For more than 50 years, the almost exclusive vehicle for publishing photography has been the print media. Newspapers, magazines, books, brochures, billboards and other print media have carried photography into the public view at an ever increasing rate.
As the twenty-first century approaches, we see that images in all forms, including photography, are being used in an ever increasing array of media applications. They grace the editorial and advertising pages of magazines, convey history in video applications, fill computer screens, and find their way into films and other audio visual works. Regardless of the media in which images appear, photographs all have one thing in common their reproduction rights have value.
The control of the right to reproduce an image is one of the basic rights granted by copyright law. This right was given to copyright owners so that they could profit from their work, and thus be motivated to create more. The connection between copyright rights and profitability has been recognized since the days of the very first laws governing such rights, which date back to the mid sixteenth century in England.
Today, magazines reach print circulations up to 22 million (Modern Maturity), and photographs can be reproduced millions more times on computer screens via electronic distribution. Regardless of the media or specific application, the right to reproduce an image requires that the right to do so be secured from the copyright owner.
Photographers need an orderly system for assigning value to their images, which assures a reasonable profit while not creating unfair exposure to those securing the rights. In an effort to ensure the perpetuation of adequate systems to meet these goals, ASMP has prepared and published this white paper.
Dick Weisgrau, Executive Director, ASMP
All prices and other data in this white paper are included for purposes of example and information, only. They should not be considered to be representative of any survey, nor should they be construed to be recommended or endorsed by ASMP, its members or the author.
The term "electronic rights" covers an ever widening collection of licensable rights. As increasing amounts of media content are delivered in electronic forms, the scope of the phrase "all electronic rights" becomes ever more extensive.
For clarity and comprehension we will present the following definitions used by ASMP in this chapter.
Media - tangible means for distributing an image. Generally there are three types of media:
Application - a particular vehicle within a given medium (magazine, annual report, encyclopedia)
Product - a capture or presentation means (video tape, paper, CD-ROM, etc.)
For photographers, print and electronic media offer the greatest opportunity for publication. However, these opportunities are quickly diminished if the reproduction rights are not carefully defined, controlled and priced. Most photographers would not license "all print reproduction rights" to a client unless there was a very high fee. Print rights include magazines, books, encyclopedia, posters, brochures, etc. In keeping with that logic, it is unwise to license "electronic reproduction rights" without limitations.
Electronic rights include many products, such as video tapes, video discs,
CD-ROMs, on-line presentation, broadcast television, cable television, and
more. To grant reproduction rights of images by using only the phrase "electronic
rights" is to undermine profit-making potential. While an image in
print would normally be used in only one application, an electronic application
using that same image can be served up in many different forms. A successful
on-line product can easily end up as a CD-ROM or vice versa.
Audiences have come to expect more visual information in electronic media, so the demand for images is increasing. The means of determining the value of images in the electronic market place is similar to that of the print market. While the media and the markets might be different, the rights and business practices recommended by ASMP for print are also applicable to licensing rights in electronic media. Electronic media should not be considered replacements for print markets, but rather, as new markets for photographs. Therefore, the additional demand for photography in electronic media effectively increases the overall value of photography
When licensing rights or usage, photographers should be specific about which media they are granting rights for. Although electronic and print markets frequently overlap, they should always be considered distinct and separate for the licensing of rights or usage.
Determination of the value of visual content in both markets depends upon a variety of factors. However, two principles of business never change.
The specific factors affecting image value are:
Assessing value is both a science and an art. One can scientifically determine specific size, placement, number of copies, and similar statistics. Risk can be assessed to some degree based on the use and the terms of releases. However, the level of competition and the novelty of an image are elusive. Assessing these factors is more of an art. It requires that the photographer learn how the particular user values the image. The difficulty lies in the fact that experienced photo buyers (clients) are often reluctant to share this information.
Electronic media should be regarded as new markets for publication. Pricing for any publication, be it electronic, print or otherwise, should be based on industry standards of usage, volume, and other accepted practices. Elsewhere in this paper are examples based on the pricing system developed by the Media Photographers' Copyright Agency (MP(C)A). Regardless of the media, any rights granted should be clearly stated and should reflect equitable compensation forsage.
Photographers should be most wary of entering into speculative arrangements that might result in the loss of control of their copyrights or prevent them from earning any further income from their work, yet allowing others to profit greatly. Also, if photographers accept the risk of a small return in the event of poor sales, they should demand a significantly greater return if sales are good. If photographers share the risks, they should also share the rewards.
