Photographers and other artists definitely are NOT at the mercy of publishers and other consumers of their work. At least they don’t have to be.
- Occasionally I rerun an older post, either because it’s a favorite of mine or because I think the subject it covers deserves a fresh look. Today’s post, originally published over seven years ago, falls in the latter category. Many of my blog followers are photographers themselves and may benefit from my experiences and even from some of my mistakes. Long time followers of Feathered Photography have seen today’s featured image before (as recently as two weeks ago) but most of the potential value of today’s post lies in the events I’ll describe rather than in the photo. For this version I’ve edited the text, added text and changed some of the formatting.
A recent experience taught me that photographers and other artists don’t necessarily have to accept outrageous contract stipulations from publishers or other consumers of our work or lose the deal. There’s another page in that playbook.
About three months ago I received an image licensing request from the director of a prestigious design group (I’ll call her “Mary”) responsible for developing interpretive panels for a new nature center in the state park system of one of our largest states. Mary requested “one time use” of my image for one of those interpretive panels and asked what my fee would be for such use. I told her my fee and she submitted the information to State Parks for approval. Approval came a few weeks later.
1/1250, f/7.1, ISO 500, Canon 7D, 500 f/4, 1.4 tc, not baited, set up or called in (though the carp was killed by refuge managers)
This is the image in question and it’s one of my favorites – a Bald Eagle eating a fish in midair while other birds (out of frame to the left) were chasing it.
There were two and only two components to our informal agreement, negotiated by email:
- State Parks would have “one time use” of my Bald Eagle image #4372 for their interpretive panel at the new nature center
- For such use they would pay me my requested fee
That was it – there were no other conditions agreed to, requested or even mentioned by either party. As per usual in these situations I expected to be sent a contract that reflected our agreement. I received the contract but what it reflected was something very different from what we’d agreed to. When I read it three paragraphs (below) in the Copyright License Agreement made my jaw drop, literally.
- “I understand that the Department wants to use and reuse the Material, as the Department deems appropriate.”
- “I hereby grant the Department an unrestricted, fully paid up, world-wide, irrevocable, perpetual license to use, reproduce, distribute, create derivative works, publicly display and perform the Material, in whole or in part, in any manner, for any purpose and in any medium now known or hereinafter invented. This right includes, but is not limited to, the right to copy, publish, distribute, alter and publicly display the Material for education, interpretation, advertising and other purposes consistent with the mission of the Department.”
- “I understand that I will not receive any money for this license agreement or for any use described above. I understand that I will retain the copyrights to the Material, but hereby grant an unrestricted license to the Department.”
In a flash I was angry. I take my photography very seriously, my images mean a lot to me and I despise being duped or taken advantage of. I let myself cool down (a little) and then fired off the following email to Mary.
“Mary,
Your request for my image was for a “one time use” by State Parks for the interpretive panels at xxx Recreation Area. I agreed to that use for a fee of $xxx.
The contract you sent me stipulates the following:
* that I will “not receive any money” for the image
* that you have the right to alter my image
* that you have the right to create “derivative works ”from my image
* that you have the right to use my image in any medium you like
* that you have the right to use my image virtually any way you like, whenever you like, forever
That’s just not going to happen. Not for $xxx or for 10 times that much.
I don’t know how the agreement you and I reached became altered to the bizarre terms stipulated here but I will not sign this contract.
Sorry,
Ron”
I thought Mary responded professionally and appropriately. She said that she had questioned this contract in the past more than once with State Parks and that some other photographers had reacted to it the same way I did. But despite that, apparently State Parks had been insistent on using this contract for some time and hadn’t yielded. She told me that she would “find a resolution” and she did. A few days later Mary sent me a different and much more palatable contract, the germane portions of which I’ve listed below:
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Title of image: bald eagle eating mid-air
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Description of use: nonexclusive, one-time, one-format use at the recreation area
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Duration of use: indefinite. May be reproduced over the lifetime of the display
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Credit line to read: Copyright © Ron Dudley
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Destination of image: interpretive panel
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License fee: $xxx
I signed the contract, sent my image to Mary and received my fee. Mary and the design group were never an issue with me. She was professional, forthright, efficient and a delight to work with. I’d work with her again in a heartbeat. My problem was with the original State Parks contract, not with Mary.
So, what’s my point with all this? My point is that photographers and other artists need not roll over and play dead when publishers and other organizations or individuals attempt to hold them hostage with outrageous contract stipulations. High end consumers of photography and other art know quality and they generally know what kind of product best fits their needs. But they’re also highly aware that many photographers are desperate for “exposure” and willing to accept almost any terms offered just to get their work published and in front of the public. I most definitely am not.
