How to Cheat a Photographer

If you can, have a listen to just the first 1:44 of this audio file (Flash required). Wow, how clever—be an optimist, see an opportunity...and cheat a photographer. Makes you roll your eyes and shake your head that they sound so pleased about this, doesn't it?

I know we get like a broken record sometimes, but don't be anyone's fool. Start by reading Ken Jarecke on the one tool that isn't talked about nearly enough.

Mike
(Thanks to Farrell Hall)

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Original contents copyright 2010 by Michael C. Johnston and/or the bylined author. All Rights Reserved.

Featured Comment by amcananey: "For what it's worth, I've heard a similar version of the story, but it wasn't quite so sinister. In the version I heard, the telegram to the copyright holder didn't say "how much are you willing to pay [for us to use your picture]", it instead said something more ambiguous, like "how much to use your picture" and was intended as a serious request for a price quote (although I seem to remember them presenting it as though there were multiple competing pictures they were considering, and price would be a strong factor in determining which picture to use—though of course the pamphlets had already been printed with the picture at issue). Again, in the version I heard, it was actually a surprise (as opposed to the intended outcome) when the recipient of the telegram misunderstood and wrote back with their bid of how much they would pay."

Comments

[Robert Roaldi]

I happened to hear that CBC Radio program in my car yesterday (here in Ottawa, Canada; it was a rebroadcast from last Sunday). People pat themselves on the back for outsmarting others all the time. It's always a good thing to do some research before agreeing to any offer. It's not true that what you don't know can't hurt you.

[Mark Janness]

Mike,

The photographer did not have to take the publisher up on the offer of printing the photo in the flier. It's not a matter of publishers taking advantage of photographers it's a matter of photographers giving up their rights to their work.

Consumers purchase clothing on a regular basis to advertise products. I sometimes ask people that are wearing such apparel how much they charged the manufacturer to advertise their product. I always get a dumbfounded look as a response.

Ok, I am guilty too. I have a few hats that I purchased. Some at least were given to me free of charge.

[Nikhil Ramkarran]

Excellent opinion piece, I really need to send it to a friend of mine (a talented amateur). I doubt that you will find many who disagree with the sentiment that they are entitled to ownership of what they produce.

In similar vein (and coincidentally) have a look at What the Duck? today:
http://whattheduck.com/strip/983

I am primarily a lawyer (that is how I support my real calling :) so I am always conscious of my rights when it comes to my photographs.

I am always incredibly flattered on the (incredibly) rare occasions that someone actually wants to buy a photograph from me, but I always ensure that somewhere in correspondence or invoice IN WRITING I stipulate that I own all rights; even when I don't charge anything much, or anything at all (amateurs giving their work away for free is undoubtedly a subject for another post :).

It really isn't a hard thing to do, and even if I don't make an issue of it now or tomorrow, it may save me later down the line.

[Keith Loh]

That audio clip is from the excellent CBC radio program: The Age of Persuasion (http://www.cbc.ca/ageofpersuasion/).

[toto]

Even if the photographer paid them for "publicity", that doesn't mean he's given up his copyright, so he's still entitled to compensation.

[Ken Bennett]

The Ken Jarecke piece has one error:

"If a person were to buy you a camera, give you an office, a car to drive, told you where to stand and when to push the button, you still would own that image."

Then you'd be a staff photographer, and your employer would own the copyright in the USA. Mine does.

[Aric]

Hey there Mike,

I just thought it would be nice of you to credit the radio program and network that produced the audio you linked to in the story here (in the same way you credit other websites and photographers).

I realize that because it was produced by a public broadcaster, the audio is public domain, but it sure would be great.

[John]

Mike - I understand your point, but how is that any different from paying someone peanuts for something you KNOW is worth a lot more. As long as there was no coercion involved .... Ultimately we all have the responsibility to protect ourselves from "smarter" cookies by remembering that if the deal sounds too good to be true - It probably is!!

[Ed Kirkpatrick]

Yet again... Last April the Washington Post started a "Real Art DC" platform to display artworks created by unknown or emerging artists. The article at:
http://www.washingtonpost.com/wp-dyn/content/article/2010/04/08/AR2010040805324.html

encouraged artists to become part of a new online virtual gallery. I quote,

"An online virtual gallery of works by local artists that will allow Post readers to discover and connect with Washington's newest talents. Artists themselves will post their own work -- and so will dealers and teachers on their behalf -- and anyone can click through and see the spectrum of local creativity."

The "catch" was deep in the Terms and Conditions and again I quote,

"For any content that you submit, you give us permission to use such content. You hereby grant to Washingtonpost.Newsweek Interactive, LLC a royalty-free, irrevocable, perpetual, worldwide, exclusive, and fully sublicensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, incorporate into other works, distribute, perform, display, and otherwise exploit such content, in whole or in part in any form, media or technology now known or later developed."

