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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December 17, 2015

A ‘Work Made For Hire’ type of agreement.

A question that was recently asked on one the photography forums, in connection with coming-up with pricing to shoot for a Kitchen and Bath Designer, was this:

“What are your thoughts on setting an hourly rate for this type of interior shooting. Is there a downside to pricing it this way?”

My answer, since this is a question I have asked myself many times over the years too, (which I have now decided to post on my blog here, for others to read as well, who may be wondering the same thing) was this:

There are advantages and disadvantages to agreeing to do (what I would call) ‘Work Made For Hire’, versus just ask someone beforehand, to pay you for ‘the Rights to use the work’, that you are agreeing to hire yourself to do.

Understanding the difference and what one would actually charge for, if it was either one or the other, is (I believe) very important for an artist (like yourself) to understand.

One is basically where you would ask the client beforehand (when you are quoting a price), to agree to pay you (either before or afterwards) to do the work for them – and the other, is where you ask the client beforehand (when you are quoting a price), to agree to pay you afterwards, for the use of the work that you are agreeing (to hire yourself and possibly others as well) to do.

And then I went on to try and explain what my understanding of a ‘Work Made For Hire’ type of agreement was, by saying:

If I was wanting someone to help me for a day, to create some images for others to use, (an assistant or a stylist for example) I would (usually just) simply agree to pay them beforehand, for their time and expenses. So if I (their client) was wanting to keep their expenses part down to a minimum, then I (the client) would obviously need to supply them with anything and everything that they were going to need to do the work that I (the client) wanted them to do for me.

So unless beforehand, I (the client) had specified asked them to bring something along that day, like a camera or some lights or a computer or some cushions or some flowers, etc, etc – then for the most part, they would just turn-up with their two hands in their pockets and expect me (the client) to supply them with everything that I (the client) wanted them to use or work with.

So that’s what I would call, a ‘Work Made For Hire’ type of agreement.
(Please note: I do understand that in America, the term Works Made for Hire is a Legal Term; and so therefore, it may mean something slightly different as a result – but I believe it’s based along these same lines of thinking).

So what the actual work was used for (or even not used for), by me or anyone else, would therefore not come into it.
The assistant or stylist (or the person who was being hired) would still get paid for their time, plus for any expenses that they occurred during that day, irrespective of how much or how little the work was used or even by whom.

So that keeps it nice and simple​, for both them (the person being hired) and me (their client) to understand, what the deal is and what they are going to be paid for or will be paid for afterwards.

So with this type of deal, in your case, it would therefore be all about: Expenses, Expenses, Expenses – as that would be the only real difference between one job and another, i.e. what camera they wanted you to use, lights they wanted you to use, lenses they wanted you to use, computers they wanted you to use, etc, etc… because you could even take the pictures with your iPhone, if all they wanted you to do, is turn-up and take some pictures.

So not a bad way to work as far as I’m concerned – as you may actually get to play with some really neat stuff, like a Phase One camera system for example or some Profoto lights – IF you fully understand how it works, and they are prepared to pay for all of those things as well, as for your time to do the work.

However, it would all really need to be agreed to beforehand – and ideally put in writing too (a signed agreement) – because after all the work is done, it’s that pre (written) agreement that would be the all important thing here… as far as a Judge would be concerned, should they not pay you afterwards and you ended up in court over that.

As for asking someone beforehand (when you are quoting a price), to agree to pay you afterwards, for the Rights to use the work that you are going to (agree to hire yourself and possibly others as well to) create – that’s a completely different deal and/or thing altogether – so should you want to know about that, you can read more about what I have already said about that type of deal here: Licence to use.

In other words, I believe both ways can work and both ways can work very well in your favour too, IF you fully understand the difference between the two and don’t start mixing them up or try to exchange one for the other – because that’s when things can often start to go pear-shape, based on my own experience over the past 30 years or so.
Double page spread advertisment for a National Trust kitchen by Mark Wilkinson in the August 2006 issue of Country Living magazine.

So I hope that helps this photographer, answer their own question here – because at the end of the day, it’s thier business, to run it as best as they see fit – as there is no Rule Book for self employed people (or people who agree to hire themselves or employ themselves), which is what I am assuming, is what this photographer is.

