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 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.
Every now and then you get asked to shoot a project most people don't normally think of you for.
The truth is we are mostly known for shooting beautiful food.
This project we were asked to photograph anything that looked interesting or innovative in our clients building
and they would use it on their new website.
Here are a few of the images we ended up with for http://novationiq.com
Early in my photographic career, two of my photographer friends were out on a fine art photo trip and I suggested we all take a photo from the same tripod holes. I wanted to experiment and see if we all saw the world in the same way.
To my surprise, all of our photographs looked completely different. We all have, what I call our own "Visual Language". Everyone sees the world in their own unique way.
I recently took this a step further and looked to see if there were any similarities between my personal fine art photography and my commercial photography.
What do you think?
For those of you just getting started, the process of finding your personal "Visual Language" will take some time.
The best way I know to figure this out is to shoot, shoot, shoot!
The other advice I have that has helped me figure this out is, print out little thumbnail prints (no more than 2x3 inches ) of your favorite images. Lay them out on the floor and start putting the images together that look and feel similar. This will help you start seeing your own "Visual Language".
Although you can come close to imitating natural light, that imitation simply isn't the same. The combination of natural light and a long exposure time adds a quality to images you just can't achieve any other way.
When we designed our studio, we knew we wanted to be able to shoot with natural light. As part of the studio design, we added softening silks and blackout curtains to the windows so we could control the amount of sunlight that comes through to naturally light a set.
We recently shot a new line of holiday candles for Trapp Candles, one of our amazing, long time clients. On this particular project, we were challenged to illustrate how consumers can use Trapp's products in and around their homes. We were also challenged to show retailers how they can best display Trapp's products and achieve greater sales results.
We wanted the light in each shot to look natural like you'd see in your own home or in a retail store window. So we used the softening silks to diffuse the natural sunlight while still highlighting the products and set.
You may look at these behind the scenes images and ask yourself, "Why in the world are the table and chairs on apple boxes?" In order to achieve the right perspective between the table, product, and background, we had to raise the table and chairs. If we hadn't done this, we wouldn't have been able to see enough of the fireplace mantel to frame the shot. Just another trick of the trade!
Apple boxes were used to lift the table and chairs.
So many silverware options for our dining room table!
Adjusting the window silks to control the light on the front of the table.
Putting the finishing touches on the set before we shoot the final image.
After David completed the main shot, he moved in and captured a few detail shots.
Wax and wax melter shot.
Putting the final touches on the display image for retailers. This shot will be
composed with another image we shot to create the final display image.
Stacks and stacks of Trapp product!
Retailer display shot.
Some of the most difficult items to photograph are made of foil or chrome.
Here, David works to get the lighting just right on the foil product box.
Final dining room shot.
Final fireside pumpkin candle shot.