reproduction-rights

We recently conducted a photo seminar at a learning center here in New York City. As is our custom, at the beginning of the seminar, in order to learn the level of sophistication of our audience we asked them a few questions. We call this technique the "Hand Jive," since we ask members of the audience to raise their hands if a particular statement applies to them.

Understand, this was a medium-priced seminar on an advanced photography topic. Asked to raise their hands, we learned that everyone in the audience owned a 35mm SLR, most had computers, and some used medium and large format cameras. Sometimes, when asking for a show of hands, it helps to throw in a few automatic "yes" questions, just to make sure everyone can hear you. For example, "Raise your hand if you were ever 12," or "Raise your hand if you woke up this morning," are questions that are designed to elicit "yes" answers from everyone.

We thought we were asking that sort of "no-brainer" when we asked "How many of you are photographers?" Surprise! Only one quarter of the group raised their hands! We repeated the question -- with emphasis. We got the same response. Wait a minute. This was a serious seminar, and these people have the right equipment and the desire to learn. They spent money to be there. It turned out that many individuals who did not define themselves as photographers had the same response: "I'm not a photographer because I've never sold a photograph." Or, "I've never had a photograph published."

© NYI Student, Aninda Misra
There is grist here for another article at another time, but let's just be up front: You don't have to make a dime from your photography to consider yourself "a photographer." Not ever. You do not have to involve money with your photography if you choose not to do so.

You might not be comfortable calling yourself a "professional" photographer, or a "freelance" photographer if you've never been paid a penny for your work, but there are lots of great photographers who don't get involved with money. Their interest in photography is personal, and whatever they photograph, and whatever they do with those photos, they are photographers none the less.

But, this is a business tip, and unless you have a moral objection to selling a photograph, someday you might do so. Hence, this tip is designed to cover what to do if someone wants to publish your photograph and you decide to ask for money for granting them the right to use your image.

Thanks to the nature of copyright law in the United States, you own the copyright to the photos you take just by pressing the shutter. You do not need to register those photos with the U.S.government unless there are extraordinary reasons to do so.

© NYI Student, James S. Randall
Since you own the copyright, you have the right to sell various rights. You could sell all your rights to a photograph, but it doesn't make sense to do that unless you need to do so.

Most times, if someone wants to publish your photo, whether in a newspaper, magazine, calendar or greeting card, or use your photo on the Internet or on television, you should sell them a reproduction right -- that is, the right to reproduce your photo for a stated purpose.

Let's use an example. You take a news photograph as a freelancer and contact the local paper. They look at your photo and tell you they want to print your photo in tomorrow's issue of the paper. We suggest you offer them "one-time reproduction rights." That means, for the amount you charge, they have the right to use your photo once. If they wish to run it again in a later issue, perhaps in a year-end wrap up story, they will have to pay you again for the right to use your photo a second time.

Some newspapers may wish to buy the right to use the photo several times at the outset. That's their prerogative and you can negotiate for that, and then explicitly grant them that expanded right. But, whether you're dealing with a magazine, newspaper or other type of publisher, you're generally best off to initially offer "one-time reproduction rights." That way, if your photo gets used again, you get paid again. Nothing wrong with that, is there?

Before we continue, we should point out that larger publishers of major publications are pushing to make drastic changes to the concept of one-time reproduction rights. Although photographers have lamented the onset of these changes, many major magazines now demand rights for foreign editions and for electronic Website purposes be built into the intial payment. Regardless of these changing trends at the top of the industry, lots of smaller publications continue to purchase one-time rights of the basic type that we describe in this article.

Defined simply, one-time reproduction rights are just that, the right to reproduce your photo one time in a book or magazine.

© NYI Student, David Yatko
Depending on the type of publication planned for your photo, this may require some clarification. Newspapers and magazines generally have one press run per issue. A newspaper that has a circulation of 100,000, for example, prints all those papers at one shot. Similarly, a monthly magazine with a circulation of 400,000 prints all those copies at one time.

