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.
From time to time you get the privilege to work on projects that really fires up your creativity. I love a good challenge. It helps to make me a better photographer.
From the get-go, I knew this was a client that had quality in mind. It's very rare to get layouts that the client has hired a professional artist to draw. Most of the time, you'll get a layout that has been cobbled together from stock images. If you're lucky, sometimes you get a storyboard with stock images and some sort of color palette. So as you can imagine, I'm impressed right from the beginning.
Starting a conversation with the art director, it was explained that they needed the project shot fairly soon -- and it was the dead of winter. Everyone quickly realized that the original concept of shooting the project in the middle of farm crops wasn't going to work.
So the challenge became, how do we convey the farm feel wanted and still keep the visual message on point? Our client suggested we shoot it in a barn. Will that work?
The overall concept was to have a humorous, tongue-in-cheek feel of an AA-type meeting, where a group of farmers along with a product (Agrotain) moderator is participating in an "Agronomists Anonymous" counseling session. During our conversations, we went from a "ha-ha" funny concept to a dark humor approach with a clandestine, voyeuristic feel that emphasized the dejected and ashamed plight of all the farmers. With the concept nailed down, we next had to figure out how to visually interpret it. As with many things, the answer evolved during the process journey. While spending a day and a half scouting looking for, and at, barns, the look of the images became mentally clear.
I came back and sent my scouting images along with a rough idea of the lighting and look I felt we should do for this project. The client agreed and we all raced to produce the project on time.
For a project of this scope, you have a lot of crew, equipment, and moving parts and crew that need to be thought through and pulled together.
Hair and Wardrobe Stylist
Props and Equipment:
Motorhome for models and crew to change, relax and work
Space heater (the forecast called for some of the coldest temperatures of the year)
Fuel for space heater (used more than 60 gallons of kerosene to power a 400,000 btu heater)
Dry erase board and tripod stand
Farming hand tools
etc., etc., etc.
As mentioned in past posts there are 2 things that allow for a great photo shoot --
1. A great client that hires you to do what you do best and then trusts you to do it.
Thanks Deanna, Joe, and Kristjan for being such great clients!
2. A great team behind you that makes you look good.
Thanks Paula, Catherine, Phil, Kent, Sarah, Tiffany and Braden!
Many times I've talked about the business of photography being really about problem-solving. This project was proof positive. Besides solving the visual challenges, you have production, scheduling and logistics to keep in mind. And of course, "Murphy's Law" always comes into play.
As it happened, the days we were shooting were some of the coldest day of the year (10 degrees), thus the space heater and RV. The first day of the shoot everything checked out and we were all on schedule when Murphy came by for a visit. Just as we were about to start shooting the generator on the RV decided to quit. No lights, no power for the computer, no heat. Ugh! We got it running but 30 minutes later it quit again -- shutting everything down again. While we had rented a generator to run all the lights for the set and the blower on the space heater, there wasn't enough capacity left on that generator to power the RV too. We were fortunate to find power in the barn and ran an extension cord to run the computer and the cabin heater to keep everyone warm. All the delays meant we almost ran out of fuel for the space heater in the barn.
Day two, Murphy decided to visit again. Upon returning to the studio from day one, I hooked the RV into the studio's power to run all the systems, including the RV's heater so the water didn't freeze. Well, that didn't work. As it turned out, there was a short in the RV's electrical system that drained the batteries and shut the whole system down. Finally got it fixed, but started day 2 (our longest shoot day) behind schedule. We finished the shoot around 1:30 in the morning and went to start the RV to go back to the studio and nothing!!!! In the rush to get back on schedule, I had left the ignition key on. There we were in the middle of the country, everyone else had left, and the RV would NOT start. We had our equipment van but no jumper cables. Luckily there was an all night Wal-mart 10 miles up the road and they had jumper cables. We arrived back at the studio at 2:30 in the morning, all safe but worn out.
The business of photography in much more than making cool images, it's about problem solving -- and always being prepared for the unexpected!
Turner Barn, Gardner, KS.
Shirk Barn, Lawrence, KS.
Loading the RV.
Our loaded equipment van.
Set-up underway at the Turner Barn.
Shirk Farm "campsite".
One of the products I purchased for this shoot was Camranger. It's a device that allows you to control every setting on most DSLR cameras remotely from your iPhone or iPad. I wholly recommend it.
Up in the hayloft positioning lighting.
Making final checks to the camera.
Double checking images on the location computer.
Sarah, our make-up stylist, getting ready to put a "farmer's tan" on one of our models.
Going over images with our clients using Camranger on our iPad.
Crew and client thawing out in the RV.
Models sitting in for a group shot to ensure all the positions of the models worked as a whole.
We shot all the models separately so we could get the perfect expression for each one. This was critical to the whole campaign. It also gave us the ability to move each model into perfect positioning in relationship to each other.
We wanted to add a little atmosphere to show off the light source and make it appear as if there was dust in the air. We used a smoke machine to add our atmosphere.
The nice thing about using Camranger is that you can be anywhere on set and fire the camera. It also allows you to be able to preview a large image with the client even before it is imported to the computer for final approval.
Remote capturing lets you direct the talent more effectively.
Shooting individual models to put together in post.
What it looked like to the naked eye.
What it looked like with our lighting and post production.
A little model attention from client and make-up stylist.
With all our shoots we like to have a little fun and capture a few silly shots.
Photo assistant and client standing in for a lighting test.
Here is a link to show how we put all the images together in post production:
How to video
And, below are the final results. We are very pleased. What do you think?
We recently shot a large buffet table as part of a shoot for our client. One of the products in the buffet was pizza. We needed a lot of them and they needed to look hot. The client brought in a pizza oven and our two food stylist and assistant started our behind the scenes little pizza factory.
Loading the pizza with goodies
Duel lines of pizzas cooking.
All bubbly and hot
All golden brown and oohie gooie
Arranging the pizza slices on set.
Everyone is hang'n anticipating the final ooey gooey shot.
Recently we had the privilege to work on a major campaign for one of the nation's largest tire and automotive retail companies which own's over eight national chain brands all around the USA.
We were hired to bring a more real "Americana" ( not staged ) look and feel to their Brands.
This was a major project with 10 crew members, months of planning and location scouting.
We often collaborated with hair and make-up stylist, food stylist, etc on projects but in today's ever changing advertising marketplace we are now collaborating with an even broader group of talent.
Today, we are collaborating with film companies, production companies, producers, and other photographers. Yes, I said it, other photographers! No one photographer can be all things to all clients.
We wanted to provide our client with the best possible outcome so on this project we collaborated with our friend James Meierotto to bring the right look and feel for this project. In our opinion, it was a win-win for everyone involved. The client agreed and was thrilled with the results. We are alway's thrilled to collaborate on projects to provide our clients with the results they need.
This was a fast-paced project with lots of people and equipment. We were shooting with 3 cameras on this project.
The first shot of any project always take a little time to make sure everyone is on the same page.
You don't always see hair and make-up being done in a tire and automotive store!
A little shade anyone?
Photos are looking good!
Part of the process was to make sure everything we shot was authentic and all the equipment we operated was being used correctly.
Brian Mangan, our production coordinator did an awesome job mapping out the shooting schedule!!!!
Chris, one of our photo assistants downloading some images on the fly.
A little make-up anyone?
So glad we were near a tire store!!!!
Caught ya! (:-)
Doing some quick editing as we go.
Thanks to everyone on this project for a great shoot!
Here are a couple of the final shots.