2009 Year in Review: Content Remains King

In this first segment of my series, "2009: Year in Review," I discuss the role content has played on my business.

As I've preached since the dawn of my writings on the business of photography, the best way to make money on the web is to create as much content as possible. Having more inventory to sell is only a part of the benefit—indeed, a much smaller role than people may think in some cases, as I'll articulate shortly. The main reason content is so important is because it's the nucleus of all other revenue sources and business activity. Content plays an important role for search engines, which not only allow people to find you, but provides other sites with links. As links build, your search rankings increase, which increases traffic, which feed these various revenue streams. I discuss this principle in general in my chapter, Web-based Photography Business, which is part of my series of photo business books. (I discuss 2009's numbers more specifically in the next article in this series.)

As a general business model, I follow my own advice to others: Almost everything you do should ultimately result in new, monetizable content. Once you have it, you can make money with it in perpetuity, with very little (if any) additional overhead or resources. Outside of some initial short-term costs and overhead, your business can scale up to virtually any size by merely adding new content. Whatever short-term income or expense that may be involved in acquiring new content, it should be regarded as part of your investment in the future. (That is, the short term pay or income is less important as the long-term potential.) I'll get back to this subject shortly.

Though people monetize their content in different ways, I happen to choose to be the exclusive licensor of my own content. That is, I do not use stock agencies or other distribution models. I usually recommend this approach to people as a default assumption when considering entering into the photo industry, but one can certainly leverage the sales resources of agencies, if done properly from the outset.

Given that I have over 60,000 images in my online archives now, and the manner in which content can be leveraged so easily, it may come as a big surprise to learn that licensing of still photography only represented 5.8% of my total revenue for 2009, compared to 16.9% in 2008. But don't take this bad news.

First, still photography (the majority of the content on my website) is what I call the "gateway drug" for my clients. People discover my site primarily because of my still images, and end up making more lucrative transactions later. The fact that still imagery licensing has dropped as a percentage of total revenue is more due to the much larger increases in other, more lucrative revenue streams (discussed later). This further underscores the importance of having a robust and diverse business model that can survive (and even benefit from) shifts in the economy. In this context, the recession may have caused some people to spend less, but it also caused others to shift their spending towards me. Those "others" is a much larger population, even though each spends less on a per-transaction basis.

For example, my fine-art sales represented 19.5% of my revenue, up from 12.7% in 2008. This can be entirely explained by the economy and shifting demographics. Buyers on my site in 2008 and prior had been low-end art collectors and enthusiasts (see Selling Photography Prints), whose average purchase was $232 per order. By contrast, 2009 saw the average drop to $188 per order, but I got a lot more orders. Though I may have lost art collectors, they were replaced by high-end consumers were who shifted their spending from more expensive gifts (such as jewelry, etc.) to photography.

Assignments

In light of my prior blog articles on the principles of economics for photographers, assignments are also extremely critical to the acquisition of content. Many photographers scoff at the notion of accepting "low pay" for assignments, or even doing them for free, but this is extremely short-sighted and self-defeating. Acquisition of extremely valuable imagery is key to long-term revenue generation, and assignments are pivotal to that objective. If you choose your assignments well, then the "fee" you charged—be it a lot or a little—is, and should represent a very small proportion of the revenue you yield from the photos you just took. In other words, if you're only revenue form an assignment is the assignment fee, you have an outdated business model; you simply cannot compete in today's modern internet-based economy, especially when millions of people are taking pictures themselves. That assignment rates go down may be an unfortunate side-effect of this growth, but it is merely a blip on the screen when it comes to a mature photo business model.

I'm not dismissing the potential income from an assignment; I never leave money on the table. If the client is well-endowed and I can negotiate higher fees, I do so. Mind you, negotiation is an entirely different subject, which I discuss in greater length here and here. But negotiation is only about optimizing what you can get, and should not be confused with whether you should take an assignment (regardless of price). In short, in mature business and career planning, assignments should be regarded as one-off payments for opportunities to acquire useful images that last into the future. When you amortize your assignment fees over the course of time, it should be negligible. (There are assignments I shot in 1996 that still generate revenue.)

Assignments represented 12.1% of my 2009 revenue, up from 4% in 2008. This substantial increase is due to both an increase in the number of assignments I took, and the amount I charge per assignment. As I said, I don't leave money on the table, despite the fact that I face the same market conditions as everyone else—namely, attempts by other photographers to under-bid me, even offering to shoot for free.

So, why would my clients pay me a higher rate than they used to, despite the increased competition? Because I provide something that cannot be supplanted by the lowest bidder: a track record. My experience, quality, reliability, and maturity in the industry is important to clients that cannot afford to risk getting a photographer to shoot something for free, yet end up with images they can't use, or other bad side effects of working with an inexperienced photographer.

