Who owns the image?

[Fran Kuhn]

I've a suspicion that most stills guys, now or soon to be doing video, don't know that we, generally speaking, don't own the footage we shoot. Clients used to working with us are going to be in for a big fat shock when they ask for their footage from a stills/motion shooter for a secondary use and are told they have to pay for it all over again.

Big bad fun, hurt feelings, and work for lawyers.

Good shooting and best regards,

Leo

Hi Leo,

With all due respect, rates charged in the advertising photography business are based on usage. It has to be that way for photographers to survive. With regard to stills, rates have historically been based on where the image is used. There's no sinster plot to stick it to the client--it's just what's fair and best for both parties.

If I shoot a brochure photograph, my client pays a reduced rate compared to National Print or TV use. If the client then decides to use it for Print, they can negotiate an upcharge, always much less than what it would cost to go out and produce another image from scratch. Everyone wins, and generally everyone is happy.

The trend these days is for clients commission work at the lowest rate (collateral or brochure use), and ask for unrestricted use along with the lower rate. When the shot then ends up in a National print campaign, I'm the one who looses (or another photographer who would have shot the National Print job). I'm always amazed when people don't get this simple point, especially people who are creatives hoping to make a fair living with their skills.

And, unfortunately, there are a huge number of people armed with these new cameras who are happy to sign off on such terms. I see it every day with professional photographer friends who are sitting by the phone while our loyal clients are out shooting with some weekend warrior who just dropped 30 grand into a Canon EOS system or bought an EX1 and is willing to give it all away. And if it hasn't already happened, the same scenario will soon begin playing out in the world of motion capture. It's a great time to be a client or producer, a lousy time to be the guy behind the camera. And it's only going to get worse.

Best,

-Fran

www.frankuhn.com

 

[Leo Ticheli]

Hi Fran,

I agree with some of what you said, particularly the part about a new generation of semi-professionals, or emerging professionals, enjoying some of the work. We all started somewhere; it's just that the price of admission is dropping like a stone, and rates are being challenged as never before.

I hope you understand that the, "I own the images," model is a non-starter in most of the motion world. Our clients are accustomed to owning the footage for any use at any future time, except, of course for talent and sometimes music payments.

Stills photographers may operate however they wish, but let's look at the other side of the coin; as stills photographers enter the motion world because of the new generation of "combo" cameras, will not we motion guys enter their market as well?

What business model will we follow in stills work? I suspect many of us will continue with the practice of giving the footage to the client. Just a guess, of course; time will tell, but if one of my clients wants stills from our Red or my DSLRs, we give it to them, charging only for the post time to pull it.

Think about it; the client owns the Red footage. Does that not mean they own each individual frame? If I do the same job with a DSLR, why should the ownership change?

Good shooting and best regards,

Leo

 

[Fran Kuhn]

Hi Fran,

I agree with some of what you said, particularly the part about a new generation of semi-professionals, or emerging professionals, enjoying some of the work. We all started somewhere; it's just that the price of admission is dropping like a stone, and rates are being challenged as never before.

I hope you understand that the, "I own the images," model is a non-starter in most of the motion world. Our clients are accustomed to owning the footage for any use at any future time, except, of course for talent and sometimes music payments.

Stills photographers may operate however they wish, but let's look at the other side of the coin; as stills photographers enter the motion world because of the new generation of "combo" cameras, will not we motion guys enter their market as well?

What business model will we follow in stills work? I suspect many of us will continue with the practice of giving the footage to the client. Just a guess, of course; time will tell, but if one of my clients wants stills from our Red or my DSLRs, we give it to them, charging only for the post time to pull it.

Think about it; the client owns the Red footage. Does that not mean they own each individual frame? If I do the same job with a DSLR, why should the ownership change?

Good shooting and best regards,

Leo

Hi Leo,

Well, again, it's all about usage. I'm not trying to dodge the ownership/copyright issue, it's just that the bigger problem is people not understanding usage and why it's important not to simply give away images, including stills from motion.

