Photo rights for advertising

January 6, 2007 1:45 AM

My wife was contacted by an ad agency asking to use a photo she took and hosts on flickr on their client's website. They offered to credit her with the photo on the site. I've read previously on mefi about photos used for print and posters but not for feature on a website for a corporate client of the agency. Is this standard practice? Should she worry about her rights to the photo? More inside...

The ad agency is a large one with many household name clients. The site features user submitted photos for a nationwide client, some with a background story - the site itself is a play on the corporate client's motto and instantly recognizable.
My wife is thrilled and would be happy with being credited with the photo. When she contacts them back should she ask about her rights (copyright) to the photo? Is this fairly standard practice for non-print media stock photography (aka web)? I'd assume they would offer a fee for use of the photo if it was a print ad campaign or something per the previous question similar to this on ask mefi and there would be some agreement as to use or licensing of the photo for use?

If you have experience with this or are a photographer and have been in a similar position I'd like to hear your views especially.

Of course I hope to post follow up when all is said and done :)
Thanks so much!

posted by clanger to media & arts (12 comments total)

The laws will depend on where you are but I'll assume the US. This wasn't done as a work for hire so she retains the copyright unless it is explicitly signed over - something for which you can demand a reasonable quantity of money.

What I'm sure will happen is they will enter a license agreement for use of the photo, the terms of which could be anything but most likely will be as much to their advantage as they think they can get away with. Usually a photographer will be paid for the use of their images, the quantity depending on what media the image is used in, how many people will see it, how much money it will make, etc... but that doesn't mean the license needs to involve money. They could and I'm sure they will try to license the image for free, giving you credit for the photo where it is used and paying no money.

If you're happy with those terms, go right ahead and sign the license - it's a huge thrill to see yourself credited for the first time. Just be sure you don't sign something that gives away the copyright and ensure that the license is not exclusive unless you're being paid appropriately.

If I were your wife, I'd ask them to write and send her a written license agreement for the image, stating exactly the scope of its use and the terms under which it is used; it will be a template that they have laying around and use daily, so don't feel like you're inconveniencing them - it will make your wife look more professional.
posted by polyglot at 4:22 AM on January 6, 2007

It is clear that they have tried to license the image for free. But in many situations (including this one, it would appear) that is perfectly OK. Trying to hold them up for any signficant licensing fee would lead them to drop it and go to another image and another photographer.

The upside for her is exposure: her name is associated with the photo. If she has a web site of her own, she could ask/require that a link, not just a name, be included. She could ask that that be done in the future if she has a web site.

The agency will likely send her a licensing contract. There is no guarantee that the photo will remain on the web site for any particular period of time.
posted by megatherium at 5:53 AM on January 6, 2007

Yea, just make sure you give them a limited scope usage (which they may or may not agree to) because they might like it so much they start plastering it on their products - nothing wrong with that - just as log as you guys get compensated ... or if it's not that big of deal, you can sell them all the rights if they're willing ...
posted by jbelkin at 10:01 AM on January 6, 2007

Note: After writing my rambling response (below), I re-read your question and got the feeling I totally misunderstood it. Are you saying she was asked to participate -- along with a bunch of others -- in a client's "community" or "call for entries" campaign? Where she's part of many? Kind of like the Nikon Stunning / Flickr campaign? If that's the case (that being, the campaign is centered on the aggregation of many photographers), then I think they will probably have some sort of predefined agreement that states intentions and usage stipulations and what the campaign is all about. You'd then need to review the material and decide whether you can agree to their terms.

But... if you're just asking about providing imagery to an interested party to put on their website, then my more longwinded answer will resonate better.

(deep breath)

Here's the general process: as the photographer, your wife is in control of everything right now. The agency has approached her seeking permission for use. It's now up to your wife to decide whether to grant the permission, and to set the terms of use (that's not the agency's job). The agency will then either accept or decline the terms of use.

It's not the agency's position to specify your wife's rights. That's kind of like a customer walking into a shop and telling the shopkeeper they want to buy a lawnmower and then setting their own terms for payment. (note: please see the first part of my post -- if the opportunity is more of a "call for entries" style, you might have to play by their rules.)

What you need to establish is a proper licensing agreement to state the terms of use. Then have the agency sign off on it. There are a number of photographer websites online that can provide you with insight into legalese. Dan Heller's online "ebook" offers a wealth of information -- I'd recommend you read his page on selling. His blog post on Terms Related to Digital Files will help you understand establishing terms of use.

When it comes down to it, a license doesn't need to be terribly complex. It essentially needs to cover:

• Payment
• Terms of use
• Ownership/rights

Payment is obvious*, and Dan Heller's blog post will make terms of use pretty straightforward as well. When it comes to stating ownership/rights, there are only a few options:

• Non-exclusive Use: Purchaser is allowed to reuse (or resell) the image in specified regions and situations along with the artist.
• Exclusive Use: No one except the purchaser of the image can use the image without permission of the purchaser.
• Transfer of Ownership: similar to an exclusive license, but the artist transfers full ownership to the purchaser.

It should go without saying that you want to retain as much control as possible (i.e. grant a non-exclusive license). Only in very special circumstances (and with a substantial fee) should you grant an exclusive license or transfer ownership. A non-exclusive license is pretty standard, and most likely what the agency's lawyers would expect.

I was going to email you a sample license I used the other day, but I couldn't find your address. So I've uploaded it here (pdf) instead. I also have all my licensing fees listed on my website. Feel free to email any additional questions you might have.

