[Birdman]

FRANK OTTO “Frankly, unless you are self published, everything we do is a work for hire”

Frank, I have to disagree with your statement.

First and foremost, unless a “work for hire” agreement is signed by the photog, the Copyright Act of 1976 and as amended AUTOMATICALLY assures the photographer that the image is legally his/hers and any usage thereafter must be granted by the copyright holder. There are, of course, additional issues regarding registering a copyright for the purposes of seeking punitive damages, but the bottom line is the image belongs to whomever created it.

Maybe your statement was a philosophical one as opposed to the legal stuff. If so, I still disagree with you, but if that’s your business plan and manner of operating, to each their own.

Further reference may be found at this link:
https://asmp.org/commerce/assignment.php

The bottom line is creatives of all genre are under fire from those that would use their services. Last year, Congress passed and the President signed a bill that limited the payment of “overtime” to many different catagories of employees. Although “freelance” photogs obviously could not be included (unless work for hire was the manner of employment)many in the creative sector were…for instance, I have a close friend who has worked on many tv commercials for one of the major auto makers. In order to get a commercial ready for the Superbowl, he worked for 36 hours with an occasional 1 or 2 hour meltdown. He put in over 80 hours in a 5 day “work week”. Guess who DIDN’T get paid overtime. He has no equity in the company, he is not “management”, and he did not share in the massive profit that was realized from the “rush fees” charged to the auto maker.

If it seems like I just digressed from the “topic”, I don’t think I did. “Work for hire” is a truly bad thing for any creative. Next time someone tells you they want to own the images you create, inquire if you will be covered by their work comp and liability policies, their auto liability insurance, their E&O insurance, and if their health plan includes dental and vision. Might give them an insight to what it REALLY costs to produce the images they need for their ad campaign.

Sorry about the soapbox…

Regards – David Bird

[Birdman]

I’ve never used “fair and reasonable” in any of my contracts. The reason – I can’t afford to pay an attorney to enforce a really, really vague term.

Price everything up front. If the prospective client needs additional useage, add it to the invoice. Do not work for hire. (unless you plan on seeing one of your images that you thought was going to be used in a brochure in a full page, 4 color ad in a nationally distributed magazine.)If you do work for hire, just get a job at the local newspaper…it will be a lot less painful.

Freelance photogs have a tough enough time making ends meet without being paid for the actual usage of their images. I have sold “all rights” once. I’m not saying “never again” (never know what economic adversity one might be facing) but if the client demands “all rights”, I usually just thank them for considering me and suggest they find someone else that might be able to work under their terms.

Most (but not all) agencies and image buyers understand the issue and usually don’t push for all rights.

This “work for hire” thing really got hot in the 90’s when National Geographic dropped their typical way of doing business and demanded that their photogs do the work for hire. Geographic lost a lot of very, very good shooters.

I have a “damage” clause in my contract that stipulates a specific sum if originals are returned damaged. I base the damage fee on the total amount of the job. This is sorta a moot point for me, nowadays since most of my work is delivered in a digital manner.

Lastly, an agent. Agents are great if you can find one that will REALLY promote you AND you have a killer portfolio. Good agents see lots and lots of work by unknowns. Your chances of finding a good rep are pretty slim. (unless you are already known – chicken or the egg thing)

Hope some of this helped.
David