Did Your Editorial Client Ask for Perpetual Usage?

Did Your Editorial Client Ask for Perpetual Usage?

This post is a part of our on-going look at pricing photography.

The Brief

NY documentary photographer Dorie Hagler recently posed a question in an online forum, “What is the current thought on online magazines wanting images in perpetuity? I am hearing lots of debate of opinions about how to charge for that. I’d love to hear some more thoughts.” The photographer had been approached by both a university publication and a major news organization to license her photos.

How Would You Handle It?

We asked 3 photographers about the issue.

Peter Yang, Los Angeles, CA

Web use has always been in perpetuity as far as I’ve known. This stems from the days (like 15+ years ago) where web use was just an afterthought. Now I can find stuff I shot over a decade ago that’s still online. In many ways, it seems way more valuable than print usage which is just one time. It’s something that’s been on my mind on and off for a while, but magazines aren’t exactly rolling in money, so I don’t really act on anything.

Todd Bigelow, Los Angeles, CA

Typically speaking, yes, the editorial clients are asking for perpetual use “online.” Mostly because online is also an archive, so to limit the duration from a specific assignment means telling the publication that after a year or two they have to go and remove the image from their archived story. In my opinion, that’s unrealistic.  However, there are some important things to keep in mind.

First, “online” use is too vague a term in this day of multiple platform electronic distribution. I always make sure that the contract for my clients spells out that the images can be used with the story on the assigning publications website “in the original context” only. That means the publication can’t use the images to accompany a different story on their website without paying.

Clients also like to use the images on social media and can consider this as “online” use if the term is not otherwise defined. Again, it would be unrealistic to impose a limited duration and make a client go into their social media feed a year later and remove the image. More importantly, photographers should make sure that a publications social media use is defined as in it’s original context. In other words, the IG, FB, Twitter, Snapchat and other feeds are HUGE for publications, so it’s important that any use on social media platforms outside of the original context is defined as an additional use and subject to secondary licensing fees. Hypothetically speaking, if I shoot a PGA tour event for a sports publication and they run a story on Jordan Spieth, great, it can go out on social media in the story’s original context. But if the same publication runs a different story later and wants to use one of the images from my shoot, they should pay a licensing fee for that use since it’s not the original context. After all, they’re publishing it to a million IG or Twitter followers, so photographers need to see that in the same way we see website and/or print distribution. Social media is not a small, ancillary use.

Gary He, New York, NY

It’s important to have a conversation with your clients about usage before any pricing is agreed upon. In the corporate and commercial event game, clients generally understand that pricing covers a one year license with limits to the scope of usage. If social isn’t a line item, it’s assumed to be included at this point, so price accordingly.  

One thing to note, however, is that there are major wire services playing in the corporate and commercial event space that have work for hire contracts with their less educated photographers, which in turn allows them to offer more favorable licensing terms (perpetual use?? who does this??) to commercial clients than an independent photographer would normally allow at a certain price point. How do you compete with that? You either concede the licensing terms or you concede the job. Don’t feel bad if you need to do the former—this environment was not your fault, isn’t going to change anytime soon, they want independent photographers to guilt each other into oblivion, you need to pay rent, etc.

What a Photo Editor Says

Dustin Drankoski, Photo Director, Mashable

Mashable’s contract is written so that we have perpetual use of imagery shot for us, or provided by a photographer. It really comes down to the fact that going back after 90 days (or six months or one year) to remove imagery from articles is logistically impractical.

For the sake of clarity though, I want to point out that Mashable’s contract stipulates perpetual usage not perpetual rights. After a 30-day embargo from when the images have been published on our site, all of the rights and permissions revert back to the photographer. They are free to license and sell the images to whomever they want. We’re not looking to own the rights to an image, only make sure the stories we create with them will always live on.

All of Mashable’s social media platforms are included in the contract as well. In the current media landscape publishers have to be able to push stories where people are looking to read them.

We do have very explicit language in the contract stating the imagery will only be used in conjunction with the story it was originally photographed for. The last thing I want is for us to be taking imagery out of context and giving it new meaning without the photographer’s consent. It also allows us a way to keep an open relationship with a photographer. For example: if we use a picture in an editorial story and later decide it would work really well for another story we go back pay them for a second usage (with their permission of course).

