Protecting Your Image with a Contract


The story of Max Jackson versus Color Run Inc. will go down in photographic history as one of the most bitter showdowns between an up and coming photographer and a multi million dollar commercial entity. We have all had our days when people would ask for free 'samples' for commercial use and are unwilling to pay for your day out shooting an event. Basically I don't negotiate without some form of worded contract and yes, they will ask for them. It is in your interest to state the affirmative or the negative at such a point so think wisely.

The usual ruse they will use is these excuses:-

  • I will give you the image credit
  • Offer you free publicity and exposure to the masses
  • Promise of future assignments

When you are a newbie. It's hard to not want to turn down such an offer. After all, you need the free publicity. Remember that once you give it away, you can't turn back. It's like virginity, if you give it to a cheap hooker, you're fucked. Financially speaking, it's the final nail in the coffin for you.

There is nothing wrong with a work for hire agreement where they pay you for your time and you take the pictures that will belong to them. This is far easier for a newbie to negotiate.

Where the Color Run Debacle went Wrong

In the vaporous age of internet consent, you can easily purvey sexual favors from a minor without knowing it. This is no different in the Internet age where people start asking you for free stuff and the moment you say yes, they will load it all up with their welcome wagon and take it all home snickering at the loot they have just gotten away with.

Digital imaging isn't worth much if you care to look. Too many people will ply the welcome wagon and give away their stuff for free, that said, any amateur who dips his toes into the water will have to do the same and why not? The next guy is giving his stuff away so must I.

Therein lies the problem. As a photographer, you could easily have submitted those same photos to a royalty free site and directed your would be client to go there and purchase them. It would have solved the problem of not having to do any negotiations.

Demand for Ransom

In Max Jackson's case, the magic figure was US$100,000. But you forget that you can't fight an entity larger than you without first having a WMD of your own. This is where all hell breaks loose.

The first rule is to send them a gentle reminder that rights negotiated were not honored and that you are willing to burn bridges with the entity when pressed to do so. Failing of which you need a lawyer to word out a settlement agreement and a demand for payment letter for you. Never draft this out on your own as your letter can be misunderstood as a ransom note. Get a lawyer if you want to demand for damages and this is where Max got wrong footed. 

In Black and White

When you deal with entities that are big and imposing, don't think for one moment that you are going to win just because you bought into the tale of David and Goliath. The law is all about contracts and this is where you as a photographer should prepare one for every occasion. Go google one up that basically protects you basic rights. There are busloads of contract samples on the Internet for imaging contracts. 

One of the problem with photographers is the lack fluency in writing a simple contract. If you are unsure, then you better damn well spend the money to get one written for you. That contract should cover two spectrum of use. 

  • Limited Rights Usage
  • Perpetual Rights Usage

Limited rights usage is simple. You tell the people that you intend to let them use your photos for the desired purpose and anything that falls out of that scope has to be negotiated. 

Perpetual Rights Usage would be giving away all rights to the photos to the client to do what he pleases. This is probably the best way to start if clients gets sticky about where and when they want to use them. 

Newbies are not Pro Photographers

Pro photographers negotiate rights on many factors, including for use in Print, TV, Billboards, etc. As a newbie, you don't have the muscle to pull such a thing off because you're not a pro and you don't have the business acumen to package the deal. 

Let me cut a long story short. Pros have all the necessary documentation drafted out for selling photos to clients. Amateurs do not and people can tell when they ask for free pictures. As a Pro, you don't give away free pictures because you own a legitimate business. Any request for free use will be countered with "I'm so sorry but I run a business, if you are interested in the photos, then allow me the courtesy to direct you to my stock image library to purchase them". 

Last Word on Photo Licensing

You have to admit that you can't do it all. Sometimes you license the use of the photos yourself, other times you let someone else license it for you. There are lots of stock image libraries around the world. Pick one that you like best and put your pictures up for sale. Stock image libraries do not litigate but they have a contractual obligation to give you the rights managed licensing agreement for you to take action. There are third party agencies that litigate in America when it comes to rights managed photos but it does not apply for cross border copyright infringement. What's more, even in America, the copyright debacle is full of inconsistencies. For example, you need to have your image registered with the Library of Congress to enjoy copyright protection. 

Microstock libraries are normally royalty free. But the buyer pays according to the resolution size he or she needs. If someone steals it from the buyer, don't expect the agency to come after you. 

Litigation is expensive, and for royalty free photos, it makes no cents.