Sure, I could have lost the sale and the “exposure” by refusing to sign the original contract but those folks knew what they wanted and when I made it clear that I would not accept their one-sided terms they immediately became more reasonable. It was a chance I was willing to take and I’d do it again, even if I knew up front that doing so would cause the deal to fall through.
Just sayin’…
Ron
Note: As a photographer nothing gets my dander up more quickly than to receive in image request offering me only “credit” and/or “exposure”. Invariably the author of such a request will receive one of the following smart-ass responses from me:
- If I wanted exposure I’d join a nudist colony.
- People die from exposure.
Or just as likely I’ll completely ignore the request.
Regarding that “exposure” thing…
…for a number of years I’ve fronted an acoustic music trio. For a decade or so we had a regular monthly gig at a local restaurant though now it’s mostly just the occasional public or private event for which we provide a bit of live music.
There were always folks who’d approach me at the end of the gig with “Wow, you were great! Would you come play at our party/event? It’s only four hours long and we can’t pay you anything but it would be GREAT exposure.” To which I became very quick at responding–as you did: “If we just wanted exposure we’d play naked.”
The other one was: “You’re great but why do you charge so much?! Don’t you just love to play?” To which my reply always was: “Absolutely. But we do not love loading the instruments and PA in the car, driving X miles, unloading the instruments and PA and setting it all up then tearing it down and loading it all back in the car three hours later, driving X miles home and unloading…not to mention rehearsing. You don’t pay us to play. You pay us to show up.”
Folks aren’t paying for your pictures. They are paying for all it takes to make a picture show up.
Those who practice the arts–whether photography or any other form–know these things in their bones. Those who do not practice an art always require a bit of re-education!
I very much enjoy these occasional “bird walks” off the great bird pictures path.
Well said, Jim. Very well said.
Ron, I never know how to price an image when asked if an organization wants to use it in a phamphlet or perhaps a local magazine article. Is there a resource that would guide me in doing that ? Perhaps you could write a column with some guidelines from your personal experiences for us uninitiated photographers ?
Gary, I’m afraid I’m not one to offer advice on that subject. I continually struggle with it myself.
But I’ll tell you what. Unless it’s an educational or conservation group near and dear to my heart I’ll always ask for a licensing fee of some amount. For me it’s a matter of principle.
That is constantly being debated among the pros as well. They ultimately resort to using “cost of doing business” to figure out an hourly rate, and therefore how much time they spent capturing, editing mounting (etc) the image.
For people who do not earn a living on photography, it is more a “fly by the seat of your pants” method! As Ron said, if it is for educational purposes, or a legitimate non-profit, I only ask that they give me credit (and a tax receipt), but for commercial entities, I charge based on how much they will profit off of it. A picture that a big book publisher asked to use for a book cover netted me 4 figures, a picture used for a small circulation brochure was more in the range of $50-100.
I hope this helps.
Sage advice, Roberta. Thanks.
Thank you Roberta !!
That was an interesting post. What a beautiful photo they found and wanted to use. I am happy it all worked out for both parties. Stand up for your rights. I wonder if I will see that picture same day in some State Park.
Trudy, If I remember correctly it was a state park in CA.
Ron,
I think your response proper. I also think most State-run outfits have a templated policy and they just sent you their knee jerk contract, since many are overjoyed to get anything published, under any conditions.
Nice image, glad you get the bucks… DID they ever use it more?
“DID they ever use it more”
Not that I’m aware of, Richard.
Yay for Mary being willing to “fight city hall” and yay to you for not rolling over with respect to the original “contract.”
Love your responses to “exposure” requests. I firmly believe that all artists, including writers, composers, musicians, graphic artists, computer programmers, etc. deserve fair and adequate compensation for their work! You wouldn’t pay your doctor for a single office visit and then expect her to treat you, your family, your neighbors, and your dog for free in perpetuity, why would you ask an artist to do so?
Thanks, Marty. Good point.
Gentleman that you are, it turned out a win-win-win for you, the state park and the public to see your photograph.
I might have sent a high quality print of bs to the state park headquarters with a note saying “since you so duplicitously changed the conditions of our agreement, I’ve changed the photograph to reflect your business practices. Feel free to make copies for your attorneys.”
Your comment made me laugh out loud. Thanks for the chuckle Lyle 🙂
Thanks, Lyle. I’m not always referred to as a gentleman by any means so it’s appreciated.
