Frequently Asked Questions

Welcome to the FAQ page of OutreachEP. Helping to fulfill OutreachEP's motto of "Photographers Mentoring Photographers", you will find archived here the collected advice of many working editorial photographers, and other photo professionals, as culled from interviews and the EP forum. If you have a question that you do not see answered here, please click on this link: OutreachEP@editorialphoto.com and submit it (please place "FAQ" in the subject line). If it seems like an appropriate question that would be of interest to a wide audience, we will respond and post the answer here, as well as e-mailing it directly back to you. We apologize that we may not be able to answer all requests and must limit our responses to those we feel have the broadest appeal. If you haven't already, be sure to visit the other resources available through the EP home page: www.editorialphoto.com, including a glossary of business and contract terms, reviews and explanations of various publisher's contracts, estimating software, business forms for you to download and use, and links to other photography associations. Thanks for your interest in OutreachEP. Please note that while this collection of advice is correct and complete to the best of our knowledge, it is based on personal experiences, not legal precedents, and is intended for educational purposes only. These opinions do not qualify as, nor should they substitute for, professional legal, accounting, or tax advice.

What is editorial photography?

"Editorial" refers to the market where the images will be used -- primarily books, magazines, and newspapers -- and, to a lesser extent, to the style of photography that appears in these venues. We use the term editorial to distinguish it from other markets like corporate, advertising, general commercial, or fine art. Most editorial outlets offer a fair amount of creative freedom, but also extremely low budgets compared to other venues.

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How do I get started in professional photography?

Most photo programs do a good job of teaching photography, but be aware that few do much to teach you how to be in business as a photographer. If you're going to compete in a free market economy, you must know more than a little something about the free market and its tools: marketing, pricing, negotiating, contracts, accounting, etc. Remember, you are in this to make a living, that is the definition of "professional", so you need to make decisions based on staying in business for the long term. It might be exciting to be paid to make a living doing what you love to do, but that doesn't free you from the desire, or the obligation, to actually MAKE A LVING. This message is at the heart of the OutreachEP program. If you feel unprepared in your business training, try signing up for a photo business class at a local art school or community college, read a book on small business management or business management for creative professionals (there are lots available), search websites like the Small Business Administration, your local chamber of commerce, asmp. org, and www.editorialphoto.com, and join a professional group or association (most have reduced rates for students and emerging photographers) and ask questions of the more established members. A list of links to many associations can be found on the EP home page.

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Nevertheless, business isn't everything and being both technically and aesthetically proficient is equally important if you ever want to be noticed and hired by potential clients. So this is the first question to ask and answer of yourself -- are you technically and aesthetically ready to produce work for clients? If not, then you need to seriously consider some formal training. Things like studio lighting basics, medium and large format cameras and films, basic digital work, and general terminology and processes are invaluable to know. There are plenty of programs around that take from 1-4 years, including local community college and art school programs, but a basic foundation of knowledge is mighty important for moving ahead, no matter where / how you acquire it. Try the internet or your local reference librarian for a search of photo schools

Armed with these skills, many photographers get their start by assisting other, more established, shooters. But again, without the basic skills listed above, an assistant is really of little or no use to a photographer working for a client, and can in fact be more of a liability. Once you have a certain level of knowledge, getting the assisting work is really just a matter of persistence -- make phone calls, set up meetings, follow up your calls, and work to get hired. You'll find this process very similar to what happens once you start shooting on your own, so get used to it. Another route if you have the appropriate skills, is that of being a studio or business manager for a busy photographer who needs help with running things. Then, as you develop a relationship with the photographer, start to express an interest in learning the technical and aesthetic side, and hopefully they'll take the time to show you.

Being around working photographers and watching, helping, and listening offers valuable insight into some of the ways of the photographic world. Always be a student of your profession and absorb whatever you can. Ask questions when it's appropriate to do so and never be afraid to admit your own limitations. In the meantime, continue to photograph on your own and pursue your own style and interests. Try to develop a niche for yourself that sets you apart from thousands of other working pros. Think about approaching local magazines, tourist bureaus, greeting card companies, or other local users of photography with your images. When you do get some interest, don't be so eager that you forget that you are the supplier and that you are filling a need. If your potential client didn't need what you have, they wouldn't be talking to you. Price your work according to your own financial needs and to the benefit being gained by the client from using your image (see the related questions). Put a low value on your images, and others will too. And remember, we should never be so desperate or so vain to simply get published that we forget that the goal of getting published is to make a living.

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How do I get started as an assistant?

Armed with the basic skills necessary to be of use to a working photographer (see above), you now need to get your name out there to photographers who hire assistants. Check the local labs and camera stores for photographers' promos or flyers, and post your own "assistant available" flyers on those same boards. Look for photographers' names in promotional materials, do internet searches, and try association websites. Consider becoming a member of a local or national photographers' organization, like EP, ASMP, APA, or PPA. It's a good idea to do this anyway, and most have reduced rates for students and assistants. Membership allows you to network with more established members, and often enables you to list yourself and your skills on an assistant's roster for members to reference. Once you have names, then start calling, sending letters and resumes, and trying to interview with these people. As with any job, getting a face-to-face interview often leads to more positive results. Take a portfolio but don't be hurt if you don't get to show it, and be honest about your abilities and experience. Again, you'll find this process very similar to the process of finding shooting work once you start shooting on your own, so get used to it. If you find you simply can't stand doing this, then honestly ask yourself if being in business for yourself is something you really aspire to, or should you think about an outlet for your photography that enables you to be an employee of a larger company (see the related question).

