Pricing/Selling questions
Davidoff
Registered Users Posts: 409 Major grins
I haven't really done this before, so I'm looking for enlightenment :wink
I was asked by a friend, who's the "leader" and teacher of a dance group, hip-hop to be specific, to take photographs of himself, the entire group ( 30 people ) and the competition team ( 10 people ). He wants a large group shot, the smaller ( 10 people ) group shot, and then individual shots. All this would be for promotion of the dance school, classes, competition team and himself as a teacher and dancer. So, our initial agreement was, establishing a pricer per picture, and then a minimum number of pictures he would buy. So, basically we have the shoot, he chooses -at least- 20 pictures he thinks are useful for the group itself, pays, I process them and send them. He also said some members may want to get pictures separatly, I thought about putting them all online so they can choose the ones they want, but I'm preety sure they'd just download them to myspace or whatever and not pay.
So, I'd like to know what you think of this procedure ( business wise ) and how would you go about selling the extra pictures to the individual clients.
I was asked by a friend, who's the "leader" and teacher of a dance group, hip-hop to be specific, to take photographs of himself, the entire group ( 30 people ) and the competition team ( 10 people ). He wants a large group shot, the smaller ( 10 people ) group shot, and then individual shots. All this would be for promotion of the dance school, classes, competition team and himself as a teacher and dancer. So, our initial agreement was, establishing a pricer per picture, and then a minimum number of pictures he would buy. So, basically we have the shoot, he chooses -at least- 20 pictures he thinks are useful for the group itself, pays, I process them and send them. He also said some members may want to get pictures separatly, I thought about putting them all online so they can choose the ones they want, but I'm preety sure they'd just download them to myspace or whatever and not pay.
So, I'd like to know what you think of this procedure ( business wise ) and how would you go about selling the extra pictures to the individual clients.
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Thanks for the comment. I was hoping I didn't have to prepare a proof book because they live rather far off and that would mean I'd have to pay the prints, even though I'm not sure they'd buy any. But I'll probably have to do it .
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Sure ? They would be using it themselves, I wouldn't have anything to do with that. Still need a release ?
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1) each recognizable person must independently agree to having their image used for commercial purpose.
2) if any one of them decides to sue, you will almost certainly be named in that suit because it is you who are providing the photos with full knowledge that they will be used for commercial purposes.
3) paper rules in court, so having signed permission trumps here/say. No one can claim they were told different if their John Henry proves otherwise.
I get around this in two way. Either by stating in the paperwork that model/property releases have not been provided but may be required for commercial use of the images, or by charging extra to obtain standard-form releases during the shoot.
Hope this helps.
I get what you're saying, but would that be necessary ? After all, they are taking pictures of themselves for their own commercial use, they are all well aware of what they're doing.
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You usually only skip the CYA part of things once before it becomes standard procedure.
Even if I shoot someone for their own business use, I still get the release signed to C MY A!
The individual shots may not be so much of an issue, but the group shots for sure. Let's say down the line one group members gets upset and leaves, they could come back on any photos used for commercial use and say they did not give permission. No release, everyone is screwed.
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Every activity my son has been involved in (school, sports, theatre, college programs for high school kids) requires the kids and parents to sign a "media release" form -- essentially a model release for photos, video, and other media produced during the activity, to be used at the organization's discretion for promotion of the organization and/or the activities. Your photos would be covered by this statement if used for promotion of the dance company, but not for your own self-promotion activities.
If you're really paranoid about it, I'd just mention it to the coordinator/instructor and ask to see a copy of one of those releases. However, in any case, as the photographer you're not on the hook for how your client uses the photos. If you're still paranoid, you could have the client sign a statement acknowledging that point and indemnifying you.
TNic has it right-on. You seem to be generalizing the term "they." There are several "theys" involved here. Not just one, as you seem to be thinking. And it's important you get it straight.
The club is one entity. If it is incorporated, it has the same rights as you and I. But each, individual, person you shoot also has rights independent of the group.
So, not to nitpic or get too technical: what are you referring to when you say "they are taking pictures of themselves"? "They" are not. YOU are taking pictures of several "theys." Even in a group shot. And each and every one of those folks has independent rights to privacy and to control of the commercial use of their likeness. So, as TNic says, what happens if one of the folks you shoot changes their mind?
In other words. Yes, it IS necessary. And it's all part of being a pro.
The group is paying you to do it right. And part of doing it right is in looking after the rights of others so there are no questions after the fact.
Lot's of folks don't bother. And few have problems. But if there is a problem, you do NOT want to be part of it. It can carry on for years and cost you plenty.
So it's best to "CYA."
I'd sure like to have clarification of that!!
Where I come, if you took the shots you're just as much on the hook as the person who used them -- if it can be proven that you had (or should reasonably have had) full knowledge of how the photos were going to be used.