If you shoot motion, your contract with your client should stipulate the usage, including still frames pulled for use in print. People forget that frame grabs for print have been done since the days when most commercials were shot on Arriflex IICs. It's really nothing new.

Just my opinion, but you or your agent or rep should be clear about additional payment for any motion frames used in print or collateral. There is a real value for these images, and keep in mind the client almost always has a separate budget for print. If at all possible, you should never just "throw those in" for free.

I can't pretend to know what your business model is about, but I think it's a bad idea to simply allow a client to grab stills from your motion work and only charge them for the post time. Unfortunately, I think we all know that's not only the future--it's exactly what's happening right now, and that's why in the near future advertising photography and cinematography will be little better than a minimum-wage occupation. That is, if we aren't all replaced by third-term Art Center students running Autodesk Maya.

BTW, don't think it's nit-picking or petty to ask a client to pay for stills extracted from your motion jobs. Keep in mind the day rates for still photographers on big ad jobs are usually substantially more than most top DPs could ever dream of. Five years ago it was not unusual to see top car guys charging $10K-15K per day for their fee. That's why clients love it when people are willing to forego the still fees just to get the video portion of the shoot. And once we wise up and start asking to be paid for our work, it's too late; we're replaced by the next guy who's got his latest-and-greatest new camera and is just dying to shoot anything for free just to build up his reel. The thing is, it's always been this way to some extent; it's just that now, with, like, 6000-plus REDs and all those Canons out in the wild, the breadline has never been longer.

Thanks, Leo. And good luck. I'm going back to painting the house, LOL. Got nothing else to do.

-Fran

www.frankuhn.com

 

[Chris Nuzzaco]

I think, once people wake up and realize that trying to control footage or stills after they have given them away is becoming more and more impossible; people will understand you need to charge more for the actual production and post production work. It's pretty much that simple.

Here's something I always say to myself when looking at various business opportunities:

You can only reliably sell what you can reliably control.

Intangible "usage rights" are flat out not one of those things. Sorry.

 

[Fran Kuhn]

I think, once people wake up and realize that trying to control footage or stills after they have given them away is becoming more and more impossible; people will understand you need to charge more for the actual production and post production work. It's pretty much that simple.

Here's something I always say to myself when looking at various business opportunities:

You can only reliably sell what you can reliably control.

Intangible "usage rights" are flat out not one of those things. Sorry.

Hi Chris,

I'm not sure what you were saying in that first part, but there's nothing intangible about usage in the world of advertising photography. Where the image is used, and for how long, is specified in every invoice and agreed to by the photographer and client. And it's been that way for a very long time, since long before I ever started shooting.

Best,

-Fran

www.frankuhn.com

 

[ericyoung]

And that payment model still works in Stock Photography and Footage - albeit with generally very much slimmer margins.

 

[MikeHedge]

does anyone have a good work for hire contract that they use?

 

[David Battistella]

From a business perspective this is a great time to be a producer. If you have a bit of cash to throw around you can get some very talented people, pay them a flat rate and go and try to earn the best return you can on the product you produce.

I'm thinking about the music industry and how it would relate to film.

Music. You write a hit song. The recod company makes money, you make money and the person who performs it makes money.

Film. You DP a great film. The actor looks great, the film hits the festival circuit, wins and award or two, a big distribution deal is done, great. Everyone gets a cool thing for their reel, but only one person gets paid.

Now, one might argue that the producer assumes all risk. What about a record producer, they do that too, but their are things in place to protect the artist and ensure they are paid.

In music, you could still have a hit and do well and not have to own it all. In television you have to own it all, in film, well you have to be a star.

I still equate film artists to the muscians who sold rights (flat rate) and never benifited, who knows how that trend will go, when the respect for filmed images (and music for that matter)(by the general public and a fresh generation who rarely paid for an album or a movie) is at an all time low and College RTV and Film school grads are at an all time high.

No give.


Daivd

 

[Chris Nuzzaco]

Hi Chris,

I'm not sure what you were saying in that first part, but there's nothing intangible about usage in the world of advertising photography. Where the image is used, and for how long, is specified in every invoice and agreed to by the photographer and client. And it's been that way for a very long time, since long before I ever started shooting.

