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Fair and reasonable value, do you practice it?

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Tom J
Fair and reasonable value, do you practice it?
on Sep 27, 2005 at 8:37:18 pm

Hello,
With the many projects that we encounter, does anyone here actually practice and emphasize "fair and reasonable value" when it comes to using photographs, original designs, etc.?

If so then would it be proper to include such a term when a client agrees to a single use for a single project? Though I believe the only time that this would be necessary would be when a project is delivered and provided to the client to keep in their possession for a given amount of time right?

How do you folks handle terms like this with the client or better yet, respond to them? Because most of the time, the client has their mouth open to the floor when they see that a reasonable value for the said media is trippled if not more than that of the original price quoted for use.

Thanks,
Tom


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Seth Bloombaum
Re: Fair and reasonable value, do you practice it?
on Sep 28, 2005 at 3:53:15 pm

Tom, what are you selling in what market?

My experience with stills, film, video, web, events in the corporate market by production companies is that it is all "work for hire", meaning that upon payment the client owns all rights, except for stock visuals or music which are typically "for use in this production only" but freely distributable within that production (not including broadcast or other out-of-market use).


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Tom J
Re: Fair and reasonable value, do you practice it?
on Sep 28, 2005 at 9:47:47 pm

Hi,
I was mainly leaning towards Photography with this question. Sometimes in linear land we can get away with owning the rights, not likely though majority of the time. But with photos during a restricted use project when the client needs originals, transparencies, etc. one needs to protect themselves. Future income potential is at stake and especially so if the original is misplaced or lost. Just future use in general really. Plus "work-for-hire" is generally harmful as we all know it in the "design" world. Or at least it is in my mind. Work for hire contracts are ugly, ambiguous and more often than not against the designer and with the client. Allowing one to get as much out of a project as possible without paying going rates for it.

Anyhow, that's a whole 'nother can a worms. What I was curious about was the originals during an agreed restricted use time period, whether it be 3 months or 3 years. When the value of an original is presented whether to protect from loss or to cover future income, clients generally become surprised or turned off.

So I was wondering how you folks may handle situations like this and if it is ever questioned, how do you describe the need or explain your justification.

Hopefully that's not too confusing, thanks.
Tom


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Seth Bloombaum
Re: Fair and reasonable value, do you practice it?
on Sep 28, 2005 at 10:06:59 pm

"Plus "work-for-hire" is generally harmful as we all know it in the "design" world. Or at least it is in my mind. Work for hire contracts are ugly, ambiguous and more often than not against the designer and with the client. Allowing one to get as much out of a project as possible without paying going rates for it."

I guess you are living and working in another world than I. "Work for hire... against the designer and with the client... without paying going rates..." This is all fascinating and new to me. Relationships are more cooperative in the creative and work communities I'm familiar with. I wasn't aware that there was an ethical way for the designer to be against the client, or the client against the designer, except when the relationship is breaking or broken.

Regardless, please clarify whether you are concerned with selling stock or original photography, and into which markets. Likewise design.


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Tom J
Re: Fair and reasonable value, do you practice it?
on Sep 29, 2005 at 7:56:37 am

Hey there,
First you were the one who mentioned "work for hire". It's not all "work for hire", sometimes projects are exclusive but most of the time, architectural, scenic, sports, engineering, discovery, etc. can be used or sold elsewhere. So my question was asking about "fair and reasonable value when it comes to using photographs, original designs, etc." in contract or client relationship terms. Nothing to do with work for hire. By omitting any such term as copyright, I would've thought that it was understood that I am retaining ownership.

As a fulltime freelancer, I avoid if at all possible any "work for hire" arrangements. Especially with photography. It all depends on the client, the job, and potential future usage. Ie. stock.

[Seth Bloombaum] "Relationships are more cooperative in the creative and work communities"

True and I agree, I enjoy the collaborative support with fellow creatives, its the clients that seek creative support because they require it that I struggle with when they want to turn things around.

Like I said, "work for hire" a whole 'nother can a worms. "I wasn't aware that there was an ethical way for the designer to be against the client, or the client against the designer". I never mentioned ethical. But now that you mentioned it, personally work for hire in of itself is unethical although protected if two parties agree to it. In a freelance situation, work for hire is against the designer or artist simply because it is a tool used explicitly for the purpose of copyright and nothing else. So depending on the agreement of course, it terminates any future use by the artist.

