the dealing. They’ll be in a better position to negotiate with the client, and agencies like dealing with them more than you.

    All rights are not all that unusual with a lot of jobs these days because of the many mediums an image may appear in.

    Keep in mind most images have fairly short lifespans, and you’re typically better off forming a good relationship with a client that comes back, rather than being a stick in the mud.

  8. To have leverage, appear sophisticated in contract matter and in business generally, it’s essential to have your own contract to hand a client (before you do any work, of course). Even if you end up using a modified version their contract, it’s much easier during negotiations to point to terms in yours and say I need to retain this or that, than it is to point to their and say it’s wrong, etc. It helps level things out, and takes a little bit of the personal out of it when you can point to your contract, instead of trying to explain terms over the phone, etc. Its also allows you to sometime just say, well, my lawyer told me to always keep that in, too (for something really important).

    And making mistakes early on, when the risks are lower, will provide valuable lessons (both intellectual and emotional) that will make you a better negotiator in the future, when it counts more.

  9. The Anonymous Photog

    Very educational reading. Thanks all for weighing in.

    The agency never responded to my request to discuss the matter nor have I gotten a call for another assignment (not that I necessarily expected one).

    To clarify, too: there’s two separate events going on here: the initial assignment where I just sucked it up and signed the contract being unsure what to do and not wanting to argue about it jeopardizing future assignments; then, month later, getting a new contract in the mail, which prompted me to seek more experienced advice.

    I suspect that having even raised the issue with the agency, I won’t here from them again.

  10. It’s not that hard to gauge the value of the photos to the client and to you. For you, would the photos be salable to others, or are they very specific to your client? Are you being paid well? If the fee is good, and you know the shots have a shelf life, and that they’re not readily salable to others, then giving the client all reproductions rights is not a big deal. I’m not sure, but I believe a buyout might require sales tax. I’ve almost never heard of a photographer not being able to use a photo or the ad/marketing materials from an assignment, unless of course they’re somehow classified — like for a new medical product. And most assignments are not portfolio pieces so often it doesn’t matter. About a rights grab or renegotiation after a shoot is done — that’s not cool. You have to ask yourself several questions. 1) Would you have signed their paperwork if it was presented prior to getting the gig? 2) Is this happening because the person who hired you screwed up? If it’s 1, and you wouldn’t have agreed, and the prospects for more work are small, or if your doing well financially then don’t sign. If it’s 2, then sometimes it’s worth signing, because for you it’s one assignment, but for the person hiring you it’s their job, and even though it could be argued they were remiss, it’s always good form to avoid being part of the chain that makes them look bad. The other approach is to have an amiable discussion regarding the extra rights, and suggesting that some reasonable additional fee be agreed upon to secure these rights. This way you don’t look like too much of a pushover — nobody respects a pushover, and once a pattern is set with a client or with anyone, it’s hard to change the pattern later.

  11. Typically even if you decide you are willing to do the job on a work for hire basis you can have something inserted into the contract that says you are able to use the images for self promotional non-commercial purposes. Meaning you can use them in your portfolio and marketing materials. You can also offer them an unrestricted perpetual license which means you hold the copyright but they can do what they like with them. Perhaps couple that with a 5 year period where you can only use them for self promotional purposes.

    Just some ideas to think about that might make everyone feel better.

  12. I’m just going to throw this out there —

    1. Is it possible some work has limited to no re-licensing value? If you’re shooting middle manager headshots or the cataloging how a faucet is being used in a corporate restroom for internal marketing or an informational brochure…
    2. In my experience, any client worth working for will be flexible with their contracts. If you ask them to work with you on the contract and they don’t, you probably don’t want to work with them in any capacity.
    3. Also ALWAYS read the indemnity / limit of liability clause. Is the risk worth it — every contract I get is ridiculously one-sided, because it’s written by one side. It should be an agreement when you sign it, not a decree.

  13. The Anonymous Photog

    The term “middle manager” head shoots wouldn’t be far off the mark. There was one I would have included on my web site, though, if I could have, though I’ve done better work since.

    Very good discussion. Thanks to all.

  14. It is much easier than any of this. Buy BlinkBid, use the rights and license manager built in and make sure you ask all the right questions. Join APA whose base of members is Advertising photographers with in-depth advertising experience.

    http://www.apanational.com

  15. Chris Helcermanas-Benge

    On the back of my invoice, as well as in my contract is the clause that “NO RIGHTS RELEASED UNTIL PROMPT FULL PAYMENT OF INVOICE”
    It actually has forced a client who tried to renege on a payment after a shoot to Fed Ex my check.
    They had printed brochures and placed ads in newspapers before they tried to not pay the full amount.

    Chris H-B