I also choose clients wisely. I don't seek or need clients who can and should be serviced by emerging photographers. My motto is, "real clients don't need newbies." (Any photographer that complains about being harmed by newbies should have moved up and out long ago into the next tier of their profession.)

People often ask how I come up with my assignment fees. It's actually a very simple calculus of two factors: the client's financial condition, and the "value" of the images I can get. Remember, this doesn't govern whether I take an assignment, just what I charge for it once I deem it worthwhile. I emphatically dismiss all of the fee calculators that you see in books and on blogs. For example, most pros will say you should factor in your "costs" for any given assignment into your fee, whereas I feel costs are entirely irrelevant. I am never concerned with whether I'm making a profit for any given assignment because—remember—the true value of any given job is the longer-term potential with the images. Thinking about purely the fees for an assignment prevents you from focusing on career growth.

While I do generate good revenue from assignments, I will still shoot some for free. Last year I'd done two very important assignments, one was for free, and for another, I spent $3200 of my own money to fulfill the job. In this case, I knew that the imagery itself was invaluable. (And indeed it has already paid for itself in the aftermarket.) Better still, once my clients saw the results of the work, I not only sold them additional content that they didn't anticipate, but I got follow-on work to do exactly the same thing at twice my normal billing rate.

Still Photos

Over the past year, I've added about 30,000-40,000 new images, all
entirely from assignments. These include:

1. Cambodia (Siem Reap, Cambodia)
   
2. Laos (Southeast Asia)
   
3. Croatia (Europe)
   
4. Puglia (Apuglia) (The 'Heel' of Italy)
   
5. Jerusalem (Israel)
   
6. Paris, France
   
7. Oregon (USA)
   
8. The State of Idaho (USA)
   

Not included in this list are projects that I haven't yet gotten online, plus thousands of images added to existing galleries, mostly in and around California, such as Marin County (California), San Francisco, California, up and down the central valley, the The California Coast (USA) to the The Sierras (California). I've also expanded my topical pages, such as Doors and Windows, Stairs and Steps, Random Black and White Photographs, and other topics.

Video

As noted above, and in keeping with Truism #4 of my treatise, the Photography Business (1998), my latest expansion into new revenue resources includes video. As you know, video online has been increasing, and the technology required to produce quality video has come down. This has given many people an opportunity to expand their licensing potential in ways they never could before. I'm encroaching into the video turf much the same way consumers have encroached on the pro photography turf when digital cameras and the internet became inexpensive and accessible back in the 1990s.

Prior to 2009, I licensed no video footage. Yet it instantly grew to represent 12.2% of my 2009 revenue. Most of it is time-lapse photography, which I'd produced mostly as a curiosity that I stumbled into when I discovered my camera's cable release had an interval timer setting.

Most surprising about my video revenue is the fact that I have never promoted or solicited my videos. In fact, aside from my blog comments, I never even made it known that I had video content. I hadn't upgraded or enhanced my site in any way to host or license video content, and the only access to it is this page, which is merely a collection of links directly to my YouTube channel.

Needless to say, the natural viral marketing effect of YouTube is self-evident.

One then asks: if my site doesn't support it, and I can't license it through YouTube, how am I conducting transactions? Email! This is exactly how my stock photo business started. From 1996 to 2003, I had never had a shopping cart—buyers simply emailed me and asked to license images, and they'd send me a check.

Of course, that wasn't that unusual back then—few stock photo sites existed, let alone had automated shopping/purchasing systems, so buyers accepted it more readily back then. Times are different now, and so are expectations. All the more reason why I'm as surprised by the degree of video licensing I've done using this archaic model.

That said, I expect to integrate video licensing on my site soon enough.

It should be noted that one reason why my time-lapse footage commands such a high price is because of the way I shoot it. Rather than use a video camera, I use my conventional still cameras and capture each frame in full resolution: 5600 pixels wide. I then string them together into video sequences using either iMovie (for presentation onto YouTube) or Final Cut Express to retain the full ultra-high-resolution. In fact, these clips are so high-res, buyers can pan and zoom within the sequences down to ¼ of the original footage, and still retain enough resolution to achieve 1920 HD. (And even then, most video buyers don't really need 1920 anyway.)

None of this is possible using conventional video cameras, nor is it offered by other video-production service providers. And of course, the quality is much higher than video footage because night-time image detail in a pro-level dSLR far exceeds anything in the video camera category, even the amazing Red One. This strategy anticipates not just every possible buyer, but prepares for the future as well.

