Part 4: What is Image Licensing?
A discussion of Image Licensing - or the licensing of any intellectual property - begins with an agreement to accept the the Laws of Copyright, first enacted in the United States by Congress in May, 1790. Copyright Law says that upon creation of a work in a fixed form, that work immediately becomes the exclusive property of the author who created it. No one else can claim copyright of the work, and control of its use is a the discretion of the copyright owner. A copyright holder has the option, but not the obligation, to permit the use of one or more of his/her copyrighted works. This permission is often granted through a license agreement that stipulates the specific work being licensed, the exact use(s) being granted, and the duration or term that the license will be in effect, after which time the license expires and ownership of the work remains with the copyright holder/creator.
Under treaty of “The Berne Convention for the Protection of Literary and Artistic Works”, over 170 countries agree to mutually respect each others’ copyright laws. Copyrighted work can be literary, musical, dramatic, pantomime, choreography, pictorial, graphic, sculptural, motion picture, audiovisual, sound recording, architectural work, mask works fixed in semiconductor chip products, or a computer program.
Copyright gives its owner the exclusive right to reproduce, distribute, perform, display, or license that work, and to produce or license derivatives of his or her work. Works are covered whether or not a copyright notice is attached and whether or not the work is registered. Copyright ownership occurs automatically at the moment of creation, and no one but the author can claim copyright to the work, unless the author grants rights to others in a written agreement. This is a very important aspect to know about photography. If a photographer photographs a project for you and doesn’t include in the contract a written licensing agreement, you have nothing. Per the US Copyright Laws, unless some form of usage licensing has been transferred to you in writing, you have no legal right to use the images. If you have a photographer shoot a project for you and just hand you a thumb drive with the images, you paid for nothing. Get the transfer of the copyright licensing in writing!
How does this apply to photography?
Photographs have a shelf life. Clothing and furniture styles change, old products are updated and new ones introduced, employees come and go, companies move and add locations and facilities. Commercial photographs need to change along with all of those business variables, and so a photograph that works today may or may not be the right image in 2 or 3 years. It sounds obvious, but before a photograph is created by a photographer, the photograph doesn't exist. It is the action of the photographer that creates an image. And it’s his control of an image’s use through licensing that is the foundation of the business model for professional photography. The license not only grants use rights to licensors, but provides a mechanism to prevent or prosecute the theft and un-authorized exploitation of an image by non-licensed parties, like a client’s competitors.
There are two fundamental advantages in the image license model to the consumer. First, since each different type of use is factored into the license cost, clients can purchase only the uses they need, instead of purchasing an expensive “all-use for all-time” license which would be prohibitively expensive. The second advantage is that if the image proves successful for the client, the license can be renewed at the end of its term, usually for a fee substantially less than the cost of a new photo shoot.
There is a third advantage, often overlooked by clients, is the very real incentive to the photographer to work even harder to create exceptional images. If the goal from the beginning is to create images that exceed the client’s expectations, and if there is a reward for that effort in the form of future licensing revenues from images that continue to offer value to our clients, the result is a win-win situation, with the client saving money on future shoots and the photographer being compensated for outstanding and timeless work.
Often clients don’t want to have to decide how their images will be used up front. Although that sounds reasonable, with a little investigation of advertising and publishing history, a fairly accurate expectation of uses can be identified. This is invaluable to both the client and the photographer so that, in the estimating process, the professional photographer can address requirements for resolution, size, media and methods for display and publication, and ensure that the images produced will meet the technical requirements for use.
