Drawing lines in the sand...advice needed!
urbanaries
Registered Users Posts: 2,690 Major grins
I have worked for the same organization for 6 years, and during that time have occasionally shot a few images for our website (before I was a "professional photographer") and our magazine. Three shoots were initiated by me, for practice and the opportunity for portfolio building. Last year I was asked to shoot interior building shots and they were matted and framed for our conference room.
In the last year however, photography has become a steady second income for me, and my equipment, overhead and product quality has increased significantly.
Last week, my boss asked me to photograph a new building of ours, and while I'm there, shoot a new physician headshot and a few "environmental" photos as well as some interior architectural shots.
Now, this is an organization with a limited budget, but a budget nonetheless, and she has paid commercial photographers going rates for these exact jobs. Our ad agency has a mockup waiting for the building shot to finalize a print ad campaign. She paid several thousand for the focal (rights managed stock) image.
I am flattered she trusts me to do such "serious" work, but can't shake the feeling that I'm being taken advantage of. In the past, she's always assured me I can use images for my portfolio, but to be quite honest, that was then and this is now. I am not building my portfolio....I am making a livelihood from it now.
How do I broach this touchy subject without alienating her OR betraying myself? Do I do this one since I passively agreed to it, but let her know that in the future, we'll need to negotiate usage fees?
ETA: photography is not in my job description, and my position has been upgraded within the past 6 months.
In the last year however, photography has become a steady second income for me, and my equipment, overhead and product quality has increased significantly.
Last week, my boss asked me to photograph a new building of ours, and while I'm there, shoot a new physician headshot and a few "environmental" photos as well as some interior architectural shots.
Now, this is an organization with a limited budget, but a budget nonetheless, and she has paid commercial photographers going rates for these exact jobs. Our ad agency has a mockup waiting for the building shot to finalize a print ad campaign. She paid several thousand for the focal (rights managed stock) image.
I am flattered she trusts me to do such "serious" work, but can't shake the feeling that I'm being taken advantage of. In the past, she's always assured me I can use images for my portfolio, but to be quite honest, that was then and this is now. I am not building my portfolio....I am making a livelihood from it now.
How do I broach this touchy subject without alienating her OR betraying myself? Do I do this one since I passively agreed to it, but let her know that in the future, we'll need to negotiate usage fees?
ETA: photography is not in my job description, and my position has been upgraded within the past 6 months.
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With those assumptions I wouldn't rock the boat. Rather, take the pictures, build your portfolio and go after new work with outside clients. Your photography could be legally considered work-for-hire since you're under the employ of this "organization" (?). You're getting paid a salary to show up and work; if the boss deems your time best spent taking pictures today you really have little recourse.
However, as you stated above, there's nothing stopping you from asking for fair consideration.
Moderator of: Location, Location, Location , Mind Your Own Business & Other Cool Shots
This was exactly the distinction I was hoping someone could make. I am definitely using "clock time" to do this, and wouldn't consider it otherwise. However, the rights to the images themselves is a different matter, and since I'm quoting a commercial job for another org at the same time, (thanks for your reply angelo in another thread on that!) I was wondering how this might apply.
I have no issue taking shots for in-house use, I guess it just floored me that there are ads and direct mail pieces waiting for my (how nice of me to help them save a buck) images.
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ST-E2 Transmitter + (3) 580 EXII + radio poppers
As I understand it no- you do not need a model release unless you are selling that image. You may just ask him if it is okay to use it for your portfolio while you are taking his picture though.
I have been asked to do more shots relating to work as well. I have a shot that will go out on a national mailing but am only getting creditied with the shot- no extra pay. There is a 3 day customer appreciation event that I have been asked to shoot in July and of course they want it on the clock as well. I told them they will pay for all supplies (they want to print on site)- pay my overtime rate- and they will hook me up with additional goodies from our marketing department.
Obviously I would love the $1500 or more I could charge them for a 3 day event but then they could choose to use someone else as well.
Like you mentioned- it is also a way to network and possibly get additional work. I will be hanging out with NFL players for 3 days- maybe I can sell them some prints or do their family portraits.
Aaron Newman
Website:www.CapturingLightandEmotion.com
Facebook: Capturing Light and Emotion
Gary
Unsharp at any Speed
Again, if I am wrong that you can't be told to use personal equipment for work someone please correct me. But as far as I'm concerned if it is something I received/bought outside of work then it doesn't even exist as far as my work is concerned.
JUust my $.02!!
b) I would insist the "organization" get a model release from the physician
c) Rhuark is also correct; you're using your equipment, so you could use that as a negotiating point...
ask for:
1) a little fee for the use of your equipment
2) rights to unlimited use of the images
3) be a named party in any model releases to cover yourself
Moderator of: Location, Location, Location , Mind Your Own Business & Other Cool Shots
you mentioned some environmental / architectural shots...
depending on the composition and use of the photos you may want to advise the organization secure the approval / cooperation of the building's architect who owns copyright on the building's design.