I am glad you got it resolved. I use to enter a few of the state and federal parks photo contests until I read their fine print about use of MY image.
Yup, the “devil’s in the details”, April.
That’s one reason I never enter photo contests but it isn’t the only reason.
I hate such bully tactics. I have encountered such similar attempts myself. The University once published one of my Wood Duck photos without my knowledge or permission. (They a copy of the image from another publication that did have the right to use it.) When it was brought to my attention, I contacted the editor of the publication. I was told that they had to right to use any of my work anytime because I was a University employee. I informed them that this photo was NOT taken as part of my job or taken during work time. They needed to pay my fee or face legal action. They paid. Another time I was asked to present a program to the University museum. My presentations represent a considerable investment of my time and use well over 100 images each. I enjoy doing these and don’t expect much from the non-profits that often request them. When I arrived to give this program, I was unexpectedly presented with a contract that at the end of the program I was to leave it with them to use as they liked and that they would own the copyright to all of my images. I refused and loaded my projector and headed for the door even as the audience was arriving. They finally agreed to drop the contract and I presented my program. Finally, I wrote a column about birds in our local newspaper for over 10 years. This was as a private contractor, not as an employee. I always included one of my photos. The paper always paid me and always considered that I had all rights to the copy and the photo. They once asked my permission to share one of the columns with another paper and paid me for that usage. It was great and never any problems. But after years of being a locally owned paper, it was sold to a national chain. Local editors were fired and changes were made that considerably degraded the quality of the paper. They wanted me to continue my column since it had a large local following. However, they would no longer pay me and they required that I turn over to them my original photos and they would then own the copyright, requiring me to get permission from them and pay them to use my photos in the future. The last they heard from me was a very strong reply and a warning that use of any past columns would result in legal action. Many people have asked why I stopped writing my column. I always tell them the truth and as a result, some of them decided to cancel their subscription to the newspaper in support of me. Always stand up for your rights. It can be a hassle but your work has value that needs to be recognized.
Those are horrific stories, Dan. Your last two sentences of advice are spot on.
That state contract is typical of the boilerplate language of contracts at all levels of government, including local. And their attorneys just say, “We have to do this to protect our interests,” so staff (or their consultants) are usually left no choice but to comply and hope they can get their desired artwork. But it’s hard to imagine anyone would agree to (especially) the second point in the contract you were presented—it’s a joke. Not a funny one, either.
But I’m glad it worked out, thanks to your own diligence, and that beautiful Bald Eagle is part of a public display!
Chris, I think Mary deserves some of the credit too. She was kind of caught between a rock and a hard place.
I’m wondering how many people have signed the “amended” contract. I can imagine 2 contracts, this one and the “Ron” contract 😁
I would be so excited to walk into a nature center and see my favorite…. a beautiful Bald eagle❗️
Mary knew the value of this gorgeous shot ❤️
“’I’m wondering how many people have signed the “amended” contract.”
Probably a bunch, Diana. Lots of photographers out there would give their shutter finger to have one of their images on a state park interpretive panel.
But all they’re doing is devaluing their own work and the work of other photographers and artists.
Many thanks are owed. To:
– Mary’s organization for changing it’s contract to a fair and respectful agreement. Many would not. We hope they will respect others as well;
– Mary for having a sense for beauty, wonder, and respect for the hard moment captured so well in the photograph, and for her dogged determination and successful effort to share the photo with the public;
– You for all your work to capture that moment so poignantly; and
– of course, the eagle and the fish.
Kent, gotta admit that I’m curious to know of State Parks is still using that contract. My bet would be that they are.
Thanks for sharing this useful and important lesson learned, Ron. I think sometimes the bureaucratic agencies have boiler plate that they send around. I am glad you called them out and the situation was resolved.
I love your comments about “exposure” 😉
Thank you, Ed.
Thanks for sharing this experience Ron. Was very happy to read there was an amicable ending. Did Mary send you the original contract or was it sent by a legal representative? Am surprised Mary didn’t review the contract before it was sent to you – pretty basic homework in a negotiation. Art is precious and the artists who create it are even more precious.
Kathleen, Mary sent it to me. I don’t hold her responsible at all. As I said in my post she questioned State Parks using that contract with photographers but they wouldn’t budge.