It's not easy getting started assisting, but then, it's not easy getting started shooting, either. The best advice many assistants ever get, and it's been said many times and in many ways, is, "don't assist too long". The learning experience is valuable, but the learning often tops out quickly. Assisting pays little enough as it is, and there should be some benefit, some experience, that comes with the long days. When you begin to feel like you're not learning at least one new thing every day, it might be time to think about moving on.

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Should I limit my assisting endeavors to photographers just in the field I plan to be in, or is it beneficial to work with a variety of shooters?

One of the goals of assisting should be to get your feet wet in a variety of situations. Think of it as an apprenticeship when you're first starting out. Not only will working with a variety of shooters expose you to numerous camera formats, lighting systems, film choices, studio operations, and location logistics that will be good experience for you later on, but it will give you the opportunity to experience a variety of career paths and hopefully help you narrow your options just a bit. You may decide after working in a studio on and off for six months, that you prefer the variety of location work, for instance. Or, you might discover that you thrive in the high-pressure, highly orchestrated world of big-budget studio advertising.

Once you've made some decisions as to your own future direction, you might want to think about limiting your assisting work to that which interests you more. Not only will the experience be more relevant later in your career, but you will stay more interested, and therefore more focused and more useful to the photographer, at every job.

Finally, some of the best advice that many emerging photographers hear is, "don't assist too long. " Assisting should be a form of apprenticeship and so you should not only be working, but you should be learning something new every day. The goal of most assistants is to take this knowledge and start shooting on their own. When the learning curve begins to slow down, sometimes after just a year, sometimes in four or five, then it's probably time to start thinking about moving on. Many photographers actually enjoy the mentoring part of the relationship and so would rather work only with assistants who are eager and who show interest. You can't be excited about being an assistant if what you really want to be doing is shooting on your own. However, if you prefer the regular work and steady expectations of assisting and decide that shooting on your own isn't your goal, then there's nothing wrong with being very good at what you enjoy doing. Nevertheless, be sure that your choice is made from desire, and not from apathy, uncertainty, or ignorance.

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What should I put in an editorial portfolio?

This depends on your level of experience and the type of publication you're trying to reach. When you're first starting out, it helps to try to think like the Art Director or Photo Editor that you are trying to reach. AD's are busy, overworked people who have a problem, and that problem is to fill up twelve (or ten, or six, or fifty) issues a year with photographs. They are not critics, or mentors, or reference librarians -- they only care about filling their pages with the best quality photography that they can at the lowest price. By submitting samples and portfolios to them, you are, in effect, creating another problem for them -- the volume of stuff piling up on their desk. Only when your samples begin to solve a problem for them, that of filling their magazine with images, do you cease to be a part of the problem and start to be a part of a solution. Keep your submissions as specific as you can to that type of publication -- send less stuff that is more relevant to what they need, rather than padding your book with urban landscapes or corporate shots when the potential client is a gardening, automobile, or parent/child magazine, for instance. If you only have ten, then only send ten. The AD will probably appreciate the brevity. Try to show images that set you apart somehow. Remember that there are thousands of photographers out there and that an AD might glance through fifty portfolios in an afternoon. Try to include images that make yours stand out.

As your experience and portfolio grow and evolve, then you can begin to think about making a statement with your work, to begin to showcase a style rather than a subject. But when we're first starting out, most of us haven't defined our own styles well enough to rely solely on them to speak clearly for us. Remember, you can't "talk" a portfolio, that's why we send them in for review or why we place images on a website. If you would have to explain your portfolio to an AD, then perhaps you're submitting the wrong images or targeting the wrong publication.

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For self-promotion, does it help to concentrate on a few clients, or should I send as many pieces as possible out? Does this vary from market to market?

If you're going to be sending direct mail pieces, then you must remember that a 1-2% rate of return is considered about average for direct mail. In other words, if you want ten responses, you need to mail 500 cards. Still, it is much better to research your list of potential clients first, to develop leads that show actual potential for the type and style of work that you do, then mail to just those few hundred, than it is to mail to several thousand people at once. There is simply no way to follow up on that many mailers and follow-ups are one key to success.

Remember also that this business is not always about WHO you know, but WHEN you know them. AD's and PE's are busy people and can only reasonably be expected to remember the names and the work of a handful of photographers. If you're trying to break in with them, you need to be persistent and show them some new, relevant work at just the time they are actually looking for new work. Don't send them one or two pieces a year and expect them to actually remember it at just the time they need your expertise. The more pieces you can afford to send, the more likely one is to cross their desk at just the right time. Some experts recommend as many as 8-10 per year. Also, once you develop a list, no matter how small, of people you have actually worked with, shown work to, or even spoken with on the telephone, be sure to stay in touch with them on a regular basis. Remember, it's not always who you know as it is when you know them. Think of these people as the leads with the greatest potential and stay in touch.

, don't underestimate the value of a good website that showcases your work. Don't expect people to find you simply through your website, but rather put your web address on all your mailers and correspondence and use it as an electronic portfolio. You will likely get many more people willing to take three minutes to look up your site when they first receive your mailer, than you are to get people to call you and ask you to submit your book. Having a small, but good quality website designed costs about the same as a few mailings, and hosting it costs less than one mailing per year. It is generally money well spent and is pretty much a necessity these days in order to be seen as a "serious" photographer.