Contrary to popular belief, "I didn't know" just doesn't cut it.
My source... and hey, whaddya know, he uses the gun analogy.
http://www.danheller.com/model-release-primer
And that's my point.
If someone hires you to manufacture a product that will be used for commercial purposes it is up to you to make sure the product is usable for commercial purposes.
If I hire you to do an ad for me and then I get sued by the model, you better believe I'm coming after you.
And if you sell me a gun KNOWING that I am going to use it in the commission of a crime, you too are liable.
That's why I pointed out earlier that, since the photographer already knows, up front, that the shots are for commercial use, he must either provide releases (so the shots can be used as intended) or he must inform the client that releases will be required before the shots can be used as intended.
That's why everything you buy today has a disclaimer on it. The manufacturer wants to cover all possibilities of civil exposure. Not because they feel it feels its doing something wrong by providing the products, but because, wrong or right, legal issues are expensive and very time consuming.
But the more specific you get, the more you place yourself on the hook in the event of a lawsuit. What if the client gets a release based on your advice, but the release is worded improperly or doesn't cover the specific uses? You're now directly involved because you gave the bad advice. What if you supply a release signed by a parent, but the subject's parents are divorced and the other parent disputes the release? You're now directly involved because you obtained the disputed release. What if you made a big deal of ensuring that the organization has releases, then it turns out that one of the kids in the background one of your shots is unreleased because that kid's parent is an undercover cop? (Yes, it happens.) hey, you told them they could use that picture.... Actually, even my initial suggestion of asking to see one of the releases might not be such a great idea, for the same reason.
Beyond a clause in the contract stating that the client is responsible for any necessary releases and indemnifies you from any claims resulting from improper use of the images, I just wouldn't go there. The more deeply you get involved in the issues, the less defensible your position if a suit is brought against you over the client's improper use.
And it's almost certainly a moot point in this case, in the US at least. Across the country, organizations like the one the OP mentioned do obtain media releases as a matter of course and a requirement for participation -- they don't like getting sued either.
Are there scenarios that match the one you mentioned, xris -- absolutely! Within the context of the OP's original situation, however -- in which the organization knows or should know when a release is required, the organization knows the subjects better than the photographer does, and required releases can reasonably be assumed to exist -- I would argue that getting into the details (without having consulted a lawyer) may actually be harmful to the OP's case in court, in the highly (in this context, one might say ridiculously) unlikely event of a lawsuit involving the photographer.
(Disclaimer: IANAL.
Um... you brought crime into the discussion with your analogy (to paraphrase your original straw-man argument slightly: "If you pay me to shoot someone with a gun, it's not my fault if the guy dies?") and continued the theme in your follow-up message. I pointed out that we're talking torts here, not crime. So I think you're arguing with yourself on this one?
Aside from that, this discussion has shifted to the point that we mostly agree -- except that you seem to be discussing the abstract, and I've been discussing the case raised by the OP. I don't disagree with you on the abstract, except possibly for a point I'll share in a moment.
We agree completely that this is a desirable position to defend.
On this we definitely agree.
Yes, include something in the contract that says the client is responsible for any releases that may be required and the client indemnifies you for any claims resulting from the client's improper use. Done deal, in this case.
I am, again, discussing the case raised in this thread. Obviously, if you're shooting stock and/or you've arranged the model, &c, it's only logical that you should obtain and provide the releases necessary for the use that you license. That is not the case raised in this thread. In this case, the point I tried to make in my last message is that if you do more than "AT THE VERY LEAST," you may have opened yourself a can of worms.
Let me offer an analogy that's a bit less violent than yours. I was the Webmaster of a very large university for several years. One of the services we offered to our students was personal Web space hosting. I often received "cease and desist" letters from various publishers, demanding that I remove infringing materials from the university's Web site (really a student's personal space). Then, and only then, would I look at the site in question, block delivery of the site, and inform the student of the steps required to restore his service (i.e., he must remove the infringing materials).
You might think that I could have saved us a lot of hassle and liability if I'd just go through all the students' sites looking for cases of copyright infringement and taking sites down before the copyright holders ever noticed or contacted me. But you would be wrong. Our Office of General Counsel set me straight on that real fast.
Had I treated copyright infringement proactively, I would have placed the university in the role of "Web site police." We would, in fact, have become responsible for the content published by students -- because we had voluntarily expanded our role. We had around 13,000 students publishing on our servers. Even assuming we could positively identify other people's IP, the man-hours involved in policing that many sites would be outrageous. But had we expanded our role beyond that of an ISP, we would have assumed responsibility for the content. And then, if we missed any infringement, we could be held liable for the resulting damages.
Sometimes, if you take responsibility, you own it.
The photographer wants to make sure it is very clear who is responsible for the use other people's likeness in a commercial situation.
