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Excerpt from, Photography: Focus on Profit Paperback with PhotoByte® CD-ROM 416 pages, ISBN: 1-58115-059-8 by Tom Zimberoff |
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Note from the founder of Garage Glamour™ -- This is second of several excerpts of Tom Zimberoff's book, Photography: Focus on Profit. Recommended by top educators as part of their curricula--this is a must have if you plan on succeeding in the business of photography--Rolando.
Dealing with Buyers
© 2002 Tom Zimberoff
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Understanding Buyers' Prerogatives
Often, a buyer will come to you with a tight-fisted budget. But just as often, that budget will have been derived by no more scientific or fiscally prudent a method than to hold one finger up to the wind. You might be--as many photographers often are--offered a fee that has nothing to do with the reality of how the photos will be used, but only with how much money they care to spend. That's not indicative of a tight budget. It just means the buyer doesn't understand how the photo business works.
It may be argued that photographers put themselves at a disadvantage when they force potential clients to work harder, by making them wrestle with realistic budgets based on actual needs instead of how much money they have to work with. On the contrary, those are the kinds of photographers who turn prospects into paying customers. Buyer's who don't put some thought into purchasing photography make bad clients. They seldom turn into repeat customers.
You can certainly accommodate buyers with smaller budgets by scrutinizing the requirements of the shoot and eliminating non-essential production costs. You can limit the buyer's usage rights too, granting only those rights that are both necessary and sufficient, as described earlier. (See Billing in Increments of Value.) Additional rights may always be purchased later. That way, at least, you can proceed with the assignment without losing the opportunity. Besides, why cave in to a buyer's first offer? There is always a way to deal fairly with a budget that is tight for legitimate reasons, when the buyer's needs seem to cost more than the money he has to spend.
When the alternative to a bad booking is to turn it down and be paid nothing at all, it's hard to realize the worse consequences of not being paid enough. But sometimes nothing is better than being forced to accept something less than profitable. When buyers demand too many usage rights but don't have a budget big enough to satisfy their appetites, either just say no, or point to your copyright-licensing yardstick and suggest a smaller but more adequate portion for a lesser fee. They will usually see the logic in this approach and come back with either a bigger budget or lesser, more reasonable, demands. At the very least, this will create a starting point for earnest negotiations. But if they really can't afford to hire you, it's not wise to lower your standards just to avoid losing the job. If you lower your standards, you will find it nearly impossible to raise them again. You've been marked.
Buyouts and Unlimited Rights Agreements
If you fly out of town for business, it doesn't make much sense to buy a new car when you reach your destination. You'll rent one instead.
The rental car company will have you sign a contract whereby you agree to pay for using their car at a rate based on how long and where you intend to drive it. And a Cadillac will cost more than a Chevrolet. The licensor (the company that owns the car and offers it for rent) will not relinquish its ownership to you, the licensee. You will simply pay for the right to use their property for a specified length of time.
That illustrates the difference between a license and a buyout. Nevertheless, the term buyout can mean a dozen different things to a dozen different people. It has no recognized legal definition whatsoever; and, frankly, if it can't be eliminated altogether from the vocabulary of the photo marketplace, it is preferable to keep its meaning vague. Keep your licensing language specific instead. Still, the term is very much in use, so it merits discussion.
Some people believe that a “buyout” applies to an entire shoot, to every exposed frame of film including outtakes. Others think it applies to a single image, to just the one that was actually published. There are also some people who believe that buyouts last in perpetuity, while others subscribe to the belief that it lasts for only a limited time. Still others think it means the absolute transfer off all publication rights, including copyright, and so they demand physical possession of the exposed film, or a digital file. But generally speaking, most publishers think that a buyout means exclusive ownership of all the rights to your images--including physical possession of any original transparencies or negatives--for the price they paid on your invoice. Effectively, they are demanding that you give up your copyright for a ridiculous and paltry fee.