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What's the difference between being on staff and being a freelancer?

The short answer is about 250,000 jobs: as more and more magazines, newspapers, and wire services have cut costs by eliminating staff positions, they have increasingly turned to freelancers as a more economical and more flexible alternative. There are currently tens of thousands of freelancers and stringers who supply the vast majority of the images for all but the largest few dozen publications, and there are benefits and detriments for both sides. As details of the freelance arrangement are open to interpretation and negotiation, both sides need to be careful to craft agreements that are mutually beneficial.

Publications benefit from the freelancer arrangement by not having to pay salary, vacation pay, insurance, equipment allowances, or any of the other overhead associated with having more employees. When they need an image, they call a freelancer to perform the work, and that photographer is expected to have the necessary equipment and skills to do the job. The publication assigns the work, receives the images, pays the bill, and is done.

Publications suffer from this arrangement only by not having a stable of photographers whose sole purpose is to create images for them. But with so many freelancers available, there are often more than enough who are willing and able to do the job. Additionally, here in the U. S. , the ownership of the image belongs to the person who created it, not the person who paid for it, with the exception of employee / employer relationships. If the photographers were employees, then all images created while on assignment for the publication would belong to the publication and would be available for future uses, like collected editions on CD or DVD, advertising, websites, or even use by affiliated companies, without additional payment. However, by relying on freelancers who are not employees, publications are obligated to pay for any usage rights beyond those granted in the original assignment (see also questions on copyright and work for hire).

Photographers benefit from the freelance relationship by having the creative and business freedom to work for many different clients, to set our own rates, schedules, and styles, and to be the captains of our own businesses. The arrangement falls apart for us when we fail to understand our rights and our obligations as independent business owners. Photographers must remember that we are the suppliers in this business relationship, and that we do not supply a consumable product. Rather, we temporarily license a reusable commodity and therefore must think of ourselves as providers of a "service" rather than a "good". Federal copyright law says that as the creators of the images, freelance photographers have the sole right to control the use of our photos (with minor exceptions). Our clients can ask or even demand greater uses without additional payment, but it is still our right to charge a fee commensurate with every use.

Both parties can win in the freelance arrangement, but only if each side respects the business, financial, and legal needs of the other. Clients get the option of hiring hundreds of different photographers, as often or as infrequently as they want, simply by picking up the phone. They still get the images they need, while paying only for the specific assignments that come up, and not also all of the down time in between. And photographers need to respect their clients' desires to be flexible and spontaneous -- that is, after all, why they don't keep a staff of photographers. But in return, clients must respect the photographer's need to license secondary uses to images, to charge appropriate fees that allow us to continue to be available even when we haven't worked for this client for months, and to charge for any and all expenses that are directly attributable to that client.

[return to top] Somebody wants to publish one of my existing images, now what do I do?

First of all, congratulations! There is definitely a sense of accomplishment, even validation, that comes with getting your first published image. However, don't let this elation cloud your responsibilities to yourself, to your business, and even to your client. We should never be so vain or so desperate to simply get published that we forget that the goal of getting published is to make a living. Remember that, no matter how excited you are or how well you might know your client, this is a business transaction and that the days of doing business on a handshake and a promise pretty much disappeared with flash powder and nitrate-based films. Register your images with the US Copyright Office, put everything in writing, and get everybody's signature and there will be no misunderstandings or hurt feelings down the road. Remember, this is business, not personal, and your client should appreciate the clarity as much as you do.

First, if you haven't sent the image(s) yet, be sure to register them with the Copyright Office before you do. To read why you want to do this, see the related question. To read specifics on how to do this, see the copyright section of this website at www.editorialhoto.com/copyright . Next, be sure to create a delivery memo to send with them (for downloadable examples of all of the forms discussed here, visit the Forms section of this website at: www.editorialphoto.com/ep/forms/) (EP Membership required). A delivery memo helps you to track your images when they're out of your office and states the specific terms, conditions, and often prices, under which you are agreeing to submit your images for consideration. Many photographers choose to fax a "Pre-delivery" memo for signature and return before they will even send any images. This prevents a waste of everyone's time in the event that you and the buyer are thinking along different lines in terms of price, usage, or any other item. Also be sure to include a copy of your Terms & Conditions on the back of all of your paperwork. These are the "fine print" under which you agree to do business and includes contingencies for things like lost or damaged slides, timely payment, liability issues, etc. You may download a basic copy from the forms section of the EP website.

Next, caption, package, and deliver the images, along with the delivery memo. Be sure to use some form of traceable delivery service like FedEx, UPS, or the USPS's overnight service. In the event your slides are lost or damaged, you will need some way to prove that they were received by your potential client.

Next, you will likely need to determine an asking price for the usage, see the question on "How do I know how much to charge. . . " for suggestions to keep in mind. Nevertheless, remember that what each photographer decides to charge is an individual business decision. Just because one photographer agreed to a quarter, half, or full page usage for $50 or $75, doesn't mean that you must also. Remember that you are the supplier in this equation and that you have a right to ask for a price that is fair and that will enable you to cover your costs and earn some money on top of that. After all, isn't that the goal of this whole process? Be prepared to negotiate and don't be disappointed if you don't achieve your desired fee the first time. Negotiating, like photography, is an acquired skill. See the question on negotiating tips for some hints.

