Do you think that if you buy a book, that gives you the right to make copies of it and sell them?

I guess we have different clients and different styles.

If my client asks for copyright I will have a short discussion to see if they would be better served by an appropriate usage license.  Usually, they see the wisdom of a usage license.

If they insist on copyright, I am happy to oblige. I plan on never having access to the images, and I charge the client an appropriate rate.

I see no advantage in setting up a convoluted arrangement where they own copyright, but they license the rights back to me.  You are meeting the letter of the customer's request, but not the spirit.  This is not good for long term customer relations.



If the client is better off with a usage agreement, educate them.

If the client really wants copyright, sell it to them.

Of course our clients are different, aren't your clients different from each other?

A client is always best served by a usage license. The only need for copyright is to prevent you from using them. When they use your image as part of something else, they'll have a copyright on the collection, so they have infringing protection from that. Then can have exclusivity through the usage agreement, so the only reason to choose copyright over a license is to restrict you. Or you'd rather be lazy and not think through what you need so you take everything.

There's no wisdom in choosing a usage license it's about simplicity.


Do you really only have two types of clients, those "better off" with a usage agreement and those who want copyright?

For the same price, is there ever a time where the client is "better off" with a usage agreement? The only advantage to them is that you'll let them pay less.


The advantage in the convoluted contract is for client type 52, and 134 and 1297, who are so pig headed that they articulate what they need and have no problem with you using the images any way you want. Their needs are covered by a simple usage agreement, but they insist on a copyright. Then you educate them and they say I get it a usage agreement works, but I want to own the copyright for my peace of mind. I'm fine with you using them and reselling them and you can even sue and keep the infringement money. I don't care that it doesn't have to be this way, the words copyright and owned by me are going to be in the agreement.


The point is that it's not ownership of the copyright that matters unless there's no agreement in place. It's the terms that you agree on that determine everything. Copyright is just a word used to describe a default right and ownership is irrelevant, only the terms of the deal are relevant.


Our discussion is the perfect example, you understand exactly what I'm saying, but you want the copyright in your name even if it doesn't change anything. You don't want that word move to the other side of the page. You seem to accept that it's possible to successfully write the convoluted agreement, but the question is why?

That's my same question. It doesn't matter to either party who owns the copyright it matters what usage right you have.

Imagine if I was your client, do you really consider it an effective use of your business time to go on as long as we have over a word? The word and the ownership are not worth fighting over, and not really worth educating the client over. If you know what they want and they're cool with what you need, you're set. Why bother to educate them, just have an agreement that covers the terms and it's the same.

If I gave you the plot, and characters and scenery/location and I paid you to write it.. YES, I would.

For the record, clients will sometimes ask for an unrestricted, exclusive license. Essentially they are asking fir the right to do whatever they want with the image, including re-licensing it.  At the same time, they are asking that you make no further use of the image as well.   The net effect to you, the photographer is nearly the same is transferring copyright.  If you grant the exclusive license, that would also prevent you from re-licensing, and in most cases, re-using the images in any way.

I think you misunderstand my position.  I am happy for the client to buy the copyright.

Where we seem to differ, is that I think the a client who wants the copyright should get all the associated rights, and pay an appropriate price.

You seem to suggest that instead of charging the client for copyright, I should pay an attorney to craft an agreement that gives the client copyright in name only (but with none of the associated rights).

With my method, I give the client what they want, incur no additional cost, and receive additional revenue.

With your method, the client gets what they want in name only, I incur additional attorney costs, and I receive no additional revenue.

I fail to see the advantage of your suggestion.

I would think there's a practical difference between an unrestricted, exclusive license and a work for hire agreement.

My assumption is that the exclusive would apply only to specific images.  I would expect the work for hire agreement to cover all images.

Whatever.

It's clear that you don't understand the context of the suggestion or the purpose.

The only thing that ever matters is what you agree to. Labels are superficial.

Exactly. The same idea.

It's the terms that matter.

You'd need to read the terms in the agreement. The license could specify a shoot, a bunch of photos throughout a catalog, it could specify a shoot plus a single photo.

It could also specify hours of the day or days of the week, so that you could go on an assignment and shoot personal work during time off. The options are infinite and assuming what and agreement will say is flawed thinking.

Man!   You are so far off the mark with this.  In other words, you are completely wrong.  Not only does your mistaken impression fly in the face of the industry, it also is contrary to the Law of the US.