In my experience some clients rather hire me as a "payrolled" contractor. Thus changing any initial agreements or discussions that would allow me certain rates or project income. A work for hire as I have experienced a couple of times allows clients to ask for more. Whether it be concepts, multiple looks, frames, final design, yadah, yadah, yadah, or the amount of time spent on a project for a certain fixed day or weekly rate. Plus, future income potential is thrown out the window if any part of that project is usable elsewhere.

So now that we've beaten that dead horse and re-written war-n-peace, forget all that, it has nothing to do with what I was seeking.

"I was mainly leaning towards Photography with this question" Ok we got that duh!.
"with photos during a restricted use project when the client needs originals, transparencies, etc."
and then,
"What I was curious about was the originals during an agreed restricted use time period, whether it be 3 months or 3 years."

How do you handle "fair and reasonable value" discussions when it comes to using photographs, original designs, etc.

I hastily forgot earlier before I needed to go somewhere that this work is for general business collateral, ADV., PR or promotional, for my side. The client side is for their use in however they see fit, basically campaigns to promote their business, multiple spreads, quantity runs, etc.

I'm falling asleep here (1am), I apologize if it is not allowed, and don't mean to offend:
I am going to go have sex with my wife like she's my girlfriend...

Thank you,
Tom


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Seth Bloombaum
Re: Fair and reasonable value, do you practice it?
on Sep 29, 2005 at 3:40:33 pm

I hope someone else on the forum with direct experience in these markets and with these business practices can help you - the world I work in is pretty different.

One suggestion though, and please have a thick skin about this as it isn't meant as anything but helpful and constructive:

I get the sense that this really bothers you, perhaps more than you realize. Maybe you should consider distancing yourself from this aspect of client relationships by employing an agent or agency for a percentage of gross that would take care of all inside sales and agreements for new work, and licensing for stock. If it makes your life better, wouldn't it be worth the 15-20%?

Or maybe I'm misreading. Regardless, sorry I can't be of more direct help and good luck.


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Birdman
Re: Fair and reasonable value, do you practice it?
on Oct 1, 2005 at 3:11:17 pm

I've never used "fair and reasonable" in any of my contracts. The reason - I can't afford to pay an attorney to enforce a really, really vague term.

Price everything up front. If the prospective client needs additional useage, add it to the invoice. Do not work for hire. (unless you plan on seeing one of your images that you thought was going to be used in a brochure in a full page, 4 color ad in a nationally distributed magazine.)If you do work for hire, just get a job at the local newspaper...it will be a lot less painful.

Freelance photogs have a tough enough time making ends meet without being paid for the actual usage of their images. I have sold "all rights" once. I'm not saying "never again" (never know what economic adversity one might be facing) but if the client demands "all rights", I usually just thank them for considering me and suggest they find someone else that might be able to work under their terms.

Most (but not all) agencies and image buyers understand the issue and usually don't push for all rights.

This "work for hire" thing really got hot in the 90's when National Geographic dropped their typical way of doing business and demanded that their photogs do the work for hire. Geographic lost a lot of very, very good shooters.

I have a "damage" clause in my contract that stipulates a specific sum if originals are returned damaged. I base the damage fee on the total amount of the job. This is sorta a moot point for me, nowadays since most of my work is delivered in a digital manner.

Lastly, an agent. Agents are great if you can find one that will REALLY promote you AND you have a killer portfolio. Good agents see lots and lots of work by unknowns. Your chances of finding a good rep are pretty slim. (unless you are already known - chicken or the egg thing)

Hope some of this helped.
David







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Tom J
Re: Fair and reasonable value, do you practice it?
on Oct 1, 2005 at 8:10:40 pm

[Birdman] "This "work for hire" thing really got hot in the 90's when National Geographic dropped their typical way of doing business and demanded that their photogs do the work for hire. Geographic lost a lot of very, very good shooters."

