Copyrighting, licensing, and business plans aren’t sexy but understanding them is crucial for success

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Welcome back! Are you ready for the next round of information? I promised that this would be more fun, and it will be, but first we need to tackle one of the most important items in a photographer’s career: copyright ©.

Copyright

The Copyright Law of 1976 states that photographers own the rights to their photographs for their lifetime plus 70 years. Copyright protection exists from the time the work is created in fixed form. Basically that means when you push the shutter, you own the shot. The copyright in the work of author- ship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright.

This is a basic law in the United States, and the only thing that can change it is if you sign away your rights. If you are an employee of a company and creating photography is your job, then the company owns the copyright to those images only, not what you create on your own. This is called “work for hire.” Some clients may ask you to do work for hire or suggest a buyout, but that means that you give up the right to ever claim you created the work. You lose all rights to license and profit from your photos. If you decide to do this, the transfer of all rights must be in writing. I encourage you to educate your clients, and to not give up your rights.

You don’t have to do anything for the copyright to be given, it’s automatic. But if you want to protect yourself against unauthorized use and be able to recover more than just actual damages (including legal fees), then you must register your images with the U.S. Copyright Office (www.copy- right.gov). This is a fairly easy process, and the Web site is understandable and has the forms for download. You must send images (on a CD is the easiest way) and pay a fee of $45. You can put many images on the CD, large enough to be viewable, but they don’t need to be big files. They need to be clear enough to show reasonable detail should they need to be compared in case of any infringement.

Registration is important if you publish your work, have it on a Web site, have a gallery show and sell prints, or make a book. Anywhere that people can access the images and use them without authorization. It’s crazy nowadays because we are so flooded with images, and the upcoming generation thinks that if it’s online, it’s theirs to steal and use however they like. If you find that someone has used your photos without permission, you can collect “actual” damages, which means what the fee would have been if they had contacted you. For example: You license your photo to a monthly magazine for one-time use. A few months later, you see it used in another magazine from the same publisher. You can send an invoice for the fee you would have charged based upon the usage, along with a letter saying that you are sure that it was an oversight on their part, and oh, by the way, you want to remind them that violation of copyright is a violation of federal law, and you expect payment within 10 days. You will get your check, quickly. But if you have registered your images, and a company willfully uses them without your permission, you are entitled to punitive damages as well as recovering your legal fees and court costs. Most photographers I know set up a schedule to send in their work. There is much, much more to this law, and I suggest that you go to the Web site for more info. Also check out PACA, the Picture Agency Council of America (www.pacaoffice.org), which publishes the Copyright Commandments listed below.

Licensing

Photographers don’t “sell” their images; they license the right to use them. How they are used determines the licensing fee. You may have heard the term “day rate” in the context of photographer’s fees, but it really doesn’t apply in most situations. Sometimes catalog work is by the day, and some editorial clients prefer to pay day rates, but mostly fees are determined by usage. Many factors go into this figure: the kind of use (advertising, editorial, educational, corporate), the region (local, regional, national, or international), the size of the photo (full page, half, or quarter in print, cover of a package, or insert on the back), and the press run (5,000 for a small magazine to 2 million for a national magazine). This gets quite complicated. I use several references to help me decide on usage fees. The first is Fotoquote (www.fotoquote.com), a download program that contains more than 1,000 categories and costs about $140. It’s updated every couple of years, and includes forms, guide- lines, and tutorials. I also use Heron/McTavish’s book Pricing Photography, and Jim Pickerell’s Pricing Stock Photography. Other factors are involved, too, such as your level of experience, the difficulty of the shot, and so on. If it’s an assignment, then you charge your creative fee, which includes usage fees plus all production expenses. If it’s stock, then it’s just the usage fees. Pricing is a tricky art. But remember that your work has worth. As I said in the previous article (PT April/May 2007), if anyone could create good photography, they would. But it’s a complicated craft and art, so the world needs us. Don’t give it away: respect your work and yourself, and charge fair and reasonable rates.

