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The PRO-Files: When Should You Grant A Copyright Buyout?

I recently had an interesting conversation with a new client. Late in the process of booking a fairly large shoot, the powers that be decided they were no longer happy with the three-year usage term outlined in the original proposal, even though that point had been discussed in great detail from the get-go. Now the client wanted an unlimited usage license—the kind of eleventh hour request that can turn into a big payday for the photographer or, if we’re not careful, jeopardize the whole production.

The request for a copyright transfer, often called a buyout, always makes me antsy—and I know I’m not alone. Copyrights are valuable and photographers know we need to charge substantially to turn them over, but what if such a big fee scares the client away? This kind of thinking regularly puts photographers between a rock and a hard place and can make us second-guess our fees. But this increasingly popular request doesn’t have to be a negotiating sticking point. Instead, photographers should learn to confidently explain to clients why a buyout costs more, and take the opportunity to help educate the customer and potentially save them money. Here’s how.

Explain that unlimited usage costs more because they get more

If the client is willing to pay significantly higher fees for an unlimited usage license or buyout, there’s no problem. In fact it’s ideal, as the photographer and any talent involved simply get paid more for a higher-profile usage. I tend to think of triple usage as a good place to start when it comes to negotiating the fees for an unlimited license—even more for a copyright buyout. According to advertising photographer and Sony Artisan Michael Rubenstein, there’s no standard for this. It’s different every time based on the customer and the job.

“I look at the client and the images,” he says, “and what I think they are worth. But I don’t generally ever begin to consider it until I get to around $10,000 or so, give or take. But it can get quite a bit higher than that depending on what we’re doing.”

The problem arises when clients are somehow not expecting to pay more for infinite usage. The task, then, becomes explaining to the client that they have to pay more because infinite usage has value. The client is asking for it because it has value to them, so they should understand that there’s a commensurate fee. And if the client suggests that infinite usage doesn’t really have value for them, then it should be something they don’t need. Rubenstein says he’s seeing these requests with more frequency, especially with newer agencies and “image library” jobs. Thankfully, in most cases, he says, the clients are willing to pay for it.

“In advertising,” he says, “work for hire (or copyright buyout) is fairly normal with newer agencies and for content/library jobs. It's generally their way or the highway. Thankfully the rate is usually high enough to justify the buyout. With more established agencies and on bigger jobs it's not as common and my agent negotiates my fee based on usage and time of usage. Clients often come back to re-license imagery after the license expires.”

Such re-licensing has long been integral to assignment photographers’ fees. After decades of ‘day rate’ style pricing, the usage model took over. Unfortunately that usage-based pricing is itself likely why requests for buyouts are on the upswing. Not only are companies reacting to the idea of paying again for photography they’ve already commissioned, but also with ever-tightening budgets and ever-expanding uses for imagery, it can sometimes be difficult to know exactly where a photograph might end up.

“They are definitely becoming more common,” Rubenstein says of buyout requests, “mostly for content jobs like Instagram shoots or library shoots where the agency doesn’t know what they want to do with the images, they just know they need them and they will want them at some point for something.”


Help clients save money by offering a usage that isn’t overkill

“For small commercial jobs or non-profit jobs,” Rubenstein says, “clients often ask for buyouts because they don't want to deal with tracking images even if they don't really need the usage. It's my job, or my agent's, to try to steer them in the right direction, to help them figure out what they actually need and what they can actually afford. A lot of the time they only need a few years of usage and can save a lot of money by understanding that.”

In many cases the most prudent course is to try to talk a client out of unlimited usage or buyout. Not only is it more prudent for the photographer, but it’s actually helpful for the client too—even if they don’t yet understand why. It’s an opportunity not only to educate customers, but actually to help them too—something most clients appreciate. For instance, a customer may decide they want to extend the usage of an image from a period of three years to forever. Sure, you could triple the price and see how they react, or you could explain that, because of the content, the images are likely to look dated after a few years so they probably won’t continue using them regardless. In five years, 2018 will look practically like the 1980s. Explaining this to a client is a very reasonable way to understand that, in practice, they’re not going to want the images beyond five years anyway, so why pay for something they won’t need. In this way, a five-year usage that is considerably more reasonable than a copyright buyout might provide more than enough time for the customer to feel like they’re getting their money’s worth out of an image. After all, that’s often a main concern.