One might think that this is a huge shift in my day-to-day shooting. That's where the best news is: shooting time-lapse footage is as easy as setting up a camera for a conventional landscape shot, but instead of pressing the shutter button once, I press the interval timer, and then go away. For all-night images, I just go to bed; for daytime footage, I use my other camera body and shoot stills while the time-lapse body snaps away every 3-5 seconds. This is not to suggest that all time-lapse is easy (or yields successful sequences), it's only to say that it doesn't interfere with my existing shooting patterns.

Note that the videos on my YouTube site do not represent all the footage I've done, either in time-lapse or conventional capture. I've done a number of productions for clients as an addendum to my standard still-photography services. So, I haven't really grown a new business model as much as enhanced my existing assignment services. Also note that my Canon EOS 5D Mark II, the body that I use in standard still photography, also captures HD video, where I do get short segments of conventional video clips. (Always adding to my "content.")

Lastly, don't assume by any of this that I'm moving towards video and abandoning still photography. The kind of video I'm doing is just the low-hanging fruit that happens to be available given my set of conditions (equipment, talent and clients). I am by no means a true videographer that could be hired by a television network to produce content for broadcast. That said, the future of video licensing looks very, very bright, and it would be something I would strongly encourage other photographers to do if they had a propensity for the technology and the clients that would use it.

Consulting and Business Development

2009 saw a big decrease in my consulting revenue largely because I'm shifting away from that business model. I've always used it as a vehicle for conducting research into new and interesting areas of the photo industry. However, my interests are shifting into new directions, and I'm finding that the information many people seek is becoming repetitive, and ultimately fruitless. I'll be posting future articles on some of those initiatives.

Nevertheless, one of the side benefits of all this research is that I produce a lot more content that's not only indexed well by search engines (which brings me traffic, which helps my content sales), but it also leads to publishing revenue. As most of my readers know, I have written a few books on the photo business, which continue to sell quite well on my website. Even though they are "old" by publishing standards, I wrote them with longevity in mind, as they address timeless business principles. In 2009, my book sales and other publishing revenue (see below) represented 12.8% of my income, compared to 14.9% of 2008 revenue. (This aspect of my revenue is and always has been rather constant.)

Another noteworthy fact is that my site outsells ever other book retailer on the net by many orders of magnitude. And I negotiated the contracts with my publishers with this in mind—I don't mind taking less royalty advances on my books in exchange for very advantageous discounts for direct purchasing from them. Though my contemporaries in the photo business publishing world may sell more books on amazon than I do, I sell far more total books because of the volume on my site. There's also the fact that I get $10-15/book, whereas my counterparts get maybe 10-15% royalties on those amazon sales. (I'm guessing these royalties translate to about $1.50 to $2 per book.)

Then there's the revenue I get from publishers who reprint some of these blog entries (condensed down to 1500 words—yuck!) in their columns and newsletters. Interestingly, most are from non-US publishers. (One was translated into Russian. I got a copy. It was weird to see.)

The next article in the series will cover Web Traffic and Visitors, Search Engine Optimization, and advertising revenue. Stay tuned.

When Editorial Uses of Photos Require Model Releases

Recently, I've noticed a big increase of discussions on photo forums involving questions of whether model releases are necessary for certain types of shooting conditions. What struck me is that so many of these questions were about the need for releases for editorial uses, a form that normally doesn't require model releases anyway.

Here are some examples that came up in discussions, all of which share a common theme.

1. You're a wedding photographer and you're shooting the bride and groom during a ceremony at their home.
   
   
2. You're an equestrian photographer on a "farm call" to photograph a horse at the owner's stable.
   
   
3. You're an art photographer and you're at an artist's studio to shoot a few pictures of his latest sculpture that he will send to his agent, who will then send them to magazines for a press release.
   
   
4. You're a portrait photographer and own a studio at the local mall. A client comes in to have pictures taken of him so he can distribute them to potential modeling agencies.
   
   
5. You're a press photographer, and develop a special relationship with a congressional candidate, who invites you to the family estate to photograph the clan for a memoir they intend to publish about the personal tolls that political life can have on a family.

Though there are contracts associated with each of these assignments, none of them include model releases by the subject for the photographer. Here's the question: can you license any of these photos for EDITORIAL use to a newspaper who is doing a story on the individual who is the subject of any of these given photos?

Most people would say no, and would guess that it's because of the lack of model releases. True, but the more important (and harder) question to ask is: why? After all, as you may know, model releases aren't usually necessary for editorial uses of photos, and you can't get more "editorial" than a newspaper story. So, what makes these cases above so different that model releases would be required for an editorial publication?

Here's where almost everyone will now guess wrong: they'll say that the photography was done on private property (or "of" private property).

That's not it.

