Valuing your images and managing copyright and intellectual property

I’ve chosen this image to illustrate the article because although it may have commercial value to say, an old folks’ home, I cannot even let them use it for free because I do not have a consent release from the subjects. Yet it’s fine to use it for editorial – e.g. this article – because there is no commercial value derived, and I’m not promoting, selling or associating with any product. By showing it in more places, I’m also ensuring that more people will automatically be able to attribute the work to me.

“Can I use your image for X? You’ll get credit as the photographer,” is probably something you’ve been asked more than once. How do you respond? How should you respond, from the point of view of something that works for both yourself and preservation of the industry as a whole? How do you ensure that your images are used in a way that you agree with, and with appropriate compensation? Read on. This article will be written mainly for the professional photographer trying to do two things: figure out the value of their images, and then protect it.

Note: intellectual property and copyright law specifics differ from region to region, but this is a general-purpose set of good practice rules that will help you regardless of geography. In any case, many of us may well operate internationally at times. I would recommend that if you have specific questions please seek proper legal advice from an expert.

The idea of exchanging images for visibility/ promotion works only if you assume that a) the images have value to the publisher and b) publishing them in a particular place and being associated with a particular company or entity also holds value for the photographer. Condition a) is almost always fulfilled, but condition b) – seldom. Much as the barriers to entry for image production have dropped, lowering the perceived value of a generic image (because there are simply so many more of them), the barriers to publishing are similarly lowered: there’s no value in being credited for giving away free images to a two bit little website that has no traffic, much less any traffic that might actually hire you to make images for them.

Rule Number One: if whoever is using your image is deriving commercial value from it, you should, too.

Exactly how much that commercial value should be is something only you can decide, but you should take into consideration a few things – rates for the rest of the market for similar work; your client’s budget; how much they’re spending on deploying your images; reach of the images; do they require exclusivity; the amount of time and cost spent producing the images, and only then – whether you’re getting any bonus exposure or not. The answer to the last question is almost inevitably no: photographers are seldom attributed for major campaigns; usually only if the photographer’s brand adds to the campaign (e.g. Testino, Leibowitz) – and never otherwise. This means we default to Rule Number One again.

Rule Number Two: You, and your images, are only worth as much as you think they are.

This means two things: firstly, it is your job as photographer and businessperson to convince your clients of the value of your images – usually by how much value they add to the client’s business, and the level of complexity/ experience required for their production – and secondly, if you undervalue yourself, nobody is going to correct that delta. It would therefore seem much easier to set an arbitrarily high price; that’s not going to work either, because you must remember that the market is fairly transparent and there are more photographers than decent jobs. These forces work themselves into a tenuous self-correcting balance that seems to mostly drive prices slowly downwards.

Although you are the primary arbiter of value of your images, the reality is that if you don’t get any work at that price, you’re going to have to drop to a level where you do once you run out of money. The same is true of every other photographer, and unfortunately, clients seem to know this. We are frequently played off against each other. The only way for the professional photography market not to collapse entirely is for everybody to determine our own value, hold our rates, and not compete with each other on price but on merit only.* There is no formula or logic to determining where this ‘right price’ lies – the price where you can turn away work, but is high enough that you don’t feel like you’re being underpaid. Oh, and don’t forget some strange human psychological traits, too: if something is too cheap it is perceived as having low or no value; if it’s expensive, it must be good. Go figure.

*Yeah, right.

That leads me nicely to Rule Number Three: Don’t win jobs on pricing.

If you are always lowering your rates to win the job, there will come a point where one of two things happen: either, you are working for fee, or you are working 24/7/365, but you cannot physically make enough money to survive because your rates are so low, and there are a fixed number of days in the year.

That brings us to the end of part one. Let us now assume that you manage to sustain work at a reasonable day rate, and like every other photographer who cares about their work, shoot a bit on the side for personal development, experimentation etc. These images may or may not have obvious commercial value.