This discussion won’t be complete without a mention of the wildly popular concept of “Work For Hire”. Irrelevant, yet often proffered in client-supplied contracts, “Work For Hire” is an attempt by corporations to gain the immediate copyright ownership for work done by employee photographers, without actually employing those workers. “Work For Hire” clauses typically assume that the company, not the photographer, will get immediate ownership of each image copyright upon creation (just as would happen in the case of works created by a company employee), but are accompanied by an “Independent Contractor” clause that states that the photographer IS NOT an employee, must work as a completely independent entity (providing his/her own equipment, transportation, insurance coverages, liability indemnification, tax responsibilities) and relinquishing any and all rights to use of the images they make, and standard employee benefits like guaranteed contracted employment, health care coverage, participation in pension and retirement plans, company-provided tools and equipment, coverage under blanket company insurance for liability, errors and commissions protections, and workman compensation in the event of an accident. Often presented at the last minute as a requirement for awarding a project that has already been negotiated, this is a one-sided, rights-grabbing tactic that inexperienced photographers often agree to without understanding its impact, but which experienced professionals recognize as an untenable demand and almost categorically strike from the contract.
If a client truly feels that they need the unrestricted use of an image, with unlimited rights in perpetuity (and on planets yet to be discovered in galaxies as yet unseen), a license can be created to give them those rights. It will, however, be expensive. Some might say ‘out of this world.
Part 3: How do I choose the right commercial photographer? What am I looking for in their portfolio and the first conversation with them?
Just as you have carefully defined your own business, photographers can be divided into a few basic categories, and then sub-divided into additional areas of specialization and expertise. Choosing the right photographer will require that you identify the general type of photography required for your project (architecture, food, product, fashion/glamour, portraiture, automotive, action), and then considering photographers who show additional experience or expertise in dealing with some of the subtleties of your particular project.
Many clients begin their search for a photographer with some kind of “shot list” - a general list of locations or products, or the number of photographs needed based on plans for brochure pages or social media space. Often those basic lists fail to consider the contribution of intangibles like style, mood, and message that will inhabit each frame, and will personalize and add meaning that brings the final images to life. At the point where you have decided to consider working with a professional photographer, you should be looking for someone who can turn your shot list into effective images - a collaborator who speaks the complex and nuanced visual language required to tell your story and can contribute ideas beyond your initial thinking.
REVIEW WORK ONLINE
The first step in selecting photographers to interview usually begins with viewing websites. Photographers generally try to define their area(s) of expertise in separate portfolios or collections of images representing their latest projects and their most accomplished work. Almost immediately you’ll start to see differences in visual styles from one photographer to the next, and the closer you look, the more you’ll start to feel that certain images work better for you than others. You may see work that’s been done in your industry, making those images more relevant to your project; and then you may see styles that you hadn’t considered that make you think about your photo shoot in a whole new way. Some photographers have just one look that they’ve honed and perfected, and some are versatile - successful and comfortable working in a number of different styles. As you react to the images, remember that each of the projects you are being shown may have been created for a client like you, with a shot list, aesthetic requests, specific locations, product requirements and business outcomes that shaped the final results.
IS THEIR PORTFOLIO CONSISTANT
You’ve spent a lot of time and money on your logo, your brand’s colors, the copy you use to communicate your brand. Your “Visual Branding” is just as important. It should have a consistent look and feel also. Although a photographer may specialize in a number of different categories, ( lifestyle, fashion, product, etc.), each portfolio or collection of images may be photographed in a different “Visual Language”, but each category should have a consistent look and feel. A consistent portfolio is directly related to our next point, “Experience”
Most photographers will also post a list of their clients. Combined with the images themselves, this can speak to their experience level and give some insight into the size and quality of the projects they’ve worked on. Don’t underestimate the value of experience. A valid (10-year?) track record in business means that they have successfully navigated the intricacies of a variety of clients and productions. They’ve identified and solved more issues than your single project can present, and know how to avoid problems before they arise. They work efficiently and responsibly, carry insurance, have covered the legal aspects of permits, location fees, model and property releases, copyright, trademark clearances, labor and employment laws, unions, taxes etc., and know how to provide all of the elements required to complete your images seamlessly through post-production, and to industry standards.
Take your time with this research, and assemble a list of a few photographers whose work you connect with, who create images you would be proud to have represent your business.
Of course an in person meeting is best, but a phone or Skype discussion is an option for out-of-town connections.