What matters are the laws governing "personal privacy," and the fact that the property itself may be private and/or personal is actually not a factor here. Privacy laws protect people's rights in ways that transcend issues of "property" entirely. This may include conditions where 1) people waive their privacy rights even on their own property, and 2) people preserve their privacy rights on public property. So, the first thing you need to do is dispense with the notion that "property" has anything to do with privacy--at least, insofar as the publication of photos in editorial contexts is concerned.

The other thing you need to immediately forget are the high-profile cases concerning "violations of privacy," such as breaking and entering, intruding on personal space, planting hidden cameras in people's homes or in the workplace, or using brute force methods to get pictures. In short, stop thinking about just those cases that involve "aggression." While such aggressive techniques do violate privacy laws, these are obvious. What's more interesting--and which is far more common--is where photographers can violate privacy laws in very passive ways, even including situations where the photographer has written permission from the photo subject to photograph him. The cases listed at the top of this article are perfect examples.

Here's how you need to think about privacy laws from the top down:

Does there exist "a reasonable expectation that one could be photographed by the general public without the person's knowledge"?

What is the relationship between the photographer and the subject?

How much "orchestration" was necessary in order to capture the photo?

Each of these requires discussion, so let's address them individually. After that, I'll tie them all together to present a real-world scenario that everyone can identify with.

The first item is the most important because it lies at that pivotal dividing line between personal rights and that of the First Amendment (which affects freedom of the press). That dividing line means that people are entitled to "privacy" when they're in certain conditions, but they waive their rights in other conditions. The easy cases we all know about are: when you are in public, you can reasonably expect that you could be photographed without your knowledge. When at home, you can expect that your privacy is protected from such photography. Easy enough, but it gets complicated when you introduce other conditions.

For example, each item in the following list is a private property: an amusement park, a bar, a zoo, your swimming club, your golf course, your church. In each of these cases, the general public can come, and they often have cameras with them. Hence, everyone on the premises has waived certain rights of privacy insofar as their photos being taken by others, even though the property is "private." Don't necessarily take this as a universal truth though; there could be specific venues where photography is prohibited, thereby changing one's "expectations" of being photographed. Still, once again, don't take that as a given either. Just because a venue may say there are prohibitions, doesn't necessarily mean the expectation goes away. It's not enough to just see signs that say "no photography," or a warning on the back of a ticket stub that says you can't take pictures. And you certainly never rely on your opinion that people shouldn't be taking pictures. If the rule is not enforced, and you still see people shooting away without intervention, the expectation of being photographed still exists.

True, one could argue this case to a judge, and one may get some leeway because of this, but the judge will weigh other factors as well. He's going to be as objective as possible by looking at the behaviors of others in the environment and assessing what's actually going on. If many people are conspicuously taking pictures, whether they're allowed to or not, this will be considered. On the other hand, if security personnel are stopping people from taking pictures, then it can be argued that the expectation of being photographed is reduced. Between these two extremes lies the reality of the situation.

Consider a celebrity who argues that he only showed up at the event because he was promised that no photos would be taken. If it was clear that the ban wasn't enforced, and there were people taking pictures everywhere, and he had an opportunity to leave before being photographed, he may have a hard time convincing the judge that his privacy was violated by the photographers. Separately, he may have a claim against the venue for failing to enforce the photo ban, but the judge will consider that the conditions at the event were obvious and the celebrity had an opportunity to leave. By staying anyway, he subjected himself to a "reasonable expectation that he would be photographed." If you're one of the lucky photographers that got a photo of him, and that photo ended up in the newspaper, you haven't violated his privacy. That's editorial publication, and the photo doesn't need a release.

So, the fact that you're on private property is inconsequential. Indeed, there are cases where you can be in a public place and still have your privacy rights protected. How? This gets into the second point above: what is the relationship between the photographer and the subject?

To illustrate, consider the scenarios listed at the top of this article. In each case, the people being photographed asked the photographer to do so because they wanted the pictures for themselves. Even if they are for publication in the general press, that part is irrelevant insofar as privacy rights are concerned. It is the direct invitation to the photographer by the subject to shoot a specific thing which implies that the subject has not waived his privacy rights. Thus, the photographer's use of any of those photos requires consent from the subject (in the form of a model release). Yes, including for editorial publication.

Note that this does not affect copyright status--the subject is not suddenly the owner of the photos, nor does the relationship imply a work-for-hire scenario. It's simply a matter of privacy, and the scenario involved means that that no one has waived any rights.

Once again, note that "private property" has nothing to do with anything here. Whether the photo session was on public or private property, the photos taken by the photographer in question are restricted due to the circumstances involved.

