Copyright Primer for Photographers (and Their Clients)

Yesterday’s post, which includes a video of Brett Deering talking about copyright in the digital age, was Part 1 of this two-part series. Today, I’d like to offer my own thoughts on digital file management and copyright, and a list of additional resources. Please note I am not an attorney, nor an expert on this issue. ūüôā I’ve made a LOT of mistakes in this area, which means I can pass along a few lessons learned and hopefully spare you the trouble.¬†

First, Some Context
The digital and electronic age in which we live is causing a sea-change in the world of professional photography, and the end result makes copyright protection more important than ever. Consider the following trends:
  • The Birth of the Digital Generation. ¬†Children and young adults today have never lived in a world without digital cameras, scanners, Facebook, iPhones, Flickr, YouTube, or Google Images. They’ve never bought film or¬†developed negatives. And, they¬†are the photography clients of tomorrow.¬†
  • The Declining Popularity of the Print. The new generation doesn’t¬†value the Printed Photo as much as their parents and grandparents did. Instead, they primarily use digital photos – for Facebook, screen savers, phones, digital frames, holiday cards, slideshows, websites, blogs, online memory albums, digital scrapbooking, etc.
  • The Proliferation of Digital Images. ¬†Digital photography is everywhere, and it’s extremely “easy” to make, buy, sell, download, and duplicate. Everyone has scanners at home from which they can create a digital photo out of a printed one, and screen capture software to grab online content.¬†
  • The Affordability of Camera Equipment. ¬†The oldest barrier to a career in photography is gone: the high cost of startup. Consumer and pro-sumer digital cameras, and even phones, take high-resolution photos and additionally are extremely affordable. As a result, the number of people that buy a camera and deem themselves photographers has skyrocketed.
  • The Trend of Selling “Copyright Release.”¬†¬†More and more photographers (many of which are¬†hobbyists or part-time)¬†offer packages advertising “copyright release” to their clients for an extremely low rate. They can afford to do so,¬†since they aren’t trying to actually make their living in photography.¬†
  • The Shift in Expectations. ¬†In film days, photography clients did not expect to receive their negatives, only prints. In contrast, in the digital age, many consumers assume 1) they will receive all their digital photos and 2) that they¬†may use them however they wish.¬†But, are photographers offering copyright release because clients expect it, or do clients expect it because photographers are offering it?
  • The Fear of Litigation. ¬†Since it’s now so easy to abuse and so difficult to enforce copyright laws, many ad agencies and commercial clients are asking their photographers for unlimited usage. And usually, they can find someone that will offer it for a low rate.
What The Sea-Change Means For Photographers
Photographers now experience pressure from all sides (their clients and competition) to hand over digital images to clients at a low price point, and doing so has become a¬†source of heated debate among seasoned pros.¬†The¬†value of stock photography has plummeted, and it’s harder to enforce usage agreements and track how clients use your work.¬†Consequently, in my view, the traditional photography business model (i.e. one based primarily on print sales or specific usage fees) may not be relevant for much longer.¬†

The Evolution of My Business Model

Like all photographers today, I continuously grapple with how to adapt to all of the changes occurring in the industry. My approach along the way has been indicative of my relative level of naivet√©, experience level, and business goals. I’ve gone through at least three major transitions:

  • Rookie Approach: ¬†When I first started my business, I was still working full-time and didn’t have a lot of time to spend on photography; my priority was keeping things simple. I also didn’t have the confidence or skills to charge very much. Based on those two primary factors, initially I only offered a DVD of all of the digital files – at a low rate.¬†|
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  • Semi – Professional Approach: ¬†As I developed my skills, I started charging more, but still only delivered the digital files. Once¬†I got a SmugMug website, clients had the choice to purchase prints if they wanted on a la carte basis.¬†Later, I used¬†the Download All function¬†to deliver digital images, and stopped using DVDs.
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  • Full – Time Professional Approach: ¬†When I leapt into full-time photography,¬†I created collections with various levels of access to digital files. I significantly increased my the rate for Collections including a print release to reflect 1) my skill development, 2) investment in high-end gear, 3) my boutique service model and 4) the value of the print release.