I vaguely recall this situation, A long time ago, I used to be on the bounce as an assistant with some great folks from SI, Upperdeck, and NBA. That's where I pretty much picked up alot of my know-how, and to this day still live by it. God I wish I were still there. Long story... :>(

[Birdman] "I have a "damage" clause in my contract that stipulates a specific sum if originals are returned damaged. I base the damage fee on the total amount of the job. This is sorta a moot point for me, nowadays since most of my work is delivered in a digital manner."

That's sort of what I've got going at the moment, and I figured as much. I just can't figure out the best way to describe my reasoning to a client when the issue is brought up. Not too good with that I guess. :>( Heck, I'm still working e-6, which don't get me wrong is a good thing, old school believer here. More digital is coming for me but not soon enough.

Thanks for the input appreciate it...
Tom


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Frank Otto
Re: Fair and reasonable value, do you practice it?
on Sep 29, 2005 at 4:55:11 pm

This is hugely confusing...

What is the issue here? Do you have a work that was developed for some other party and you want to use it for your purposes? Are you saying that you have the rights to reuse anything you create? If you have retained full rights to the ownership/copyright, etc., then you can set whatever you feel is fair and reasonable. Is that your question?

Frankly, unless you are self published, everything we do is a work for hire. I know that I don't generate images on the if-come...I get a work order and a fee structure and the legal terms hammered out prior to doing any work for anyone, regardless of the type of work or media involved. The few works I have created that I retain full control over have been sold as self published-self distributed material through a select retail outlet...and I've had to take legal action for copyright only a handfull of times.

You may work for a naive client that allows you to retain rights - rare, but there are still a few left who'll let the artist retain full rights - but in my experience clients keep the rights or demand assignment upon payment.

So, what's your question?

Cheers,

Frank Otto



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Tom J
Re: Fair and reasonable value, do you practice it?
on Sep 29, 2005 at 8:04:16 pm

Hey guys,
First let me mention, I can take the critisism, analysis, beating whatever you want to call it. It doesn't bother me. :>) I'm just as confused as you are to be honest. Recently and god bless him, I was doing exactly that, working with someone who was handling contracts, sales, etc. for me when the need should arise. It was the best thing that I ever done. Unfortunately though, he has passed away.

So that left me in a bind more or less, because a few contract terms for whatever reason has always plagued me. Its pretty sad I know, but that's the way it is.

Forget about design I know what the client is due and who owns what when payment is made, I am refering to Photography.

The clients that I have been working for most of the time are assignment based yes and for a said fee they retain ownership. But when it comes to photography the fine line shifts a little, because often photos can be used elsewhere. Stock, magazines, promo items, trade show collateral, etc. Depending upon the subject, I can typically re-sell certain photos.

"If you have retained full rights to the ownership/copyright, etc., then you can set whatever you feel is fair and reasonable", I know that, thank you, that's not what I was refering to.

This has nothing to do with type of market, just plain ol' terms used in a contract. Like I mentioned, Fair and reasonable value. When it is used under a loss, theft or damage provision while leasing original transparencies to a client to use these same photos for a restricted period of time. One would place a value above and beyond the original price for use that replaces the original in the event that the client has lost, or damaged it.

But some clients I have dealt with just simply argue that the "insurance" is unreasonable and unnecessary. I don't think that it is. That is what I am discussing here, so I apologize if I didn't define my question enough earlier. :>)

Rights of use provisions with restricting a client from full ownership is in just about every contract or terms and conditions when it comes to photography, whether it be a receipt of product for review, job confirmation, stock arrangement, or lease.

Thanks for beating your eyes back and forth while reading this,
Tom


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Joseppi
Re: Fair and reasonable value, do you practice it?
on Oct 1, 2005 at 4:08:44 pm

Tom.

As for photography, it sounds like you could solve this through "usage rights"... exclusive, or non-exclusive rights, etc. Basically price the image for a certain period of use, or an agreed, stated publication.

Where this might sound limiting to the buyer, it does raise the subject up front that the buyer can buy levels of use, for example:

A) complete buyout with exclusive, worldwide rights and copyright ownership (priced the highest)
B) Non-exclusive usage (they can use the image as much as they want, but you can also resell it)
C) A specific one time use (the least expensive)

While it might be hard to actually monitor future use of the image by the company, at least you have an agreement you could refer to later.