Buyouts and Bullies
The demand for a buyout is often a bullying tactic. The buyer is too lazy to determine his specific needs, so he insists on the whole ball of wax for one low price, an all-or-nothing-at-all approach. But no matter what fee you might be offered for a buyout, even if you hold on to the copyright, you will lose control over the use of your photos and receive no further financial compensation for their continued use and publication. All you can do is claim authorship, maintaining the right to display them in your portfolio. You can derive no further income from licensing those images.
Instead of capitulating to an absolute buyout, you might offer your client a “buyout in the State of Rhode Island exclusively,” if the company does business in that state alone. Or how about an exclusive license for all rights, but lasting for only six months (after which they revert back to you)? Alternatively, might they consider an “all-rights buyout in the Portuguese language?” And so on…
Always ask buyers what their exact needs are. After a little bit of friendly coaxing it can usually be determined that their needs are not so broad and comprehensive after all. Give your clients some alternative suggestions for limited rights purchases. Explain that, if they want to buy an entire steer, it will cost more than the price of a couple of T-bone steaks. Do they need to feed an army or just put dinner for two on the table? Once you have the answers to some simple questions you can quote an appropriate and reasonable fee for just what the client needs, not necessarily what they ask for right out of the gate.
Sometimes, however, it is reasonable for you to consider selling so-called “unlimited rights” for use in all media. But that does not mean you have to relinquish your ownership and copyright, not even to grant such broad leeway to the buyer. A buyout might be justified, for example, for the publication of photos of a specific brand of dog food in an ad campaign. There would be no possibility of future sales to other clients. But if you intend to grant unlimited usage rights, make sure the price is right!
Reasons Cited for Buyouts
Any one of dozens of reasons may be invoked when a client demands a buyout. A common reason, but a fallacious one, is that the client should own the pictures because the assignment was his idea in the first place. But you have already learned that ownership rests with the creator of the tangible work, that only the material expression of an idea--turning it into a photograph--is copyrightable, not the idea itself. He is simply not legally entitled to ownership of the photos.
Your clients want their businesses to prosper just as much as you do. They may operate on a bigger scale, but they just want to allow their employees to earn a decent living, and their shareholders to make a reasonable return on their investments. Their goals are basically the same as your own. So what else are they after? What are their real needs, photographically?
Protecting the Client's Corporate Prerogatives
Your clients have invested a tremendous amount of money in branding their corporate and product identities. In fact, the ways in which companies present themselves to the public can be construed as intellectual property, just like a photograph. They have legitimate needs to protect the value of their assets, including a corporate image. A professional photographer must be sensitive to this issue and cooperate as much as possible.
In seeking control through a buyout, clients may be trying to prevent images they commissioned from being used by their competitors, or in any other way that could be harmful to their proprietary interests. However, sometimes their attempts to control photos are unjustified.
For instance, you could be hired by a company to photograph its CEO for an annual report. Later, you might receive a request from a magazine to publish that same CEO portrait, which, you find out, will be used to illustrate a less-than-laudatory article about his leadership of the company. While this editorial use might cause some embarrassment and distress to the public relations director at the company who hired you in the first place, he should take up his issue with the magazine, not with you.
Sure, the PR department might try to control the “spin” on a given news story, and they might want to control the distribution of your photo in that regard. But, if there was nothing embarrassing per se about the photograph itself, i.e., the subject isn't looking cross-eyed, picking his nose, or wearing a goofy tie at your request, they have no moral right to control it. They can buy the right to control its distribution, however.
If clients are concerned about who else might have access to pictures for publication, they should pay for exclusivity.
>> Note: Many photographers edit their film takes to exclude and sometimes destroy potentially embarrassing photos before submitting them to their clients.
Another reason often cited for a buyout is an objection to paying for subsequent uses of photos on an á la carte basis. Buyers sometimes argue that it is an administrative annoyance to determine the whereabouts of a photographer, negotiate a new fee, and cut a check every time they decide to use a photo, one they commissioned some time ago for an unforeseen use in the future.
These are all legitimate concerns. But you can quite easily and equitably address them. The trick is to act professionally and not to get defensive.
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