Compensation for usage is structured in different ways. Some of these are:
1. Flat fee - the photographer is paid a single, fixed amount for the use of his or her photograph(s). Generally, the broader the license or the more usage extended, the higher the fee will be. If the usage goes beyond the original license, additional fees must be negotiated and paid. The flat fee is often the simplest arrangement for both photographer and buyer.
Example: An image is licensed for up to 1/4 page, one-time, non-exclusive use in a consumer weekly magazine, with a 2,000,000 maximum circulation for a fee of $250. If the final usage is 1/2 page instead, the license fee might increase to $350 or $400.
2. Structured tier fee schedule - a schedule of fees agreed upon between the photographer and client. The photographer's fee increases when distribution of the product reaches certain levels, such as the number of on-line accesses, the number of CDs pressed or the number and size of each broadcast.
Example: A photograph is reproduced as a cover of a brochure, on a non-exclusive basis, with reprinting rights extended to the client for a one year period.
In this case if the buyer prints 20,000 copies or less, the photographer is paid $870. If an additional print run of 35,000 is made (totaling 55,000), the photographer is paid an additional $420. If an additional press run is made after the one year term of the license, the fee reverts to the starting point.
3. Percentage of sales fee - the photographer receives a percentage or a stipulated fee for every sale. This could be an amount based on the selling price of every disc, publication or book, or it could be a stipulated fee for every download or access to an application. Frequently, this would be in addition to a base or guaranteed minimum for the usage. In this manner, the photographer can accept the risk of a small return if the product is not successful, yet share in the reward if the product succeeds.
Example: A photograph is reproduced as an 11 inch x 14 inch framed print for a 12 percent royalty on the wholesale price, before taxes and delivery fees. The wall art might sell in a retail outlet for $50 with the wholesale price at $25. At a 12 percent royalty, the photographer receives $3 per unit sold. The photographer might negotiate a $1,500 minimum guarantee, paid as an advance against the first 500 units sold. An additional royalty of $3.00 per unit sold would be paid to the photographer for every unit after that.
4. Per unit (produced or sold) fee - the photographer's fee is based upon a fixed payment per unit produced or sold, with units produced being the most popular method.
Example: A photograph is reproduced as a full screen image in an on-line editorial application.
A pricing mechanism is needed which allows for pricing per access to the on-line image. A royalty based upon total number of accesses is in order. Using the chart on Page 8, we take a mastering fee of $30 and add it to the distribution fee. If there are 10,000 accesses, the fee is $30 plus $60 equaling $90 total. If the accesses are 50,000, the fee would be $30 plus $100 totaling $130.
When it comes time to set the value of images in an actual transaction, all the foregoing information must be applied. To do that, photographers take different approaches, depending upon whether the images licensed are generated on assignment or are selected from an existing library (stock).
Assignment pricing can be complex, and the basis of pricing varies. Advertising, editorial, corporate, and architectural photography each have their own pricing peculiarities. Stock photography licensing, however, is more standardized and can more readily be used to demonstrate pricing systems that take value factors into account.
In an effort to illustrate the use of value factors, and to show a specific licensing method, we have received permission from the Media Photographers' Copyright Agency (MP©A) to publish some of their fee structures and value factors.
The MP©A pricing system is based upon the following criteria:
1. Mastering fee - payment for the right to make a master copy, from which all other copies are made. This master could be, among oer forms, a printing plate, a digital file in a computer, or a film negative for a motion picture. Regardless of the media or means by which it is captured, the master is the first copy from which all copies to be distributed are made.
2. Distribution fee - payment for the total copies made, published, viewed, etc.
3. Multiples - factors which are used to adjust the price for value added attributes such as size, novelty, multiple reproductions, etc.
The tables below are examples of the MP©A basis price list for brochures, educational books, and editorial use. An example of how the lists are used follows each listing.