There is a person behind each of those images, and that’s who you’re going to be working with.
The initial meeting is your opportunity to put a personality with the images. Often a photographer will present work in an in person meeting that is assembled based on your description of the project, and may not have been on their website. Ask questions. There’s a story behind every image that may be relevant to your project.. Discuss budgets. Experience will come with an “investment” price tag - but understanding what it takes to produce an image will help you grasp the value of the photographer as a collaborator and creative problem-solver.
Evaluate your discussions. Are they listening to your ideas? Are they offering suggestions that parallel yours and presenting relevant new perspectives that you hadn’t considered? Are they knowledgeable about what’s needed to accomplish the project? Can they articulate the practical aspects of production as well as the aesthetics, and balance the two? And do you sense a genuine interest in your work and a commitment to taking your basic ideas and adding tangible value?
A good photographer won’t try to ‘sell’ you on his photography. In fact, he or she is, in that very same meeting, trying to evaluate you as much as you are him. The success of any project relies on good chemistry between personalities, and a common ground of mutual respect.
A good photographer is trying to thoroughly understand his client’s needs and aesthetics in order to create successful images. And a good client knows that hiring an expert is wasted if you don’t let them do their job, keeping an open mind to ideas and solutions that appear as a project evolves.
After having a number of discussions with the photographer, you will probably find that each one has a slightly different approach to your project. These may be basic stylistic differences, approach to producing your job, their previous experience on similar projects, and/or fundamental suggestions that they make that change your initial preconceptions about what the project should look like. These initial discussions and meetings are about ideas and possibilities - and your sense of the potential to achieve them. Understanding each photographer’s vision is essential to the next step - choosing the photographer for your project.
Part 2: When should I hire a professional?
Although this is an age old question, it has become more complicated with the advancements in digital technology. Cheap digital cameras, digital editing and retouching software, lots of YouTube “How-to- videos” have converged to make this a more perplexing question than ever.
As a business owner, I get it. If all you need is to cheaply document a product, widget, or thing to say here it is, buy it, then most professional photographers can’t compete with you doing it yourself. Having said that, “cheap” is not always cheaper in the long run.
Let me throw out a few more things to think about when it comes to “Cheap isn’t always cheaper.” Time is money. Anything that takes you away from what makes you or your company the most money is not cost effective. Then there are set-up/equipment costs. The cost per square foot of space you dedicate to a photo booth and equipment. The cost of purchasing, maintaining, insuring, upgrading all your photo, lighting, computer equipment, data storage, backgrounds, and props. If you hire an employee or use an existing employee then you have employee costs as well - payroll, training, workman’s comp. insurance, medical insurance, vacation, sick leave, maternity leave, etc, etc.
All of these cost are factored into a professional photographer’s fees. The good thing about hiring a professional photographer is you only have to pay these cost during a photo shoot and not 24/7 all year long. Any time you invest money into space, equipment, etc., if it’s not making you money, it’s costing you money. If you’re going to be photographing 5 days a week every week of the year, it could be cost effective for you to do it yourself, but that’s probably not the case.
And there’s another factor to think about even at this stage.
The current trend for advertising agencies and companies is to bring a lot of their photography and motion work in-house. They’re seeing these services as a profit center. In my almost 30 years in the industry, I’ve seen this happen before. This strategy, in the past, has worked for 2 to 3 years and then they have come to the realization that it isn’t a good solution after all. What happens is that their clients will start seeing that everything the in-house department does, looks the same. Hiring professional photographers and directors for their unique visual aesthetic is what emphasizes each brand’s unique visual voice. In the past what they’ve eventually figured out is that all the costs related to bringing production in-house really doesn’t pay off in the long run.
OK, I can here it now - “We’ll just use ‘stock photography’ and retouch it to make it fit our needs.” There’s nothing wrong with stock photography as long as you’re willing to see the same image being used to promote hundreds of other products. Maybe even your competitors product. Let me share an insight with you. If you’ve spent much time looking for outstanding stock images, you know how long it can take. Then you have to get it approved. Then you have to buy the license to use it. Most likely, after that you’ll need to do some retouching too. If you add all the time and money you spend using stock, you most likely could have hired a professional photographer to create a custom image for around the same cost.
