Terms Related to Digital Files

On Apr 12, 1:56pm, Wesley Treat wrote me saying:
Myself, I state in my terms that, when a licensee's project is complete, all digital versions of my images must be destroyed. (I adapted my terms from Jim Pickerell's "Negotiating Stock Photo Prices," which included the returning of physical images as well as the returning or erasure of digital versions.

First, a preface: just about any book written before the digital age is mostly obsolete. I read Jim's book many years ago, and while I had only mild objections to his over-protectionist attitudes (which I'll get into more detail later), I found it to be useful at the time. However, today, the industry has changed so much at every level, that books like his (with apologies) are just not in line with how business is done anymore. Not that some of the "advice" isn't true, it's just dated. For example, "returning film" is understandable and needn't be explained. But, "destroying digital copies" is completely impractical, and doesn't make business sense on either side of the relationship. The concepts between "film" and "digital" just doesn't map over... and neither do most of the concepts those books present.

The initial reasoning for destroying digital media is, as you stated, understandable: you don't want your images stolen by someone browsing through an image library. But what's the real risk? What's the work and other impositions you impose upon the licensee? How do these actually affect the end business relationship, and by consequence, your longer-term objectives?

The risk of an image being improperly lifted exists the moment you give it to them, and the likelihood does NOT increase significantly over time to outweigh that initial risk factor. Now, it sure happens that people lift images--but there are so many people and so many steps in the production process of a document, that by the time it gets to archival, if anyone had any intent, it'd have happened in those first rounds. So, when it comes to archiving them, the risk factor has already been realized.

From a practical point of view, licensees SHOULD be making backup copies of all their digital media, just as you should for your own photographs. It'd be stupid for them not to, so it's inappropriate for you to expect that they NOT do so. No wonder they'd be upset with you if you asked them to destroy them. It happens on occasion that I am contacted by a client, asking for another copy of an image they already licensed because they inadvertently misplaced it (lost either by human or computer error). *I* don't want to be bothered with that--nor should you. That's just an inefficient use of time. To wit, you say:

As far as I'm concerned, if they're contacting me for a relicense, they can ask me at the same time to provide them the image again.

You're asking for more work that you shouldn't have time to bother with. If you actually have time for this, you're not spending the precious, little time you DO have on far more important things. Anything and everything you do should be justifiable in the longer term. Consequently, anything you can do to remove time obligation or work on your part should be regarded as a good thing.

What's more, this can actually generate business. I have several publishers who always archive my images in their internal intranet image library, and as new uses for it come up, a purchase order just magically appears in my email box from the editor for that new book. If they were required to remove the image, there's a lot of orders I wouldn't be getting.

So, where's that balance? Are you further ahead because you PREVENTED someone from stealing an image? Or are you ahead because you tolerate that risk for the benefit of getting additional sales that you would have otherwise not gotten?

Yes, you'll hear horror stories about how people's images are stolen in certain instances, but one can find horror stories for everything. There has to be a weighted balance between what's actually a sustainable risk and what's not. In fact, the company is itself at risk if someone steals an image at various levels: first, if the image is used again within the company, they are culpable for copyright violation, and there are heavy fines with that. If the image is stolen and used outside, they could be held accountable by virtue of one of their employees having done it. The point is, there's always a trail that leads back to the violator in one form or another. Chasing it may or may not be worthwhile -- you'd have to gauge that for different scenarios.

But, this gets back to my premise: spending a lot of time preventing people from stealing images doesn't generate revenue. Worse, it takes time away from doing things that DO generate business. People who are going to steal are not the types who are going to license anyway, so they aren't your potential customers. Spend your time with "clients" and make it easy for them to do business with you.

So, now let me quote your final point:

(Frankly, if I didn't need to replace my dying monitor right away, I'd tell them to forget the whole thing. They've been a pain every step of the way and have numerous other niggling objections to my standard terms.)

My perspective is this:

While I don't know anything of your standard terms, I'm guessing I'd be siding with the licensee here. Your "terms" should be so brain-dead simple and enumerated with one-liner bullet points, that anything more than that makes you "a difficult supplier." There's too much competition to allow yourself that luxury. I have basically four items on my license terms,

You can't use the image for anything other than how stated you'd use the image when you requested it.
Photo credit must be given as "Photo © danheller.com"
Licensee indemnify licensor against third parties.
This license agreement is not transferable

I talk about this more here.

Yet another model release question

Hello Dan, I've read your model release info at http://www.danheller.com/model-release.html and I'm better informed. Although the grey issue comes up a lot in my scenario. Long
story, short.. I shoot pictures at a horse event that I pay to watch. The people that are in charge say that we(auditors)can take still photos, but no video. I offer my pictures for sale, which are of the participants and the person teaching. I am told by the person(his lawyer)teaching that I can't sell these photos. I am not using them to advertise any product, religious persuasion or sexual content. Can I do this against his wishes?

Thank you in advance.

Amy Hoffman
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Amy--
sounds like pretty basic/standard checklist items to me:

> I shoot pictures at a horse event that I pay to watch.

That means you're at their whim... They can allow or disallow any activity as they wish.