Mastering fee: $100 per image, plus
Additive Distribution (per unit) fees below
5,000 (min.) |
$ .020 |
||||
Next 15,000 |
.006 |
||||
Next 30,000 |
.003 |
||||
Next 50,000 |
.001 |
||||
Next 150,000 |
.0005 |
||||
Next 250,000 |
.0002 |
||||
Next 500,000 |
.00015 |
||||
Next 2,000,000 |
.00008 |
||||
Over 3,000,000 |
.00004 |
| Example: | ||
| A brochure in a quantity of 50,000 | Mastering fee | $ 100 |
| 50,000 Distribution Fee | $ 280 (100 + 90 + 90) | |
| Total License Fee | $ 380 |
Mastering fee: $100 per image, plus
Additive Distribution (per unit) fees below
10,000 (min.) |
$ .005 |
||||
Next 10,000 |
.004 |
||||
Next 20,000 |
.003 |
||||
Next 20,000 |
.002 |
||||
Over 60,000 |
.001 |
| Example: | ||
| A textbook in a quantity of 15,000 | Mastering fee | $100 |
| 10,000 Distribution Fee | $ 50 (min. 10,000 use) | |
| Next 5,000 Distrib. Fee* | $ 20 (.004 x 5,000) | |
| Total License Fee | $170 |
* This quantity is a portion of the next 10,000 line colored in the above example. If the quantity had been 17,000, the multiplication would be .004 x 7,000.
| Mastering Fees: | ||||
| Type | Monthly | Weekly | Daily | |
| Consumer Print | $ 50 (*Ex. #2) | $ 30 (*Ex. #1) | $ 20 | |
| Trade Print | $ 40 | $ 20 | $ 10 | |
| Corporate Print | $ 40 | |||
| Institutional Print | $ 30 | |||
| Any electronic use | ||||
Example #3 | ||
Ex. #1 & #2 | ||
| Printed size/placement | Screen (electronic placement) | ||
| 1/4 page: | Base fee | Regular use: | Base amount |
| 1/2 page: | 125% of base fee | Section head use: | 175% of base amount |
| 3/4 page: | 150% of base fee | Title use: | 250% of base amount |
| Full page: | 175% of base fee | ||
| Double page: | 225% of base fee | ||
| Cover: | 300% of base fee | ||
Copyright is an intangible asset, and it can be leased or sold. All of the previous examples are based upon the photographer retaining copyright ownership of their work and licensing usage. There are, however, cases where photographers are asked to transfer the ownership of copyright. In such cases, determining the complete value of the image(s) and copyright are of primary importance. The photographer should note:
There are two common arrangements for clients to obtain copyright from photographers.
1. Assignment of copyright ownership - generally, an undesirable arrangement for photographers and other content creators, since it involves a complete transfer of copyright title to the buyer. The creator will lose all control over the use of the work, and will be unable to make any future income from royalties, residual sales, resale or stock licensing of the material. If the photographer's client sells the images to a stock agency or decides to market the images as stock themselves, the photographer will be put in the impossible position of competing directly with his or her own work.
Generally the needs of most clients can be satisfied through usage terms and written guarantees by the photographer not to resell the material to competing clients, making a copyright transfer unnecessary. In the rare event that a copyright assignment is deemed by a photographer to be truly necessary, an appropriate fee should be negotiated by the photographer to compensate for future income that he or she will be unable to earn from the material.
Example: A photographer whose fee for a specific package of limited rights is normally $1,500 per day, might have an increased fee for copyright assignment of $6,000 to $10,000 per day.
2. Work-for-hire - ASMP is opposed to work-for-hire arrangements for all independent contractors. Under a work-for-hire, the photographer not only loses the copyright to the work from the moment he or she creates it, but also loses all rights to authorship. This includes loss of the right to be identified as the author of their own work. Additionally, photographers cannot recapture their copyright ownership after 35 years, a right they have when they assign it. In any situation where ownership of the copyright is absolutely required by the buyer, photographers should consider arranging an assignment of copyright, at a rate which fairly compensates them for the entire value they are giving up, rather than doing a work-for-hire.
Digital technology has made it far easier to copy photographic images. High quality scanning, image capture and digital reproduction devices, available at re latively low cost, have resulted in a greater risk of unauthorized copying of copyright protected material. ASMP supports the protection of electronically distributed images through the use of watermarks, encryption, pixel-embedded copyright notices and other effective protection schemes. These techniques should be used on all sizes of electronic files, since even the smallest files can be easily interpolated on a desk top computer to yield reproduction quality images.
Physically protecting a photograph from unauthorized reproduction is a task separate from copyright protection. The majority of unauthorized reproductions are usually the result of a client's being confused about what usage was licensed by the photographer. Photographers should make sure the client understands that it is illegal to use an image for any purpose or time period other than that permitted by agreement.
Electronic publication, particularly of multimedia titles, represents a merging of two major industries - traditional print publishing and motion picture/television production. Both industries have relied for decades primarily on independent contractors and content providers. For the print industry, this includes writers, photographers, illustrators and editors, while the film industry also includes actors, producers, directors, musicians, voice over talent, set designers, crew and countless others. The two industries, however, have evolved separately in their approach to acquiring content.