Moderator of: Location, Location, Location , Mind Your Own Business & Other Cool Shots
So does the use of my own equipment matter in the work-for-hire definition? As a designer, everything I design is theirs; but I'm using their computer, their office space, software etc. This seems like an entirely different situation.
I really appreciate everyone's feedback, yet am really unsure how to move forward with this. I feel like agreeing to this would be continuing to set a precedent that I won't be able to decline in the future. Of course, I've already agreed to do the shoot; I haven't said anything about usage fees... A few 5x7s in our conference room is one thing; 4c 1/2 page ads in the metro newspaper is quite another. Let alone the direct mail pieces and now building banners that are lined up ready for my free images.
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I was hired for one position (web designer) and in the last two years have been put into many others (IT Director, Art Department manager, photographer). My work for the company is all done on the clock, and although I have paid for most of the equpment they have bought a couple lenses and other items (that only work on my personal cameras) when I have needed them for shoots for the company. My images are used on their walls, in their advertising, websites, etc.
I don't know what your working conditions are like but I get paid fairly decent, and more than I would make as a portrait photographer working at a studio (not as much as I get paid when I do my own photography jobs but this is also steady (but I also get paid drive time and time to stand around while they get stuff ready)). My images are of course mine for my portfolio but they are the companies as well. I am taking them while being paid directly by them as their employee. Work for Hire...... I also look at it as it gives me the chance to do more than one thing that I enjoy.
If you like your day job (or need it) look at the bright side and although I would think this is work for hire at least you are getting paid to do something you love.
www.zxstudios.com
http://creativedragonstudios.smugmug.com
See my earlier post, also think of it this way. Electricians, carpenters, most trades, and many other professions require that the employee's buy a majority of their own tools, hand tools, etc. To me my camera's are simply my tools.
www.zxstudios.com
http://creativedragonstudios.smugmug.com
No, I don't believe so.
Here is my suggestion: Draw up a contract for the work and charge a nominal fee ($10 is all it would take). If you want you can donate that money back to the organization. If you shoot without a contract, no matter what your job title says the photos could be construed to be part of your normal duties making it WMFH. More to the point, you really don't want to be in court arguing that case. Getting the contract signed makes it clear to all that this work is outside your normal work responsibilities.
As for model releases, you need one for commercial use but not for personal or editorial use. Art prints are generally considered editorial (but that has not been tested in court), but any use that might imply an endorsement of your photography business is commercial. I have written up a very specific model release that lets me use the shot to promote my business but doesn't allow my to resell the shot for other commercial work. I find it is much easier to a limited porfolio release signed.
Valid point, but they get paid to do the job at their trade's rate, not at the rate of a janitor.
If I were a commercial photographer, I certainly wouldn't expect clients/employers to pay for my equipment, but in return I wouldn't ALSO give the rights to my images for nothing, either.
I have done so much work this spring as favors, cut rate, barters etc that never get reciprocated, and I'm always meeting everyone else's deadlines...but for what?! Sure, I enjoy photography, kumbaya, but my TIME and talent is worth something, and I am fed up with being everyone's free ride. First family, then friends....and now employers. I have enabled this situation, to be sure, I'm just stuck on how to end it....drawing lines in the sand.
My boss has purchased commercial photography for years, so she knows EXACTLY what kind of "deal" she's getting. She's not going to offer to pay for it if she can get away with getting it for free...like 99.99% of the human population.
Argh!
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I really think depending on the size of the organization, if the employees are union, or as with home building, things are contracted and subcontracted electricians, carpenters, etc are an bad example because I know of it both ways, employers provide tools and employers not providing tools.
In your situation I think I would put something in writing for all future images shot (and may even try to get all past images to fall under this as well) that the compensation for time via the normal pay is in consideration for a non-exclusive right to use the images created, but that you retain all original copyrights.
It sounds like that you talent and skills have become so valuable to the company that you probably are indespensible unless their hire another person with you talent, skills, etc.
Having you stop working on IT or webdesign, take 20 minutes to take a picture and then go back to the other make it extremely cost effective for the company that hired you. Giving you image rights doesn't cost them anything $ wise.
My understanding on work-for-hire is that it maybe the default if an agreement isn't in place. The company may or may not be aware of this. If you approach it that you just want to ensure your long term rights to the images, then unless they see a future use where they could benefit financially why wouldn't they give you the original rights and them retain a usage right?
I am curious about a situation that b and c are true but that the company considers you a contracted person, pays only for xyz work, doesn't deduct any taxs from compensation, work is irregular, times are irregular, etc.