Blame it on the talent

Blaming someone who isn’t a direct part of the negotiation can seem dubious or even petty, but in reality, when working with professional talent on a photo or video shoot, the option of an ultra-long-term usage, much less a total copyright buyout, is a non-starter. Models and actors worry that if they become too closely identified with one project they will be passed over for other projects—like the burden of successful television actors being typecast. So models and actors and their agents typically want to limit usage as much as possible—or raise fees significantly for extended use. At some agencies, an unlimited use is simply off the table, and when it is an option it can easily triple or quadruple talent fees. Sometimes simply letting a client know that the half-dozen models hired for a shoot are either unwilling to sign off on unlimited usage or that to do so will turn a $6,000 fee into $20,000 may be enough to convince the client that a more affordable, limited usage term is the prudent approach.

Offer outside-the-box options

One way I helped my recent client stay within budget while meeting their actual usage needs was to first explain that the images would be practically useless after five years due to aging, and then to offer to defer the decision until next year. In essence, this directs them back to a standard re-license situation. With this recent shoot, we had reached the limits of their budget for the project, but they thought there might be a need to extend the usage beyond the negotiated three-year term. So instead we agreed to a three-year usage term with an option to extend should they later decide to. We also established what those fees would be and had the rates pre-approved, then limited the time for the client to make that decision to one year in order to avoid having to track down talent years down the road. This also freed up the funds to be a line item on next year’s budget. The client was happy to keep costs down and satisfy the theoretical need for extended use. I was glad to make my customer happy while not giving away my work. Plus the potential additional payday for re-licensing would be great too. Truly a win-win situation.

Another outside-the-box approach is to offer non-exclusivity and/or stock licensing approval in order to keep costs down. If the job is right and the client okays it, some photographers will lower fees in exchange for the ability to re-license assignment images or outtakes as stock. While this approach isn’t useful for every shoot and many clients understandably balk at the idea of someone else using what they see as “their” images, some clients are happy to keep costs down in every way possible. For photographers content with licensing stock, this can be a big benefit.

Be reasonable

If a client absolutely has to have an unlimited usage term or a copyright buyout, but you can’t reach an agreement on fees, consider being the reasonable one. What I mean by that is, if you agree with the premise that the images will be outdated in 3, 5 or 7 years, you could always price the usage for 3, 5 or 7 years and simply call it “unlimited” to make the client happy, knowing full well that they won’t get used after 3, 5 or 7 years. You’re providing something with theoretical value, but in practice it has no real value at all. So why not be the good guy, make the client happy and sell an unlimited usage license for the same price as that 3, 5 or 7-year license?

Rubenstein says ‘reasonable’ sometimes means looking at what you could actually do with the images even if you retain the copyright. Do you have the ability, legally or practically speaking, to re-license them? If not, that significantly limits the value of that copyright. Photographers are trained to guard our images at all costs, but that’s simply not always necessary.

“Copyright is a state of mind,” Rubenstein says, “but it doesn’t help you if you don’t have releases for talent (the agency has them) and if you sign a contract saying that you won’t ever sell the images to anyone else—which is very common on ad jobs.” 


Know when to walk away

When it comes to issues of usage, it’s important to have well-defined boundaries and know when it makes most sense to walk away from a bad deal. For instance, Rubenstein won’t ever provide a copyright buyout optional to an editorial client. It’s simply a non-starter. Still, he’s a realist and he understands publishers have unique needs, so he tries to accommodate them when possible.

“With editorial,” he says, “a buyout should never be on the table. Copyright is not negotiable for editorial rates. If a client puts it on the table, I explain to them that it is not possible for me to give them image rights for editorial rates, ever. Unlimited usage, however, is fairly normal because hey, once it's on the internet, it's always on the internet. Newspapers like the Washington Post and the New York Times keep all images shot for them in their archive and pay out a portion to the photographer whenever something is sold. I own my copyright for editorial. What I can’t control is how long something stays on the internet. What I can control is how many times a media company that buys editorial work, either by assignment or stock, uses my images. They can only print them in an editorial context once before they have to pay for the usage again.”

Michael Rubenstein is a Sony Artisan Of Imagery. See more about him here and follow him on Instagram @mrubee_photo.

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.

 

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