Wikipedia: "Tort law is the name given to a body of law that creates, and provides remedies for civil wrongs that do not arise out of contractual duties."
I'm not arguing at all. I'm talking contract law. What we are dealing with here are questions of civil damages due, specifically, to contractual duties. Tort law does not (as far as I can tell) apply (except in perhaps very specific cases where the model is suing the photographer.)
If no one deals with the release issue before publication, model complaints MAY fall under tort law. Agreed. But what I am on about is the relationship between the client and the photographer because, in most of these situations, it seems to me the model would sue the client, then the client would sue the photographer. That's contract law.
As am I. This photographer is shooting commercial product so I recommended they deal with the release issue.
Frankly, I don't understand your argument. The Web Master scenario seems interesting. And it seems you handled it quite correctly. But I have no idea what it has to do with this thread. I am NOT suggesting the photographer shield the client in any way. I'm suggesting the photographer shield him/her self by dealing with the release issue. Either state the photo's are not released (it's called a 'disclaimer' I believe) or provide the service. But do not just walk away and bury your head in the sand and hope everything will be okay.
It's really quite simple.
Perhaps I'm not being clear. The main issue I'm stating here could be called 'informed consent.' Did the person who created the image know (or should they reasonably have known) the image was for commercial use?
In this case the photographer definitely knows the images are for commercial use.
OK xris, most of my differences with your last message are tangential to the topic at hand. On the actual topic, I think we're not really that far off, but we're not communicating too well.
Let's see if I'm clear about what we agree on and where we differ. And once we know that, then maybe we can either hash out those differences or agree that we're not too concerned about our having them. Maybe?
What we agree on
- If the promotional use in question is commercial, and we've both assumed it is, then model releases will be required.
- If a subject sues the client for misuse of an image, the client might seek to recover damages from the photographer. Whether the client succeeds or not, this situation is best avoided.
- Therefore, the photographer would be wise to notify the client, in writing, that the client is responsible for obtaining any necessary releases.
Where we differ- My basic premise is that this particular client, by virtue of the business he's in, is likely to know (and really should know) what releases are required, and to have them already -- and that by providing advice to the client in this area, the photographer may expand his role in a manner that could disadvantage him in any later conflict.
Have I characterized your main points accurately?If everything here is accurate as to our respective positions... then clearly we still disagree, but perhaps the photographer's, um, assets are already covered if he follows point 3 of what we agree on and our disagreement is more academic than anything else. Maybe?
- If the promotional use in question is commercial, and we've both assumed it is, then model releases MAY be required.
- If a subject sues the client for misuse of an image, the client might seek to recover damages from the photographer IF THERE IS REASON TO BELIEVE THAT THE PHOTOGRAPHER IN ANY WAY MISREPRESENTED THE PRODUCT. (AS BEING COMMERCIAL PHOTOGRAPHY, FOR INSTANCE). Whether the client succeeds or not, this situation is best avoided.
- Therefore, BECAUSE THE PHOTOGRAPHER KNOWS THE CLIENT'S INTENT IS PROMOTIONAL USE, the photographer would be wise to notify the client IN PRINT THAT THE PHOTOGRAPHS HAVE NOT BEEN RELEASED FOR COMMERCIAL USE. OPTIONALLY I'M SUGGESTING THE PHOTOGARPHER MAY CHOOSE TO OFFER TO PROVIDE RELEASES AT ADDITIONAL COST. (IT'S NOT UNCOMMON IN COMMERCIAL WORK.)
Where we differ- My basic premise is that this particular client, by virtue of the business he's in, is likely to know (and really should know) what releases are required, and to have them already -- YOU MAY BE RIGHT. BUT I WOULDN'T LET THAT STOP ME FROM FORMALLY DISCLOSING THAT THE PHOTOS HAVE NOT RELEASED FOR COMMERCIAL USE -- and that by providing advice to the client in this area, the photographer may expand his role in a manner that could disadvantage him in any later conflict. YOU MAY BE CORRECT HERE TOO, BUT IT'S NOT AT ISSUE. I'M NOT TALKING ABOUT GIVING THE CLIENT LEGAL ADVICE. I'M TALKING ABOUT DISCLOSURE.
(ADDITIONAL TO THIS, I AM NOT OF THE IMPRESSION THAT THE LEADER OF A DANCE GROUP "is likely to know (and really should know) what releases are required" HOWEVER I DO AGREE THAT THIS COULD BE A USEFULL DEFENSE WHEN DEALING WITH AN AGENCY OR OTHER CLIENT WHO CAN REASONABLY BE CONSIDERED TO UNDERSTAND SUCH THINGS.NOTE: The releases may not actually be required. (They are only useful if there is a claim.) And the client has every right to choose not to bother. I'm simply suggesting the photographer make the facts very clear, in print, from the outset, so there are no questions of his/her propriety later.