Editors and photographers should know exactly what is at stake and how imagery will be used by the publisher.

According to Getty Images

Getty Images’ “Standard Editorial Rights” include worldwide editorial use for 15-years, after which time, Getty presumably comes back and asks for more money. If you build a custom license, you can get, for example, “Perpetual archival rights in original context” for Social Media use, or usage on a “Commercial Blog” grants up to 5 years of use.

getty-standard

Getty’s approach is somewhat scattershot on the issue of long-term use. On the one hand, their Standard Editorial Rights grants 15 years of use. But their $49 “Editorial use of web-res file” has a 3-month duration.

What Did the Photographer Do?

For the university publication, Hagler provided an estimate the following estimate:

One image for print magazine up to 1/4 page = $350 (circulation of 60,000)

Five images for the gallery for up to two years =$2000
Five images for the gallery in perpetuity = $3500

The university accepted the print price and declined the web galleries.

For the news publication, Hagler asked for $800 for a 12 image gallery of a personal project. They counter-offered $500 for a 10 image gallery, which she accepted. “I included usage in perpetuity because it is actually beneficial to have that link and media coverage online.”

This brings up an interesting point about the value of a link. In Search Engine Optimization terms having a link from a well-ranked website can be incredibly beneficial to how your website appears in search rankings. Although it might be hard to quantify, there is real economic value in having higher search rankings.

Additional Notes

Perpetual usage is the de facto for online editorial publishing. Limiting secondary use is also important (and was a bone of contention with the new TIME Inc. contract) – you should to be able to re-license your content within the same organization as this has historically been a steady revenue source for editorial photographers.

Although rare, some publications, like The New York Times, claim joint copyright for any images produced under their freelance work-for-hire contract. This means that the entire notion of assigning a license is moot because they co-own the content and can use it in any context. Yet another reason why the $200 assignment rate should give photographers some pause.

While it may be both unrealistic and impractical to constrain publishing duration in an online world, it is still very important to limit image usage to the original intent – particularly when the potential to use an editorial image in a questionably commercial context exists(e.g. Your image repurposed for a subscription ad unit).

Responses have been edited and condensed.

Dorie Hagler will be teaching a series of seminars at Adorama in June 2016 called “Let Me Save You the Trouble,” covering a range of photo business topics. 

Update 5/18/16: Added the photographer’s response

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This article was written by

Allen Murabayashi is the Chairman and co-founder of PhotoShelter.

There are 6 comments for this article
  1. Cory at 2:26 pm

    It’s a complicated situation, but perpetual publication should include perpetual payment, considering that the medium continuously shows paid advertising. They know when an ad has been displayed or clicked, and charge accordingly. So clearly the technology exists to pay the content creators whenever an article is viewed. There doesn’t seem to be a problem paying the ad sales people continuously.

  2. Esther at 5:41 am

    This is such a relevant article. Thanks for the research Allen.

    I’m just in the process of negotiating another “online / perpetual” use but in an area that wasn’t covered in your article. They want a license to: ” include this material in the above-listed publication and in all future editions and revisions thereof, including in context promotional use, and in all ancillary works and all derivative works and product family works, in all media and formats now known or hereafter discovered throughout the world and in all languages whether published by xxxxxxxxxx or its affiliates or licensees.” In other words, this is editorial use which once upon a time used to be print, but now includes lots of e-formats. No social media, but definitely online products like pdfs, etc.

    Being print publishers who are moving into digital media, I sympathise with their need to stay in the game.

  3. Mark Dunton at 8:50 am

    As a photographer I think of In Perpetuity when dealing with online media as being able to use it over and over. A limited use license, specifically for digital media allows publication and republication up to one year, and does not consider the digital footprint. You buy my image for an interior space concept. You use it as such in whatever media and are done. Let’s say you are an advertising firm with a variety of clients. In Perpetuity could be argued that they can use the image for any campaign they see fit, whenever. And that, though more the rule than the exception is the issue. Maybe an automatic re-license clause if re-used after the one year, so there is no quibbling over it 5 years down the road. We do need to protect ourselves, as we are not in the air conditioned spaces, we are either baking, freezing, water-logged trying to get that shot just right……

  4. Adam Miller at 4:26 pm

    Perpetuity or even 15 years is a long time to sign away any rights to. With the increasing disruption and democratisation of how photographers can sell their work through a variety of channels and often retain earning potential for themselves in perpetuity, I would think long and hard before selling my rights away for a song.