Once you agree on a price for usage, you will need to send an invoice (again with your Terms & Conditions on the reverse) granting a usage license and stating the agreed price for usage. See the question, "What is licensing an image. . . " for a description. Be sure your invoice stipulates, "No usage rights are granted until payment is received in full".combined with timely copyright registration, this clause helps to bring the full power of copyright law to bear in the event you have trouble collecting payment. Generally, you should send the invoice to the person with whom you have been dealing, as they will need to approve it for payment and send it on to the accounting department, but double check with your client for the proper procedure. Also, on the invoice itself, be sure you reference the person with whom you were dealing, the month and year of the issue (if a magazine or newspaper), and / or a description of the piece or title of the article in which your photo appears.

Once your images are returned, hopefully with the number of sample copies stipulated in your Terms & Conditions, be sure to check them for damage and to register them with the copyright office within 90 days of publication for maximum protection, if you didn't register them before submission. See the related questions for why and how to do this. Also, be sure to check the publication, and their affiliated website if applicable, to be sure the image was used in accordance with the usage license you granted.

And finally, keep track of your invoice and make sure you are paid within the required period (generally 30 days) as stipulated in your Terms & Conditions. If you do not receive your check, call and ask to speak with the accounting department regarding an unpaid invoice. Be prepared to give your name, an invoice number, the amount, and the date due, and politely state that payment was due on XYZ date and that you are calling to inquire about the status. This happens more frequently than most of us care to remember, so don't be offended or surprised. Remember, this is business, not personal.

Congratulations, you've got your first tearsheet!

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What is the "paper trail?

The term "paper trail" refers to the collection of paperwork that is generated for any given job, whether assignment or stock sale. At the very least, the paper trail for assignments should include: an estimate, a contract, a delivery memo, and an invoice and usage license all with your stated terms & conditions attached or on the reverse. You should also file the proof of payment with your copy of the invoice when it appears. A paper trail for a stock sale would omit the estimate, and the contract and usage license might be one and the same, as you are not providing a service, merely licensing the use of an image. Rather than an estimate, a stock sale might be preceded by a pre-delivery memo, which would state your Terms & Conditions, your rates, and the anticipated usage. Once that was accepted, signed, and returned (often after some negotiation), you would deliver the film along with a delivery memo to acknowledge their receipt of your images, and an invoice restating the fee and the terms. Appropriate pieces of the paper trail should be signed by both parties (estimate/contract or pre-delivery memo, delivery memo, invoice) and the accumulated paper trail for every job should be archived for future reference. See the EP website,www.editorialphoto.com , for a complete example.

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Where do I get the forms?

Examples of all of these forms may be downloaded for free from the EP website at: www.editorialphoto.com/ep/forms (EP Subscription required) or you may find them from other sources like ASMP, APA, and various books. ASMP's comprehensive Business Practices in Professional Photography might be a valuable resource to own for a small fee. Purchase it through their website.

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What is work for hire (WFH) and why should I care?

"Work for hire" (or "work made for hire" of "WFH") is a contract term which signifies that all work being done under the contract becomes the property of the person paying for it, not of the creator as specified by US Copyright Law. It converts the status of the creator's images from those made by an independent contractor, or freelancer, to those of an employee. It is an "employee-for-a-day" status, yet almost always fails to adequately compensate freelancers for the usual expenses of being self-employed: employment taxes, liability coverage, equipment and automobile depreciation and insurance, office overhead, computers and software, health and disability insurance, retirement plans, non-billable time such as marketing, accounting, and image management, etc., etc., as well as for all of the potential lost revenue from secondary licensing. Laughably, most WFH contracts simply state it is a work for hire contract without offering any additional compensation whatsoever. Being forced to work under terms of WFH is a deal-breaker for most freelancers, and should be for everyone in editorial work in all but the rarest circumstances and most extraordinary compensation.

In years past, the standard editorial assignment contract was for one-time, North American, print rights only. Yet within the past several years, partly in response to several Supreme Court decisions and partly in response to the many new venues for pictures that have appeared with the spread of the Web and the opening of overseas markets, WFH contracts have proliferated quickly. Even more insidious are the companies that offer two contracts to freelancers with different experience levels: a WFH contract that is offered to younger, less savvy photographers who are told it is "non-negotiable" and a limited rights contract that miraculously appears whenever a more established freelancer who understands the consequences of a WFH agreement protests loudly enough. This blatant attempt to take advantage of an individualized and undereducated photo community is one of the main reasons for the existence of OutreachEP.

Remember, no contract is "non-negotiable" (see related question). If offered a WFH contract, ask if there are any other terms under which the job can be assigned. Politely explain that WFH simply doesn't make sense for your business and ask if you can't discuss an agreement with more definitive usage that allows you, the creator, to maintain ownership of your images as intended by law. If the client won't budge from WFH, we urge you to politely decline the job and move on. Freelancers will never be able to earn a living at most current assignment rates, and selling away your images altogether only accelerates the process by eliminating the possibility of potentially lucrative additional income from secondary licensing, by reducing the number of available assignments, and by diminishing the value of professional imagery.

