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One of the ways people who create intellectual property earn their living is by licensing that intellectual property to their customers. For photographers, the images we make—whether on vacation or on assignment—are our intellectual property. They belong to us because we created them, just as a painter owns her paintings and a poet owns his words. Each of us, by default, may license our creative works to anyone we wish. That is, as long as we haven’t given away the copyrights.
In practice, when a photograph is created it is copyrighted. It’s not registered with the U.S. Copyright Office, but that process simply formalizes ownership of a creative work should the creator need to pursue legal action against an infringer. Even without registration, an image belongs to the photographer who created it and the photographer is entitled to make the decisions regarding how, when and where it’s published. Even when a work is commissioned, or made on assignment at a client’s request, unless otherwise explicitly stipulated in writing, the photographer retains the copyright to the images they create. Some clients have the mistaken belief that they own such images outright, so it’s up to photographers to educate our customers via our proposals and contracts that the client is effectively paying a fee to produce photographs as well as a fee to license them, even if those fees are rolled into one sum.
Many businesses increasingly request that photographers sign over the copyrights to the images they’re making on assignment. It may seem innocuous enough, but bear in mind that transferring the copyright to an image means the photographer is forsaking any claim to that image and, unless specifically stated in writing, the photographer can no longer use the image for anything—even self-promotion. Therefore, it makes sound business sense to charge an additional fee in exchange for the copyright. Prior to her passing, photographer and educator Susan Carr regularly lectured other professional photographers on the business of photography and image licensing. She suggested photographers try to sell copyrights for triple or more the cost of a traditional usage license.
The American Society of Media Photographers (ASMP) has long advocated a policy of licensing images made on assignment. Retaining the copyright is essential for this—except in instances, as the ASMP points out, where images have no resale value. In these cases, photographers may need to compromise on this hard and fast rule in order to land an assignment. According to the organization’s published licensing guide, “It’s not worth losing a client over a non-issue.” For every other image, however, retaining copyright is crucial if the photographer hopes to license and re-license an image. Sometimes negotiations become untenable and principled photographers may need to walk away from a potential assignment. In practice this is easier said than done.
Los Angeles-based commercial art and architectural photographer Elon Schoenholz says that while he would like to re-license images more frequently, even limited resales are hugely helpful to his bottom line. This owes, at least in part, to clients who are savvy about copyright and understand single-party usage licensing.
“These are clients who know the value of intellectual property,” he says of the architecture firms with whom he regularly works. “I don’t even have to express it explicitly, but they know the game very well. The way I delineate it for people who don’t understand is that every single commercial entity that uses an image has to pay. So it’s broken down for them that any other commercial entity that wants to use them, that makes the images cost more. And I never get any pushback from that. The only people who don’t know seem to be smaller organizations and individuals.”
As an example of the value of retaining copyright for re-licensing, Schoenholz describes a 2014 shoot at Los Angeles International Airport. “It’s actually a really interesting case study,” he says, “because it was a big institutional project, so there was a long list of subcontractors. I shot it for a multi-national architectural firm, one of the world’s biggest architectural firms. I’d been trying to make them a client forever and then finally a guy I’ve known for years went to work for them and brought me on for this. He really looked out for me and sent out an email with a Dropbox folder with low-res files to all the subcontractors and said, ‘If you guys want to buy licensing rights to any of this, get in touch with Elon.’ That was a one-of-a-kind thing. It was like the best job ever. I got all my best portfolio shots and I sold licensing to at least three other companies.”
In the three years since that shoot, Schoenholz says he’s re-licensed the images he made at LAX at least three times. One company paid more for licensing than the cost of the initial shoot, and in total he has brought in nearly quadruple the cost of the initial job. That is the very definition of a re-licensing win.
“The flipside of that,” Schoenholz says, “and I’m totally willing to embarrass myself publicly on this one, is my museum clients require that I sell copyright. And I don’t upcharge. I wonder if that’s why I have a little bit of a corner on this business, because there’s no one else stupid enough to do it. These institutions don’t have any wiggle room with copyright. With The Getty, with The Hammer, there’s no question about it. There’s no way to shoot for them without them taking it. It’s hard to keep copyright with an institution because they’ve got a lawyer in another department saying this is the only way that you can do business. They don’t want to fight with their lawyer, so for us I think it’s an almost unwinnable fight.”
This is the conditional conundrum so many photographers face: if you want to work, you take it or leave it, because if you won’t do it we’ll find someone else who will. And there’s no easy answer; every case is different. Ultimately when a client doesn’t want to pay extra for the copyright, it’s a catch 22: if it doesn’t have any value, why would they want it in the first place?
Schoenholz says one job for one of his longtime museum clients led to a lot of inquiries but no additional sales since the institution required he turn over copyright as a condition of the assignment.
“For years afterward I got calls on it,” he says, “and I had to say, ‘Sorry, I don’t own it, contact the museum.’ Some museums make money off that kind of thing, so presumably they did, but I don’t know. I didn’t make money off of it. And I should have.”
About the author:
William Sawalich made his first darkroom print at age ten. He earned a Master's Degree from The Brooks Institute of Photography in Santa Barbara, California. Along with portraiture, still life and assignment photography, Sawalich is an avid writer. He has written hundreds of equipment reviews, how-to articles and profiles of world-class photographers. He heads up the photo department at Barlow Productions in St. Louis.