Your paid client work is licensed to the client, and paid for by the client – both production and license. It should be very clear in your terms of engagement and license agreements – which the client must sign, so there is some legal validity to them – exactly what the terms of engagement are, and the limitations in scope for the license. A good clause to include is always “This license does not take effect until all payment is received in full”. I find that a reminder of this is very useful in speeding up delayed payment, especially if one of their directors has signed off on the terms. It is really your responsibility to ensure that the client adheres to the license, and subsequently enforcing it; to avoid such confusion I usually just grant an unlimited license and price accordingly. This makes sense given that a) usually, the images are so specific nobody else will want to use them anyway, and b) the client is paying for the production. There is also far more money in retaining long term clients than siphoning off a few images for stock and risking their wrath.

That said, what if those images are siphoned off without your permission? That’s a bit different; thought we can ensure that clients do not resell images (another clause: “Rights may not be reassigned, transferred or sold to a third party without express permission and consent from the photographer.”) with appropriate T&Cs, there is not much we can do about image theft. Or is there?

Sadly, it’s become pretty widespread as the number of images available increases, social media, image sharing and search sites become ever more powerful, and people operating on the internet become ever more greedy and unscrupulous. I believe that there are really only three ways to minimise or avoid image theft, and not all of them can always work. The first is obvious: do not upload unlicensed/ ‘clean’ images anywhere. This is fine if you shoot solely for established clients and you don’t need to market yourself, or if you shoot solely for yourself and…don’t need to market yourself. For most working pros and amateurs, this doesn’t apply because it’s simply not feasible.

You could also photograph things so bizarre that they have no immediate obvious commercial value whatsoever; in which case you’re an artist and should exit the commercial world to seek gallery representation. You’ll probably do pretty well there, too.

The last method is the one I use, and effective because it’s somewhat self-policing: make your images extremely visible. The more visible they are, and you are, the more likely your image is going to be attributed to you, and the the more likely somebody who knows you is going to see it and tell you if it’s been used in a suspicious context. I am greatly indebted to the readers and friends who’ve done this for me in the past – you’d be surprised how often it happens. Also, have your own distinct style and never upload anything publicly in full resolution so you have the ability to defend your claim if it comes to it. Nobody is going to claim a Picasso is their work because everybody else will know it’s not, you probably cannot imitate his style well enough to pass, and even if you could, you wouldn’t have the canvas. Bottom line: any would-be thieves move on.

Forget registration of images with a copyright body; it’s expensive, doesn’t at all guarantee enforcement, and frankly, impractical if you shoot with any volume: can you imagine submitting everything you’ve ever shot in a verifiable (i.e. full resolution original) form? It’d take me the better part of a year just to upload my images. And then we’d run the risk again of having one more copy in the public domain that’s outside your control; worse still, at full resolution. Stock libraries and agencies will protect their copyright aggressively if your images are registered with them; however, they will also be the ones shortchanging you. Extreme caution is advised.

Finally, you should always make it clear that the images are ‘all rights reserved’ and ‘copyright X’ – it is clearly marked on Flickr (and you can choose this; I’m not sure about the other image sharing sites); it’s less clear on any other social media. In fact, Facebook, Twitter and Instagram are notorious for subjugation of rights of any image uploaded to their pages: make sure you don’t put anything of value there, and certainly not in full resolution. Even though you can upload full resolution, only a compressed version is displayed to save bandwidth. Ever wonder what happens to the full resolution versions? Think carefully. So, though there is benefit in the visibility of social media, think carefully about what you may be leaving on the table.

This brings me to the final, tricky part: if you’re an amateur – by definition, not making a living from photography regardless of skill level – you should try to play by the same rules as the pros. Value your images. Just because you don’t make a living out of photography doesn’t mean you haven’t invested considerable time and money in learning, shooting and equipment; whoever gets your images for free is getting all of that for free – and deriving benefit for themselves out of it, too. Is that fair? In valuing yourself fairly, you can also help the rest of us to stay in business.

Finally, every photographer – pro or amateur – should be aware of the rules around photographing people. If you do not have a consent release, then you cannot use those images for commercial use; in fact, you can be sued by the subject because you are using their image to represent something which they may not have agreed to. Editorial use is different. This is a very important point to note: just as you expect others to respect your rights, it’s only fair that you respect the rights of others, too. MT

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