Photographer Keeps Copyright, University Gets Unlimited Use

Photographer Keeps Copyright, University Gets Unlimited Use

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

The Brief:

A photographer recently received a request from a university for a series of photographs for a school publication. The contract that the university sent over indicated that the photographer maintained the copyright, but the school “purchased [the images] for unlimited usage and reproduction by the University.”

The photographer posed the following question online: “Has anyone ever dealt with a university or client that writes up a contract says you own the copyright in an email but when you read the contract it technically gives them rights over the digital copy forever?”

How Would You Handle It?

We asked three photographers how they would approach the request.

Scott Brauer, Boston, MA

Why do you think schools are asking for perpetual use?

It makes sense to me because the schools I’ve worked with have been around for over a hundred years and plan to be around for much longer. These sorts of institutions have a legacy to preserve, and part of that is the visual record of the people that passed through the institutions’ doors and the events that happened there. Imagine in 50 or 100 or 500 years (though at that point the copyright may have expired), the institution needs to put posters up in a hallway about all of the Nobel winners that have been on faculty; they need to be assured that they can have pictures at the ready to go for something like that. Now, usually this perpetual usage is limited strictly to in-house use. That’s where this really makes sense to me. If the institution is doing paid outside advertising, for instance, it’s likely that they need images from within 3-5 years. For the future historical record, though, they need perpetual usage, but the use cases are probably on the lower-end of licensing fees.

What sort of multiple do you add to your price to justify this type of license?

It’s never a fixed price, but on average, I’d say the final invoice usually ends up between 2 and 10 times what an editorial shoot would cost for similar work, depending on the number of images delivered. I’m pretty sure I charge more than anyone else in my market for this type of work. I’ve talked with some institutions in my area and they have much different expectations for budgets than I do. There was one where they wanted something like 12 or 15 images over 3 days with a few different scenarios and models for a national recruitment campaign with perpetual in-house license tacked on (basically they knew they wanted the images for the campaign and figured they’d want some usage in the future for historical look-backs at the institution). I could sense they’d been using someone cheap in previous years so gave them a couple of different estimates (maybe one for fewer images, maybe one for stricter licensing limited to a year or three, maybe a couple of others, and then for the whole shebang). They wanted me because they thought their previous guy’s work was pretty boring. The estimates were probably around $8K for the low-end (let’s say 5 images for 3 years or something like that) and $25-30K for the initial request. They politely declined all of my estimates and said that they went with the guy that had shot their previous campaigns because he only charges at most $1500 for something like this and always gives them a ton of pictures for perpetual usage.

Do you find it unusual that the university send the photographer a contract rather than the other way around?

Not at all. I’m really surprised when a client of any sort doesn’t have a contract that they use.

Any other thoughts on the matter?

Licensing for perpetuity or even just a broad license like “collateral usage for up to 1 year” is a gamble in which you hedge against the expected licensing scenarios during that time. When I work for these clients with perpetual in-house usage the usual scenario is this: The images are used once within a month or two of me shooting the picture in a sort of big way–maybe a big splash on the web page, maybe part of an alumni magazine, maybe part of a fundraising brochure. That’s really what the payment covers; there might be another such usage in a year or two. Then, in 5-10 years, the subject wins some major award. The original picture may be used, or if it was too long ago, there’s probably a fresher picture that was taken (by me on another assignment or by someone else) related to some more recent research. Over the next 10-50 years, the picture might get used once or twice as a bio picture for a board position or academic appointment or in a hallway poster, but again there might be a fresher picture. Then it might get used for an obituary. That’s about it. None of those except the first usage is really worth much in terms of licensing, but the original licensing is always less than what the initial fee was. The difference between those two (the original fee minus what a single usage licensing for the initial use would be) should hopefully cover any future uses. That’s the gamble. I’ve been shooting under these sorts of arrangements for 6 or 7 years and never felt like I got taken advantage of. I’ve also kept the copyright and ability to license almost all of this work (there have been some special cases where I can’t relicense) and I’ve made very good income through relicensing as well.

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Photos by Allen Murabayashi

Leah Fasten, San Francisco, CA

Do you find it unusual that the university send the photographer a contract rather than the other way around?

I’ve found it’s very common for schools to send me a blanket contract that they send to all contractors… they will often send the same contract to me as, say, an adjunct science professor, or a contracted researcher. In that contract, they want full use of all the work I create.  (Much in the same way, if I did research on their campus, they would have the rights to that research as well.) It’s not uncommon for the contract to ask for a copyright transfer or WFH situation.

In your experience, is it common to allow the photographer to maintain copyright while asking for perpetual use?

Each contract is different… I’m not sure I’d say there’s one common thing. Universities each have their own unique culture and policies. The contracts often reflect that.

Is asking for perpetual use because schools have poor mechanisms for tracking licenses, or are they just “greedy” and/or lazy?

That’s a good question. I think it’s a combination of poor mechanisms for tracking licenses and an academic culture that generally embraces shared information. I wouldn’t say they’re greedy or lazy… I think it comes more from the way schools see all information created on campus as something to share with everyone in every way on campus. This way of sharing information is so important for research and collaboration.  It works beautifully when everyone is paid well by the school as faculty etc. That doesn’t work when working with contractors.

I can also say that very few schools have Digital Asset Management systems in place. One of my favorite things about PhotoShelter is that I can offer organizations a small archive hosted through PhotoShelter. Clients love being able to access the libraries we create this way. (Editor’s note: PhotoShelter Libris is designed for organizations)

Any other insights?

Part of the job of a freelancer is to come into these negotiations knowing that they can help the university, not just with photography, but with navigating the complicated conversations about usage, archiving etc. We’re here to help. It’s also the job of a freelancer to know when the contract that’s being offered isn’t a fair one, or in thier best interests. I’ve walked away from many, many, contracts that weren’t going to serve the long term goals of my business.

Richard Kelly, Pittsburgh, PA

Many Universities expect Work for Hire and [it’s] not surprising because they “are” the local economy they get it from photographers/vendors. Many photographers justify this because they depend on most of their yearly income from these couple clients. A copyright + a unlimited duration license would be better and in many cases that’s what I can offer. For me it is not just the copyright, its the right to authorship. That is a story for a different day.

What did the photographer do?

The photographer sent back a marked up contract to the university, which ultimately passed because they weren’t able to accommodate the changes.

UniversityCopyright

 

Although it was a lost opportunity, the photographer wouldn’t have made even $1000 after taxes, which literally made it more trouble than it was worth.

 

Update 5/6/16: Added Richard Kelly’s insight

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

There are 4 comments for this article
  1. Dustin at 1:03 pm

    My main source of editorial income, UAB, has created a new contractual agreement for their freelance workers. They own everything.

    It’s the most upset I’ve ever been reading a contract. Because the real kicker is that they don’t want to pay for the extra ownership. But they only work with people who have signed. I’m no longer happy with our relationship to say the least.

    Their reason for the contract was because ‘they wanted to protect the identities of their student and faculty.’ No, what they really wanted was cheap labor.

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