From our experience it ultimately boils down to this: What do you value? Do you value your time to do what you do best? Do you value a still or motion image that stands out from everything else and effectively sells your product? Do you value images that look specific to your brand? Do you value someone with years of experience solving visual communication problems? If you do, then invest in hiring a professional photographer/director. The investment will pay huge dividends.
Part 1: What is a commercial/advertising photographer?
The simple answer is, they are “Visual Communicators and Problem Solvers”.
Commercial photographers don’t only take beautiful and creative photos; they also understand great design and the psychology of selling. They are business owners, critical thinkers, managers, negotiators, legal counselors, visionaries, artist, scientist, retouchers, software experts, image asset managers, producers, directors, time managers, researchers, trend analyst, marketing experts, lighting experts, etc. etc. A professional commercial photographer is so much more than someone that takes pictures. They have the knowledge and experience it takes to create images that will help convince the target market to make a purchase. Let me give you a couple of examples to help illustrate this.
Example 1: Let’s say you sell beef and beef products. You decide you need some photos for the web, a flyer, and some recipes. Let’s say this is an all-natural grass fed beef. Our job is to creatively visually communicate what you want your audience to know about your product. If you haven’t already clearly defined this, a good photographer will need to ask you a number of questions to find this out. If you’re selling an all-natural grass fed beef you most likely will want to emphasize that it is healthy. Years of research have shown that a light and bright food photo will communicate healthy better than a rich and moody photo. What is the audience demographics? Why does this matter? You’re going to use different props for a 18 to 35 year old audience than you do for a 35 to 55 year old audience. Do you want it shot on location with models to show a person enjoying your product? How many locations? Do you want to shoot in the kitchen and dining room? Do you want the location to have a country look and feel or a contemporary look? Do you want it to look upscale or authentic and approachable? The stylist will need different food for side dishes and will style the food differently depending on the answer. Are you selling to a retail consumer market or a food service, restaurant market? Answers to each of these questions determine the course of further research, refining the nearly limitless variables and resulting in a carefully defined and effective intention for the photographs to be made. As you can see there is a lot of thought that goes into a photo shoot so you can create the right “Visual Communication” to market your product. Commercial photography is way more than “I have a product, what will it cost to take these photos? The cost of a photo shoot will be covered in Part 5.
Example 2: Let’s say in this example you need 5 to 10 lifestyle shots of a jet. First, there could be a huge cost difference between 5 shots and 10 shots (it is, after all, twice as many). Let’s say, if we shoot 5 shots they will all be on the inside of the jet. If we do 10 shots, 5 will be on the inside and 5 will be on the outside. Even a large jet is a very confined space. This makes production logistics more difficult and work move slower. Most likely, you will have to light the interior from the outside of the jet. This means lots of lights and lots of power. This means lots of set-up and take down time - extra-height stands, scaffolding, and communications requirements between the photographer inside and the crew members outside. Do you want models in the plane? How many? What ethnic model mix do you want? You will need at least one hair and make-up stylist. What kind of wardrobe do you want? How many different wardrobe choices do you want per model? How do you want the jet propped? Do you want it to look casual with food and wine or do you want it to look all business with papers and laptops? Do you want it to look like the middle of the day when they are flying or are they flying at sunset? Let’s discuss the exterior photographs. Are these static images of the plane in the hangar or is the plane moving? On the tarmac. Taking off and/or landing? Do you need air-to-air shots of the jet flying? This involves a second jet, lots of coordination, and special equipment and insurance will be needed. What background do you want behind the plane? Will it be stripped in, in post or shot on location? If stripped in - will you purchase stock imagery or do you need us to shoot unique images specifically for the backgrounds so you don’t see them in your competition’s photographs? Costs vary dramatically depending on your answers Will you want sports cars, models, pets, and luggage? Are we shooting at sunrise or sunset? Will we need special insurance and permits? How long will it take to get these permits?