Being self-employed and therefore responsible for all of our own overhead, freelance photographers need to retain control of our copyrights to provide future income through secondary licensing and should therefore think very carefully before agreeing to any contract which stipulates work-for-hire, all-rights, or rights transfer. Besides, it is our right under U. S. Law to retain ownership, to control usage, and to profit from usage, so why would we ever want to simply give that away? Unless the photographer is being paid many tens of times what they might normally charge, there is little or no benefit to a freelancer to sign a work for hire contract. The benefits lie solely with the commissioner of the work. As freelancers, our images are not only our life's work, but in some cases are our retirement plan as well. Signing away the ownership to your work, and potentially leaving thousands of dollars on the table, is just not a smart way to do business. Remember, the goal in business is efficiency -- work smarter, not harder. WFH allows our clients to work smarter, but forces freelancers to simply work harder.

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What is copyright?

In a nutshell, copyright is the legal concept that once an original expression of a creative process is fixed in a physical medium, like a photograph on film, music on a recording, a painting on canvas, etc. , then that expression belongs to the creator who has the exclusive right to control and authorize its reproduction, distribution, public display, or performance. Copyright is the single greatest protection that any creator of intellectual property has at their disposal. It is what allows us to control the use of, and to profit from, the fruits of our creative efforts and to enforce certain claims against even much larger corporations. Copyright is not intended to stifle the sharing of information, merely to guarantee that the creators of that information have a right to make a decent living. There are plenty of exceptions to copyright protection written into the laws which guarantee the free exchange of information for research, news, teaching, satire, and other legitimate intellectual and political pursuits.

Articles, photographs, and music on the internet and in other digital formats are all covered by the same copyright protections as more traditional printed, displayed, or performed creative works. Now that the Web has become an open worldwide marketplace, it needs to be moderated by the same controls that guide commerce and advertising in other venues. In a free market economy, the right to buy and sell goods lies with the owners of those goods, not just anyone who happens to find them lying around. For example, when you walk by a grocery store with displays of goods both inside and outside, you know that the outside displays are there to attract your attention with the implication that you should come inside and buy something. They are not implying that you may just take an apple and walk away– that would be stealing. Likewise, by posting copyrighted information on the Web, we are putting it out there with the intention of it being looked at and perhaps purchased, but not stolen.

For many interesting links to websites covering questions, explanations, and legal opinions regarding copyright, see the EP website at: www.editorialphoto.com/copyright . For a more complete explanation of copyright, be sure to read Michael Grecco's three-part "Copyright Primer", available at the above URL.

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Why do I need to register the copyright to my images?

The right to control and enforce the way our images are used is a powerful one that is not enjoyed by creators in every country. However, with this tremendous power of copyright also comes the responsibility to use it wisely. While work is technically protected from the moment of creation, in order to achieve any real benefit from enforcing the law, copyright holders must register their works with the Copyright Office. The US Copyright Office is a division of the Library of Congress and, as such, is much less intimidating, and much more helpful, than other government agencies. Registering your work is a simple but vital responsibility to enjoy the right of copyright protection. For simple instructions on copyright registration, see: www.editorialphoto.com/copyright . Without registration, the remedies available to a creative who discovers an infringement, and the punishments meted out to the infringer, are negligible and hardly worth pursuing. To protect your rights in any meaningful way, you must register your images.

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What is "licensing" an image and why should I care?

First of all, licensing is the law. As independent creators of intellectual property, we have the exclusive right to control and authorize the reproduction, distribution, public display, or performance of those works. The US Copyright Law gives us this right in this country, so why would we ever want to give it away? Second of all, licensing is what allows us to limit the usage of our images to certain clients, in certain manners, during certain timeframes, and thereby allows us generate additional fees in the future when other clients wish to use our images for something else. Certain stock images might sell over and over again for years to come, thereby generating thousands, or tens of thousands, of dollars in future revenue. A highly publicized recent stock sale went for over $150,000, and many images routinely generate revenue over several years, if not decades. If you are giving up or giving away this right to control your own images by signing over "all rights" or a "rights transfer" or by doing work for hire (see the related question on WFH), then you are not only depriving yourself of future licensing income, but you are diminishing the number of potential future assignments for yourself and your profession. Editorial assignments pay little enough as it is. For the ridiculously low fees most clients can offer, they should be entitled to one-time print use only. Additional uses require additional fees paid.

End-users of copyrighted material have the legal responsibility to obtain permission to use the work before doing so, and this permission is granted with a usage license from the copyright holder. A usage license is merely a simple written contract which grants limited rights to use an image to someone else in exchange for money or services. A licensing agreement need not be more complicated than aclause which is incorporated into your invoice for the assignment or for the use of a stock image. Because photographers should be fairly compensated for each and every use of our images, being as specific as possible in our wording helps eliminate usage "loopholes" and therebyhelps us avoid losing revenue.

A license for a photograph should specifically state who the user is, how large the image may be used, where it will appear and how many times, in what specific media format(s), and for how long. t should also state any exclusivity restrictions, or should state "non-exclusive". By law,any uses not specifically granted in a license remain with the copyright holder. For examples of a typical editorial usage license and other important language, see: www.editorialphoto.com/ep/forms/ (EP Membership required)

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What is royalty free (RF)?

Royalty free refers to the category of images that are available for a flat rate with unlimited usage, regardless of placement, number, or length of uses. Generally the images are supplied on a CD that costs anywhere from $100 to $500, and contains fifty, one hundred, three hundred, or more images that the purchaser may then use and reuse wherever and whenever they choose for as long as they like. Some larger stock agencies offer RF images that may be downloaded one at a time for an even lower fee, sometimes as little as five dollars.

