Would You Sign This?

[by Richard Kelly]

Getting the appropriate model releases from our subjects that appear in photographs for commercial use is what a “professional” does as part of the overall practice of business.

The standard  adult release says,
“…They have the irrevocable, perpetual and unrestricted right and permission to take, use, re-use, publish, and republish photographic portraits or pictures of me or in which I may be included, in whole or in part, or composite or distorted in character or form, without restriction as to changes or alterations, in conjunction with my own or a fictitious name, or reproductions thereof in color or otherwise, made through any medium at his/her studios or elsewhere, and in any and all media now or hereafter known, specifically including but not limited to print media and distribution over the internet for illustration, promotion, art, editorial, advertising, trade, or any other purpose whatsoever. “

Would you sign this? I am not sure that I would and yet this is the adult model release that many photographers ask their subjects to sign.

As a professional photographer I have received my fair share of over reaching contracts from clients that, more or less, say the same thing. Contractual language that will save the client from having to re-negotiate additional usage or to limit liability if somehow an image is used other than the original intention. Limiting liability I understand that, but I don’t like receiving these contracts as a photographer and I don’t like to present them to my subjects in general releases.

Releases are contracts between two consenting individuals, they are negotiable and I believe that they should be reasonable both in the request and the consideration (payment or equivalent value). In my practice, if we are working on a commercial project we discuss with the client the usage for the photographs and we mirror that in the release. In most cases, the subject and any remuneration is noted in the release and I rarely have trouble receiving the necessary permissions. In non-commercial situations I will sometimes use a general release as long as they understand and agree to the terms. I have learned that a big part of getting the release is what and how you ask for the subjects consent.

I am very protective of all my subjects, in many cases I have gone back to subjects, to ask for permission that foes beyond the scope of the release. To date I have never had anyone turn down my request. I keep very detailed contact information and utilize linkedin and Plaxo to facilitate finding subjects from my past.

You can sum up my approach to model releases as the Golden Rule of Subjects, Treat your subjects the way that you want to be treated.

ASMP has a tutorial online with samples and legal resources related to releases.

Richard Kelly is a photographer and educator living in Pittsburgh. As President of ASMP, he is a progressive advocate for copyright and professionalism.

What I Learned on my Way to the Commons

[by Richard Kelly]

It is my perspective that the role of copyright is to promote publication. Copyright is the engine that allows professionals to grant permission and collect money for the use of their work, that permission is a license. I see no reason for this to change. The fundamental change is how our images are published and what publishing really means in a world wide searchable channel like the Internet.

As commercial photographers our client relationships are primarily creating photographs on assignment or licensing existing images as stock to satisfy a need to sell an idea or to tell a story. Many of us routinely work for the same handful of clients for years. In this regard much of our business practice will not change. But with a new world of image buyers at their browsers, how do we engage them?

As professional photographers in the 21st century we need these things, universal image search with a licensing component, simple and easy to understand industry usage licenses with representative icons and a searchable images and license registry.

These are all possible now.

One model that is worth looking at very closely is Creative Commons. Built on top of Copyright law, this non-profit has built a series of iconic easy to read licenses that explain to the user what permissions they have when using a particular photograph. The image may be embedded with the license and with attribution which is a primary part of all the CC licenses. The simple language icon is built on top of a legal license that a lawyer could only love but one that is translatable in most languages around the globe. I wonder how many of my licenses are universally readable? Many photographers mistakenly assume that Creative Commons is just free pictures, which is just part of the story but not the only story, I suggest reading this.

If the standard copyright is ALL RIGHTS RESERVED, think of Creative Commons as SOME RIGHTS RESERVED.

For most professionals the CC licenses may not be part of your business plan, but some photographers have built their businesses around a hybrid model. This is something each photographer has to establish on their own, but what is interesting is the CC+ option, this model built around the Creative Commons Non-Commercial licenses, but with a component to license commercial rights. Yes, to make M-O-N-E-Y. Read about it here.

By the way, for you first timers, if users of Creative Commons Licenses fail to follow the license, they are infringing the copyright like any other infringer and all courses of legal remedies are available. Registration Counts and your photographs should be registered with the Copyright Office to protect your investment.

Creative Commons licenses are not for all photographers, but we can learn a number of important lessons,

•    Make licensing iconic and simple to understand in all languages.