Because there is a contract that specifies the details and they agreed to those details before they started work.  How is that hard to understand?

Obviously, if you have the time and the attorneys, you can create whatever custom license agreement you want.

Most people would rather use a standardized agreement.

It's easy for a license to cover only certain images.  In fact, that's how it is commonly done.  Typically, a photographer will charge more if the client is licensing more images.  Usually, the client will limit the license to what they want.

A standard work-for-hire agreement covers all the images. 

My preference is to use standard, time tested, agreements whenever possible.

Feel free to have an attorney craft custom agreements for each of your jobs.   

Yes, it is possible, but you going to end up spending money on attorneys that would otherwise be profit.

No you changed the terms of the agreement. He said if you bought a "book".  What you are negotiating for now, is a "story".  If you can't see the difference, then perhaps it is a language problem.

Model releases are only needed for images of people.  There are many opportunities to license images that don't contain the bride, groom or guests.


If I want to license the florist an image of the flower arrangements, I don't need a model release. 

If the job was work-for-hire, then I wouldn't own the copyright, and would need permission to license any image, even those without identifiable people.

Let's assume labels are superficial.

There are at least two important differences between a usage license, and a work-for-hire where you license back the images.

1) A usage license is a common arrangement.  You don't need to pay an attorney for a custom document.   I consider the difference in cost to be a reasonable consideration.

2) A work-for-hire and license back is only useful is your client doesn't understand the situation.  It is only appropriate for clients who insist on owning copyright, don't need it, and don't understand that they don't need it.  You are giving the client copyright in name-only.   This hardly seems like an honorable thing to do.  If they want copyright, sell it to them.

I have no idea how that could be hard to understand. I'm the one who's been saying over and over that everything is determined by the agreement.

There are lots of scripts written before being shopped to a studio.

If the lack of flexibility works for you, then great.

The money you spend on contracts will bring you more profit from not loosing jobs due to inflexibility over meaningless things.

I am saying that his analogy is flawed. I am sorry you didn't get that. He took that quote without the clarifying statements. I thought it was obvious. What is happening in the situation is akin to what I wrote not what he did.

If they don't understand it's not honorable. The term I used a couple pages back was shady.

I am talking about people who have an irrational emotional drive for the ownership of the copyright. There are people who understand they don't need it and still don't care. They don't care what you do with the images and they are completely fine with it. I've had it happen.

I lost a job (non-photography) once because a client didn't want to pay the hourly rate I was charging, so they went to someone else who had a lower rate but took far longer and they spent far more money for a lesser quality result. There are clients in every field who simply don't have the understanding they need to make the best decisions for themselves.

I've never advocated writing this contract behind their back. I'm saying that copyright ownership never matters, all that matters is what you can do with the images and that's determined by the agreement. If they want it worded so that they own the copyright and you can do everything that you would be able to do if you still had ownership of the copyright, what difference does it make to you? None, but if you have a client it makes a difference to, give it to them.

One job that you would have lost by not being flexible will pay for 10 custom contracts.


How do you sell someone the copyright when all you have is one standard contract? Or do you have two? If so why can't you make it three? If you charge more for selling the copyright, why can't you charge more to cover the cost of the legal fees?

What percentage of your wedding jobs result in third party licenses?

What percentage of your wedding jobs result in copyright infringement suits that get you more than you spend on legal fees?

Isn't it great being the copyright holder when you can make someone take down an unlicensed image? What do you get from that? Nothing. No income and you loose any advertising/publicity you get out of it.

In the context of a career, worrying about copyright for wedding photos is a waste of time. It's a service business and when a client asks for something you give it to them. If they want the copyright say fine and give them a list of what you need for them to have it. All of the terms that matter to you and the cost you incur to make that happen. It's simple.

Or be inflexible and loose out on jobs to people who've been told by someone that copyright is important and they don't understand.


It's like songwriters who's entire understanding of music publishing is "never give up your publishing." If you're really getting any licensing, you at least need to have someone do the admin. If you're not, then you're just giving up percentages of nothing.

Please don't mischaracterize my position.

I was suggesting that the normal procedure is to grant the client a usage license, but if they want copyright you should provide it.

You were suggesting that if the client wants copyright, a custom agreement should be crafted that gives the client copyright in name only.  The client ends up with the same rights as if they only had a usage license.

Under your scenario, the client always gets the same rights.  Your only flexibility is the length of the paperwork needed.