I've seen this approach in pricing, where there is value based on the use. If clients don't want to buy exclusive rights, perhaps their budget will allow more limited rights.

The Graphic Artist Guide pricing guide, and others, have sections on use and rights.

Now, all this usage rights talk applies if the work in question is quite unique... with the shift in photography at the stock houses from pay per use, to unlimited use stock collections, the industry has changed. The development and increase of digital photograhpy has increased the competition and enabled many companies to more easily set up small in-house digital studios as needed. Not that everyone is as capable as an experienced photographer, but it creates options, or a perception of options in the clients mind.

Given the change in the market, you will get a sense for if the clients feel "all this hassle for a picture... dude, it's just a sunset, we'll just bock a stock photo CD, or shoot our own...forget it..." Internet searches and digital cameras are providing a lot of options out there so you have to balance your product, market and client options.

Very likely though, you could structure a win-win situation, where you quote a lower price by selling "non-exlusive" rights which you could explain that the possibility of future sales helps you subsidize a lower cost for the current client. If the client wants "buyout rights" then at least you have a range of pricing options to match to usage.

HTH,
Joe


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Tom J
Re: Fair and reasonable value, do you practice it?
on Oct 1, 2005 at 8:20:03 pm

Hey thanks for the reply,
As for usage, I pretty much practice non-exclusive and sometimes "one-time" use for a client based on their budget. As I mentioned above to Birdman, I am still an old school believer of e-6. I'm not going to live by it forever, but I do love the latitude and control.

As I mentioned earlier, I think my feeling for "fair and reasonable value" in a "loss, theft or damage" provision in my contract can stay but perhaps just reword it in a sense that most clients can feel comfortable with. Basically telling them that if I lease an original to them for specific time period, that the original is agreed to be of such, such value. So when it comes time to using it, the client will think twice about how to handle the original. Hopefully protecting it.

Anyhow, just curious I looked at your photos online. Have you ever been to Kenilworth or Warrick Castle "across the pond"? I myself have some pretty cool shots from there from when I visited a couple of years ago.

Thanks for the help folks,

Tom


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Birdman
Re: Fair and reasonable value, do you practice it?
on Oct 2, 2005 at 4:19:45 pm

FRANK OTTO "Frankly, unless you are self published, everything we do is a work for hire"

Frank, I have to disagree with your statement.

First and foremost, unless a "work for hire" agreement is signed by the photog, the Copyright Act of 1976 and as amended AUTOMATICALLY assures the photographer that the image is legally his/hers and any usage thereafter must be granted by the copyright holder. There are, of course, additional issues regarding registering a copyright for the purposes of seeking punitive damages, but the bottom line is the image belongs to whomever created it.

Maybe your statement was a philosophical one as opposed to the legal stuff. If so, I still disagree with you, but if that's your business plan and manner of operating, to each their own.

Further reference may be found at this link:
http://asmp.org/commerce/assignment.php

The bottom line is creatives of all genre are under fire from those that would use their services. Last year, Congress passed and the President signed a bill that limited the payment of "overtime" to many different catagories of employees. Although "freelance" photogs obviously could not be included (unless work for hire was the manner of employment)many in the creative sector were...for instance, I have a close friend who has worked on many tv commercials for one of the major auto makers. In order to get a commercial ready for the Superbowl, he worked for 36 hours with an occasional 1 or 2 hour meltdown. He put in over 80 hours in a 5 day "work week". Guess who DIDN'T get paid overtime. He has no equity in the company, he is not "management", and he did not share in the massive profit that was realized from the "rush fees" charged to the auto maker.

If it seems like I just digressed from the "topic", I don't think I did. "Work for hire" is a truly bad thing for any creative. Next time someone tells you they want to own the images you create, inquire if you will be covered by their work comp and liability policies, their auto liability insurance, their E&O insurance, and if their health plan includes dental and vision. Might give them an insight to what it REALLY costs to produce the images they need for their ad campaign.

Sorry about the soapbox...

