Ashley Morrison's Blog

September 11, 2016

The Exchange.

I’ve talked about Licensing here: Base Usage Rate – which is basically where one agrees beforehand, to hire oneself to do the work first, and then you ask your client (or clients) to paid you (when you go to invoice them afterwards) for the Rights to use that work (that you obviously own, after you have created the images).

So in a way​, this is a bit like agreeing to sell them ‘Stock images’ afterwards – all be it ones which you knew before you took them or produced them or even created them, that they would want to use them… as well as what they wanted to use them for, how long, etc, etc.

And I’ve talked about agreeing to do work made for hire here: A ‘Work Made For Hire’ type of agreement – which is basically where ones ask​ their client beforehand, to pay you for not only ‘your time’ to do whatever work it is that they wanted you to do for them, but also cover all of the other expenses too (like cameras, lights, lenses, computers, etc, etc) – so as you can then do whatever work it is, with that gear that they want you to use, during the time period that they have agreed to pay you for.

Both of these types of agreements can work well for both parties, as far as I’m concerned – as they are both pretty clear-cut and therefore easy to understand.

Today however I’m going to talk about The Exchange agreement – which is basically where one asks the client beforehand, to agree to pay you for your time to do the work (and possibly something towards your out-of-pocket expenses too) in exchange for the Rights to use any work that you do.
Which sounds straightforward enough – and is, so long as neither party asks to many questions and everyone just expects that once the invoice is paid, that’s it.
So the photographer gets what they want (which is to be paid for their time & expenses) and the client gets what they want (which is some images for them to use).

Which means everyone is happy smile

Happy that is, until like I said about, one or other parties starts to question what exactly the deal is or was here. For example, did the photographer agree to All Rights here (meaning the client would now own the Copyright) OR was it just for the Rights to use the work in All media for an Unlimited period of time throughout the World (meaning the photographer would still own the Copyright, but the client could use the images for as long as they liked, in any way that they wanted to, etc, etc) Or was it for the Rights to use the work for less than this ?

And are we talking about Exclusive use here (meaning only this client can use the images) or are we talking about Non-exclusive use here (meaning others could also use these images too, including this client’s competitors) ?

So what’s the deal?​

For example, the client agrees beforehand, to pay you £700 afterwards, for ‘your time & expenses’ to do have done the work – and in exchange for that, you would agree to hire yourself to do the work first (which is why you would then naturally own it) and you would then grant them or give them what ??
Because it’s obviously not going to be ‘your time & expenses’ that you are going to be giving them here, even though that is what you have actually asked them to pay you for or what they have agreed to pay you for – so it’s what you are going to be giving them in exchange for paying you for this, that needs to be made clear here… before any work is done.

Or maybe you don’t need to actually give them any images at all here – because if you were to pay a Musician for example, for their time & expenses, they wouldn’t automatically give you a copy of the music that they played, for you to use afterward​ !!

Or if they were​ only prepared to pay you £400 here, instead of £700, then what would the deal be?

Or if after seeing the final results, they said that they didn’t want to use any of the images (because they were all basically useless), then what would the deal be?

Or what if they decided to use them for the next 10 years, rather than asking you back each year to shoot more – which you were banking on – then what would the deal be?

Or which would you say is better: an image that only took you 5 minutes to produce that they wanted to use for the next 5 years in multiple media OR an image that took you 5 hours to produce that they only wanted to use for a few weeks in one media?

And do you think the client would agree, i.e. the better image is always the one that they have to pay you more for, rather than the one that they would want to use more ??

In other words, does it actually matter what the images look like or how good they are or even if there are any images at all here !!

More questions than answers – many of which I would find hard to answer – which is why I wouldn’t recommend this type deal to anyone – even though I’m aware The Exchange deal is probably one of the most common type of agreements that is use by photographers, especially by those who are just starting out – because at first it seems to be a very simple​ deal, which it is, so long as as neither party asks many questions and everyone just expects that once the invoice is paid, that’s it wink

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6 Comments »

  1. Ashley, thanks for the reply. I’ve just realised though – I think this sort of situation was covered better in your 2014 post ‘Classic’ – the one about the doors (not the band!).

    So, if you include for ‘magazine editorial’ on the license form above, they can provide the images for magazine features the period of the license.

    Another question; If they didn’t pay for ‘magazine editorial’, and they have an exclusive license, and a magazine wanted use of images during the license period, does the exclusivity clause on the license mean I could sell a license to the magazine with the client’s permission? Or they would get have to get MY permission to provide the images (hopefully with further payment)?