Under my policy, the client gets what they asked for.



Work for hire agreements, and usage licenses are standard documents.  For those who don't have an attorney on retainer, there are many sources for these documents. 

On the other hand, transferring copyright while retaining all the rights that normally go with copyright, is unusual.  You are going to need to pay an attorney to craft a custom document.




I think what confuses you, is that I said that if the client wants copyright, this should be taken into account when pricing the job.   How much extra this should add to the price depends on the how much aftermarket value the photographer thinks the images have.


To summarize my position:
If you think your client is making  mistake (i.e. demanding copyright when they don't need it) then have a chat with the customer and explain your recommendation.   Once the customer decides, sell the client what they want and price accordingly.

Actually, no they are not.

I find this hilarious given the misstatements you have made throughout this thread.

Actually, it is contrary to the law of most of the world (all the nations that have signed the Berne Convention).

And when they say "I get it, I don't care" then what?

My guess is that you'll say price accordingly. No disagreement from me there, but what do you do when they say I don't want to pay that much. I like your work better than the other guy who wants the same rate as your non-copyright, so we have to make it work for that much.

What do you do at that point? Do you pass on the job? Try another round of client education, where he's going to say I understood it the first time and I don't care this is a deal reader for me?

You could certainly make a point that the overall value of the job makes a difference, but there's no reason that ownership of copyright needs to be a deal breaker from the photographer's point of view. And what's over all value of the job? What about the jobs you get as referrals or from people you meet while shooting. Do you really believe you're more likely to license an image after the average wedding than get another job from shooting that wedding?

It doesn't make sense to apply the stock business model to wedding photography.

I'm not saying that the effort of using a pre-existing contract that you have requires as much effort as using one you don't have. Even if your lawyer has a pre-existing contract that transfers copyright and retains full rights, you still need to pick up the phone.

It seems foolish to walk away from a job over something superficial.

Really I think the bigger effect is earlier. There are people who are dogmatic about copyright and I guarantee you they loose business because of their reaction to the discussion of copyright. Every deal is its own thing, and needs to be treated as an individual deal. If you can make it conform to your contract great, but it's important to understand that ownership of copyright is symbolic only, it's the rights you have that matter. If the words "copyright ownership" close your mind, you will end up with less money than if you keep it open enough where you spend a little extra time and money to make a deal happen.

I've never found "I know you are, but what am I?" to be an effective argument. If it is for you, then more power to you.

Your statement can only be true if all agreements for unrestricted usage rights say the same thing.

Are you saying that all unrestricted usage agreement have the same terms?

I have suggested that when a client want's copyright, the photographer should take this into consideration in pricing the job. 

I am not sure why you continue to object to this concept.

You seem to suggest that a photographer be flexible, yet you suggest an inflexible approach.  Your suggestion is that the photographer always retain usage rights.  If the client wants copyright, the photographer should provide copyright in name only, keeping all the rights.

If a client doesn't want to pay an appropriate fee, then I am happy to let the client go elsewhere.  I have had many a client go to the low bidder, only to return and happily pay my rates.


You keep asserting that selling copyright and licensing back all rights is the same as retaining copyright and giving a usage license.  I think what you meant was that you can't think of any differences that are important to you.  This does not mean that there are no differences or that the differences wont' be important to some people.

For instance some photographers like entering photo contests.  Some contests require that you actually own the copyright for a photo.  Having the rights without owning the copyright is not sufficient.


My advice to photographers is that they should be flexible.  When a client wants something unreasonable, try to educate the client.  If they still want something unreasonable, sell it to them, and price accordingly.

if the client wants copyright, consider what you are losing when determining pricing.  It may be a little, it may be a lot. 

I advise that you not try to trick your clients.  If they want copyright, sell it to them.  Don't create a custom agreement that gives them copyright in "name only" but does not let them control the image.  When the client figures out what you have done, they will be upset.  You will lose this client and may get a reputation for being dishonest.

Remember that the law is complicated.  Things that are similar are not identical.  A usage license can undo most of the affects of a copyright transfer, but not all of them.  An obvious example is that if you transfer copyright, your name will no longer be on the copyright notice.

My advice is to create simple, straightforward, and understandable agreements with your clients.  Where practical use standard forms and follow industry practice.  Don't create a custom unusual arrangement unless there is enough potential return to justify the attorney fees.

