IntroductionThis document is compiled in order to facilitate successful business relationships
when working with a freelance photographer.
It is relevant for any type of commissioned photography, ie. advertising, commercial,
corporate, editorial or public relations.The same principles apply for comissioned work in
private capacity, like shooting weddings, portrait sessions and private functions.
When commissioning a freelance photographer the client often is under the
impression with payment of the invoice the photographs change ownership from the
photographer to the client. This, in context of any intellectual work, is a misconception.
This document aims to establish an understanding of the underlying principles in working
with freelance photographers.
In addition there is a glossary that outlines the relevant terms of copyright and moral
rights.
The Business of Freelance Photographers
Freelancers are self-employed business people, who need to establish terms of a
working relationship, and negotiate fees that cover the costs of doing business.The
freelancer's position is parallel to that of any consultant, who markets their professional
expertise and then applies their technical knowledge.
Photographers working on commission charge by time, typically by the day.
Although the day rate charged includes an initial licence for the client to reproduce the
photographs, the commission fee in fact represents the figure below which a photographer
cannot afford to work.
It has to cover all overheads and capital investment before producing enough for a
professional income in three days a week.Three full day shoots are usually about as much
as can be fitted in between preparation before the work, post production and delivery
thereafter, with time to spare for all the other aspects of running a business including
marketing and accountancy.
Working on Commission
Successful negotiation is not possible unless both photographers and their clients
clearly understand what is actually being bought and sold. This is neither time nor the
photographs themselves.
Photographs are intellectual property. As the authors of their creative work
photographers own the copyright and moral rights in it. Only the copyright owner can
licence the copying of a photograph. That means reproducing the work in any material
form, which includes storing the work in any medium by electronic means.
The photographer as the author and copyright owner issues licences to clients to
reproduce and use his/her photographs as mutually agreed.
The Value of a PictureThe concept of usage and licensing is relatively straightforward. Pictures have a
value for a given use. Value comprises more than costs, including such factors as image
uniqueness, its prominence and size in a given use, circulation/viewer numbers and more.
As the variety of uses increase, so does the value of the picture, irrespective of who owns
the copyright. This concept is internationally acknowleged and understood.
Usage agreements allow photographers to benefit from the true commercial value
of their work. Use of images in multiple media should be compensated with multiplied
licensing fees.
The terms of these licences are best put in writing for the benefit of both sides. This
is the best way of clarifying exactly what rights are sold on accepting a commission.
Base UsageAt this point we must establish what the basic day (or hourly) fee buys for the client
ie. what BASE USAGE the client gets for his money.
Both the Association of Photographers (UK) and Professional Photographers of Southern
Africa (PPSA) recommend the following :
For Advertising ,Commercial and Corporate Photography :
MEDIA : press, poster, billboard, point of sale, direct mail, tv, brochure,
packaging & merchandising, internet
TIME : one year or two years *
TERRITORY South Africa only
BASE USAGE : Either two media for one year OR one media for two years in
South Africa only
Eg : Press & point of sale for one year in South Africa only
For Editorial, journalistic and Public Relations Photography :
MEDIA : one publication
TIME : 24 hours to one issue cycle *
TERRITORY South Africa only
BASE USAGE : One time use, in one publication, for the frequency of the
publication, in South Africa only
* Eg : daily newspapers = 24 hours, monthly magazines = 4 weeks
The daily or hourly fee includes these base usages.This rate is known as the BASE
USAGE RATE (= BUR) Note that the BUR is not the total fee for a job, it is solely based on
the photographic daily fee for the job. The BUR is therefor both the minimum comission
rate and the starting point for negotiating extended licences.
Additional Usage
Should the client need further usages - such as an extended territory, period or
additional media or user, the BUR has to be adjusted accordingly. Normally this is done by
adding a certain percentage of the BUR. (There is a percentage-list available to establish
industry conform 'Further Usage Fees' - based on recommendations from the Association
of Photographers (UK) and Professional Photographers of Southern Africa (PPSA))
It is of vital importance that clients are aware and precise about their requirements.
Increasingly clients need to clear a wider range of rights for both immediate and longer
term future use. In such cases it makes sense for both photographers and their clients to
come to a win/win agreement when granting a range of extra rights - for an appreciable
markup.