Pros and Cons: Releasing Digital Files

To have longevity, each photographer should build their own business model after assessing the costs and benefits of allowing clients to have digital files, regardless of what the photographer next door is doing. Many photographers choose embrace the benefits of giving customers their digital images:
  • Increased Exposure. ¬†The more readily people can spread around your work, the better. Clients can credit you; if someone has 600 Facebook friends, and they all see your work on Facebook with an attribution, that’s free advertising!¬†
  • Reduced Overhead.¬†¬†Allowing clients to handle their own printing save the photographer the overhead related to printing costs, time handling orders, delivery logistics, and time spent researching printers and products.
  • Faster Workflow. ¬†A digtal-files only business model allows a photographer to wrap each job completely within days of the shoot (i.e. book, shoot, offload, post-process, upload to online album, zip and deliver files, blog, done) and move onto the next job.
  • Client Satisfaction. ¬†Many customers don’t like complicated package combinations (i.e. 3 digital files, 2 4x6s, 1 5×7, 1 8×10, $140 credit to your print order, must order within 10 days, etc.). They get confused, feel pressured, and want to have the digital files so they have full control over what and when they buy.

Despite these benefits, there remain many downsides to offering digital files, most of which I’ve personally experienced:

  • Lost Revenue. ¬†As mentioned previously, historically, most photography businesses are dependent on making lots of print sales.¬†Prior to creating various Portrait Collections, my print sales generated only 10% of my revenue. That percentage is climbing since I revised my business model.
  • Easy Duplication. ¬†Portrait clients can easily duplicate or email digital files and share them with friends and family, which reduces print sales even further. Similarly, commercial misuse frequently occurs, but generally isn’t the result of malicious intent. I once found a photo I took of three AZ elected officials in a Capital newsletter. When I contacted the publisher, they said they pulled the image from Google Images, which had lifted the image from my old (unprotected) website. Additionally, a¬†Google Alert once notified me that one of my images was listed by the Associated Press for publication to news outlets. My client had sent it to AP¬†in an effort to generate publicity without my specific permission; they didn’t understand that this was outside the scope of our terms.
  • Loss of Quality Control. Clients that have the digital files may make prints at a low-quality printer, which then reflects poorly on the photographer. Images may also be re-edited, cropped, or otherwise altered in a way that doesn’t reflect the artist’s standards. This happens all the time and I just cringe when I see the results.¬†
My 4 Guiding Principles

I operate my business today according to a more nuanced digital file strategy, resulting from an understanding of¬†the marketplace trends I mentioned above,¬†the pros and cons of delivering digital files,¬†and the mistakes I’ve made along the way.¬†I’ve learned how to negotiate terms that protect me and my business’s profitability; however, I keep in mind that when I am a photography customer,¬†I like having access to the digital files, just like my clients.¬†

Here are my guiding principles: 
  • Clear Communication. ¬†Talking with clients about how they can use digital photos before shooting is vital,¬†whether it’s portrait or commercial photography. This conversation can be delicate, but, overall, I’ve found that when I explain the issues, people seem to respect my work more as a professional (and usually, upgrade).¬†The most effective explanation I’ve found is this: it’s illegal to buy a CD or song on iTunes and burn copies of it for everyone you know – the same concept applies to a digital photo. People seem to “get” this.¬†
  • Written Agreements. ¬†Written contracts are vital with commercial work, but should be used for personal photography, as well.¬†All of my estimates and invoices explain, in writing, the terms of use for each individual job. Additionally,¬†I direct clients to Portrait¬†or¬†Commercial FAQs prior to shooting and ask if they have any questions. When terms are in writing, you have a record of the agreement you made with the client; without such records, there’s nothing to point to when there’s a problem or misunderstanding.
  • Individualized and Sustainable Pricing. ¬†Photographers should use a “zero sum” formula for building their pricing – that is, start from zero and build up, rather than simply choosing a price structure based on what those around you are doing. (Don’t undercut your colleagues! The race to the bottom baffles me!)¬†When considering your pricing, as a general rule, collections including a print release should be high enough to offset lost print revenue. Unlimited usage for commercial purposes should be priced to offset what you might have made if you charged for each additional use. (Tip: I was advised recently to offer unlimited usage for no less than the equivalent of my commercial day rate.) Adjust according to the market in which¬†your client¬†operates (i.e. NYC clients might pay your day rate x 3 for unlimited usage, while OKC clients probably won’t). Set your pricing based on¬†
    • 1) the cost of doing business¬†
    • 2) your skill and experience level¬†
    • 3) what your target client is willing to pay¬†
    • 4) long term business goals (like a salary for yourself and gear upgrades)¬†
    • 5) the relative value of what you are offering and¬†
    • 6) respect for other photographers.¬†
  • Trust. ¬†I¬†don’t spend a lot of time enforcing my copyrights. If I’ve done my diligence on the first three points, I’ve protected myself in most cases, and¬†I’d rather not spend my valuable time worrying about the 5% of clients that might abuse my work.¬†More importantly, I understand that in the end, it’s all about relationships. If I get to know and befriend my clients, they are much less likely to take advantage of me, and much more likely to be loyal and respectful. When good intentions go awry, a simple phone call and polite request usually fixes the problem.¬†