------
* I'd be remiss if I didn't take a moment to encourage your wife and you to stick up for what you're worth and seek more than a simple photo credit (that is, if this isn't the 'call for entries' situation mentioned at the beginning). Sure, it sounds flattering and nice and like a little honor, but that altruistic notion is certainly not the motivation behind the ad agency and its corporate client. Your wife created something that a company wants to use to make themselves more money. They're a business and they have the resources (and should have the expectation) to pay for what they need. There's no need to volunteer your help to someone who can pay their own way. And if I don't sound cynical enough: photo credits can't buy ice cream.
posted by Hankins at 11:51 AM on January 6, 2007 [8 favorites]

Wow, thank you everyone for the replies so far!

My wife took all of your answers and decided to let them use the photo and stipulated that she retains rights and it's only for that site and no alterations.

We will see what they say. She was concerned that asking a fee "in this particular case" may lead them to just decline. But she's interested in future work so this is a nice start and a good ego boost for her!

To answer Hankins' question. The site asks for users to submit their pics as well, but the site also has "examples" in different categories that you can see that anchors the theme. There aren't many yet so I think this is for one of the "anchor" photos. They even have a video link with some of them that was professionally done (not necessarily of the photographer submitting but of the photo subject) so your Long version with license agreements and everything was greatly appreciated! It applies best I think.

Once she hears back and if it's a "go" I will post a link so you can see what this was all about if you are curious :)

Thanks!
posted by clanger at 12:46 PM on January 6, 2007

I buy photography & illustration as part of my job in an ad agency. You did the right thing in not asking for a fee, as my understanding is that she submitted to the site. No point in asking for a fee afterwards.

As a general rule, if someone asks for a fee, the first thing I'll do is compare their request to how much I'd pay from one of the commercial photography houses. If it's about the same or I can get a similar shot from getty or magnum etc, I'll often end up with the commercial agency. This is simply due to the fact that they know the drill and getting high quality shots with the right file format and resolution is very easily done. Also, those places maintain databases of who else has bought the shot. So if I'm buying for a food client, they can tell me if another food client has paid for the shot. Helps me avoid any problems with similar creative out in the marketplace.

As for copyright, I never buy copyright. I don't need it. We have a specific usage in mind, and that's all I buy. I'd strongly caution any photographer against selling copyright. Ad agencies and corporate clients don't need it.

However, the one area where I think she should bend is alterations. It's standard practice for agencies is crop, enhance or otherwise alter the shot. If they can't use it anywhere except on that site I don't see why alterations would be an issue for you.
posted by Salmonberry at 1:02 PM on January 6, 2007

what most likely happened (and I am blindly assuming that they asked to use the photo on a website because I am too lazy to read it all again) is that a person like me, an art director at said ad agency, saw the photo on flickr or flickrleech.com and said "cool, that's exactly what I need". he or she went to an art buyer and said "get me that image" and that's where she got contacted. I'd say if they are making money on this, they should pay you.

if I have an internal pitch (not a final campaign that people are going to say) and I need a photo to show the client to eventually buy, I ask for specific usage and offer 100 or 200 bucks. for a website I'd suggest 300.

the point is this: a photographer who is easy to deal with is gonna stay high on my list for the really big projects. and that's when we're talking serious cash.
posted by krautland at 1:40 PM on January 6, 2007

View from the other side, sorta. Might be helpful. I sometimes buy photos for corporate use, and I usually have two choices "rights managed" licenses which have restrictions on usage, or "royalty free" which lets me do pretty much anything, forever. I prefer royalty free because I don't have to keep track of the photo. For web stuff, a few hundred dollars a shot is ok by me, because hiring a pro to come in can be a lot more than that. For print stuff, I'll pay up to $500 for a really nice one, because I need higher resolutions. My biggest concerns are cost and how easy the process is.
posted by Area Control at 3:00 PM on January 6, 2007

Just to clarify - the photo that my wife took is hosted only on her flickr account. The ad agency approached her about using the photo (that they presumably found as Krautland indicated).

The site they are wanting to use it on does also take user submitted photos as solicited on their site, they are not asking my wife to submit the photo in the same way that their site solicits them.
posted by clanger at 6:58 PM on January 8, 2007

they are not asking my wife to submit the photo in the same way that their site solicits them.

they should pay for usage. expect low hundreds.
posted by krautland at 2:19 PM on January 10, 2007

Followup on this.
They wanted to use the photo and were planning it out already however they could not come to an agreement on the license and would not sign one my wife sent based on Hankins' license (he posted a link above - thanks!)
They wanted my wife to provide proof of permission from the restaurant that she took a photo of (the outside of it) (which she doesnt have - though since it's a public photo I think she wouldn't need "permission" from the place) and they didnt remove the "non-exclusive" part she wanted (which we took to mean they could sell the photo for the 2 year period they wanted to license the photo for) and wouldnt indemnify her to third parties.
Since she was doing if for no money - it became too much headache and she decided to decline.

Here's her photo and the site it would have been on was MasterCard priceless.com's picks section in the food category. The main site allows visitors to post their own picks but hers would have been one of the main ones you see with background info etc.

Thanks everyone for your help with this question. I wish the deal had worked out but as we've learned - the licensing stuff isn't a lot of fun :)
posted by clanger at 9:36 AM on January 25, 2007

Yet another follow up.
After she wrote to decline, it seems they had a change of heart and decided to provide a license agreement that was suitable to my wife. They also offered her $200 for her trouble! Seems things have worked out. Her photo is featured now on the site (not sure how long it will remain the main photo on the page but it is here
posted by clanger at 11:27 AM on January 29, 2007