About the Image

Mr. Stock Smarty Pants goes to Hollywood

By Paul Henning September 16, 2008

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I know what you’re feeling: the pain…the frustration…the sheer and total disappointment.  No, I’m not referring to seeing Brett Favre in a uniform other than that of the Green Bay Packers (though lord knows that’s pretty bad, too).  No, I refer, of course, to the distress many of us felt when it became obvious that Mr. Stock Smarty Pants would not be chosen as either party’s candidate for Vice President a few weeks ago.  This, despite his many positive qualities that would be an asset to either ticket.  You want smarts? Obviously, he’s got ‘em since that’s part of his name.  Experience? Does a hefty number of divorces, jail terms and class-action suits count for something in this world? You bet it does! The ability to communicate with the electorate and mesmerize the unwashed masses in a manner that Barack Obama can only dream of?

MSSP has been known to hold a hefty crowd of enthralled spectators in the palm of his hand for hours on end (though, admittedly, that was at the craps table in Monte Carlo).  A commitment to lower taxes? Hell, MSSP hasn’t paid taxes in years and he sees no good reason why you should, either! I could go on, but it’s all too late now, the fix was in and we’ve end up, once again, with some sorry choices.  Yes, despite MSSP’s impeccable credentials, we are faced with the specter of Joe "Doesn’t My Hair Look Great?" Biden vs. Sarah "Ain’t I Folksy?" Palin to sit one heartbeat away from the top job in D.C.  Be afraid…be very afraid.

Fortunately, Mr. Stock Smarty Pants has been able to put all of that behind him, and after a restful end-of-summer vacation on Martha’s Vineyard, where he was a featured guest at the ribbon-cutting of the new Teddy Kennedy Driving School in the charming island town of North Tisbury, he is once again lending his expertise to stock photographers in distress:

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Dear Hollywood Novice:

You know, I’m tempted to tell you that it is, in fact, too damn much trouble to respond to you.  However, due the fact that Mr. Stock Smarty Pants continues to take a beating in the stock market, he finds it necessary to at least go through the motions of offering some insight on this subject in order to collect his exorbitant fee from About The Image.

First of all, I’m going to do you, as well as all of this website’s readers, a huge favor by sharing something that they NEVER tell you in photography school (actually,  there’s a LOT that they don’t tell you there, but we’ll save the rest of it for another column): unless you accept the fact that you are going to have a part-time job as an attorney, you will never be able to successfully execute your full-time job as a professional photographer.

That’s right…you’re actually going to have to work TWO jobs…one as a photographer (the career you planned on) and the other as a lawyer (the one you didn’t plan on and no one told you about).

Whoa, whoa, whoa, you say…I didn’t bargain for that.

Nope…you didn’t. But, like it or not, you’re stuck with it.

Why?

Because professional photography requires that you deal with such things as contracts, releases, purchase orders, and licensing agreements, and all of these are LEGAL documents.  And, unless you just want to make some other guy rich, you’re not going to farm this work out to an attorney, you’re going to deal with it yourself.  And that means that you better know what you’re doing or you’re going to get your keester in a sling pronto (as they say in law school).

Let’s start with some basics: the legal concept that makes it possible for photographers to be in business is a little thing called "copyright."  Entire books and seminars have been devoted to this topic and how it relates to photography, but I’ll skip the finer points and get to the point.  Copyright protects the creator of an original work (in this case, photographs) by giving him/her ownership of that work from the time of its creation.  That’s right…it’s sort of like having a baby…once it pops out, it’s yours right from the get-go! Same with a photo: once you click the shutter, you own that image and the copyright in that image belongs to you, too.  You are protected by both U.S. Federal and international law, and you don’t even have to register the photos in Washington to own the copyright (though registering the images does give you increased ability to collect damages if someone copies or otherwise infringes on your images).

Now, here’s where it starts to get interesting, and why you need to be well educated on these matters. 

I said that you own the copyright to your pictures upon creation, which is true…UNLESS you agree otherwise with some other party.  In other words, you might transfer the copyright to a client.  They might say, "Hey, Joe, we want you to shoot stills of this movie we’re making, and we’ll pay you $500 a day to do it, and when we wrap up you give us all the pictures and we’ll own ‘em."  Such an arrangement is called a work-for-hire agreement: you work for the client making images, and whatever you create for them is subsequently owned by them, copyright and all, not you.  So, if you agree to such a deal, you have no right to ever use those images again for any purpose, even in your portfolio.