Many photographers starting out are so happy to get a job shooting that they are willing to do it for free or charge a small fee. This is not a good idea on several levels: if you are in this for the long haul, then you are keeping prices low, which hurts you and the profession. Also, you will be known as the “cheap” photographer, someone clients turn to in order to save money—they will never take you seriously. If a client promises you a lot of work down the road, and they want a break now, reply that you’ll happily give them a discount once they provide you with steady work. That shows that you are standing up for yourself and acting like a respectable business person. If they want to pay less than you ask, give them less. For example, they want 10 shots to use in a brochure for five years, but don’t want to spend the money. Agree to do fewer shots or reduce the time for which they can use them. Don’t just automatically drop the price because they ask, because then it looks like you were trying to rip them off in the first place.

Business plans

Any business starting out needs a good solid business plan that outlines your goals and how you intend to achieve them, and offers a clear and detailed description of your business. There is a great organization, SCORE (www.score.org), a nonprofit organization made up of retired executives who volunteer their time to provide resources and expertise to help existing and emerging small businesses. Their services are free and they have chapters countrywide, as well as online help.

Here’s a general outline for business plans, spread over three to five years:

Positioning and style: The kind of work that you do, including a detailed description of your style. Not just “I photograph people,” but “I photograph people on location in a lifestyle situation, in natural light with a warm and happy feeling.” Not just “I want to work for magazines,” but “I want to work for health and fitness, beauty and fashion magazines doing editorial features. Eventually I want to work for advertising agencies with health and beauty clients.”

General objectives: This states your intentions, specifying whom you want to work for and your intentions. “I want to work for national magazines to increase the awareness of my work. I want to shoot for local clients for their brochures and Web sites. I want to create images specifically for stock photography. I want to photograph personal projects that interest me. I want to work as an assistant to get more experience and help with my transitional income.”

Financial objectives: This is about money—what you owe, what you need, how much you want to make. You can break this down into years. As an example: “I intend to pay down one-quarter of my debt every calendar year for the next four years. I expect to make $___ each month with assignment work from magazines, and $___ per month from stock.” It’s tough because you are looking into a crystal ball when you are starting. But know your market and how many jobs you expect you can get in the beginning, and increase it over time.

Strategy: How are you going to accomplish your objectives? That’s the tough one, because this is where you really plan your working world. As with any sales, it’s a matter of numbers: how many times do I need to show my portfolio to get a job? What kind of marketing plan will work for me? This includes making promo pieces, planning regular mailings to your target audience, getting your book out to the right people, online or source-book advertising, word-of-mouth, joining business organizations and networking groups, and doing charity work. The more detailed this part is, the more practical efforts you can make—which means more money. Nobody will hire you if they don’t know who you are or what you do.

Target audience: These are the clients that you want to work for. There are many ways to find clients. Try the free resources in your library’s reference department, such as the Redbook, which lists every advertising agency and its clients. It’s broken down into client categories (health and beauty, automotive, real estate), region, ad agency, and so on. This is a massive work that is updated several times a year, and requires a lot of time to research. There are also excellent companies from which you can buy lists of clients, art directors, and so on, by category, type, and region. These include Adbase, Fresh Lists, Agency Access, Workbook, and others.

You need to be specific in your research. Don’t waste an art director’s or designer’s time showing your lifestyle book to a client that hires only still-life photographers.

If you’re interested in portrait and wedding photography, rather than commercial, then your market is retail. In other words, you are selling to the general public, not to visual professionals such as art directors or editors. Your marketing will be community-based, so get involved. Join the chamber of commerce, the Rotarians, etc. That gets your name out there so people can refer work to you.

Identity

Creating your logo is very important to the image you want to project to your market. It should reflect your style and sensibilities and be readable. Use your logo on everything that represents you, such as your business card, Web site, promo pieces, and stationery. I suggest hiring a good graphic designer, or going to a school that teaches graphic arts and asking a teacher to recommend a good student. Please don’t design it yourself unless you have a graphics background. Just because your computer has a million typefaces and you have a design program, that doesn’t make you a designer, any more than an auto-focus camera makes someone a professional photographer. Remember that the logo is about you as a photographer, not a showcase for a designer.

