I have had a very difficult situation to deal with recently with a trusted and valued client who started using images outside of the agreed contract, and despite requests for the contract to be renegotiated to include these extra uses, those uses continued, with the client refusing to pay for them because he believed that as he had paid for the images once, that he should 'own' them.
We are not talking about a fool here - one generally does not become an MD by being foolish, no this is a clever and intelligent businessman. Possibly one who is inexperienced in the commissioning of photographers, although he would deny this vehemently of course.
How does one deal with a situation like this?
Well, one can simply give in and allow ones self to be bullied and ignore the extra uses. That keeps the 'status quo' - for a while at least, but what happens when the next flagrant contract abuse occurs?
Or one can try and bring some understanding to the situation.
As someone who is a firm believer in both the integrity of contracts and of copyright, I chose to take the second option, knowing that with some people reason and common sense are not always enough to win an argument...
My response:
"I absolutely
respect your business experience, but I believe it is also fair that you have
some respect for mine. I have been a
working photographer running businesses supplying both stock and bespoke
imagery to a wide number of clients since the late 1970’s. As I mentioned at our last meeting my more
recent clients include Rolls Royce (in Derby), Royal Mail, Unison, Nottingham
County Council and Farmers weekly. A
disparate group it is true, but all of whom use photographers such as myself on
a regular basis. In each case as a
supplier, I have an agreement with them as the client. The client specifies what is required and I
agree to supply imagery to that specification, for an agreed fee. This is the
way I have always conducted my business.
It is not usual to specify 'unlimited usage' of imagery, but when a
business requires this, it forms part of the contract, and remuneration to the
supplier will reflect this extra value.
Had your business
made clear before the agreement was entered into, that it required an unlimited
licence to use my images, then I would have been happy to oblige, (and still
am), but I would have expected (and expect) an appropriate adjustment to the
remuneration to cover the extra value this would give the images supplied.
In the UK
created works such as photographs, music, art, are covered by the 1988
Copyright act. http://www.legislation.gov.uk/ukpga/1988/48/contents
In the Act it
is made clear that the author of a work is the first owner of any copyright in
it. The rights to use that work is then
licensed to users as required. Even when
work is commissioned, the ownership remains with the creator. The only exception to this is if the creator
is employed as a creator on ‘staff’ (PAYE).
In which case the company employing the creator, and supplying all the
tools of the trade, paying the appropriate taxes, and monthly salary, is the
copyright holder of the work.
The licenses
granted to use created works such as photographs vary in cost according to the
use made of that work: size of use, frequency of use, scale of use, and longevity of use - the greater the use, the greater the fee.
When
commissioning photographic work the second element that affects the fee is the ‘cost
of production’. In the case of the
photographer this will reflect the amount of specialist equipment required to
achieve the technical specifications required, the amount of experience a
photographer has, and also the amount of time taken to not only acquire the
images in the first place (travel, time on site), but also the time taken to
process and edit the images to bring them up to a suitable publishable
standard. Regrettably, even with digital
images, ‘what you see’ is not ‘what you get’, and in most cases it takes much
longer to process digital images than it does to acquire them in the first place.
It is very rare
indeed for a client to require ‘unlimited’ use of imagery, partly because of
the extra cost that this entails, but also because most imagery dates
relatively rapidly. It is almost always
more cost effective to purchase the occasional exceptional use ‘out of contract’,
as in most cases the supplier will give a discount based on previous use.
In the case of your business, (with regard to the original contract), there are far in excess of
100 images being used on the website, images are also used in local publishing,
both editorial and advertising, the images are used for your business' own
publications. The photographer attends your business site on demand, for several hours each occasion, several times a month,
and covers special events very intensely.
Images are located from the photographers Digital Asset Management
system, resized as required and forwarded to publishers etc., on demand, and all
for an inclusive monthly fee of £290.
For my other
clients, the lowest fee I receive for my work (for a non-profit making union)
is £350 for a days photography (including processing), giving a years unlimited
use for the clients editorial and advertising publishing of (up to) 30
images. Copyright remains with the creator,
and licensing can be extended to three, or five years or beyond for payment of
an additional percentage of the original fee.
As you will be
aware I have been concerned that the agreement between your business and myself
has expired, and that it required discussion so that the newly evolving needs
of the business could be examined and catered for. This includes billboard advertising. Now that you mention that your business
requires unlimited use of my work then this also can be discussed, although as
I have mentioned, I think it would be beneficial to ascertain exactly what
licence is really and truly required, and for how many images. Whilst there may well be a nostalgia value to
a very small number of the images that I produce for use by your business, I
cannot envisage any other use of images taken (say) in ten
years time. However, if there are uses,
and these can be specified then I will be pleased to come to an appropriate
arrangement.
If as has been
suggested, all that is actually required is the facility to store images for
possible future use, then I have already agreed in principal to the storage of
my work in a DAM system for recall as required, (it is already written into the
original contract).
Whilst a
contract exists between us the images can be easily accessed. Outside of contract, the images can be just
as accessible and on the rare occasion an out-of-contract image is required for
use the appropriate fee can be paid – at
that time.
I do not
believe that I work in anyway different to any other experienced
photographer. I go to great lengths to
assist my clients in identifying their photographic needs and using the created
works that I supply to their greatest advantage, and obtain the best possible
value out of the high quality work that I provide.
It would be
very easy indeed to accede to any request made by a client for extra work or
uses, and simply invoice accordingly.
However, I resist this, and instead try to work out with the client the
most efficient way to use my services.
This is what I am endeavouring to do with your business.
If your business
still has to have unlimited use of imagery supplied under contract, then I will
happily comply, but I will expect an appropriate increase in the fee paid, and of course a contract does have to be in
place. If your business wishes to
purchase unlimited use on images not taken under contract then this can also be
negotiated.
I value the
work I do with your business, as I value all the services I provide, all of my
clients, and would wish it to continue.
It is always a joy to see the excellent use that your business put my work
to and to see the business expand as the marketing and presentation continues
to improve.
I apologise
that this letter is so long, but I feel that the matters needed proper
explanation. I hope that I have managed
to clarify my position, and that we can recommence negotiations with regard to
the photographic service I provide your business as soon as is
convenient.
Yours sincerely"
Will this letter regain me a valued client - probably not? (I don't want to embarrass the client so I have made a few obvious changes). The client has made a decision based on assumption, and I have found out (by experience) that on occasion when one is 'found out', one generally does not like to admit an error. No doubt other local photographers are already being offered the opportunity to bid for the work, and I am sure there will be some out there who will abandon good business practice and copyright, simply to have a little money coming in.
Sometimes discussed and agreed contracts, dedication, good work and cost effectiveness are not enough.
Pete Jenkins
Member of: The National Union of Journalists
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