2018 02 05 Usage Rights - Andy Barnham

So I've just talked myself out of a job worth £1,000s. Why I hear you ask? The short answer is that what the client was after was worth upwards of £60k and what they were willing to pay was a fraction of this.

In my last post I despaired about being asked to photograph for free, so the irony of turning down paid work is not lost on me. However I couldn’t, in all good faith, accept the terms and conditions that were being imposed. Having been naively ignorant of photographic legal rights at the start of my career, and seen images still being used in various guises years later, I am now quite firm when and how my work is used.

The job in question was for several days of catwalk photography at London and Paris Fashion Weeks, on behalf of a production company organising shows for young and upcoming designers. So far, so good. I’ve photo’d my fair share of runway shows and enjoy the buzz that is generated. The client wanted several images as soon as the shows finished and all the images by 9am the next morning. Given the urgency to get images out as soon as a show is over, the tight turnaround time was to be expected. The budget available was an acceptable show rate, however what I didn’t expect was the additional demands asked. Over the course of email correspondence the following two terms were slowly added;

1. No moral rights, including rights to credit and attribution, and use of the images for my own promotion declined.

2. Full rights to be handed to the production company.

Moral rights are rights of the creator, in this instance myself as a photographer, and are part of copyright law, which includes the right to be identified as the author of a work. Moral rights must be asserted and as a result often fall to the bottom of the priority list. Most amateur and starter photographers are unlikely to be aware of this and as a result aren’t in a position to assert this right and so lose out if they submit their images to competitions, newspapers, etc

If the right isn’t asserted or a waiver signed there is a danger that an image can become orphaned, that is to say the creator is unknown or uncontactable. Digital photographs now are regularly stripped of their metadata (information contained inside the photograph itself) by large sites and organisations which makes it even more difficult to find the creator and photographs can be used without the owners’ permission as long as a ‘diligent search’ has taken place. If this happens, then owners will miss out on any potential licence fees and resales. Lack of moral rights also mean possible future commissions may be lost and cost incurred by those seeking to identify and locate the photographer.

Unfortunately trying to prove all of the above is difficult to do. A photographer has to prove loss of income but how do you show that a commissioner was trying to find you, because you weren’t credited, to offer a job? Or taking this instance as an example, what happens if, in a few years, the young upcoming designer is now mainstream and would like me to take their next runway images? It would be impossible to find me as the production company are claiming the images as their own, so much so they've watermarked my images with their logo. And as I haven't been able to use the images for my own promotion, there's zero association between the designer and myself.

Legally, a photographer owns their work. It is very rare for a photographer to hand over full rights/ copyright of their work and if agreed usually done for a significant fee as it means that photographer can no longer licence an image and thus no potential licence fee or resale. So when a photographer hands over an image, it is done so with an agreed use by the client. Use depends on, but is not limited to; duration of use, where it is used (ie country, continent etc) and how the image is used (marketing, advertisement, social media) etc. The greater the use, the greater the usage fee. Handing over full rights to the production company meant they could do what they pleased with my work and I would see no extra renumeration. In this instance the production company expected these two terms, but not the budget to match. At face value, a job worth £1,000s sounded great. However the company were asking for upwards of 100 shots which even with a very basic use were worth at least £4,000 in licence fees according to an industry calculator.

Of course, my handing over copyright is actually just part of the bigger picture. To fully comply legally, all other elements involved in the runway images would also have to agree. The production company claimed they had the relevant releases from the model agency, the location, the stylists etc etc. I couldn’t confirm this, but was very suspicious if all other elements had agreed for the budget on offer. It is also not my place to confirm proof, rather all I can do is inform the client that I am not responsible for these releases and therefore it becomes the responsibility of the production company who then also become liable.

I am not sure if the underling I dealt with understood what they were asking for and the potential huge loss of earnings handing over these rights would have meant to me. Indeed as previous photographers had all agreed to these terms (according to the production company) they expected me to oblige. The fee offered would have covered my time, but there was no budget for use. So in effect the production company were asking for my images for free. Yes, I appreciate that bills have to be paid and that taking the moral high ground and holding my ground in this instance has cost me not an insignificant amount. However given the amount of details requested from me, and especially in regards to the industry calculator used to compute the licence fee, I believe the production company were looking to charge a market rate for my images, a rate not offered to me for my own work, going straight into their own pockets. Of course I am upset about losing work, but I would have felt even worse had I agreed to these terms.

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