Best,

-Fran

www.frankuhn.com

"Rights" are intangible, meaning they can't be touched. The "right to print on a lunch box" might yield a tangible thing, but the "right" to do that by itself is not tangible. Hopefully that clears it up.

I really see no issues with two people having a contractual agreement between each other, but the reality of enforcing those contracts has become absurd - more than ever before, especially with third parties who never entered into any formal agreements.

The ugly reality is that going to court and trying to enforce any of the millions of typical licenses sold for stock footage or photography usually winds up costing more than you win. Since 99% of the time legal action represents a financial loss; the best most agencies can or will even bother to do is send out a cease and desist letter to try and scare offenders into paying.

 

[MikeHedge]

ok. so anyone have a "work for hire contract" they use?

 

[Liam Hall]

Hey Mike, take a look here:

http://www.filmcontracts.net/

Best,

Liam.

 

[MikeHedge]

thanks!!!

which one works as a "work for hire" contract?

Freelance Contractor Agreement
or
Independent Contractor Agreement

http://www.filmcontracts.net/contracts/list.php?category=9

 

[Jeff Coatney]

Mike,

You may have to take one of them and draft onto it your own rights assignment clauses. You can get a lawyer to do it or just write it in plain english and get a lawyer's opinion which may be cheaper.

 

[Peter Hodgins]

They say possession is nine tenths of the law. In the "old" days the photographer had the "plates". If you "give" the shots away to your DIT you lose control. Anyways ... have a contract.

 

[Leo Ticheli]

If you stick with the stills photographer business model of, "I own the images forever," you are going to be at a competitive disadvantage against the traditional video model of the client owning the footage.

Unless you are so good/famous/unique that you can command whatever you wish, client's are not going to accept the stills model.

Good shooting and best regards,

Leo

 

[David Battistella]

If you stick with the stills photographer business model of, "I own the images forever," you are going to be at a competitive disadvantage against the traditional video model of the client owning the footage.

Unless you are so good/famous/unique that you can command whatever you wish, client's are not going to accept the stills model.

Good shooting and best regards,

Leo

Leo

you are so correct. It seems that not all image makers are equal when it come to copyright. You have to be really good. That's how you retain the rights.

The other way to retain the rights is to own the negative. That means any footage you turn over is no longer yours.

Most big time rights holders run their own studio which retains the rights to the images. Not a bad retirement plan if you are a great image maker. If you are making "pampers" it doesn't matter so much.

You have to be good enough to put yourself in the position to own the image.

David.

 

[Jeff Kilgroe]

ok. so anyone have a "work for hire contract" they use?

I have a few... But I'm not going to share, sorry. They are tailored to fit me and my business model and I paid my attorney to write them up. Which is what I suggest you do for yourself. Also be careful, in some states and markets, an agreement is not a "work for hire" agreement unless it specifically states itself to be one within the terms of the agreement.

If you stick with the stills photographer business model of, "I own the images forever," you are going to be at a competitive disadvantage against the traditional video model of the client owning the footage.

Unless you are so good/famous/unique that you can command whatever you wish, client's are not going to accept the stills model.

This all depends on WHAT you are shooting. For narrative cinema, commercials, corporate, etc.. I agree. Those are products that will either evolve well beyond the footage you shoot or have a limited lifespan or usefulness to the cinematographer anyway.

For those shooting stock, events, ENG, many EFP markets, or people creating original delivery concepts and products, ownership rights become very important. Especially so amongst independent shooters. If I go to work for a local news network, anything I shoot becomes their property, which they use to market themselves and earn derivative and residual income. If I'm an independent news shooter, which I have been on occasion, I retain full rights and in turn market that footage to various networks. If I shoot stock, I retain full rights, no matter who represents and sells the stock images, I can sell the same stock images through multiple outlets. If I shoot a wedding, why let let the stills photographer have all the fun? Actually if I'm shooting a wedding (which is something I only do twice in about 18 years, anyway), I would probably be handling both the stills and video and even more so with the latest and upcoming cameras. I retain full rights. Then I can continuously sell prints, DVDs, Blu-Rays, etc.. A good friend of mine and his wife shoot weddings and they retain all the rights to both stills and video and always have, and presumably always will. HD Blu-Ray weddings are all the rage right now.

