The authors wish to thank ASMP for allowing them to include and adapt materials that they originally created for ASMP. © 2006 Richard Weisgrau and Victor Perlman Allrightsreserved.CopyrightunderBerneCopyrightConvention, Universal Copyright Convention, and Pan-American Copyright Convention. No part of this book may be reproduced, stored in a retrieval system, or transmitted in any form, or by any means, electronic, mechanical, photocopying, recording, or otherwise, without prior permission of the publisher. 09 08 07 06 05 5 4 3 2 1 Published by Allworth Press An imprint of Allworth Communications, Inc. 10 East 23rd Street, New York, NY 10010 Cover design by Derek Bacchus Interior design by Mary Belibasakis Page composition/typography by Integra Software Services, Pvt. Ltd., Pondicherry, India ISBN: 1-58115-436-4 ISBN 9781581158441 Library of Congress Cataloging-in-Publication Data: Weisgrau, Richard. Licensing photography/Richard Weisgrau and Victor Perlman. p. cm. Includes index. ISBN 1-58115-436-4 (pbk.) 1. Photography—Business methods. 2. Copyright licenses—UnitedStates.3.Licenseagreements—UnitedStates.I. Perlman, Victor. II. Title. TR581.W45 2006 770'.68—dc22 2005022411 Printed in Canada C O N T E N T S CHAPTER 1 Licensing Concept and Reality What Is a License? • The Licensing Concept • The Licensing Reality • It's About Money • Avoiding Mistakes • Licensing Circumstances • Licensing Specifications • Business Models • Licensing Checklist • A Photograph's Usage Value • Getting Started CHAPTER 2 Understanding Copyright What Is a Copyright? • What Does a Copyright Really Protect? • What Does It Take to be Copyrighted? • Who Owns the Copyrights? • How Long Do Copyrights Last? • What If Somebody Uses Your Photographs Without Your Permission? • Why, When, and How Do You Register Your Copyrights? • When Is an Infringement Not an Infringement? • How Can You Make Money Out of Your Copyrights? CHAPTER 3 Making Sure you Can License What you Shoot Can You Shoot It in the First Place? • Rights of Privacy • Rights of Publicity • Defamation, False Light, and Obscenity • Copyrighted Works and Objects • Trademarks and Logos • Buildings, Skylines, and Trees • Representations, Warranties, and Indemnifications • Release Forms • Twenty-first Century Concerns • Adult Release • Simplified Adult Release • Minor Release • Pocket Release • Property Release CHAPTER 4 Effective Licensing Agreements Get It in Writing • When Do Contracts Exist? • Letter Agreements • Forms • Specifying Usage • A Note About Digital Media • Terms and Conditions • Indemnification Agreement • Independent Contractor's Agreement • Estimate • Assignment Confirmation • Invoice • Schedule of Fees and Expenses • Pre-Delivery Confirmation Facsimile • Pre-Delivery Confirmation E-Mail • Assignment Photography Delivery Memo • E-Mail Cover • Stock Photography Delivery Memo • Stock Photography Invoice • Letter Agreement CHAPTER 5 Licensing Iff the Digital Age Computer Technology • Photography Processing Software • Pricing and Licensing Software • Internet-Based Information • Stock Agencies Online • Fear of Digital • Preying on Fear • Photography Business Software • Office Software Suites • Word Processor • Spreadsheet/Database • Tracking Licenses and Uses • Effective Enforcement • Double Edge CHAPTER 6 Pricing Licenses Stock Means Residuals • Stock Pricing Components • Exceptions to the Rule • Value versus Price • Exclusive or Non-Exclusive • Stock Price List or Pricing System? • Developing a Pricing System • Determining a Base Price and Factors • Assignment Licensing • The 1909 Copyright Law • Evolution of Assignment Pricing • Characteristics of Assignment Photography Market Segments • Rights and Market Segments • Usage and Value • Market Segment Pricing Relationships • Pricing Re-use of Assignment Images • The Final Step CHAPTER 7 Negotiating Licenses Negotiator's Traits • The Aspects of Negotiation • The Psychological Aspect • The Methodology • Psychology of Power • Risk and Fear • Negotiating Tactics • Copyright Demands • All Rights and Buyouts • Negotiating Stock Photography License Fees • Abstract Factors • Risk Factor • Sell the Image • Price Levels • Stay Focused • The Bottom Line • Finishing Up Index I N T R O D U C T I O N W hat is the quintessential process in the photography business? Some might say that it is marketing and promotion. Others might profess that it is the creative process. Still others might point to sales or financial planning. Personally, we, the authors of this book, believe that licensing copyright rights, i.e., granting permission to use your photographs, is the very core of the photography business. Photographers make photographs because they love it. The reward for doing it for its own sake is psychic income—the joy. Photographers engage in business because they need and want to make money. The reward for doing it is monetary. Licensing plays a key role in establishing and maintaining the monetary value of professional photography in the marketplace. While effective market research, promotion, sales, and sound fiscal management are critical to business success, they do not establish the value of a photographer's images. The fee a photographer receives for the acquisition and/or use of his images is the determining factor of the photograph's value. The words "acquisition" and "use" have very different meanings. People can acquire (come into possession of) an image in a variety of ways. You might sell a copy to them.They might find it in a magazine or on a greeting card. It might be a gift from someone who bought it from you. But possession of an image only gives the possessor the right to look at it and show it privately, not publicly. If the possessor of the image wants to make a public display of the image, reproduce the image in print or electronic form, modify it to make a new image, or make copies of it to give away or sell, he must obtain permission to do so. That permission is known as a "license," and the type and amount of use determines the value of the license. Successful businesspersons understand that they have to maximize the value of their products or services. Failing to do that will almost certainly lead to an erosion of value, and that almost inevitably results in financial decline because revenues drop below a point that makes conducting business worthwhile. Revenues are the reason that professionals become professionals. Amateurs do it solely for the joy of it, and professional do it for money while, hopefully, enjoying it. Here is the logical progression that makes our point. Value is created by use. Value is expressed as revenues. Licensing regulates use; therefore, it regulates revenues. Licensing and revenues are inextricably locked together in the professional photographer's business life. For that reason, every photographer ought to have a comprehensive understanding of how to license photography. Effective licensing means you make more money. Effective licensing requires that you understand how to do it. As we write this book, we know of no other book that is dedicated to helping the photographer understand and employ the principles and practices of licensing. If you want to make money in photography, read this book.