Web site

Nowadays, photographers must have a Web site. It will be the first, and sometimes only, contact that a client has for seeing your work. It must be a clean design, easy to use, show off your capabilities and style, and include a section containing your bio, what kind of work you do (“I am available for corporate and editorial assignment work,” “I photograph weddings in a documentary style”), and your contact information.

Stay away from too much Flash animation, heavy design, or irritating music, and make sure that it loads quickly. We live in such fast times that if your Web site takes more than a couple of minutes to load, or each photo takes a while to come up, the viewer will move on to another Web site. You don’t need to show everything you have ever shot, either. As with a portfolio, include your best work only. Don’t add filler; people will remember your worst shot. Update your Web site on a regular basis, once or twice a year, so that it remains fresh.

Portfolio

Your portfolio is the heart and soul of your work. Presentation is crucially important, so make sure that you buy a high-quality case and that the case’s style reflects the kind of work you do. Good portfolio suppliers include Lost Luggage, House of Portfolios, and Brewer-Cantelmo. I’ve known photographers to get custom cases, and others who have made their own to express their specialty. Just make sure that your photos are of better quality than the case. I’ve seen students invest a tremendous amount of time and energy designing and building beautiful cases, only to fill them with mediocre work.

Here are some general guidelines for creating a good portfolio:

• Show your best work and the kind of work you want to do. Don’t fill it up with lots of photos; more than 20 is too many to look at. I saw an emerging photographer’s book that consisted of 12 dynamite images. Each one was strong and fit his style; it left me feeling that you wanted to see more.

• Arrange a good flow and stick to your theme. If you shoot a variety of work, have separate portfolios for each type. For example, I shoot people on location; travel; and kids. I custom-build a portfolio based upon the client’s needs. If I go to see a designer about an annual report, I’m not showing kids and landscapes.

• Tear sheets (examples of published work) can be kept in a separate flip book at the back of the portfolio. It’s important when you are starting out to show that you have been published, but the main part of the book should just be your photos. Art directors who look at tear sheets quite often end up looking at the typeface choice, layout, and use of colors, forgetting about the photo.

• Make it a manageable size: 16x20s are great for galleries, but unwieldy to look at on someone’s desk. And expensive to ship.

• Update your portfolio on a regular basis. Take out any pieces older than three years unless they were wildly successful or recognizable shots. You should always be shooting new work and including it in your book. Have a respected visual friend or associate help you with your choices.

If you are a retail photographer, you probably have beautifully framed prints in your studio. Choose a variety of sizes so that the clients can see that a 20×30-inch framed print looks great over the fireplace, as opposed to an 8×10 that you would put in a desk frame.

That’s enough to take in for now. In part three, I’ll cover marketing, estimates, invoices, contracts, creativity, and ethics.

1. When it’s created, it’s copyrighted. Use the copyright notice.
2. The photographer or his agent has the exclusive right to exploit the copyright in each image. That right is for the life of the photographer plus 70 years.
3. Permission to use a copyrighted photograph for any purpose whatsoever must be obtained in advance in writing to avoid possible violation of the federal law on copyright.
4. Any unauthorized use constitutes an infringement.
5. Penalties for infringement are monetary and can be severe.
6. Combining, altering, or scanning photographs or any part thereof, including electronically, is an exclusive right held by the photographer and permission to combine or alter should be obtained in writing prior to any such changes or uses.
7. Exceeding the terms of a license has been held to be an infringement. A new license is required prior to additional use.
8. An artist’s rendering of a photograph in another medium is a derivative use of an image and does require the written permission of the copyright owner prior to use.
9. Re-creating a copyrighted photograph is a derivative use and therefore requires the permission of the copyright holder of the original image.
10. Reference use of a photograph or any part thereof requires the permission of the copyright holder.