 

[Chris Pickle]

Hi Leo,

With all due respect, rates charged in the advertising photography business are based on usage. It has to be that way for photographers to survive. With regard to stills, rates have historically been based on where the image is used. There's no sinster plot to stick it to the client--it's just what's fair and best for both parties. ...

www.frankuhn.com

But what I think is being debated is that this model is changing. I think at some point, a craftsperson will have to decide if the "day rate" or "session fee" is fair to show up for an afternoon and shoot beautiful people. Is it worth their time... time being the thing, not usage.

Now don't get me wrong, I don't disagree with your comments on the current model or its validity, I just think it's changing. No one feels that they have any obligation to make sure some other craft "survives". The market will decided what has value and how it's applied.

I think generally, all rates are trending downward, and always will. Some will find a niche, some will get in on the next step early and make great money for a while (like buying a Red), but eventually, it all gets hammered downward.

I'm a filmmaker so it affects me negatively as well, so don't think I like it or am advocating for it, I just think it's inevitable.

 

[D Fuller]

I'm thinking about the music industry and how it would relate to film.

Music. You write a hit song. The recod company makes money, you make money and the person who performs it makes money.

Film. You DP a great film. The actor looks great, the film hits the festival circuit, wins and award or two, a big distribution deal is done, great. Everyone gets a cool thing for their reel, but only one person gets paid.

David, I think you're mixing apples and oranges here. A DP's roll is not the same as a writer's role, neither in relationship to the creative nor the financial structure of a film. You write a hit movie, and you may or may not get back-end payment. That depends on the deal you made.

But looking at the music example, if you engineer a great record, you get paid a day rate for your studio and your talent, but you aren't likely to get paid any more if the record hits. A DP is a lot more like the engineer of a record than the writer of a song. The DPs's contribution is really important, but in the context of a film, it is not enough to justify inherent ownership.

In a film -- at least an independent film -- the ownership is likely to be in the hands of the writer, producer, and director (plus any investor they've sold a stake to). They work on the film for a year or two and get paid if the film finds distribution. The DP comes in for the shoot, gets paid, packs up their kit and leaves for the next job. Should the DP own the images? No. That's why they are most often paid under work-for-hire agreements.

By the way, there are only nine categories of "collective work" where work-for-hire agreements are recognized by copyright law. Motion Picture production is one of them for just this reason.

 

[David Battistella]

David, I think you're mixing apples and oranges here. A DP's roll is not the same as a writer's role, neither in relationship to the creative nor the financial structure of a film. You write a hit movie, and you may or may not get back-end payment. That depends on the deal you made.

But looking at the music example, if you engineer a great record, you get paid a day rate for your studio and your talent, but you aren't likely to get paid any more if the record hits. A DP is a lot more like an engineer in relationship to a record than to the writer of the song. The DPs's contribution is really important, but in the context of a film, it is not enough to justify inherent ownership.

In a film -- at least an independent film -- the ownership is likely to be in the hands of the writer, producer, and director (plus any investor they've sold a stake to). They work on the film for a year or two and get paid if the film finds distribution. The DP comes in for the shoot, gets paid, packs up their kit and leaves for the next job. Should the DP own the images? No. That's why they are most often paid under work-for-hire agreements.

By the way, there are only nine categories of "collective work" where work-for-hire agreements are recognized by copyright law. Motion Picture production is one of them for just this reason.

All very valid points.

A DP could be construed more as a lead guitarist or a soloist in the orchestra. I'm saying that maybe people in KEY roles could be viewed that way and then at some point there is a cutoff and after the cutoff you'd be dealing with engineers.

KEYS -
Let's say these people represent the band...
Exec Prod. Producer. Director. DP. Editor.

And the departments represent the engineers.

David