  5. Gregg Matthews at 11:51 am

    It should also be noted that The New York Times contract for freelance photographers not only stipulates a shared copyright, but also pays 50% of future sales back to the photographer. This feature applies only to sales outside NYT associate publications. I’ve gotten dozens of surprise checks from the NYT that far outpace my own subsequent sales, which in a sense makes them a valuable sales agent.

  6. Mtn Monkey at 7:32 pm

    What is always important is the language in any contract. In perpetuity means forever. Therefore, anyone wanting compensation for that forever time period my must clearly define at the beginning the terms, duration and pricing for that duration. The film industry and the unions have understood this. Entertainment law knows this for ages. Therefore if you want residual income, demand it and get it in writing in the agreement. Once the in k dries, its too late to go back and claim what you failed to know earlier. If you wish to retain copyright, then you license for less than the lawful copyright limits. You must also make certain that all contracts have your retaining copyright ownership and the rights as such to renew or pass along to heirs. That too many forget to include within contracts. Then there is the one most all miss out on, but the entertainment and copyright lawyers have known for some 20 years. You should ALWAYS add in, the “Universe” as in “throughout the universe”. Why? Well since the 50’s… we have had satellites. Sputnik was the first. Now satellites have gone a long way… Media of all types, including images are broadcasted from earth tot he satellites. Now you just lost your copyright into space… off the earth… contracts that were just for the globe have failed you as a result! So, if you include satellite uplinks and omit the “universe”, you again failed yourself no? Well what is they used the licensed uplink properly… but then their satellite stores it on the hard drive and later transmits it to other satellites, or transmits it out to the universe… and what if the satellite bounces it off water or an earthbound mirror back out the universe? Then did you not then loose control over your contract? What is NASA or other space corps license and send your image or copyright intellectual property out into the universe on some long traveling probe that may travel for eons? Did you not fail yourself? Those are just a few reasons why “the universe” should be included in copyright contracts, IMO. I only scratched the surface… laws keep evolving, hence why lawyers are usually needed, though mostly despised by many. Bottom line… Be properly informed, up to date and negotiate the whole contract the way you want it at the beginning. It is rare you can ratify it later unless you have control and the rights. Sell a classic car for $1 and find the buyer sold it for $1 million… well then you only have yourself to cray at and held to blame. Just as with Caveat Emptor with buyers… sellers need to be apprised if they wish the best deal. Myself, I require in perpetuity… However, unless there are a lot of digits and zeros in the check… I will not have over in perpetuity, unless i am selling a worthless to me item and i simply do not care. If you think we are along in the vast infinite universe, God help you… So, just as markets expand for commercial advertisers… well if the market expands to the next 100 planets with life… don’t you want compensation for that expanded market? Commercial actors most certainly do and the unions are there for them and always ratifying to include the latest possible expansions. Its all about “exploitation” . Don’t pigeonhole yourself. Good luck out there… and BTW, myself, I would never sign any contract headquartered in Dubai, or Qatar, or similar places where you may be beheaded for trying to enforce a contract or change. . . So perhaps people might want to place exclusion by region into certain contracts. That is not to say they are not good people who might pay handsomely for what they want… just structure the contract, realizing what you get up front, may be all you get, so be happy with what you negotiate and forever hold your peace. SAG, AFTRA, WGA, BMI, ASCAP all protect artists and copyright holders. Creative people tend to be weak in legal areas… it pays to have a big brother looking over the creative who have always had predatory people looking to get their “intellectual” properties since thieves tend to be low on ideas, originality or intellect, from my personal observation over many decades. Good luck out there* This is not legal advice, but rather just some ideals that i have found value in over the decades as an intellectual property owner, photographer and Producer. Yet still I get jammed… nothing is ever iron clad, not even death as many come back to life afterwards these days… so don’t count death as a constant in contracts either or if you are pronounced dead and therefore loose the contract but then come back to life shortly after… you are screwed…

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