While the temptation for photographers, especially those just starting out, to submit images for consideration in an RF collection is one of immediate cash, photographers who wish to be in business for the long term should avoid RF situations for several reasons. First, as stated in the question on licensing, the right to control and profit from our images lies with us, their creators, as guaranteed by copyright law. Why would we ever part with that right except in an exceptional situation and for an appropriately exceptional fee? Selling your work for royalty free never comes close to compensating you fairly for all of the potential lost payoffs that you are sacrificing by signing away all rights to your work.

Second, the existence of RF images diminishes both the financial and the creative value of professionally created images. If a buyer can purchase an RF disc of 100 images for $300, they begin to assess the value of each image at no more than $3. Never mind that there may only be one or two images that are really good enough to ever get used from that set, the perceived value of the images is now only three bucks each. In addition, a collected version of RF photography gives the impression that these images are quick and easy to produce, that they're a dime a dozen. This perception makes it much harder for a talented professional who not only supplies his or her clients with great quality images tailored to their exact specs, but also all of the necessary suppliers, contacts, legal protections, and professional services that a client demands, to convince that client that an appropriate fee is considerably more than $3 per image. If you sell images to RF collections as an emerging photographer, you may very well find yourself competing later for paid assignments with the very work you sold outright, and placed such a low premium on, earlier in your career.

And finally, RF photography can be seen to threaten the existence of independent photographers by eliminating many potential assignments from the total pool. While arguments could be made that clients who are looking for cheap RF images would never pay the price necessary for original images, RF imagery still takes stock sales away, no matter how small, from independent photographers who could otherwise continue to license and re-license rights to their images.

While many clients see only the positive sides of an RF image, price and accessibility, they fail to understand the pitfalls. First, in order to appeal to the greatest possible number of buyers, RF images are often very generic and "canned". Discriminating viewers will recognize the "corny" look and feel of most RF imagery and will associate that with the client's product or message. But more importantly, a client using an RF image has no idea where or how else that image might be used. By their very nature, RF discs are available to thousands of users, many of whom might be seen to be working at cross purposes to one another. Imagine the chagrin of a designer working for an environmental advocacy group, who puts a full page, full color RF image of a beautiful waterfall on the cover of their report to Congress, only to discover the same image being used to promote a particularly fresh smelling underarm deodorant? By using rights-protected imagery, clients can be assured that their chosen images will not embarrass or disappoint them.

While RF images fill a need for users with extremely low budgets, photographers who sell images to RF collections provide only a short-term solution to a long-term problem and muddy the very waters that they will need to sustain their own photographic careers in the future.

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What are "third party" distribution rights and why should I care?

By law, the right to control and profit from the distribution of images lies with the copyright holder. Many clients' contracts will attempt to claim that right for the client, as in, " the right to reproduce, distribute, adapt or display [the image]", or the right to, " transferorsublicense [the image]". By allowing this language to stay in a contract, you are effectively agreeing to allow the client to re-sell your images, perhaps even in direct competition with you, and keep the fee!These contracts ridiculously attempt to claim that because the client has licensed the use of the image once, or even paid for its original creation, that the client then has the right to continue to profit from the image in the future. This is in direct conflict with both the intent and the letter of US Copyright Law and should be stricken from every contract.

The only time a clause like this should be allowed to stand is when you are intentionally allowing a third party to act as your agent, on your behalf, and when there is a specific agreement spelled out for the sharing of both responsibilities and revenues. A typical assignment, and especially stock sale, has no business including a rights-grabbing clause demanding third party rights. To protect help yourself, be sure that you include language to the effect, "No third party rights are granted and this agreement may not be assigned, transferred, or sold, in whole or in part. By granting this license, photographer in no way relinquishes, assigns, transfers, or sells his/her copyright," on everyestimate, contract, usage license, and/or invoice as appropriate.

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How do I ask for or make changes in the terms of a contract?

If offered a contract that contains terms that you are uncomfortable with, do not sign the contract. Rather, you should contact the client and politely explain your reservations and offer a more acceptable alternative (for examples of some objectionable contract terms, explanations, and alternatives, see the contracts section of the EP website at: www.editorialphoto.com/ep/contracts (Subscription Required). They will likely have valid reasons for including their terms, but they should be willing to hear your concerns as well. One of the basic tenets of contract law is that a contract must be a "meeting of the minds". That is, the final contract must be mutually agreeable to all parties. For one party to threaten or intimidate another into signing creates what is known as a "contract of adhesion" whose validity can possibly be challenged. However, do not misconstrue simple fear of confrontation or reluctance to ask for changes by one party as threats or intimidation by the other. If you do not ask to change an objectionable term in a contract because you're afraid of what might happen and you sign the contract anyway, you have given up most, if not all, of your legs to stand on.

Don't be afraid to ask for changes. Often times terms are included in a client's contract as a "best case scenario" for the client. Their thinking is that as long as they're asking for the sky, it never hurts to ask for the moon and the stars as well. Often, freelancers will sign it without even reading it, or will be too afraid to ask for changes, and the client will end up getting everything but the photographer's camera case, simply because they asked for it. More than one Art Director has told a photographer who asks for changes to a contract, "We just put that in there to see who will catch it, but the terms are so lopsided, we actually question the professionalism of anyone who DOES sign it as is. " When you and the client do agree to changes, make sure that both parties sign the amended contract for it to be valid. In spite of what you may have heard, it is generally not enough for one party to simply cross out portions. In order to be most valid and to have the best chance of standing up in court, both parties must initial or sign all changes.