ExclusivityWhere photographers have copyright, some guarantee of exclusivity must be
offered. Clients will need a guarantee that the work they are paying for will not be used by
a competitor or by simultaneous advertising. The minimum guarantee period would be the
total period of the licence plus one year. If a client wishes to extend the period of the
licence then the guarantee period must be extended accordingly.
Photographers should also determine whether their exclusivity arrangement
includes or excludes portfolio use.
PriceThe total price for a job consists of the following:
· The photographer's professional fee (based on the relevant BUR)
· additional licences ie. additional usage fees (as % of the BUR)
· production costs (digital & other equipment, pre-& post production, capture and
processing fees)
· delivery (CDs/DVDs, digital transmission, digital archiving on harddrive or storable
media)
· additional costs (travel and other related expenses)
A Note regarding Digital PhotographyFor both photographer and client, digital technology can produce results faster and
more efficiently. This does – however – come at a price. Commonly refered to as „digital
pricing“ or „digital capture fee“ this should cover all the costs that have resulted from the
transformation from analogue to digital photography.
The service photographers now provide and must charge their clients for includes
their costs of capturing, processing, transmitting and presenting the images on digital
media to clients.This service requires the appropriate equipment (cameras, lenses,
storage cards and devices, computer, laptop, software...), skills and labour time. These
costs have to be met with digital pricing.
Taken into consideration that the 'straight from the camera' supply of files,
commonly referred to as ' dump and run' is considered unprofessional, the post
production of pictures (resulting in processed digital files: edited selection, cropped, colour
corrected, sharpened, captioned with metadata) is part of a professional delivery – to the
benefit of both client and photographer..
GLOSSARY OF TERMS
1) Copyright
Photographs are under copyright protection the moment they are created and fixed
in a tangible form. The copyright in the work of authorship immediately becomes the
property of the author who created the work.(it´s a personal property right)
Only the author or those deriving their rights through the author can rightfully claim
copyright which entails the following rights:
· the right to reproduce work in copies (reproductive right);
· the right to produce derivative works based on the copyrighted works (adaptive
right);
· the right to distribute copies of the work (distribution right);
· the right to display the copyrighted work publicly (display right);
· the right to claim authorship of the work and to prevent the use of his or her name
as the author of the work she or he did not create (attribution right);
· the right to prevent the use of his or her name as the author of a distortion of the
work and to prevent destruction of the work (integrity right).
2) Moral rightsThe important moral rights are the right to object if the photographer´s work is
distorted - to defend its "integrity" - and the right to an accurate credit. These are obviously
important to protecting and spreading one´s reputation - and without a reputation a
photographer has no work. The exact moral rights are:
· the right to be identified as the author of the work;
· the right to object to false attribution of the work;
· the right to object to "derogatory treatment" of the work - also referred to as the right
to protect the integrity of the work.
In plain English, photographers have the rights to a credit, to prevent anyone else claiming
authorship, and to protect the authenticity of their photographs. This last is particularly
important now that computer technology makes digital manipulation so easy and so hard
to detect.
By Melinda Borbély
Melinda is professional photographer who has, after considerable research, compiled this set of guidelines.
REFERENCES
Sourced from different publications of the following organisations
· Professional Photographers of Southern Africa (PPSA)
· South African Photographers Resource
· Southern African Freelancers Assciation SAFREA
and their references by:
· Association of Photographers (UK)
· National Union of Journalists (UK) ( Freelance Fees Guide/ Photography)
· National Press Photographers Association (USA)
TERMS AND CONDITIONS
http://www.safrea.co.za/userfiles/file/safrea_terms_&_conditions_assignment_photography.doc
TREVOR WILKINS/TESSA Pty Ltd
SAFREA Terms & Conditions
Assignment Photography
DEFINITIONS:
“Photographer” refers to the person or organization requested to take and supply the photographs. “Photographs” refers to all photographic material, in film, print or electronic formats supplied by the photographer. “Client” refers to the person or organization, its representatives, successors, assignees, agents and affiliates requesting the provision of photographic services and supply of photographs.