Words Matter

As stated above, writtenagreements are of paramount importance. However, without a sound understandingof commonly used (or mis-used!) terms, written agreements can backfire for aphotographer. I just spent some time reviewing my website, blog, invoices,contracts, and marketing materials for these terms, and found LOTS of mistakesdating back to my early and more clueless days. I encourage you to do the same!  

  • Copyright: ¬†The maker of a photo holds the copyright from the moment the shutter clicks, whether or not they register the copyright (although registration offers the most legal protection). Photos are intellectual property and are protected under US federal law – actually, the Constitution!
  • Copyright Release: ¬†If you give a client “copyright release,” you’ve relinquished ownership of the photo(s). Unless this is your intent, never, ever, ever offer “copyright release.” If you do, from that point on, in theory, you have to have your client’s permission to ever use the images you gave them! For obvious reasons, this term no longer appears anywhere in my materials.¬†My guess is that most photographers offering “copyright release” actually intend to provide a “print release” to their customers.¬†
  • Print Release: ¬†Under a print release, the buyer may reproduce prints of the photo (up to a specified size), but does NOT own the photo, and additional uses require the photographer’s permission.
  • Sell. ¬†John Jernigan¬†recently advised me to never say “sell” in relationship to an image.¬†Photographers¬†don’t actually “sell photos” clients; that implies releasing ownership. You “license” clients to use your work, and/or grant permission for them to reproduce your work in various specified formats.
Additional Copyright Protection Strategies
  • Apply Metadata. ¬†While it can be easily stripped from images by more savvy abusers, I still apply my copyright info as metadata to all of my work anyway.
  • Website Protection. ¬†Find a website host that at minimum allows you to add metadata and right-click protect.
  • Use Watermarking. ¬†I watermark all of my blog images, and watermark all of the images on my website (which disappears upon printing).
  • Social Media. ¬†When given the choice, only upload the “Standard” file size to Facebook; uploading at high resolution allows viewers to download the high resolution image with a single click. Additionally, I only post the collages that appear in my blog on Facebook as an additional protection.
  • Limited Print Release. ¬†Under my new business model, the largest size available to clients under my print release is 8×12. Larger sizes will be displayed prominently in my clients’ homes or office, and I want to make sure such images meet my quality standards.
  • Disclaimer on Print Quality. I do not guarantee print quality at printers other than the one available through my website (Bay Photo). I explain the concept of color correction to my clients. Once they understand this, many of them choose to use my printer even if they possess a print release.
  • Differentiate Terms for Each Type of Sale. ¬†Each customer interfaces with your business under different circumstances; terms will vary. You should be able to articulate to each client the terms of usage for their digital files and prints. Think through the following scenarios:
    • Commercial Usage:¬†Estimates versus¬†invoices; single image versus multiple images.
    • Stock sales: Selling images to a third party after work is complete.
    • Print Sales & Print Usage: A la carte print orders versus packages; your client versus your’ client’s friends and family.
    • Digital Image Sales: Terms of use for sharing among extended family and online usage.

Additional Resources

Bottom line

It’s much harder for full-time professional photographers to actually support a family with their photography business.¬†However, rather than complain about these enormous challenges, photographers can adapt to them. It is still possible to create a sustainable business model that is firmly rooted in the “new” world – if we thoughtfully manage our copyrights and business model.¬†

– HBA


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About Mosaic Collective, LLC

I am Holly Baumann Ambuehl, founding member of Mosaic Collective, LLC, which was founded in early 2017 and is based in Central Illinois. I own and operate Mosaic Collective with my partner in business and life, my husband, Nathan. Mosaic Collective, LLC houses our rental property, my consulting contracts (with the nonprofit and public sectors on various work), and also my commercial and portrait photography business, which has been doing business as Holly Baumann Photography since 2008 long before the formation of our LLC. My blog posts feature client work, but I just love to write, so I also write about owning a business, food and drink, travel, and sometimes, my personal life! I am always honored when clients trust me to capture their vision, and equally so when my readers converse with me about what I've photographed or expressed here. I hope we'll have an opportunity to collaborate professionally and/or become friends. I'd love to hear what you think! - Holly
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