    (BTW, this isn’t in relation to my kitchen example, that ship’s sailed – more about quoting new jobs and retaining control over image use)

    Comment by Steve — October 26, 2016 @ 1:48 pm | Reply

    • “So, if you include for ‘magazine editorial’ on the license form above, they can provide the images for magazine features the period of the license.”

      Yes.
      However, if you are talking about ‘advertorial features’ instead, then that would be covered under “Magazine ads” rather than “Magazine editorial” – as that would be considered a type of advertisement… which just looks and/or reads like an editorial feature.

      I would usually only tick the “Magazine editorial” box, if I was agreeing to let a publishing company use my work in one of their magazines.
      Example: Licence No. 20160318-00016974.

      “Another question; If they didn’t pay for ‘magazine editorial’”

      Then they have obviously not been granted the exclusive rights for that or any rights by you for that.
      Having said that, you may however need to speak to the homeowner first, to get their permission – which is why you may need to talk to your client first, unless you know who they are.

      Comment by Ashley Morrison — October 26, 2016 @ 2:38 pm | Reply

      • ah yes – property releases!

        thanks again, very useful.

        Comment by Steve — October 26, 2016 @ 2:54 pm

      • Yes – our at least something in writing from them, to acknowledge the fact that they are okay about ‘their property’ being use, in the way that either you or someone else is planing on using it.

        Which is basically all that the ‘Licence to use’ document is about too, i.e. it’s just something that you are put in writing, to confirm what they have actually paid you for.
        Which in turn, will then hopefully help prevent any further misunderstandings down the road – as it’s all there in black & white.

        Because let’s face it, if you don’t know what you have actually agreed to, then it’s highly unlikely that they are going to now.

        Comment by Ashley Morrison — October 27, 2016 @ 5:28 am

  2. Ashley, I’ve read pretty much all your excellent advice here (I posted a while ago in the BUR thread), but wondered if you could advise on a particular – I’m sure very common – scenario. My paid work tends to be commissioned as commercial, eg. companies that make kitchens or supply flooring or whatever get me to take pictures of projects they’ve done, mainly for their own websites/brochures/advertising. Those projects might also be featured in home magazines, either as a single picture (maybe as part of an article on black kitchens, for example), or as a feature on the project. My approach has been to let the companies use the pictures and make sure I get a credit where possible, but I’m thinking this is wrong! I did a project a little while ago, for a kitchen company, and they use a PR firm to get their kitchens featured, and after following your advice – to produce pictures people will want to use! – this particular kitchen has been featured about 3 or 4 times now in well-known magazines. So I realise that I should’ve been more restrictive with the usage license, and been getting paid each time for editorial re-use.

    so how do you handle this, or what should be the norm? Do you stipulate to the commissioning client that photos cannot be issued to third parties (ie. magazines & PR firms), and such use needs to be referred to you for permission/payment? Do you accept the clients will want to use the images for editorial also and allow for it in the license fee? Or do you offer it as an extra, ie. a license with or without editorial use?

    I know you’ve given many examples of pricing for different usage, but at the time of commission it won’t necessarily be known how many times the images will be used for editorial features.

    I feel like I’m answering my own question as I type – if the mag wants to feature a kitchen, and like the photos – they should expect to pay for them, yes? I’m just wondering if this is accepted practice really, and if I’ve been taken for a ride!

    Appreciate your views on this.

    Steve

    Comment by Steve — October 26, 2016 @ 9:44 am | Reply

    • It all depends on what you actually asked the kitchen company here, to pay you for in the first place, i.e. before you agreed to do the work.

      I as you know, just ask people beforehand, to agree to pay afterwards (which is when I would be invoicing them), for the Rights to use my work at that stage.
      Rather than ask them beforehand, to agree to pay me afterwards, for my time & expenses instead OR agree to pay me afterwards, for my time & expenses in exchange for the Rights to use my work.

      So therefore, the more boxes on this document that they would want me to tick…

      Licence to use example
      .. the more I would ask them to pay me, for the Rights to use my work – AFTER I had agreed to hire myself to create the images first.

      As a result, the incentive would then be in place beforehand, for me to try very hard to produce some images that they would want to use a lot – because obviously, the more that they would want to use them afterwards, the more I would earn.
      Which I would see as being a win-win situation, especially if I succeed, because they would get more (use) and I would get more (£) too.

      So the question is: when this kitchen company asked you for a price beforehand, what exactly did you ask them to pay you for ??

      Did you ask them to hire you and agree to pay you afterwards for your time & expenses instead OR did you just let them know what the fee would be for the Rights to use your images – and if so, did you clearly state what the Media use, the Period of use and the Territory of use would be, on your various quotes to them ?

      Comment by Ashley Morrison — October 26, 2016 @ 11:29 am | Reply


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