We could, and will, go on and on with additional detail questions - we have to in order to define your “Custom” photo shoot. Some answers lead to new questions - and often these are elements that a client has never considered, but about which they have definite opinions. Commercial photographers need this detailed information and communication in order to provide you with the best “Visual Communication” possible. In addition, we need it to be able to provide you with an accurate cost for the project. The more information we have the better we can come up with creative solutions that help reduce costs and streamline the project.
Last but not least, we all know that emails can be the best and worst way to communicate. We recommend that you, at minimum, schedule a phone meeting with the photographer, and better yet, schedule an initial in-person meeting to establish a meaningful overview of the needs of the project. We understand everyone is very busy, but this is where you’ll get a better understanding of a photographer’s passion for their work and their problem solving abilities. This will make a huge difference in how smoothly the project goes, how closely it meets your needs, and the eventual success of the final images.
HOW TO WORK WITH A COMMERCIAL PHOTOGRAPHER, AND WHY
Commercial photography, like many professions, has changed radically in the last 10 years, heavily influenced by the industry’s transition to digital. Interestingly, although the adoption of this technology is pretty much universal in commercial photography, the process of making images that serve the needs of clients is remarkably unchanged. As always, command of the tools and processes is essential, and very different from relying on automatic camera settings and processing presets. Professional photographers make their images long before the shutter is tripped - and that is the value that they bring to the creation of commercial imagery.
With the advent of automatic cameras, improvements in camera phones, and the ability to have the equipment often achieve acceptable exposure, focus and color, nearly everyone claims to be a photographer. But, if your needs as a client are more than simply properly exposed images or just documenting what’s in front of a camera, then you are entering the realm of the professional commercial photographer.
Hard-working photographs don’t just happen, they are created - conceived to meet specific needs based on carefully defined parameters, planned to allow attention to the detail of each of the elements involved - tangible and intangible, controlled to ensure efficient and effective use of the resources assembled for the production day(s), and then finished to ensure delivery of a mastered image that is both technically accurate and artfully complete.
At this level, in addition to the tangible results of taking a picture, the final image and its effectiveness rely on inquiry, definition, interpretation and execution to create a photograph that effectively communicates a message to the viewer. Practical elements like location, sets, props, casting, wardrobe and narrative are considered along with the intangible, but powerful, affects of mood, atmosphere, style and design to produce an image that not only shows a product or service, but also conveys a feeling about it.
If a well-exposed image is now accessible to anyone, it is communication between photographer and client, development of concept, experienced production and the crafting of the final image that separates the commercial photographer from the scores of untrained camera owners who claim to be photographers.
In this series of articles, we would like to identify and explore the contributions that make professional photographers more valuable than ever, especially in commercial applications where images have replaced headlines and must engage and compete in a world assaulted by visuals. This series is aimed specifically at people who are ready to enlist the services of a commercial photographer, some for the first time. We will highlight the role of professional photographers as collaborators in the creative process, not tradesmen with a bag of equipment, and consider how a client can best access their expertise to create measurably effective marketing assets.
1. What is a commercial/advertising photographer?2. When should I hire a professional?3. How do I choose the right commercial photographer?4. What is image licensing? 5. How much will this cost?6. How do I get the most value from the photographer I hire?7. How long will this take? I need these photographs right away.8. What makes me a good client? Does that matter?
This informational series is a collaboration between Mark Berndt, owner of Mark Berndt Photography, and David D. Morris, owner of David Morris Photography, who bring more than 60 years of combined experience in both the commercial photography and motion industries to the subject. Much of their work has received the industry’s top awards and their client lists include many of the country’s Fortune 500 companies.
Mark Berndt Bio: http://markberndt.com/bio/
David D. Morris Bio: http://www.davidmorrisphoto.com/people2