What happens in cases like yours, is the problem, which may be a small problem, starts to fester ... and everyday it festers more and more until it is blow completely out or proportion.
Arrange a one-on-one chat with your boss and talk it out. See if it can be resolved in a fair and equitable fashion for all parties. Right now it is all in her favor. When doing photography request a higher pay rate or a deal which allows you to submit a bill which help you recover some of your equipment costs and skill level.
For both parties to be happy she needs to enjoy a sizeable discount while you need to bill something ... find the middle ground.
If no middle ground can be found then that isn't an employer you desire to have a long term relationship ... and find another employment opportunity ... but do it on your terms. In other words play ball with her, take the shots as requested, (do a first rate professional job as everything you do in life reflects directly upon you personally), and find another job. Leave after your future is secure. I've noticed a tightening of the job market here in California and we have the sixth largest economy in the world ... dunno what it's like in your neck of the woods.
The fact that the company is using your shots for 1/2 page ads and banners hasn't any bearing on the case. What is important is that:
1) you are using your equioment;
2) you are using your photographic skills which were developed on non-company time and skills for which you were not hired and not being properly compenstaed when said skills are utilized; and
3) these skills and equipment are of professional grade and you have a growing business to prove the value of your skills and equipment.
Remember that your boss sees thing differently than you. She see the big picture and that she is utilizing her personnal to the fullest advantage for the company.
Request the meeting in writing and in the request professionally enumerate your frustrations, points 1, 2 and 3. Remember that every written word can become a legal document ... so a written record of full disclosure delineating the problem is of great value in case of wrongful termination. And once it's in writing she must address the probelm. Keep all intercourses professional and non-hostil ... do not discuss this matter with co-workers (it's none of their business.)
Gary
Unsharp at any Speed
I think you have offered a reasonable and level-headed response and I thank you for that! I realize splitting hairs over this may spoil a good working relationship that we've built over the last several years.
That said, the usage of the images is exactly the issue. Commercial rights are almost solely based on the intended use of the image (down to the circulation of the intended publication, in many cases), and that's where I feel we're entering uncharted territory.
Its definitely a tough call, and I again appreciate your thoughtful response.
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based on those points, you are not an employee
Moderator of: Location, Location, Location , Mind Your Own Business & Other Cool Shots
Well the first part you are right as I have been trying to hire assitants and staff for months and although I have found a couple good people (one decent web designer and one good cad/vinyl/light tech support guy) I have been through three people for the IT Admin position because finding someone who knows how to show up on time, and knows IT enough to not mess up the network has been a joke. Right now I am still down 1 web designer and a entry level IT Admin.
I see what you mean about me retaining the copyright which I will get put into writing without a problem. But that goes back to my original statement to Urbanaries. It depends on the pay situation and the job situation. I know what I get paid, and I know that most of the time if I am doing photography it is on over time so I am making at least 1.5 times what I normally do if not double (sundays/holidays). And knowing what I charge normally I'm really not loosing enough to make me flinch at it. I have checked what I would make working for one of the studio's in the area and it wouldn't be as much as I make regular time.... I do make more on my own jobs but then I also have to do sales, post, etc all off the clock so in reality I end up breaking even almost with what I make normally (slightly more than).
Now if I was making considerablly less then it would be a different story.
www.zxstudios.com
http://creativedragonstudios.smugmug.com
If you were not already being paid ... then yes image usage (circulation/impressions) is certainly a factor in determining your charge. I used to be a photo journalist, salaried ... all the photos I took on the companies nickel belonged to the company (period). Much of the time I used my equipment ... sometimes the companies ... didn't matter every shot I took on the company nickel belonged to the company. I didn't get additional monies if the circulation went up ... of if my photo was picked up by a wire service ... nor did my pay scale go down if the circulation dropped. What the photo usage point to is establishing a level of expertise and skill of your images which is useful in establishing a baseline or ceiling for compensation to a non-employee professional.
In a court of law you demand money for an image that received ... say 20,000,000 impressions ... the judge would raise his eyebrows and look at your boss and ask her why you were never compensated. Your boss would say "Your honor, he was an employee and was paid for every hour he worked for the company regardless of the task."
Now the judge looks at you, "Is this true?"
"Yes, your honor, but not at a rate which was usual and customary for the job I was performing."
Judge- "Did you inform your boss of this inequity?"
You- "No your honor."
Judge just stares at you in disbelief.
You- "But I used my own equipment ... "
Judge- "Did your boss make you use your own equipment?"
You- "No, your honor .. but the company doesn't have the right equipment."
Judge- "What equipment the company has or does not have doesn't matter ... what does matter is if your boss forced you to use personal equipment ... and the answer is 'No'.
