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COMMON SENSE AND PLAIN DEALING | by Richard Weisgrau

Ralph Waldo Emerson once wrote: "Nothing astonishes men so much as common sense and plain dealing." Photographers and their clients could profit immeasurably if each lived by Emerson's words in their daily dealing over rights to use images.

Professional photographers and their clients share at least one thing in common. They own businesses, which have to be run like businesses, if they are to succeed. Every business has needs and the right to fulfil them. Consequently, many business owners appreciate that a mutual concern for each other's needs is simple common sense. And plain dealing, through negotiations aimed at meeting each other's needs, is the way to fair deal. People fight out of need more than greed, and the key to resolving any conflict is to meet the needs of both parties. Hence, the first step requires an acknowledgement of these needs by the parties involved.

Let's look at the needs of the typical client being serviced by the typical photographer.

Clients need to:
• Exploit every dollar they spend to the maximum
• Maximise their income to assure their future profits
• Protect their corporate images from harm
• Avoid disadvantaging themselves in future dealings
• Avoid liability and damage from unforeseen circumstances

Now, when a client makes a demand that a photographer sign over his or her copyright, it is usually for one of these underlying, abstract, but understandable reasons. However, what the photographer hears from the client is something quite different. Clients say that a copyright must be transferred to protect a proprietary process, or corporate identity; they say that they do not want to have to negotiate additional use; they say that they must have it because their legal departments have told them this is the way to do it.

All of these arguments are understandable but unconvincing to the majority of photographers who put their hearts and souls into their work. Photographers, like their clients, are in business, and, in fact, share many of the same needs. And, when working together, clients and photographers also have similar interests. Both desire a quality job that they can exploit and from which they can obtain future value, and for which they will exchange fair value. This makes perfect sense. Now let's get to plain dealing.

Photographers have to recognise that their clients have the right to fulfil their needs. Supporting that right and fulfilling those needs is good business. Clients must also recognise that photographers have the right to fulfil their own needs and recognise and support that right. However, many businesses fail to see the needs of their photographers. They take a short sighted view of the business relationship and try to win all in their negotiations, under the assumption that the supply of talented photographers will never shrink. In other words, they put copyright control as their bottom line and tell photographers to take it or leave it.

Take it or leave it copyright demands bring to mind the story of the short sighted businessman who made such a good deal with a critical supplier that it put the supplier out of business, which in turn crippled the buyer's business when other suppliers could not meet his demands. So let's examine the other side of the story. Why should photographers need to retain copyright to their works? The answers are simple.

Photographers need to:
• Establish a body of work that serves as an asset and identity
• Have the right to promotion by showing the fruits of their labour
• Increase future income and profitability to assure future stability and growth
• Guard against improper exploitation of creative efforts

Just like the needs of any business, the photographer's needs are logical. But let's look at some specific needs of the client commissioning a photography assignment.

From each job, the client needs the right to:
• Increase usage and expand to other media
• Control and maximise the benefit from expense
• Maintain necessary confidentiality and exclusivity of use
• Have predictable costs and avoid uncertain future pricing
• Profit from commissioned creative work

Interestingly enough, this set of needs is not irreconcilable with those of the photographer. In fact, it is competitive and complementary at the same time. The competitive aspect rests solely in the price to be negotiated. Each party wants the most to be gotten from the investment of time and money. This kind of competitive interest is good for the relationship and easily negotiated. The interests of each party are complimentary in that neither side is in conflict with the other. The needs of each can be met with simple understanding based on common sense and plain dealing. Here's how:

First, it should be stated that the copyright can be bought or sold when deemed appropriate by both the client and the photographer (anyone can sell an asset). However, it isn't necessary. There is no client need or interest regarding copyrightable work that cannot be licensed and contractually provided by the photographer. For example, pricing of future uses, expanding circulation, reuses, etc, can all be agreed to in the early stages of a negotiation. Whether by fixed fee, percentage of the original fee, or by no increase in fee at all, both the financial interest of the client, as well as the right to exercise such future uses at will, absolutely can and should be protected.

Clients often need to protect their image, processes, executives, and employees from undesired exposure. This proprietary interest can and must be protected. Again, this can be done by the photographer who as copyright owner should agree not to license such images for any other use by anyone except the original client. When clients protect their needs and secure only the rights they need, the photographer is able to exploit the value of the non-proprietary images for his or her future gain, whether indirectly from the promotional value of the work or from the residual value in the rights not granted to the original client.

On the photographer's side, the majority of photographers make some share of their revenues form the sale of residual rights. These revenues contribute to the profitability of the business, which in turn keeps the general cost of assignment photography lower. It is simple mathematics. If a photographer cannot use a commissioned work to obtain residual fees, it will simply drive the price of commissioned work up and up. If you take away that right, you must pay the price to cover the loss of that right.

A simple understanding of the needs of the client and the photographer can lead to a dramatically improved working relationship - one in which the photographer and client work together to produce the finest possible images, at the best possible price; one in which the photographer and client get all the value to which they are entitled by their needs, not their wants; one in which the mutual dependency of both parties is recognised and provided for. The interests of photographers and clients are not irreconcilable. These interests can be accommodated by negotiations aimed at meeting the needs of both the client and the photographer. The simple fact is that all this conflict over copyright ownership could be put to rest with common sense and plain dealing.


This article is an excerpt from The Real Business of Photography by Richard Weisgrau. Richard is a professional photographer from Philadelphia and former executive director or the American Society of Media Photographers.

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