Negotiating

Q:

Hey Andrea! I had a client come back after reading my contract that states “shared usage rights” so that I can use the photos and they can as well. But he came back saying they want to “all rights” but says he is okay if I use them for personal marketing/website. This company is small and I am not quite sure he knows what he is talking about. What should I do here/what is the correct way “rights” are normally discussed and used in a contract?

A:

The client’s response sounds like they are assuming ownership of the copyright since they’d grant you usage of the images. First of all, always make sure to be clear that you own the copyright. That is the #1 rule for your contractual terms. If you agree to “work for hire” that means you would not own the copyright. One term I include on every estimate is, “Artist owns the copyright and retains self-promotion rights for all images and tearsheets of ads.”

Navigating the Unknown Episode 17 – Where are we right now and what do we need to do? Is now live on YouTube! This week we speak to Producer Joy Asbury and Producer Michael Horta about where our industry is headed now. 

Guests: 

Joy Asbury – Producer, joy Asbury Production https://joyasbury.com/

Michael Horta – Producer, MJ68 Productions http://www.mj68.com/

Navigating the Unknown is a Q&A series in collaboration with APA-LA where we speak to different members of the photo community about all aspects of the commercial photography business. https://la.apanational.org/

With Co-Host: Photographer Hugh Kretschmer https://www.hughkretschmer.net/

Q:

I’d love to know your good ideas on how overages are handled and if and when they occur? Layout in bid ahead of time so everyone is clear? How spelled out should/can this be without seeming too nickel/dimey?

A:

Overages can be simple if your estimate states what the bid includes. I would not worry about sounding too “nickel/dimey,” but too much unneeded info only prevents the needed info from being read. Less is more if we want to be heard. State on the estimate form job description and listed in your email when sending in the estimate what is included and what is not included. Things like retouching, shoot hours, variations, stylists, which props, how many locations, etc., should all be stated, so it’s easy to get overages approved before they occur. Remember, “before they occur” is extremely important as clients need to be a part of the process before granting a financial overage approval.

Q:

How do you navigate pricing for unlimited use for images? I’ve had so many requests this year for buy-outs.

A:

Unlimited is the popular usage term similar to clients requesting to own the image’s copyright. They often don’t really need unlimited freedom such as broadcast, OOH billboards, etc. First, find out what they really need it for. You can show them two options – exactly what they need it for and what unlimited would cost. I like how on the Estimates episode of Navigating the Unknown we learned that the standard range for unlimited use is normally between $8k – $15k per day. That gives a sense of where you can begin.

Q:

So often art directors push for more images on the shoot day even after the final number of shots has been agreed upon and approved. It’s tough to navigate on set. They usually say something like, “we’d love to get a few options on this shot,” or “what if we do this?” How do we be stern (no pun intended) with these on-set requests with discussing money during the middle of a shoot?

A:

I tell every photographer I rep or temp rep to blame me. For example- “I’d love to do this for you, but Andrea had me agree that you’ll have to talk to her first.” If you aren’t working with a rep then you can say, “As much as I’d love to, it’s my self-producing policy to not surprise you or me later with costs and timing issues so I’ll get back to you in a few minutes with any cost or scheduling changes to make those happen.”

Q:

I find that when working as a freelancer I often get ghosted by clients. We will have approved rates and discussed dates and then they go cold. It seems so unprofessional and I’m surprised by how often it happens. What is the best way to deal with this?

A:

Ya I hear you. This procedure is they reach out to about 10 photographers and then their creative choose 3 of them to bid the job. It can be misleading as it isn’t presented as an initial round up of available photographers. I email them back after not hearing anything for a few days, asking if we should keep the hold. That is when I get a response because they don’t really want us losing other jobs and holding the dates.

Q:

How do I transfer the bidding process to a temp rep when I’m used to receiving requests and managing client relationships myself? Would a temp rep be beneficial? Could this damage my relationships?

A:

A temp rep situation is just that, temporary and flexible. I would jump in and help with negotiation or overseeing your estimate to make sure you are protected on your terms, upon your unique circumstances. Maybe you just need a negotiator or back-end support to oversee your estimate or a communicator to help protect you by setting up the job terms clearly. Our goal is always the same- let’s get you the job and the highest budget!

Q:

I’ve heard from several people in the business that you don’t need representation unless you are too busy to book and manage the business yourself. How true is this?

A:

Most photographers would do better having a rep’s overall support. Some types of photographers may do well on their own if they handle their own social media marketing. If you have the skills that a full-time rep would bring to your business, then you can always do it on your own, but if you aren’t the best negotiator then the bottom-line question is, would a rep protect and negotiate higher fees for you?

Q:

I’ve thought of three quarantine safe workflows: 

1. Product delivered, sanitized, and shot at home studio space, natural (limited makeup and wardrobe)
2. Editorial at a distance (telephoto heavy)
3. Webcam Fashion

Who is looking for these workarounds right now?

A:

Hey any ideas like this can work in today’s situation so I’d say all clients are looking for these types of options. It’s the time to step up and help our clients figure out how to create content. Today = creative problem solving. Right now the only wrong answer I can think of is being too close in proximity, other than that everyone is open to new ideas.

Q:

I’m in the middle of negotiating a contract for a job I really want. The contract gives me no right to use the images for self-promotion, and effectively states that I could be sued for doing so. 

Should I take the money and work on building the relationship, or should I fight for my rights at the risk of losing the gig?

A:

I would talk to your contact at the company, and gauge their flexibility. Explain why you would need to show this work in order to get more work. 

Hopefully they’ll be receptive to your concerns + work with you on tners that are fair to all parties. At least try your best to get what is fair. 

Our industry also benefits when we stand together on issues like this. I understand why you wouldn’t want to walk away from the job because of this, but asking for what you want, in a respectful way, shouldn’t lose you the job.