Back to the "relationship" factor between the photographer and the subject: The alert reader will note that, if the photo session is on public land, one cannot necessarily assert privacy rights to others. Not every person with a camera is "the photographer" with whom the subject has a relationship. Consider a couple that hires a wedding photographer to shoot their ceremony, and that ceremony happens to be in a public park. Only the hired photographer is bound by the agreement made by the couple, so the photographer has no rights to license those photos. However, because the ceremony is in the public, other people who have cameras, such others at the wedding or uninvited bystanders, can each shoot all they like, and license those photos to others for editorial publication or any other uses that do not require model releases.

The special relationship between the photographer and the person that hired him has been upheld in court cases, especially those involving weddings. Judges' rulings have maintained that people's expectations of the service that the photographer is providing is one in which they can reasonably assume that these photos are for their personal uses.

To illustrate the strength of this relationship's effect on the need for a release, consider the scenarios I described involving an artist and his sculpture, or the owner's horse. Normally, only photos of people require model releases because animals and objects don't have privacy or publicity rights. But, there still may be restrictions on the use of these images because of the privacy laws involved and the "relationship between the owner and the photographer." The fact that the photographer was invited for the purpose of providing a service puts limitations on all the photos taken during the session.

What's further interesting is that the strength of these cases have been decided on the weight of another factor involved, which leads us to the third item on the list: to what degree was a photo "orchestrated."

When it comes to orchestration, the idea is that the more involved the photographer and subject are in coordinating how photos are taken, the more "invasive" the photographer is on the privacy rights of the subject. Remember the first rule, where a subject waives his rights of privacy if he can be photographed without his knowledge? Clearly, if the person is unaware he's being photographed, his actions are of on his own free will, and anyone that witnesses such acts in a public space is entitled to publish photos of them in an editorial context. But, if the subject is directed in a controlled situation, he is no longer acting on his own accord--he's doing what he's told to do--so photos of him may not necessarily be representative of him. Even if he's agreeing to be photographed, he still maintains some rights of privacy.

Now, understand that this is purely academic right now, and real-world situations may present very gray areas. For example, just because you ask someone to pose for a picture doesn't necessarily mean that they are now "being directed." And though you may still be safe if you ask them to wave, or stand next to a building, or even spend considerable time with them in a casual or candid manner, you can see that each of these progressive acts leads you closer to that gray area; the point at which you cross into the "privacy" zone is rarely clear and has to be evaluated on a case-by-case basis.

So now, let's pull together all three of the checklist items, and consider a case that involves them all: you're hired by a restaurant to photograph the dining room with people eating. Here's a complicated situation because we have many people involved, a variety of conditions, and possibly some "direction" by you to the patrons. So, let's piece it all together.

First, unlike the restaurant owner, the diners have no relationship to you at all, so the first question remains the most important: "is there a reasonable expectation that they could be photographed without their knowledge?" As discussed before, one has to do an on-site assessment: Are others taking pictures? Are you conspicuous with your camera? Has the restaurant owner told the clients (verbally or with a sign) that they might be photographed? Even subtle things like whether it's a quiet, intimate, "private" sort of venue, or whether it's a loud arena-type of pizza parlor, can imply a different perception on whether there's a "reasonable expectation of being photographed."

Assuming there is such an expectation, then the clients have waived their privacy rights, and you can license the photos (without releases) to a client who may publish them in an editorial context.

Next is the question of "orchestration." Are you simply photographing the room, or are you having people pose for you? Is it a simple shot, or are you directing a man and a woman (who don't know each other) to clink their glasses together and gaze into the camera? Are you adjusting the smile? Fixing hair? The more you get into these actions, the more likely it is that your orchestration begins to threaten their rights of privacy if these photos were published without a release, even in editorial contexts. You haven't violated anything by taking pictures; it's the publication of them (or the licensing of them to someone else who can publish them) that could be.

Assuming there is no orchestration, and that people were aware that they were being photographed, you can license these photos for editorial purposes to any buyer.

Oh, Wait! Had you forgotten that it was the restaurant owner that hired you? He's the one that wants to use the photos. Is he aware of all these issues? Probably not at all. So, as the hired photographer, you have to be aware of them so you don't get your client into trouble when he publishes the pictures.

You might think that it'd be easier if you just had everyone sign releases. Well, again, in the real-world, that could cause more trouble than it's worth. Diners don't want to be bothered with that as a group, so you would really only want to do that with people with whom you've given direction, or who may appear to be "advocates or sponsors" of the restaurant. Why's that? Because the owner probably wants to use these photos for promotional purposes, and for that, he would need model releases from anyone that could appear to be "advocates or sponsors." Note that model releases are not required from people who are simply part of a scene, even if they are recognizable, and even if the use is commercial (advertising or brochures). What triggers the need for a release in a commercial use is if the people appear to be "advocates or sponsors." So, if one of the pictures you took is of a couple clinking their glasses looking directly into the lens, and the picture is clearly on them, they would have to sign a release for the restaurant to use their photos. On the other hand, a wide-shot photo of the entire room with everyone eating at their tables (not looking at the camera), none of these people would need to sign a release. This applies to both the commercial and editorial uses by either you or the restaurant owner.