But what if you sell your photo to a greeting card publisher who plans to print 5,000 cards initially, but may print more if they sell well? Generally, you need to discuss the matter in sufficient detail that you and the publisher both understand what is contemplated. For example, if a scenic is to be used on a condolence card, the right you sell may be for multiple printings of your image with a set group of words that appear on that card. If the publisher then desires to use your same photo for an upbeat birthday greeting card, that might be a separate negotiation and an added payment.

As a rule, publishers want wider rights, while photographers want to keep the rights that they sell narrow and well-defined. As an example, if you sell a photo to a magazine published by one of the airlines, you don't want to give the airline the right to use that same photo for a poster or a television ad without the airline paying you additional money for those rights. That means you need to spell out both the fact that the right you are granting is for one-time reproduction rights and also that the intended usage is for the airline magazine only.

© NYI Student, Arthur Hermiz
On the Internet, since photos aren't actually "published" in the traditional sense of a printing press run, we find that it makes sense to define usage in the context of an article and a period of time. For example, if you have a photo of a celebrity, you might negotiate that it can be used in one article that will be up on the Web for two month's time, with the understanding that if the Website wants to keep the article up longer then you will have to be paid again.

For photos that we send to newspapers and magazines for consideration, we mark each with a label or stamp that reads:"Photograph by [name and telephone number], all rights reserved. This photo may not be published without the photographer's permission."

Some people use the word "copyright" instead of "by". The important thing is that you've put all editors on notice that it is your photo, that you claim the rights to it, and you've given them a way to contact you.

Similarly, when sending a bill for a photograph, we make the invoice along these lines:

Your Name
Address
Telephone

INVOICE

One-time reproduction rights of photograph of [describe image] for use in [name of publication and issue]. Original image must be returned to photographer at above address.

TOTAL DUE THIS INVOICE                $[Amount charged]

In your invoice, you can also charge for any necessary expenses that you incurred taking the photo, having it processed and printed, or shipping it to the user. You should discuss the fact that you intend to bill for expenses before you strike a deal to sell rights. You should also be able to give the purchaser a fairly clear idea of how much those expenses will run. If you're going to charge a couple of bucks for gas for your car, that's one thing. If you are going to charge $45 for three taxi rides, that's a different matter.

In your invoice, you can also specify other points that you've discussed with the publisher purchasing your photograph. For example, "credit must appear adjacent to photograph," or "North American rights only."

The notion of limiting the rights that you've sold to North America stems from magazine and book publishing world. If you've sold a photo to a large magazine that has foreign editions, you should be paid separately for those editions if your photo is used in them. Similarly, book publishers generally bring a work out in the United States and Canada, while an English-language version published in England, India, Australia, or some other country with an English-speaking market should be the subject of a separate negotiation.

© Chuck DeLaney NYI Dean
One final point: Even if you're selling your photo to a small weekly paper, you should try to get paid something for it, and try to get an adjacent photo credit. Even if you end up charging $10 or $15, you'll feel better and you'll be taken more seriously if you seek payment for your work. Most publications have some budget for photography, and you deserve compensation as well as the satisfaction of seeing your work in print. Having your name run as a photo credit will also make you feel good, and when you start to assemble a portfolio of your work as clip sheets, having your name printed in the credit is very helpful.

If your photo appears in a book, magazine or newspaper, you do not really need a copyright symbol in the photo credit. This is because the publisher generally copyrights everything in the publication and that protection extends to you. However, if you have very rare and valuable photographs, for example images of someone like Elvis or Princess Diana that have never been published, then you might want to press for an explicit copyright notice with your name running adjacent to the image.

The advice in this business tip is all well and good if you've taken the photograph and you're selling rights to the photo. But what if an editor is taken with your work and you're given an assignment to photograph an event or a person for the publication?

That may well suggest a different way of charging for your work, and that will be the subject of next month's business tip. Stay tuned!