Son, you've been paid for your services. If you think the payment wasn't fair then you have to take that up with your employer. If your employer doesn't think you deserve additional compensation for photography then you better find an employer that will pay you what you think you deserve or tell your present employer that photography was not a part of your duties and responsibilities when you were hired and that you will refrain from these additional duties unless duly compensated at a rate which covers your skill and equipment.
Gavel- BAM!
Judge- "Next ..."
I'm not an attorney ... but that's how I see it (a court of law will attempt to make a case black or white ... right or wrong ... good or bad). Sorry if it seems negative because I'm in your court. In my mind it all revolves around how convincing and artful a case you can make to your boss ... I imagine in the beginning you probably even elected/volunteered to take photos ... and now for you circumstances have changed ... but for your boss they're the same until you bring it up.
Presently you are a big plus to your boss ... you save her a ton of money and are always available in-house ... don't sour this relationship ... but on the flip side a "real" boss would recognize these pluses and heap a raise or two for your contributions above and beyond what you were hired.
Good Luck ...
Gary
Gary
Unsharp at any Speed
Moderator of: Location, Location, Location , Mind Your Own Business & Other Cool Shots
If this was the case, the boss couldn't fire the employee for not doing the photography work, correct? Unless the company purchased their own equipment, that is. SO if the company wanted yo to take pictures for them they couldn't force you to use your personal equipment, but they could purchase their own equipment and have you take pictures at no increase in pay. Do I have this straight?
It seems to me that if this is the case, the company would be further ahead to buy their own equipment and have you take pictures as part of your daily work, than to hire an external photographer. Of course, you could always try to renegotiate your hourly pay based on the job you were going to be doing and what you thought it was worth to the company. Then if the company didn't go for it and kept you at the same pay level it would be up to you. You could stay at the same pay and add photography as a part of your job, or you could go elsewhere.
Kind of sucks don't it?
Gary
Unsharp at any Speed
i am certainly not looking to sue my boss or employer, just want what's fair for both parties BEFORE I do any work, and feel taken advantage of later.
Still pondering how to bring it up...we meet tomorrow.
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ST-E2 Transmitter + (3) 580 EXII + radio poppers
Yeah ... you got it right. It sucks because as I see it the company is in a pretty strong position. If you present your case in a hostile ... you are screwing me ... type of scenario/attitude ... the law may not be on your side. Both parties have much to gain and lose ... so a level headed approach with room to compromise is probably the best approach.
Unsharp at any Speed
I have been shooting company events for several years. And just like you, after a while my skills and equipment cost grew up enough that I simply stopped doing that (got bored, too:-).
First of all, I stopped bringing my camera bag to work. The requests that usually started with "By any chance do you have your camera with you" were immidiately dismissed ipso facto.
At some point last year my boss asked me to produce a large print the company was going to use as a relationship builder with another business. I said "sure", and laid down the price. He looked a bit surprised, but agreed (and yes, I got paid:-)
Now everybody pretty much knows that I'm "a gun for hire". I still do one-two company events for free (Halloween is my favorite, great for portrait portfolio building), just to keep the idea of me being in this photobusiness active, but the era of freebies went away totally.
Bottom line: just name your price. It does not have to be 100% market, you can draw a discount. But still name it. Simply say "Hmm, let me see, nowadays I usually charge X for this type of work, but for you I think I can do it for 50% less", or something to that extent. This way YOU are doing them a favor.
HTH
I found honesty to be the best policy ... I'd start with "I feel a bit frustrated with ..." Or ... "This is beginning to eat at me and I really wish to nip it in the bud before it festers ..."
Your boss should appreciate your openness and willingness to find a fair solution.
Gary
Unsharp at any Speed
Thanks to everyone who helped me think this through carefully....
I wrote my boss to clarify the assignment and stated that we needed to negotiate usage rights, and probably should do that before I shot anything. She was probably disappointed, but agreed, and said "tell me what you think is fair. I want to make it right for you." We've agreed on a price, she is a notorious negotiator but didn't try to talk me down. I am drawing up a contract, which she also appreciated as a good idea.
Now, i need to go out and nail the shoot!
thanks again everyone...i'll be sure to share the results.
50mm 1.4, 85mm 1.8, 24-70 2.8L, 35mm 1.4L, 135mm f2L
ST-E2 Transmitter + (3) 580 EXII + radio poppers
^scratch that...i say: ask for a good lens! like, one you don't have that you'll really need in order to get the shots they're looking for.
don't rock the boat saying "i need more money for this." just say "hey! i'm really enjoying helping out the company by taking photos and having them published here and there or whatever... but i could be doing it even BETTER if you guys could buy me XX lens. in the long run, you're still saving money and getting even better pics!"