Got all that? Well, we're not quite done yet. There's one more important factor in the "relationship" section that hasn't yet been brought up: one in which the photographer asks the subject to participate in a photo shoot, rather than the other way around. In each of the scenarios discussed so far, the subject asked the photographer to be photographed. But, what if you're the one to call the farm and ask owner if you can bring a group of photographers (perhaps students) to do a photo session of the owner and his horses? This is a subtle but important difference that could change the entire landscape of whether releases would be required for editorial uses.

Another way to look at this is to ask, "what is the purpose of those photos?" If the subject hired the photographer, he knows what the photos are for, and his expectations about how they are used have been set. If the pictures were to later show up in the paper, it would be a dramatic difference to his expectations than if you asked the subject to photograph him. Here, his expectations of the photos are simply undefined, and this subtle difference weighs very strongly insofar as determining whether his privacy rights have been violated. For instance, he'd have an easier case to make if he could say to the judge, "I hired the guy to photograph me and my horses so I could have prints--imagine my surprise when they showed up in the paper." This is a stronger case than if he said, "These guys asked if they could take pictures of me, and a few weeks later, there I am in the paper." Here, the difference in the preconceived expectations carries weight as to whether the farmer's personal privacy has been violated.

Again, individual cass can be argued, but I illustrate the difference here because one scenario is a stronger case than the other. And when you factor in other instance-specific details, the pendulum has a tendency to swing in unexpected directions quite easily.

And finally...

You may recall that in the beginning of this article, I said there was a contract between the parties in each assignment. But I didn't say what was in those contracts so we could focus on understanding the concepts involved. Now that that's done, we can go back and revisit the contracts and see if the terms alter anything we've assumed.

First and foremost, if the contract is "work-for-hire", then the photos aren't even yours in the first place. You have to hand them over to whoever hired you, and you're done. You have no rights to or legal access to those photos (unless, of course, the client chooses to let you have them). A work-for-hire contract has to actually use that phrase.

Assuming it is not a work-for-hire contract, the client's own use of the photos are limited to personal use only. I had mentioned in several of the examples that the clients were going to publish the photos in some form. Technically, because you own the copyright to the photos, the client cannot publish them at all without permission from you. Assuming that it was the client's intention to publish them, we can assume that the contract specifically stipulated the right to use the pictures for the stated uses. However, just because the client can use the pictures in the manner stated, it does not affect your use of the photos insofar as the model release requirements are concerned. That is, if you performed a portrait session with a client who had you sign a contract saying that he's going to provide these photos to a stock agency who will license them, he has the right to provide them to the agency because it was written into the contract. You don't, unless you have a model release from him. Otherwise, you've violated his privacy rights because he came to you to get his pictures taken.

And that brings us to the last point: while it's important to understand all these issues raised here, the best business decision you can make whenever any signed contracts are involved, is to include language that outlines the terms of a model release. That would make the entire discussion moot. And provided that the release language is broad, you could even license all the pictures discussed here for commercial uses. The one exception would be the restaurant scenario because other people (other than the owner) may be involved. The owner can't sign on behalf of clients, so those people would have to be dealt with individually.

In negotiations, consider Career Development

Today, I want to return to a particularly important issue facing emerging photographers: a reminder that career development is a multi-faceted animal, and it should be part of all business thinking.

For example, I got the following email recently:

I am in negotiations with a travel company based in Tanzania. I'm asking that they provide me with a 3 week package to go on a Safari, hike Kilimanjaro, and a trip to Zanzibar plus $2000. In return I will give them photos (which they desperately need) of the travel experience, portraits of their workers (~12 people), architectural photos of their facilities, etc. External expenses such as airfare will be covered by myself. Do you think I'm pricing this fairly, to myself or them?

The problem facing most photographers who face this dilemma is that they don't have the empirical experience of multiple sales and sales contexts to know what might be an appropriate fee. So they rely on others for guidance. This is intuitive, but is fraught with all sorts of problems.

Namely, what may be a good deal for one photographer may not be for another because a "deal" usually involves more issues than just the simple exchange of money. There are actually two factors involved: the money, but also the objective of "career development." It turns out that both tie to the same thing when you're just starting out. When it comes to negotiation, you have to evaluate the total value of what what you get from the deal, not just the money involved. Similarly, the other party does the same thing. If both sides perceive a balanced weighting between what is given up and what is received, then "fair" has been accomplished.

