commercial use of photo

July 4, 2006 11:08 AM

Someone wants to use one of my Flickr photos for commercial use, and pay me for it. I'm flattered, but clueless about what I'm getting into. AskMe, please hope me!

If I say it's okay, they'll contact me about price negotiations. I have never sold any photos to anyone, so I am likely to say "Sure!!! Super!!!" at everything they suggest. Please make me seem smart and experienced!

This is how clueless I am:
-The picture in question is now on my Flickr account, under an "attribution - no derivs" licencse, but I'm willing to give them permission to use it for their ad campaign. However, I still want to have it on Flickr. The photo was also published on spacing.ca's photoblog. Can they still use it if I sell it? Should I ask this in my negotiations?
-I know there are differences between "selling" and "licensing", but I don't exactly know what the important implications of either are, or what is best for me.
-I also know about how it is illegal to ask about prices because of price fixing, but I have absolutely no idea at all. Should I just have them make an offer?

Anyone have any experience they're willing to share to get me on the right track?

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

You could try searching on here, this question has been answered a few times, and quite recently.
posted by fire&wings at 11:12 AM on July 4, 2006

In general you would be licensing the right to use the photo. Selling the photo outright implies a transfer of copyright, and would be (should be!) outrageously expensive for them.

Fees vary depending upon the usage (do they want to use it once or in every magazine issue this year? Etc) , volume (one billboard or a print run of 100k or 2 thousand?), size of photo (spot, quarterpage, double spread, etc), and numerous other factors.

And, part of it is your negotiating skills. Its like bargaining for anything - but don't take less that what its worth!


feel free to email me to discuss further...
posted by blaneyphoto at 11:19 AM on July 4, 2006

Your licence says that it is OK to make commercial use of the work, so if they just want to use it, they do not need any special permission from you.
posted by davar at 11:33 AM on July 4, 2006

fire&wings, I searched before i asked, and I found a question about using a bunch of people's photo for a book, and a question about the opposite (someone wanted to use a photo). Which thread do you remember (how recent)?
posted by easternblot at 11:40 AM on July 4, 2006

Oh, is it this thread? (I didn't find it earlier because I was looking for keyword and tag "photo".)

As for blaneyphoto's questions: it's for an "outdoor print ad". They haven't told me the size of the run yet.
posted by easternblot at 11:49 AM on July 4, 2006

You could create an account on Getty Images or similar and then browse similar pictures to see their pricing. I believe the price is calculated based on use, so you could get a good idea of pricing for similar uses (I don't have an account, but have had other people look prices up). Here's scrabble related pics from Getty.
posted by dripdripdrop at 12:46 PM on July 4, 2006

I think that easternblot (the OQer) expects the eventual purchaser to not use the photo as-is, davar, but to "alter, transform, or build upon" it. Therefore permission IS required. Since I expect anyone using such a photo commercially would be likely to alter or transform it (even just a crop would count, I suppose) permission would most likely always be required.

In terms of pricing, I would look for comparables but I wouldn't worry as much about the amount as the terms. I would want to sell a license to use the image for a specific application for a specific period of time and make sure that I was free to use the image in other ways (perhaps specify you'll use it in non-competing ways) all along. Then if they decide to extend their campaign they can come back to you for licenses for each of those applications.
posted by mikel at 12:59 PM on July 4, 2006

Yeah, I'm sure they'll want to alter it in some way.
I'll look on Getty - they weren't so much looking for scrabble but rather for Toronto related images (I know - not at all a touristy pic.... but maybe that's the point? IANAAdvertiser...)

Thanks for all the tips so far.
posted by easternblot at 1:38 PM on July 4, 2006

I also know about how it is illegal to ask about prices because of price fixing

Um... what? Is this a Canadian thing? How can it be illegal to ask about prices in the context of a licensing negotiation?

Some technicalities about the transaction: as mentioned above, you'll almost certainly want to license rather than sell/assign, since you would like to retain some rights over the image (e.g., to keep it on your Flikr account). Just to ensure that you do retain the rights, you should be clear that you are creating a "non-exclusive" license, and specifically that you retain the right to display the original work. Depending on what the licensee's goals are, they may insist on a clause that states you will not license it for any other commercial use. You'll need to think about duration, whether they are allowed to use the image for a certain period only or permanently. You should probably also ask for a list of how they plan to use the image to assure that none of it's offensive to you.

As to pricing, start with that list of things they plan to do with the image and see how much it feels like it's worth to you. Consider how much meaningful work you put into making the picture (including time and equipment), realize that anything over that is profit to you, and then recognize that someone on their side has probably thought of all these things too. If you let them make the first offer, you'll probably have a little room to negotiate on top of that, but I imagine, if this is for an ad campaign as you say, that they have a pretty clear idea of the amount they want to pay and they won't be interested in dickering about it.

Oh yeah, on that note: despite everything I said about the various rights retained yadda yadda, chances are they have a form contract they ask everyone to sign for situations like this since, again, it's commonplace for them and they don't have the resources to negotiate extensively for every image they use. So... be prepared to compromise. If nothing else, say upfront that you want to continue to use the image for your personal (e.g., Flikr) site, and see if they balk. Then be sure to read over whatever they send you to make sure nothing obviously contradicts the notion that you'll be able to continue making personal use of the image.

Oh! Also, contact freelance photographers in your area to ask about their rates. Can't find any? They tend to be credited when their shots are used in newspapers; buy a copy of the Globe & Mail and see if you can find any of the cited photographers on Google.
posted by rkent at 6:58 PM on July 4, 2006

In my humble and totally inexperienced opinion, it sounds like you're pretty psyched that one of your photos is going to be used commercially at all.

I wouldn't get TOO too picky about the pricing to license. I would guess it's probably worth more to you than them at this point.
posted by blahtsk at 7:53 PM on July 4, 2006

Rkent: Easternblot doesn't mean that talking price with the purchaser would be questionable - but talking price with us could be construed as price fixing at some level, I suppose. That's how I read it, anyway.
posted by spaceman_spiff at 7:59 PM on July 4, 2006

Update: none of the previous threads were helpful at all. As it turned out, having pictures used for outdoor advertising is entirely different from pictures being used in a book as fasr as prices go. I tried the Getty thing, and it really was quite useful in searching very specifically for the type of things the photo would be used for. The prices I got from there corresponded to what blaneyphoto suggested to me by e-mail, and were entirely different from what I intended to ask and for what was widely suggested for pictures in books and previous threads.

As for licesing, that turned out to be not a problem at all, because the company was very used to doing this kind of stuff.

Sadly, I have unintentionally been taking bad (pixel) quality photos for a while, because a few months ago I needed to save memory for videos. I never set it back, and this picture was now at a very bad resolution. They have a LOT of touching up to do, and this did affect the final price.
posted by easternblot at 10:06 AM on July 12, 2006