Sell Your Photography and Know YOUR Rights

The digital era is making copyright protection more difficult.  As this technology grows, more and more clients will want digital versions of your photos.  Don’t be alarmed, just be careful.  Your clients don’t want to steal your work.  When you negotiate the usage of your work, consider adding a phrase to your contract that limits the rights of buyers who want digital versions of your photos.  You might want them to guarantee that images will be removed from their computer files once the work appears in print.  You might say it’s okay to perform limited digital manipulation, and then specify what can be done.  The important thing is to discuss what the client intends to do and spell it out in writing.

It’s essential not only to know your rights under the Copyright Law, but also to make sure that every photo buyer you deal with understands them.  The following list of typical image rights should help you in your dealings with clients:

One-time rights.  These photos are “leased” or “licensed” on a one-time basis; one fee is paid for one use.

First rights.  This is generally the same as purchase of one-time rights, th

ough the photo buyer is paying a bit more for the privilege of being the first to use the image.  He may use it only once unless other rights are negotiated

Serial rights.  The photographer has sold the right to use the photo in a periodical.  This shouldn’t be confused with using the photo in “installment.”  Most magazines will want to be sure the photo won’t be running in a competing publication.

Exclusive rights.  Exclusive rights guarantee the buyer’s exclusive right to use the photo in his particular market or for a particular product.  A greeting card company, for example, may purchase these rights to an image with the stipulation that it not be sold to a competing company for a certain time period.  The photographer, however, may retain rights to sell the image to other markets.  Conditions should always be put in writing to avoid any misunderstandings.

Electronic rights.  These rights allow a buyer to place your work on electronic media such as a CD-ROM or a website.  Often these rights are requested with print rights.

Promotion rights.  Such rights allow a publisher to use a photo for promotion of a publication in which the photo appears.  The photographer should be paid for promotional use in addition to the rights first sold to reproduce the image.  Another form of this–agency promotion rights–is common among stock photo agencies.  Likewise, the terms of this need to be negotiated separately.

Work for hire.  Under the Copyright Act of 1976, section 101, a “work for hire” is defined as: “(1) a work prepared by an employee within the scope of his or her employment; or (2) a work…specially ordered or commissioned for use as a contribution to a collective, as part of a motion picture or audiovisual work or as a supplementary work…if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.”

All rights.  This involves selling or assigning all rights to a photo for a specified period of time.  This differs from work for hire, which always means the photographer permanently surrenders all rights to a photo and any claims to royalties or other future compensation.  Terms for all rights–including time period of usage and compensation–should only be negotiated and confirmed in a written agreement with the client.

It is understandable for a client not to want a photo to appear in a competitor’s ad.  Skillful negotiation usually can result in a agreement between the photographer and the client that says the images will not be sold to a competitor, but could be sold to other industries, possibly offering regional exclusivity for a stated time period.

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