Career Development is most important in negotiation
When you're a new photographer, it's important to identify what your longer term goals are, and understand what you need to do to get there. This will help you establish what you perceive to be valuable, which itself evolves as your career does. For example, consider these intangible benefits that most photographers don't factor into the negotiation process: (I am paraphrasing from my chapter on "business sense" from my first book on the photography business which you can see here).

1. Is it the kind of trip that can yield photos with stock potential?
2. Is this a long-term business relationship? or a new one? Might this be the kind of client that you may work with for a long time? Or is it just a one-off opportunity?
3. Would this trip give you good and new experiences at the business of being a travel photographer? That is, would it give you credibility that, without it, you lack?
4. If you could afford to pay for it yourself, and if you felt that there was value in the photos, would this be a trip you would go to your own expense to cover? (Hence, it's "value.")

These are the questions you ask yourself to determine the inherent value of the trip as it pertains to your longer-term career objectives. Obviously, you want to optimize your financial gain in any negotiation; no sense in leaving money on the table if you don't have to. But at least having a sense of the value of the other things I just listed gives you a broader perspective on just how high or low you're willing to go to get the gig.

My experience with Kilimanjaro and the safari in general is that it's great stock footage, so speaking strictly from a financial point of view, it's a trip that yields long term financial returns, especially if you're trying to spread your photo assets across many subjects.

Another thing about Kilimanjaro is that it's very expensive for a tour operator to send a photographer, so if you have it under your belt, it's a good sign for other (future) clients that you've been deemed trustworthy by at least someone else for such an expense. This is often a door-opener for many photographers to new clients. So, again, there's a lot of value to that.

Similarly, the fact that you've been there "on assignment" gives you tangible experience working with clients and staff together. This not only has inherent value in itself, but you can be more articulate about the business to future clients, giving a stronger sense of your worth.

The question is back to whether they would pay you in addition to sending you, and if so, how much. Here's where it comes to your thinking on this: do you risk losing it all by bidding a price they wouldn't accept, or should you leave potential money on the table (amount unknown, of course) just to assure you get the gig?

Foot in the door
Speaking from personal experience, when I was getting started, I was more than happy to take this kind of trip and shoot it for free (though, they would pay all expenses). I would not only have the value of the trip I just listed, but I established a relationship that could lead to more work that is paid. And sure enough, that's exactly what happened.

Some in the industry vigorously respond, "but you just underbid another, hard-working photographer, stealing his business." First, if that were truly the case, chances are more likely that the client hired me because the other guy was deemed not to be worth what he was charging. Even then it's not that simple--taking a risk by hiring an unknown photographer has its downsides as well. Thus, the assumption that it's just about money is naive. In the travel business, the "cost" of sending a photographer has multiple line items: trips themselves are substantial, often far exceeding whatever his day rate is, but there's also the good will with the clients, which a "green" photographer can damage pretty quickly. (And the cost of that is priceless.) Finding a good, worthy photographer who gets good images is easy. The hard part is finding someone that actually contributes to the trip--knowing how to interact with clients, acting as a virtual "leader." Finding such a person is hard enough--you don't just let go a good one just because some unknown photographer came by and offered to shoot a trip for free. That'd be stupid.

So, why shoot for free if you don't have to? Foot in the door. Much the same way people will use discount cards to try a new restaurant they might not otherwise choose. Or two-for-one coupons to try a new product they might not otherwise try. Discounts are used everywhere throughout every aspect of every industry. If you're trying to penetrate a new market against competition, discounting is usually an effective way. And if you don't have anything else to offer--like experience and a portfolio of high-end clients--then this is often your only option.

Just as I know there are other photographers try to unseat my current position with that client by offering to shoot trips for free, my client knows that my value is a known quantity, and it's not worth risking whatever my day rate may be for a given trip, just to get an unknown to screw it up. In short, I'm not just a hired guy to take photos--I represent the company when I go.

Obviously, I no longer need to shoot trips for free, but that doesn't mean that I don't continually weigh the cost-benefits for any new client. Even at this stage of my career, it's not just about money. It's never just about money. Anyone just starting in the business should thinking about money last. All the other factors associated with "building a career" should come first. Yes, do what you can to optimize your financial return, but negotiation is the hardest thing to do in this business, and doing so from a position of inexperience is the worst position to be in.

Going too far
On the other extreme, you can go too far: I've seen people pay for the trip themselves, and still give the images to the client in hopes of getting more work. That doesn't work so well simply because the same thing can be accomplished by not giving them the final images, but by merely showing them to the client. In fact, this is how I got my very first assignment. I was a regular paying client for a company, and I shot for fun. I would show them photos I took on each trip, till they asked me to shoot for them.