Remember, the freelancer arrangement is already working heavily in favor of the client (see freelance vs. staff question), don't let the terms of a contract scare you into a job that doesn't make sense for your business: ask questions, ask for changes, and ask to be compensated fairly.

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What is a "day rate"?

Day Rate is an out-of-date term that use to signify the minimum amount a photographer would be paid when shooting for an editorial client, with additional money owed if multiple images were used or if images were used particularly large (see the question on space rate). The term has come to mean the flat rate that photographers are offered for shooting for a publication, and disregards experience, ability, degree of difficulty, and benefit gained by the client. The biggest problem comes in that most day rates are little changed in almost twenty years, with most publications offering less in terms of real dollars, or some even less in straight dollars, than they were 10, 15, even 20 years ago! For example, a $350 day rate offered in 1985 would be $577. 37 today, just to keep up with the cost of living.

Being paid solely for our time disregards a photographer's creative ability and experience level, as well as the benefit being gained by our clients from using our images. An emerging photographer or student would likely take longer to arrive at a location, set up the shot, shoot the images, break down and leave than would an experienced shooter. Should the student be paid more simply because it took them longer? In addition, being paid based solely on time can lead to disagreements over full and half days, and even hourly rates. If we're being paid solely for our time, shouldn't we really be paid just for the 1/125th of a second it takes to expose the film?

Finally, most day rates are barely enough to cover our daily cost of doing business, never mind make a profit. As professionals, and suppliers in the supplier-consumer relationship, we should be willing to ask for fees that cover our overheads, allow us to provide for our families and businesses, and that compensate us for the benefit being gained by the client from the "leasing" of our images. For suggestions on more equitable ways of pricing usage, see the above question on knowing what to charge.

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What is "space rate"?

A space rate is a rate of compensation tied to how much total space (1/4 page, two half pages, and a full page, for example) our photos occupy. Editorial assignments all used to be billed with the day rate (see related question) as a guaranteed minimum against the space rate. In other words, if the day rate were $650, but the publication ran one photo at half page size worth $500 and a second photo at quarter page size worth $300, then the photographer would be due an additional $150 (500+300-650=150) upon publication. In a system where publishers bill advertising rates based upon how large and how many times an ad runs, it is only fair that photographers also be paid for how large or how many times a photo runs.

"Day rate against space" is the preferred means for pricing assignments as our compensation is directly tied to the benefit being gained by the client from using our images, yet we are still guaranteed a minimum amount of money for reserving the day, packing the gear, making the trip, and executing the shoot for a certain client. If a story is killed for a reason that is beyond our control, photographers still deserve to be paid a fee that is enough to cover costs and compensate for time. But, if a client likes the images and gets more benefit by running more of them or running them larger, then the photographer should be rewarded accordingly. This also works to the client's benefit as it provides a financial incentive for the photographer to create their best work possible, rather than simply being paid a flat rate whether they shoot just enough to cover the basics, or whether they stick around and put in the extra hour to get that really dramatic shot.

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What is CDB?

Your cost-of-doing-business (CDB) is the amount of money that your business must pay out just to be open for business, regardless of the number of clients you serve, and is generally expressed as an amount per day. Your daily CDB is determined by your annual overhead which includes expenses like rent, utilities, insurance, car expenses, phones and cell phones, advertising, website hosting and internet connections, camera equipment, office and computer equipment, software, photo supplies like labels, slide pages, and marking pens, etc. , etc. , etc. Remember, overhead isn't based on the number of clients you have and shouldn't include anything that you bill to a client. Overhead are your "back of the house" expenses only.

To get to your daily CDB, divide your total annual overhead by the number 250. 250 days is a number that regular, salaried employees can understand (52 weeks x 5 days/wk. and 2 weeks vacation), although even their number is more like 230 once you figure holidays and paid sick days. To be more realistic, divide your overhead by the number of days you can shoot, and bill for, in a year and still leave room for the non-billable time that must be expended for every shoot, like prep days and sorting film, as well as all the other things you must do to run a business like marketing/advertising, bookkeeping, image management, etc. 100 days is pretty optimistic when these factors are taken into account. Using this formula, you will likely find your CDB at anywhere from $100-500, which makes a $400 day rate offered by a magazine barely profitable, and a $75 stock sale hardly worth the effort.

Some people include their own salaries in their overhead, others choose not to. If you don't include salary, do not forget it in the end. If you work only to cover your overhead and omit salary, you will have nothing left with which to pay rent or mortgage, buy food or clothes, entertain your family, travel, etc. Salary is what provides for the cost of living for you and your family and is why we're all ultimately in business.

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How do I know how much to charge for a usage or an assignment without "low-balling" other candidates?

First of all, the term "lowballing" means to find out what another competitor is offering, and then to intentionally underbid that person simply to compete on the basis of price alone. Not only is lowballing unethical, but it is mighty shortsighted. Clients that are simply looking for the cheapest photographer will always be that way. No matter how hard you work to give them the service they expect, and the images they want, you will ALWAYS, ALWAYS, ALWAYS be at the mercy of someone who comes in and agrees to shoot for 10% less, just as you did to get the work in the first place. You will never be rewarded with loyalty for having done a good job. It will always be about how much you charge. If the goal of your businesses is to grow gradually by working more and charging higher rates as your expertise increases, then these are the kinds of clients to avoid as they will only ever keep your rates depressed.