•    Make attribution a basic requirement of all licenses.

•    Make it searchable and embeddable.

Richard Kelly is a photographer and educator living in Pittsburgh. As President of ASMP,  he is a progressive advocate for copyright and professionalism. Learn more about Richard here.

Copyright Registration – Protecting Your Investment

[by Richard Kelly]

With The Copyright Act of 1976 and later revisions including the Berne Convention, artists were no longer required to register for copyright nor to provide copyright notice. In my opinion, these two facts have led to two decades of visual artists thinking that they were protecting their visual investments. For a commercial artist, registering the work prior to delivery to a client insures, in situation whereby a client fails to pay, the artist can use the copyright registration as a means of getting paid. Any attorney would rather pay an invoice then to be hauled into Federal Court for copyright infringement. If the work was registered prior to infringement the artist may be entitled to attorneys fee’s in addition to statutory damages.

Another advantage is one I experienced a decade ago, when a publisher / client called me after he had published a series of musician portraits for a fashion story. He had discovered a local newsweekly had scanned the image from the magazine for an advertisement for a local nightclub featuring the singer’s band. He wanted to know what I was going to do to protect his “exclusive” image? I was able to resolve the situation by working with the infringing publication to publish an apology, but without the registration prior to the infringement I did not have as big a stick to collect any real money.

I am sure that we rarely think of our assignments as investments, but my clients spend “real” money to build a visual brand with my photographs and if I do not register the photographs, I am falling short of my professional obligation.

If you shoot stock, personal projects for fine art, books or multimedia projects not registering your work is similar to leaving your front door unlocked while on vacation with out insurance.
Registration counts.

Post Symposium Thoughts

[by Richard Kelly]

If content is king, distribution is its queen. What does distribution and publication really mean today and in the foreseeable future? How can independent artists exercise their rights and gain fair compensation for the use of their work?

I believe visual artists must adapt. We need to do business more efficiently by creating systems that allow us to be easily found and identified with our visual works.

ASMP has reached 1000 photographers through our symposium and copyright registration workshops and the work will continue. Our hands on workshops are training photographers on the importance of registering their photography and walking folks through the steps to actually do it. Register your work and train a friend to do the same.

Without a searchable image registry, the path forward in image licensing is not possible. ASMP supports the Picture Licensing Universal System’s development of this registry and has donated $180,000 from our Authors Coalition Funds to ensure this happens. The registry will launch this year.

Help us by creating a new marketplace thus establishing new business models that address the needs of the consumer, the artist and the publisher.

The Four “R”s of Pricing Photography

[by Richard Kelly]

The Four “R”s of Pricing Photography are Relationships, Rates, Rights and Reputation. One of the most valued benefits to my ASMP membership is the relationship I have with my fellow photographers. Not just the chapter meetings or the membership list serves, but real one on one relationships with my peers. I mostly interact with photographers in other markets who do similar work for similar sized clients. The ability to bounce ideas about project proposals and price has proved extremely valuable.

When you are entering an unfamiliar market it is important that you engage fellow ASMP members and other knowledgeable professionals working in that market to introduce you to their customs. It might be a good idea to assemble a business plan for this new market. Traditionally business plans are used to raise capital or get a loan. But they are useful for this exercise as well. For instance, if you are interested in architectural photography, what are the deliverables the client is expecting? What rights do they typically license and what is the range of rates that have historically been paid? Who are your target clients and who is your competition?

When it comes to licensing your copyrights for client projects it is important to research the most common licenses for the market you are working in. There are  major differences between pricing for commercial advertising, editorial and retail uses and even within those areas each photography specialty has unique rights requirements. Another important attribute is that you probably will be working in one of the many micro economies around the United States. Each of these has it’s own pricing factors to consider, which is another reminder that one size does not fit all.

Finally, We want to think that we are all created equal. But photography is a field built around marketing mythologies, unique artistic vision and professional reputation. I don’t have to tell you that there is a big difference between Richard Avedon and Richard Kelly. Especially when it comes to price.

Create a plan, learn the market, and build confidence in your abilities and most important build relationships with your marketing targets, your clients and your fellow ASMP member photographers. There is so much more to photography than pixels on a screen or ink reflecting light on paper.

ASMP Membership has its privileges.

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