> I am told by the person(his lawyer)teaching that I
> can't sell these photos. I am not using them to advertise any product,

You're selling a product-- that's commerce. Remember, "advertising" is not the only form of commerce... "Sales" counts too! :-)

Now, keep in mind, this is differentiated from "artwork" where you are exhibiting the works in a venue whose clear and stated purpose is to sell artwork. If you were using these photos to put up in a restaurant or gallery, and they also happened to be for sale in that context, you'd
be much closer to protection by the First Amendment, although still on weak ground because of the closed nature of the event and venue. Still, this is a grey line--there's some ambiguity on whether the guy can stop you from selling art, as there may be some subtle-but-important details that would emerge to convince a judge to lean one way or another as circumstances warrant. Chances are, this would never come to pass because the cost of going to court to learn these things wouldn't be worth it to either of you. So, the academic question of what those details might be is sort of a moot point. It'll just have to be left as ambiguous for now.

But, as you've described the situation to me, you're just selling pictures of people you took to the very same people, and there's no ambiguity there. That's commerce, and he's right.

My business suggestion is to try to arrange some sort of mutually beneficial arrangement to make it worth it for both of you to make this happen.

Dan Heller's Blogspot

Money's Role (or lack thereof) in the Photography Business

All too often do I see the discussion of money's role in photography in photo discussion groups, mailing lists, and open forums in industry trade groups. The predominating feeling is that rich people enter into the business, and displace other, hard-working photographers who are trying to make a living. An indirect way that money affects the photo business is through a technique called, "low-balling," where a photographer bids for assignments or quotes license fees that undermine the going rates, or street prices (or even the cost to produce the photo). The rationale is: the photographer doesn't need the money (and is just eager to get published), or the photographer thinks this will get him ahead of others, which he'll succeed in doing, but at the expense of the entire industry.

The assumption on both parts is wrong, as I discuss in this chapter of my book: http://www.danheller.com/biz-audience-pro.html

What that chapter doesn't discuss, and why I'm posting it here, are these finer details, which were prompted by a letter I got from someone who still wasn't convinced. His position was that, while money's impact may not be as strong later in the career as my chapter discusses, it's the getting started process that he feels is where money's role is more prominent. Here, he states that one has to have invested a significant amount of money, and dedicate a disproportionate amount of time to the project before any appreciable returns can be realized. This, he says, is what keeps typical working families from getting into the business.

While that's true, my response is as follows: (excerpts from my email)
The amount of resources (tangible and intangible) for getting into ANY business whatsoever requires a certain minimum than is (or should be) assumed by anyone attempting it. Therefore, when talking photography, it is reasonable to assume that this threshold must be met first, and that threshold is not uniquely prohibitive by most of the population. Indeed:

The amount of MONEY required to enter (and to garner some degree of income or "success") into the photography business is probably the least of all professions I can think of. Unlike most jobs, it doesn't really require specialized education or training, and with the cost of equipment today, one can produce extremely good images without spending nearly as much as one used to (or anywhere near the amount of equipment or time to develop an expertise as most any other professional career. One CAN spend more, but that in itself does not affect success. Now, it's true that money can "enhance" success, but that success must have already been achieved through other means first, or that money will have been wasted...

The means to succeed in photography is about 90% "business sense", which is really the entire focus of my "bigger" book. (The smaller book is more about easy, tangible tasks one can do in their spare time.) You're right that time is one of the most critical factors, but it's how you spend that time that really separates the successful from the unsuccessful. (That, and making good, sound business decisions, which will always trump money's role.)

With the "time" issue above, comes the lifestyle choices on has to make. This gets even further from the discussion on money, so I won't dwell further, but it does affect the decisions on how one spends their time. Again, this has a lot more to do with whether one succeeds at photography than people think. Most people who try often give up because they can't stand the demands on their personal life.

So, to apply all this to your statement:

> and it's difficult when working a
> full-time job, with other financial and time constraints, or with a family.

That's true of any profession, so it doesn't make photography stand out any differently. To be successful in anything, you have to be resourceful and have brains, and yes, your life has to accommodate the demands of the profession you choose. Your statement above can apply to anyone that wants to go to college (again, where money isn't an issue, such as qualifying for financial aid)... Your statement is "true," but no more applicable to photography than anything else, so it's eliminated as a lowest common denominator.

I got into travel photography doing the same things that millions of people do every day--some of whom also try to get into the photo business and fail. I had no access to equipment, people, time or money that is any different than anyone else who considers taking their hobby to a serious level in this segment of the industry. What's more, I make it abundantly clear--and cite many examples throughout my book--on how things are done that have nothing to do with money whatsoever, and which lead to success.

Two New Books on the Photography Business

I've written two new books about the nature of the photography business. There are sort of a hybrid of goals, here. While they initially started as independent articles that analyzed the nature of the business, the initial intent was to be more contemplative and thoughtful about how the industry works as an independent observer/player. But, as with most research, the truth from the fiction began to evolve, and it was clear that the secrets to success weren't so clear and simple as most people who write such books (or who pontificate about the matter) lead you to believe. Indeed, much of the techniques that those sources often espouse may do you more harm than good. It's not that these people are wrong so much as they're just out of date. The industry has changed. That's where the second objective comes in: to extrapolate good lessons from that analysis and to determine how to go about establishing a sound business infrastructure for the photographer working in the digital era.

Since the evolution of digital photography and the ease of distribution over the internet, everyone's getting in it. With this heavy competition has also come opportunities, since there are also a lot more buyers as well. But the business isn't the same as it used to be. Old rules no long apply, and new the new ones are still being written. Navigating through this jungle can be overwhelming, but no matter who you are, the new lessons have to be learned. Whether you're just starting out, or an established photographer trying to compete more effectively in a changing market, these books provide an analytical, progressive approach to understanding and succeeding in the photography business in today's market.

More Information about these books, along with the ability to read them on my website, can be found here: http://www.danheller.com/photobiz-book.html