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Work-for-hire contracts: when they're great

Thursday, April 28, 2005

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On Apr 28, 8:09am, paml@mind.net wrote:

I have an opportunity to do some potentially steady seasonal work for a large local corporation shooting flowers and plants when in bloom for their "Master Bloom" list. The images would primarily be used in catalogs and on posters, possibly on-line. Being the corporate entity they are, they have many lengthy legal documents outlining their terms which includes doing the work as "work for hire" and assigning all rights, forever to them. I naturally don't agree in principle to them owning the copyright, however, the images might have very limited stock potential for me and are most likely not unique or difficult to obtain. And, I would gain freelance experience working with a major Corp client. I'm leaning towards a higher fee for giving up rights, but am not sure if this all is a good idea or not. Any thoughts?


There is nothing wrong in principle with "work-for-hire" contracts. They get a bad rap for two reasons:

  1. Most who ask for them don't really need them. They just misunderstand what their own needs are, and oversimplify the paradigm: "I'm paying you to shoot, so I should own the images."
  2. Most photographers do the same thing, but in the opposite direction: they are so used to hearing that such contracts are "bad for photographers", it's become a Pavlovian response to "just say no."
The reason for the "bad for photographers" belief is because work-for-hire contracts mean that you don't own the copyrights to your own work. So, all the photos you shoot become the sole property (including copyright ownership) of the hiring party. Photographers who make money selling stock photography don't like work-for-hire because they can't resell their images to other clients.

The reality is that work-for-hire contracts can sometimes be excellent opportunities for many reasons, and yours is the classic example: you are being offered a job to shoot material that has very little commercial value outside of that one client. The value of the copyrights are next to nil, and the additional fact that there are already plenty of other images on the market just like it underscore the lack of continued economic opportunity with these photos.

Yet, the best advantage you have is that you can use this as a negotiation token to demand a high shooting fee. Feigning the "oppressed photographer" persona, you can pretend to whine about how you have to give up copyrights, so you need to make up for years of lost financial opportunity with a higher shooting fee.

What that fee is, well, that's going to depend on your negotiating skills. It sounds like they're going to sell a lot of products with this, so their "investment" in the images has probably been calculated ahead of time: they know they can't get these kinds of rights in an unlimited and unrestricted fashion through an agency without paying through the nose.... So, you need to figure out what size that "nose" is, and figure you're worth at least a nostril. This makes it mutually beneficial. In other words, figure out what the license fee might be for an image to be used for a few of those products, and multiply that by the number of products they're likely to want to sell, and then by the number of images they'd likely want/need/get. Figure you should get anywhere from 10% to 30% of that.

Disclaimer: I don't know any other details about this relationship, so my off-the-cuff formula might be way out of bounds. That's your job to figure it out. But keep in mind that this is what most Advertising Photographers do on a daily basis. They never own (or even want to own) copyrights to their images, and they fully expect to shoot on a work-for-hire basis, giving all the images to the client, never to be seen again (except for their portfolios). Their methods for calculating fees are probably similar to what I mentioned, but I'm sure they're all different due to differences in the industries they shoot for.

Last word of caution: if they call your bluff on the "oppressed photographer" strategy, they just might opt for a lower fee and not requiring the work-for-hire/copyright ownership language, leaving you with the worst of both worlds: a lot of hum-drum images that have no financial future, and a pittance for payment for doing it.

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