The publishing field generally treats content from outside (non-employee) sources as material which is licensed for specific use. This is how most independent still photographers have structured their businesses, as well. Photography and writing done on assignment for a client, is owned by the author, and is licensed for limited use to that client.
The film industry, however, is different and far more complex. The simplest documentary film can rarely be done entirely by a single person due to the need for a camera person, audio technician and an interviewer or producer, at minimum. Most productions require even more people, and therefore, are considered collective works. Through necessity, production companies usually hire their contractors, including photographers and cinematographers, under work-for-hire arrangements. Contribution to a collective work and contribution to a motion picture or audio-visual work are both categories enumerated in the Copyright Act as qualifying as work-for-hire.
Multimedia has created a hybrid of these two industries, along with a conflict between them regarding rights. This has resulted in two different models for the acquisition of content for multimedia - a print publishing model and a film model. Although not yet an industry standard, some multimedia producers coming from the print industry generally adopt the print publishing model, and are willing to license specific and limited use or consider royalty payments to photographers and other content providers working on assignment. Producers from the film and television side tend to use the film model, wanting to pay flat fees for assignments and to own all rights to the material.
There are no advantages for photographers under the film/TV model. Content and its ownership are key elements in the expanding electronic market place. ASMP urges all photographers to carefully consider the long term value of copyright before agreeing to transfer its ownership to another party.
Moral rights, which are different from copyrights, give creators the right to control attribution (credit) and the integrity (alteration) of their work. Moral rights protect the integrity and the paternity of the original work of an artist. They provide a level of sanctity to artists' original creations. Unfortunately, in the United States, there are currently no moral rights attached to images made for publication. Only fine art works, created for exhibition, and of which 200 or fewer copies are made, are eligible to receive moral rights protection.
Generally, moral rights in the U.S. are enforced through contracts governing the license of photographers' work to their clients. Two contractual terms - photo credits and alteration limitations - are generally used to do this.
Photo credits - A key part of the compensation photographers receive for most uses of their work is the photo credit and/or copyright notice. This credit is as justified in electronic media as it is in print. For photographers, the credit lines accompanying published images provide important name and professional recognition. Many photographers require that their fees be tripled when their photos are reproduced without proper credits. It is important to stipulate this up front in written contractual terms, however. Visible copyright notices also serve to remind the viewing audience that the images are protected under copyright law. The ease with which digital files can be copied makes the use of copyright credits important. Placement of credits and copyright notices are an element in any fee negotiation. It doesn't do photographers any good to have their work seen by millions of people, if those people can't identify the photographer. Prominent credits and copyright notices make a difference, and further assure the protection of images in the many countries outside the U.S. that have more strict laws governing moral rights.
Alteration - A photographer might wish to allow a client to alter his or her work where alteration is customary - such as in advertising, or may wish to restrict alterations where they are taboo - such as in news reporting. Regardless of whether or not one will allow alteration of one's work, ALWAYS INSIST ON INDEMNIFICATION FROM THE CLIENT if the work undergoes any alteration. Keep in mind that alterations include element changes, subtractions and/or additions. Appropriate contractual language for dealing with credit and alteration can be found in the chapter Formalizing Agreements.
While countless new concerns have arisen with the advent of electronic and digital technologies, many of these are identical to those which photographers have experienced for years. The digital tools and electronic delivery systems available today simply provide better abilities and more opportunities, both to photographers and users of photography. These tools also facilitate undetectable alterations to photographic images, which can deceive the viewer.
ASMP is opposed to any alteration of the content of a news photograph. ASMP is also opposed to the undisclosed manipulation of the content of photographs presented as fact in editorial and documentary coverage, or in any other forum where photographs imply truth and fact. We urge all photographers and publishers to exercise caution when considering the alteration of photographic content.
A whole new realm of usage rights has been brought upon photographers with the advancement of digital and electronic technology. No longer are the mass distribution and reproduction of photographic images limited to print publications. Electronic media are already dwarfing the scope and distribution capabilities of traditional print. Photographers have the responsibility as visual communicators, content providers and copyright owners, to understand electronic technologies in order to serve their clients' changing needs. We must understand these new markets before we can adequately and fairly license our work for use in them.
Talk with your clients. Talk with each other. Learn together. It's a new world of opportunity for everyone.
Scott Highton has been a national director of ASMP and was the founding chairman of the ASMP Technology Committee. He also serves as the Liaison between ASMP and the National Press Photographers' Association (NPPA).