The lesson here is: don't give away for free what doesn't get you anything in return. Remember, there should be an sense of equal value for what you exchange. Granted, that analysis isn't easy--and people make mistakes all the time. (Experience is the result of having learned from your mistakes.) As such, some people will simply never succeed as photographers, or in many other professions, simply because they don't have a good sense for this sort of thing. That said, you don't get better at it by asking other photographers for advice--their needs and experiences are too different from yours, and you need to think intuitively on your own. Never look at a single assignment and be concerned about what to do about it. Think about longer-term objectives, and consider those issues that contribute to it. The chapter in my book that deals with "business sense" outlines the kind of questions posed at the beginning of this article for how to do that analysis yourself.

There is no such thing as a "base rate" or any kind of formula that one can identify as "fair" that spans across the industry, or among individuals, It's all subject to where people are in their careers, and their self-recognition of these factors.

Still, there are methods
Now, with all that said, there are some tricks to negotiation that can help minimize damage. For example, never initiate an offer to shoot for free--you look desperate and, worse, too inexperienced (at maturity, not just the photo business). It's always important to gauge what their perceived need is in the first place. Trying to convince a company that their photos are bad and that you can do better for them is starting from a very weak position. If they aren't aware of the value of photography in their marketing materials, then you'll have as much luck as asking someone out on a date that doesn't find you attractive in the first place. It's best to move on.

If they're teetering on the fence, it may not be a great long-term client (because it's so much better to have clients who themselves have good business sense), but it may be worth getting a free trip and some experience under your belt.

And then there's the client that knows the value of photography in their business, and is eager to find a new candidate to work with. This may not only be a good long-term client, but if you're good at sensing their need, you may be able to capitalize on it by having them propose a "rate" to you, rather than you to them. whatever it is, chances you are that you take it because you've already found a potential long-term partner, and you don't want to appear "difficult." In fact, I've been in weird circumstances where it was to my advantage to just say, "pay me whatever you think is fair--I'll take it." This reverse psychology can yield interesting results... and even if they offer you nothing, if you come away having done a good job, you'll have some tokens on your side that will be much easier to cash in later.

If they haven't done this a lot either, then they may be as unsure about it as you are, putting the question of "day rate" back to you. Rather than each eying the other, this could be another opportunity to work on longer-term goals: offer to shoot two trips over the course of a year, and then come up with a number if the relationship is to continue. by that time, you'll have learned a lot, and it'll be much easier. When two parties get along, such questions work themselves out.

You can almost always tell what kind of company you're dealing with by looking at their existing marketing materials--from their website to their printed matter--as well as where they advertise, and other things. You can tell how seriously they take photography.

If you're dealing with a company that appeals to the budget traveler, don't even consider convincing them of paying you money on top of the cost to send you on the trip. If they are an up-and-coming high-end business, they may not be able to afford to pay you a per-diem day rate now, but they will later, in which case (again) the real value is the long term relationship. In fact, I once told a company I would shoot the trip for free if they guaranteed a follow-on trip at my normal day rate. If they chose not to, they'd pay me for the initial trip and we'll call it square. They accepted the proposal and loved my pictures, but in this case, I opted not to work with them because they were excessively high maintenance in other ways. (Asking me for help in the photo department that I had no time or incentive to offer.)

Again, the retort to "free" or "discounted rates": there are undoubtedly photographers who will respond with, "if you let them take advantage of you now, you'll never get paid a fair rate." Or that "you lose respect by shooting for free." That is not only over-simplistic nonsense that has no basis in economic principles, but it begins a relationship on an adversarial tone. "Being tough" only works if you have the knowledge and experience that people can sense. If you're green and naive, you can't possibly mask it, so your best bet is to allow it to work to your advantage.

Yet, the original premise still exists: everything has weightings, and you factor into the bigger picture whether any given assignment (or client) is worthwhile. If you shoot for a client for free to get your foot in the door, and they never want to pay you more because you've already established your lower rate, you move on to the next client. Armed with more photos and experience and wherewithal, your "entry" doesn't have to be free. In fact, jumping ship to a new client for more money is a well-practiced tradition in many industries (in the United States at least).

Even for those rare clients that would "take advantage," They are easy to spot as business people before you get very far. But even a bad client can provide good opportunities--a free trip to Kilimanjaro?! Who's taking advantage of whom?

In summary, consider long-term career goals when entering the photo business. Putting too much value on the "money" aspect is not just short-sightedness that will never serve you well, but you'll also fail to adopt better methods of negotiation that can only come from seeing how broader issues tie together to lead to more beneficial conditions.