To the extent that the client would be satisfied with just a subset of the images that you have taken, from a technical standpoint, I agree, that is largely true.  As a practical matter though, in the real world, every time that I have had a client ask for an exclusive license, they want the license to all images shot, not just the ones they intend to publish.  The reason for asking for the exclusive license is to prevent the use of the images by a third party.  As an example, if you did product shots for something that had not yet been released, they would obviously not want images used for another purpose before the product was available.

Another reason for an exclusive license is where they have a specific spokes model and a product category.  Let's say, for example, that their product was mufflers and they had "Trudy the Muffler Girl."  Absent the art work, it is hard to tell what brand of muffler you are talking about.  If they were going to have a poster printed of Trudy, for example, they wouldn't want her photo, with the muffler sold to "Moodas Mufflers."  They would want an exclusive license to all the images shot to prevent any other kinds of use.  There are other reasons why a client would want an exclusive license, but I can think of few where they would permit other images from the same set to be licensed to others, particularly their competitors.

So, when put into that context, which in my experience, is the common scenario for an exclusive license, there would be little practical difference between an exclusive, unrestricted license and "work for hire."  The fact that the photographer continues to own the copyright is largely phyric.  Purchasing the full, unrestricted, exclusive rights is generally termed a "full buyout."

BTW, I apologize for the slow response, I have been very busy with my move.

No, actually, my statement is always true.

A transfer of copyright is a transfer of ownership. A usage agreement, even one that licenses any and all uses, is not.

They are NEVER the same.

I think it's fair to say that there can be many similarities.

I think it is also fair to say that there are many situations which can be addressed by either a copyright transfer, or a usage agreement.

You are correct in that they are not the same thing, and there are always differences between the two.

From the practical point of allowing for usage of copyrighted material, they can be very similar. However, from an ownership and rights standpoint, they are always different. The fact that from a usage point of view, they can be so alike argues that a usage agreement is the preferred solution 99.9% of the time.

I think you have made your points very well, Michael. I find it disheartening that photographers like a couple in this thread know so little about their rights, the laws that protect those rights, and the processes that we all should be aware of and practice to protect those rights.

Preferred by who, the photographer or the client?   I agree, most photographers would prefer to grant a license than to transfer copyright.  The legal department for many knowledgeable clients would prefer copyright to a license.  The reason is that a transfer of copyright conveys ownership.  All rights, including the enforcement of the copyright inure to them.

With a license, it is a contractual issue.  Contracts are subject to interpretation.  In the case of disputes, there is an additional layer introduced.  As an example, if the client finds a third party using one of the images, as the copyright holder they litigate to enforce.  As the licensee, they cannot be sure if it is the end user that has infringed upon copyright or if the photographer has breached the contract and licensed the images to a third party.

So while, from a practical standpoint, the client can get similar usage rights either by license or transfer of copyright, only with ownership of the copyright, do they have the full and unencumbered ability to enforce.

Actually, for the most part, preferred by either party.

I recently took on a contract to do a swimsuit calendar (2d one in a month). The client originally wanted copyright. We talked a bit about the consequences and costs of that (I did not even mention higher rates, just had them talk to the lawfirm that is the #1 firm for IP issues here and find out their fees for a copyright transfer) as well as exactly how a usage agreement would be worded and exactly what usage they wished to have.

I didn't push them to not transfer copyright, I just clearly educated them on the issues involved.

After getting a quotation and Statement of Work from me (both of which have the usage agreement incorporated into them), they chose to go with a usage agreement. It made more sense to them and was to their benefit. One of the reasons it made more sense is because of enforcement. I protect my IP, have a history of doing so. Why would they want to take on the legal costs of doing that when they know I'll do it without it costing them a satang?

qft

This is 100% true.

You've completely missed my point. I've never said keep the rights in all circumstances, nor have I said mislead the client.

I can't figure out if it's that you don't want to get my point or can't get my point, but I've done everything I can to explain it. What it comes down to is that there's no concept than can be thought of that can't be addressed in an agreement, including the ones you've listed.

Other than the possible higher cost, why would it ever be in the better interest of the client to have a license when they could own copyright?  Putting aside the cost issue, please explain the benefits to a client for not owning copyright and being licensed instead.

What is the significance of ownership?

Whatever you answer can be addressed in a reverse license. "Client grants license identical to ownership of copyright."


The significance of ownership is the rights that gives you. If you have all of the same rights, then you have the same rights. It can't be made any simpler than that.