Ah, but you COULD respond to the client this way instead: "Wow, that sounds like a great assignment and a really high-class production, since Pamela Anderson is one of the stars.  I’d really like to photograph your movie, and five hundred bucks a day sounds fair to me, but I want to be able to use the pictures I take on my website and in my portfolio.  I won’t be selling any rights to the pictures, just using them to get more work for myself.  OK?"

Do you now start to see the direction this is going in? What’s important to remember is that anytime you create images for a client, there is a process of negotiation that takes place in which the client often needs/wants certain rights to the images and so do you.  There can be a lot of give and take on this, and you’re looking for a deal that makes both parties satisfied.  You might, for example, also want the right to sell the images for stock (but see my caveat on this below), to which the client might reply, "Well, OK, you can keep the right to sell the images as stock shots, but then we’ll pay you just $300 a day, since you’ll be making money by selling the pictures." Again, it’s a negotiation, but here’s the other REALLY IMPORTANT thing to keep in mind (and it must be important because I put it in capital letters!): whatever the final deal consists of, GET IT IN WRITING.  That’s right, you have to write up a description of the assignment and what specific rights to the images the client will get and what rights you will retain for yourself.  You should never rely upon a "verbal agreement" because that can easily lead to a case of "he said-she said" and nasty misunderstandings.  Remember, too, that the balance of power rests with you: thanks to the copyright laws, you start out by owning the rights to the images and you, therefore, only bargain away the usage rights for which you feel you’ll be justifiably compensated.  

In your specific case it sounds like you made the classic rookie mistakes of a) not discussing the rights to the images upfront with your client, and b) not nailing down an agreement in writing.  Nonetheless, the law’s on your side and you own the images and can certainly use them on your website, or anywhere else you like (stay tuned…the caveat’s coming up soon!).  The problem, however, may be that your client assumed that they would get full rights to the images and may not be happy about sharing them with you.  This is what happens when you don’t work out these issues before the assignment commences! But, since the producer didn’t pay you a damn thing, they’d have to be a real jerk to object (and of course, there are no jerks in Hollywood, so you should be just fine, right?).  

OK, it’s caveat time: although the copyright law gives you ownership to your work, that doesn’t mean you can just do anything you want with it.  I’m sure you’ve heard the terms "libel" and "slander," for example, which limit our right of supposedly "free speech."  Likewise, with photographs there are rights of privacy as well as rights of publicity that come into play and which limit the types of usage that you can license.   Since you shot a movie, I’m guessing there were some movie stars there, right? And every one of those stars has some high-priced agent who jealously guards the "image" (not the photographic type) of that celebrity and they do not look kindly upon pictures of their precious little stars being used commercially without their authorization.  Bottom line: using your pictures of stars/celebrities for your own use is probably OK; licensing their use for editorial uses may be OK; and licensing them for commercial uses is probably risky as best.

As I alluded to earlier, copyright, usage rights and image licensing are subjects that you absolutely, positively have to educate yourself about if you’re going to call yourself a pro.  Retaining the rights to your images allows you to gain revenue through the sale of such images in the stock picture marketplace, but circumstances such as subject matter or your assignment agreement with your client may restrict your ability to license your pix.  One thing is for sure: the more you understand how copyright works and how to negotiate an assignment contract with a client, the more power you’ll have in that negotiation. 

Although there are lots of places you can get information on this subject, I’d like to strongly recommend two particular books that will definitely help you: Digital Stock Photography by Michal Heron, for a concise treatment of the basics you need to know on copyright, releases, etc. (and which you can find at  http://www.stockanswers.com/printresources/featuredbook.html) and The Professional Photographer’s Legal Handbook by Nancy E. Wolff, for a far more detailed look at legal issues related to photography, as well as some fascinating  stories about relevant cases (and which is reviewed at  http://www.stockanswers.com/printresources/relativelynew.html).

So, Novice, learn from this column, and buy (and actually read!) the books I’ve recommended, and the next time Hollywood (or anyone else) calls, you’ll be a novice no longer.
   

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