Note the word "exclusive". The Post could conceivably prevent the artist from using, sharing or selling the artwork anywhere, but particularly online, because they, the Post and Newsweek have been granted this exclusive license. It seems to me that the artist loses control of his artwork and may be well not to participate.

Fortunately, there were other artists in the area that caught this wording as well and made a bit of a stink about it in the local Art blogs. Still though many chose to give away what was theirs in exchange for some dubious visibility.

It is hard enough to get paid for doing our work and creating art, but when people are willing to just give it away it really toasts me.

[Chris Gibbs]

Mike,
Enjoyed the entire clip! How are you listening to CBC?
Cheers,
Chris

[Kenneth Jarecke]

Ken Bennett,

No, I'm completely correct. Copyright has nothing to do with how you're paid, whether your a staff photographer or a freelancer. It rest completely with the creator, in photography, that's the person who pushed the button.

Transferal of copyright is usually a condition of employment as a staff photographer, but not always.

All the best,

Kenneth Jarecke

[Jim Metzger]

Some people do "Think Different"

There is a story that Steve Jobs and Steve Wosniack asked a friend to come up with a logo for this new company they were starting. Their graphic designer friend came up with the "Apple" logo. She was paid the princely sum of $250.00 for a couple of hours work.

Many years later she received an envelope printed with the logo she had designed so long ago. In the envelope was a check for 2 million dollars with a "thank you, we couldn't have done it without you" message.

Part of the "Mac" cult among several others,
Jim

[Mike Johnston]

Jim,
I'm afraid that nice story is apocryphal...the Apple logo was designed in 1977 by Rob Janoff when he worked for Regis McKenna. He had only been there a month, so he was low man on the totem pole, which is why he was assigned to do the logo for a tiny little company that consisted of two young guys. It was a little job so it was assigned to the new guy.

Mike

[Will Frostmill]

Ken Bennett said:
Then you'd be a staff photographer, and your employer would own the copyright in the USA. Mine does.

This would be an example of work-for-hire, though it is worth noting that to make that rights grab stick, the company needs to have a contract that says they get the copyright and the terms must not be too onerous, or the artist may very well get the copyright back. The devil is in the details, but the heirs of the fellows who did Superman, Siegel and Schuster apparently have rights to some of the Superman corpus, thanks to a recent ruling. I believe that something similar happened to Marvel Comics regarding Joe Kirby.

Speaking of heirs, I hope everyone reading this has made some preparations, yes? Because in the U.S. your copyright will probably outlive them, and if you haven't set up an executor, they'll just inherit problems. For the literary equivalent, see Neil Gaiman's post about the tragedy of the Mike Ford estate. Spoiler: he links to an instant solution!

[Jim Metzger]

Mike,

Does this misinformation mean I have to go back to punch cards and "Fortran with What Four and What Five"?

Jim

[Hans Muus, Holland]

Dear all,
I would like to know how you deal with the 'acknowledging authorship but never paying a single penny' politics of the photography journals (mostly monthly's). Of course it is an honour and a delight to see oneself published in ...well, you name them, but still - the editors are paid, and so are the printer and the bookseller or magazine stand, while at the same time the advertisers pay for their publicity, and of course the subscribers or single issue buyers put down their money too. So, what should we photographers do in such an honourable case?

[Mike Johnston]

Hans,
When I edited _Photo Techniques_ (a bimonthly), we were always careful to pay everyone for their photographs. That included a stipend for portfolios ($500) and for covers ($300). Both those amounts were on the low side even in the '90s, but the fact was that many people would have agreed to have their work used for free. We always paid as a matter of principle. My feeling was, how could a photography magazine routinely exploit photographers without being hypocritical?

There were some interesting individual cases, however. Once, I paid the cover model as well as the cover photographer, because they were both high school students. Once, at a different magazine I worked for, they came perilously close to publication on a portfolio--of the work of a NYC studio pro--when it was revealed that he fully expected to be paid his regular editorial rate for the portfolio pictures--$1500 per image, which, for ten images, would have considerably exceeded the entire production budget of the issue! Fortunately, the editor found out in time and the portfolio was deep-sixed.

The only person I didn't pay was Richard Avedon, for an illustration for an article by Jim Hughes, who now writes for TOP. Avedon had two conditions: we had to go from a reproduction in a book, because he would not send us a repro print; and we were not under any circumstances to pay him a cent. Apparently his notion was that he didn't mind providing the image for free, but that a smaller stipend than his usual fee would have been an insult to him. So we ran a picture of his as a full page (it was slightly different than the published picture--we had to clone one ear because the book wouldn't lay flat on the scanner) and paid him nothing.

Mike

[george]

In Vienna there is a (urban?) legend, which goes somehow like this: a big movie production came into town. They needed extras, and posted in all newspapers something like 'be an extra - 10 schilling'. Sure enough on the end of the day the cassier had doubled the sum of schillings he had actually prepared to pay all the extras. Viennese people interpret it laughingly as a sign that we are really into movies.