Regards - David Bird


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Tom J
Re: Fair and reasonable value, do you practice it?
on Oct 2, 2005 at 6:09:35 pm

Hello David,

That pretty much sums it up what I was referring to a couple of days ago with Seth:

[Tom J] "Plus "work-for-hire" is generally harmful as we all know it in the "design" world. Or at least it is in my mind. Work for hire contracts are ugly, ambiguous and more often than not against the designer and with the client. Allowing one to get as much out of a project as possible without paying going rates for it."

In a round about way, my topic of discussion here kind of somehow brought up the work for hire topic. While talking about it, I couldn't help but think about a recent case concerning Ebay and a prominent fashion / model Photog, when his photos were being reused and sold without his consent. He brought a lawsuit against Ebay and the users responsible for allowing this to continue even though he explicitly described the situation to Ebay and asked for them to put a stop to it. After many months, he finally sued them, and I believe won.

Not much of a point really sorry, except for that it was his photos under copyright, because he shot them for a client and they remained his. Because he created them.

Again, thanks for the help folks appreciate your time.
Tom


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Seth Bloombaum
Re: Fair and reasonable value, do you practice it?
on Oct 2, 2005 at 6:59:40 pm

Regarding work for hire, I think we're all projecting the common practices of our specialty art or craft in our industry onto others' specialties and industries. "Work for hire is always bad or even predatory" is meaningless if not offensive when we come to the video and other media specialties supporting corporate communications in the U.S. FYI.

Likewise, many outside of it are unaware of the common industry practices regarding preservation of copyright to pro photographers in publishing, advertising and portraiture.

It took several messages for the issue of "fair and reasonable value" to come out in such a way that I understood what we were talking about. I think the reason is that we're all like fish swimming in our own sea - we don't usually see the water we're swimming in, nor imagine that it's different anywhere else.


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Tom J
Re: Fair and reasonable value, do you practice it?
on Oct 2, 2005 at 11:48:56 pm

[Seth Bloombaum] "fish swimming in our own sea - we don't usually see the water we're swimming in"

Yeah it's a little muddy on my end, temp is about 68 degrees and I'm having trouble seeing through all of these overgrown coho tails in front of me trying to beat me up river... :>)

Tom


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Joseppi
Re: Fair and reasonable value, do you practice it?
on Oct 3, 2005 at 11:27:01 pm

Tom,

>>As for usage, I pretty much practice non-exclusive and sometimes "one-time" use for a client based on their budget. As I mentioned above to Birdman, I am still an old school believer of e-6. >>

Pardon my question, but what's "e-6"?

>>...Basically telling them that if I lease an original to them for specific time period, that the original is agreed to be of such, such value. So when it comes time to using it, the client will think twice about how to handle the original. Hopefully protecting it.>>

That sound reasonable. Now many commercial (film) labs, have adding scanning to their processing services. This is a nice bridge for the strictly film photogs, that lets them deliver scans on CD to their commercial clients (for layouts) without having to invest in all the computers, scanners, etc. And it keeps the transparencies from getting lost. I liked seeing that option available to the film photogs...

>>Anyhow, just curious I looked at your photos online. Have you ever been to Kenilworth or Warrick Castle "across the pond"? I myself have some pretty cool shots from there from when I visited a couple of years ago.>>

Not those castles in particular, but on a future trip someday I'd like to visit. I did make it to Bath (with the Roman baths), Stone Henge, S. Ireland... There is so much history to cover, just in England alone... the pub down the street could be 800 years old... we've lucky in the US to have buildings that didn't get ripped down in the "pour cememt slab" rebuilding frenzy in the 70s...

Do you have a web site with any of your photography?

Cheers!


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Tom J
Re: Fair and reasonable value, do you practice it?
on Oct 4, 2005 at 3:24:46 am

Hey there,
Yeah I guess I was little to quick to use some short-hand there. "e-6" (slide film or the processing thereof)... :>)

Anyhow about CD's, the labs that I've worked with in the past do offer it and I like the service (it cuts my schedule down a bit). The only difficult part from time to time is making sure they don't color correct during the scan. So depending upon who is doing the work, they may forget that their equipment or software inside lets say Photoshop may have presets on exposure, gamma, etc.

As for a website with my content, I am re-working one slowly but surely. However I will email you a link or at least touch base through your website for the time being. It's been kinda hectic lately, so I will get to it just as soon as I can.

Thanks,
Tom


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