Had to laugh reading Judy’s comment that verbal agreements not being worth anything. Whenever I hear a reference to a verbal agreement I recall the scene in the movie Jerry Maguire where Tom Cruise playing a professional sports agent is attempting to sign Beau Bridges’s star quarterback son to a pro football contract. Beau says he does not sign contracts, but his word is his bond, and it is stronger than oak. Of course they shake hands, and then a little later in the movie he has his son sign with a different agent. So much for my word is my bond. Guess that is why we have attorneys.
“Guess that is why we have attorneys”
Or at least part of the reason.
This image is a real masterpiece and should be considered as such. Your reaction is legitimate and appropriate. Fortunately, there are still Marys to bring common sense and some form of justice where it is too often lacking in the modern world. Have a great day!
Thank you, Laval.
Wow. Glad you sent the request back to “Mary”. What a ridiculous contract. There’s a thread on NPN about the Audubon contest that is similar (not quite as egregious) and people are asking if it seems OK and fair since they would get “exposure”. Yeah…. right…. join a nudist colony. Great article and of course one of the best images I’ve ever seen of a Bald Eagle.
Keith, as you know the subject of “exposure” has been a fairly hot topic on NPN for years. With some folks some things never change I guess.
A friend and highly accomplished wildlife artist on Facebook put it this way: “Exposure is a valueless currency that’s only traded in by hucksters and dupes”.
AWESOME, Ron!! Your post today is just another reason I SO love your blog – You are one righteous human being!! I can’t believe that contract the State Park had the nerve to send you!!!!! You’ve got guts, Big Guy!! (and were SO in the right!!)
Much appreciated, Jo Ann. Don’t know how righteous I am though… 🙂
Excellent! One has to be VERY careful with “agreements”. Unfortunately, many verbal agreements are no longer worth anything and what one person says, and what the contract says differ. Glad Mary was the professional and willing and able to, along with you, give them a “tune up” – deal with it professionally. Yay! Laura even if it was a hard lesson to learn.
Thanks, Judy. Mary was a pro.
The Irish in me came forth almost immediately as I started to read the state’s contract sent to you in contrast to what you agreed. I thought that was the end of the story, but you did manage to work out a compromise with “Mary”, but I was still ticked off. Their contract was so one-sided that there was zero wiggle room for you. That photo eventually could have been used by them and anyone else just about anywhere and at anytime they chose.
Do you ever have an attorney look over these offers and agreements?
PS: That one and the other in-flight eagle with the outstretched talons are my two favorites
Thanks for posting this very interesting account.
Everett, this experience made me think I had a little Irish blood in me too. Maybe more than a little…
The only thing I’ve used an attorney for regarding my photography is copyright infringement.
Hi Ron:
I am not sure if you or your readers are aware that FINALLY, thanks to years of work by the Professional Photographers of America, the last stimulus bill passed in December, included the Copyright Alternative in Small-Claims Enforcement Act of 2020 (“CASE Act”) that had been languishing for years. I had been one of many photographers who sent cards and notes to my members of congress about this for many years…
The bill allows “smaller” copyright infringement issues to be handled in small claims court, avoiding the huge legal bills that were required before. If your image wasn’t worth 4-5 figure amounts, it could cost more to fight it in court than the value of the image. The CASE Act changes that, and protects a lot of photographers, many of whom run small business where image theft impacts their bottom line.That is probably how it got into the stimulus package. It isn’t perfect, but it is a start. You can find some details and discussion here:
https://www.ppa.com/articles/u.s-house-senate-finally-push-case-act-across-the-finish-line
https://www.gibsondunn.com/covid-19-relief-bill-creates-new-small-claims-copyright-board-stronger-criminal-penalties-for-illicit-streaming/
That is good news, Roberta. I’d read about that bill in the past but didn’t know it had passed. Thanks for the heads up.
Exactly! Exposure is standing naked in a blizzard in the middle of New York City! As an artist, you have to learn to value your work. If you don’t, no one else will! That was a hard lesson for me, but I got it when an editor sold my work in Japan and Italy, where I was unlikely to see it. Thankfully, another writer saw it and alerted me to the plagiarism! I got his job and proper compensation
And I LOVED the Coops photo! I love how they control their feathers and love watching them tuck a foot!
“I got his job and proper compensation”
I loved that outcome, Laura!
I am decidedly (and increasingly) a grumpy old woman. That contract would have made me see red to the point where I probably would have been happy to cut off my nose (and gouge out my eyes) to spite my face.
Not only did Mary behave professionally when challenged so did you.
All kudos to you both.
And bad cess to the legal eagles at State Parks.
Thanks, EC. Mary was a breath of fresh air in a very uncomfortable and disturbing situation.