Anyway, your thoughts on all of this, as usual, are most welcome too – as it is, like I said at the start, a question that I have asked myself many times over the years too, i.e. each time before I quoted a price smile

Cheers,
Ashley
www.ampimage.com

August 18, 2014

Our needs V’s Their needs.

Was over shooting at Marie’s the other day – and so while she was busy and very focused on doing her thing here…
Marie at work.
.. to create a series of lovely banner images like this…
Bed linen and cushions.
.. to show the new headboard she is selling, as well as cushions and lamps, etc – which I must say all looked very well…
Bed linen and cushions.
.. as she mixed & matched them…
Bed linen and cushions.
… to show how simple changes could completely change the look.

I, on the other hand, was busy thinking about a solution, to the new terms agreement which IPC Media has recently introduced.

This being the problem:-

IPC Media has updated its rights agreements to reflect our needs as a multi-platform business. Our previous agreements were written when all content was produced for print, but now our customers expect to be able to access content on whichever platform they chose to experience it – in print, on a tablet, on smartphones, online or through events and other experiences.
The rights we are buying are All Rights, in return for IPC’s agreement to pay the fees agreed for each commission.
All Rights means the assignment to IPC of all of your right, title and interest in, and to, the copyright and all other rights of every kind or description in the material(s) commissioned from you, throughout the World whether those rights are now known or are created in the future and in each case for the full period of existence of those rights.

This assignment to IPC is made with full title guarantee, which means that you guarantee to IPC that you have the right to pass to us the entire ownership of the rights in the material(s) i.e. you have not copied anyone else’s work, and only you have been involved in the preparation of the material(s).

And it is a problem on different levels too – as agreeing to this would not only mean the end of additional usage sale – which I personally do count on to cover the extra cost of hiring people like Marie here, to help me produce the type of images that these people would want to use – but it would also remover any & all incentives to do anything more than the bare minimum anymore.

Because producing better images is clearly now not going to make us any more money – and so the last thing one would want to do, is give them some images that they would want to use that much – as the more they would use those images, the less they would need to use us.

So it’s all very counterproductive in a way, as it’s like just about good enough will now become the norm – as the incentive to do more than that, has just been removed.
Because a quick snap-shot, which may be of little use to them or anyone – is now worth exactly the same to the photographer, as an amazing image which may be worth thousands to them or possibly other people – as they are now talking about a fixed fee for ‘All Rights’.

Which basically means it doesn’t really matter what the images look like anymore – as it’s not going to make any difference to what they are worth.
At least not as far as we (the photographers) will be concerned.

But it doesn’t just stop there – as agreeing to this would also mean we are no longer just talking about ‘Editorial use’ – and so we would now need to let the homeowners know that – as these images which we are about to take in their home, could now be used in almost any media for almost anything, including advertising.
And we would have no say in that – as IPC Media would own the Rights – to do as they please with the images.

And in case you’re thinking “No, surely not” – I can assure you it can and most likely will, as I’ve been down this road before and that’s exactly what started to happen.

So take this image that we produce in Marie’s house the other day…
Bed linen and cushions.
.. if we agreed to IPC Media’s terms here – then they would own All Rights to it – which means neither Marie (the homeowner in this case as well as being the stylist) or I would have any say in either how IPC Media used it or even who else they sold it to, for them to use.

So she could easily see pictures like this of her home, being used by not only other magazines in different parts of the world over the next few years, but also being used for advertising by others too – on Billboards, Posters, Ambient; Brochures, Direct Mail, Magazine ads, Newspaper ads, Point of sale, Television as well as on the Worldwide web – as we are no longer talking about just a one time only editorial feature anymore, in one magazine, in one country.

Because “All Rights means the assignment to IPC of all of your right, title and interest in, and to, the copyright and all other rights of every kind or description in the material(s) commissioned from you, throughout the World whether those rights are now known or are created in the future and in each case for the full period of existence of those rights.”

So that’s the problem – now what’s the solutions ??

Henry Ford once said:

If there is any one secret of success, it lies in the ability to get the other person’s point of view and see things from that person’s angle as well as from your own.

So would love to hear from others, especially those who may also be directly affected by this new agreement – not to dwell on the problem, but to hear what you feel would be a good solution here – as that is what we need find, before this all ends in tears.

As that is exactly what is going to happen here, if we don’t – as this could very well be the end of ‘editorial work’ as we know it – for everyone… including them.

Cheers
Ashley
www.ampimage.com

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