USAGE RIGHTS:
An Exclusive License is granted to the Client for the usage specified in the brief, estimate or order confirmation. This Exclusive License is conditioned upon acceptance of each term set forth in this agreement, including but not limited to, receipt of payment in full by the Photographer within the payment period agreed. Unless otherwise stated the duration of the license shall be six times the periodicity of the publication for editorial work, or 90 days, whichever comes first. All rights not expressly granted to the Client remain the exclusive property of the Photographer. The Client may not transfer or assign this Exclusive License without the express written consent of the Photographer.
FIRST COPYRIGHT OWNERSHIP:
The client recognizes that the Photographer is the author of the Photographs and the owner of the copyright subsisting in them, irrespective of the stipulations of Sects 21 (1)(c) and 21 (1)(e), with amendments, of the South African Copyright Act No 98 1978 as amended.
OWNERSHIP OF MATERIALS:
The photographer is the owner of all the Photographs and/or materials supplied to the client
PAYMENT:
Full payment must be received by the Photographer on submission of the photographs or prior to publication, whichever occurs first. If payment is not received by the due date, any use of the Photographs may, at the Photographer's discretion, be considered unauthorised and the Exclusive License withdrawn and become subject to renegotiation. The Client agrees to pay interest at 2% above the prime rate per month or part thereof on overdue payments.
ADDITIONAL EXPENSES:
Where additional expenses are incurred by the photographer due to changes in the original brief by the Client or by circumstances beyond the Photographer's control, the Client agrees to pay such reasonable expenses and/or fees at the Photographer's normal rates.
CANCELLATION FEES:
Client is responsible for all expenses incurred up to the time of cancellation, plus 60% of the Photographer's fee. If cancellation is given less than two (2) business days before the shoot, Client will be charged 100% fee. Unless otherwise agreed, Client will be charged 100% fee if postponement is due to weather conditions on location or 50% if postponement due to weather conditions is before departure.
HOLDING FEES:
Client will return all Photographs to the Photographer in their original unmodified form within 30 days of submission. At the Photographer's discretion a Holding Fee of not less than R20 (twenty) per item per day shall be payable from the return date until time of receipt by the Photographer.
ELECTRONIC STORAGE:
The Client agrees to destroy all digital files within four (4) weeks of publication and further agrees not to permit any alterations, additions, subtractions or part use of by any method without the Photographer's written consent.
CREDIT LINE:
For editorial use, Client agrees to provide a credit line in the form of “©
EXCLUSIVITY:
The Photographer retains the right to use the Photographs in any manner, at any time and in any part of the world for self promotional purposes. During the period of the Usage License granted in the Usage clause, the Client is authorised to publish the Photographs to the exclusion of all other persons other than the Photographer's right to self promotion as noted above. After the expiry of the the Usage license, The Photographer shall be entitled to use the Photographs for any purpose.
LOSS OR DAMAGE:
The Client agrees to pay an amount of Rand 2000 per item for film or print based Photographs in the event of the loss of or damage to the Photographs. Client agrees to pay Rand 500 or the Photographer's normal costs, whichever is applicable, for reproducing digital media in the event of the loss of or damage to such media.
REJECTION:
The Client has no right to reject work on the basis of style or composition unless a rejection fee has been agreed in advance.
DISPUTE RESOLUTION:
In the event of any irresolvable dispute in the interpretation of the terms of this contract, the Client agrees to submit the dispute to either an arbitration process or mediation process, at the photographers option.
KILL FEES
If the client decides to kill the work after the brief has been met and work has been delivered by the deadline date, full payment must be made. If the Photographs are not publishable, through no fault of the Photographer, the Client agrees to pay 100% of the Photographers account.
INDEMNITY:
The Client agrees to indemnify and save harmless the Photographer against all liabilities, claims and legal costs arising out of the Client's use of the Photographs.
DEFAULT:
In the event of non-payment or other breach of this agreement by the client, the Client shall pay all of the Photographers costs and expenses incurred in enforcement of the terms of this agreement, including the Photographer's attorney's fees.
VARIATION:
No variation of the terms of this contract shall be recognised unless agreed in writing.
APPLICABLE LAW:
This agreement shall be governed by the laws of the Republic of South Africa.
Signed by…………………………………………………………this……day of……………..20……