Now, underbidding another person because your overhead is lower, because you're limiting the usage rights that you are granting, or because you manage costs better than another photographer isn't lowballing, in fact it's just competitive bidding and smart business. What each individual photographer decides to charge for a usage license or an assignment is an individual decision that should be made based upon the photographer's annual overhead and daily cost-of-doing-business, the profit that photographer is trying to earn each year, the experience level of the photographer, the difficulty and/or exclusivity of the assignment or stock image, and finally the benefit being gained by the client from the use of the images. The pricing decision should definitely NOT be made based solely on an antiquated policy of flat "day rates" or on what the publication has paid in the past. Remember that you are the supplier in this equation and have a right to ask for a price that will, at the very least, enable you to cover your costs and to support yourself, your family, and your business, as well as be fairly compensated for the benefit being gained by the client from "renting" your image for their purposes.

While it would be considered price fixing and therefore illegal for a group of photographers to get together and agree to charge $X for $Y usage, or to agree not to shoot for less than $Z, it is not illegal to share historical pricing surveys. Several of these can be found in the form of books and software and you can find links to these products on the Resources page of the EP website under "stock pricing": www.editorialphoto.com/resources . Generally these resources quote low, median, and high prices for various uses, and you should decide where your image fits in that category as a target amount to try to achieve. Another valuable tool, especially for assignment pricing for magazines, is the EP Estimator, found on the EP home page under "business resources" or at: http://www.editorialphoto.com/resources/estimator .

The Estimator uses a formula to suggest prices for assignments based on actual numbers: the circulation of the magazine and the full page, four color ad rate charged by the magazine. Since these are numbers that the magazine industry uses to rate themselves and each other, they are very valid numbers for measuring the benefit gained by the magazine for using our images. In other words, if one magazine with a circulation of 2. 5 million and a reader base of mostly wealthy businesspeople uses that demographic to charge more per page of their advertisers than, say, a magazine with a small circulation of 15,000 snake owners, shouldn't the larger magazine also pay more for the use of an image? After all, they are the ones who have valued their own pages at ten, twenty, or thirty times that of the smaller magazine, shouldn't they reasonably be expected to pay two or three times more for the use of an image?

In order to use any of these tools effectively, you will need to know some information about the magazine, including circulation and ad rate. Many magazines are listed in conjunction with the EP Estimator and you need only look them up there. Otherwise, most magazines publish this information on their websites under the section on "how to advertise with XYZ magazine". You will also need to know the parameters of the usage, including how large an image will run, how many times, will it be used on the website, will it be archived on the website, will it be used to promote the magazine or the story, or will it only be used in context of the article? Be sure to ask questions of your contact so that you may more accurately price the usage -- higher for greater usage, lower for more limited usage. Also, when bidding on an assignment, do not forget all of the associated expenses beyond just film and processing. Any expense that is directly attributable to a client's specific job is a legitimately billable expense. Beyond film & processing, these might include pre-production time, scouting time and mileage, props on hand (whether they're used or not), film and development testing, rental gear, couriers or other shipping charges, tolls, travel or mileage, etc.

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Is it appropriate to call other photographers to find out what they would bid or are bidding for a job?

As stated above, it would be considered price fixing and therefore illegal for a group of photographers to get together and agree to charge $X for Y usage, or to agree not to shoot for less than $Z. We are, after all, independent businesses not employees who would be allowed to bargain collectively. Nevertheless, there are historical pricing surveys in the forms of books and software that will allow you to see what the ballpark has been in the past (see the EP home page for references).

An established photographer with whom you have a relationship should be happy to review an estimate with you before you submit it to your potential client. However, don't expect them to do the work for you. There are many good references on estimating and pricing, both independent materials as well as information available through the various national photography organizations, and you should seek them out when preparing your estimate.

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What about half-day rates?

The subject of half day rates comes up in any discussion of pricing. Many freelancers feel that, especially for editorial work where initial rates are so low anyway, it simply isn't economical to give away a half day. After all, will you really be able to book up that other half day? Not likely. Besides, the shoot generally takes the same amount of planning and pre-production time, travel time, and post production and sort time, so one's overall rate drops dramatically. As discussed in the question on day rates, if a photographer is paid only by the amount of time it takes to do the actual shoot, shouldn't we really just be paid for the 1/125th of second it takes to expose the film? Should a more established, more experienced photographer be penalized because they can get in, set up the shot, and get out more quickly and efficiently than a less experienced shooter? See the questions on day rates and space rates for a discussion of preferred methods of charging for photography.

As for corporate and other areas of photography, where the concept of a day rate isn't quite so ingrained, often explaining it in terms of benefit to the client or agency goes much farther than simply trying to say you can't do a half day because that means you can't work for someone else for a full day. One well-known photographer offers this explanation:

"I don't ever do half days for corporate client or editorial clients, but I explain it especially to my corporate clients in a differentway. Quite simply most corporate clients view the best photographeras the one who can come in and size up the situation and get out of there with a great image fast. If a photographer charges by time, the entire system becomes counter productive for the photographer, theagency, and the client. After all, if you are going to make more moneythe longer you are on location, then the reality is that there's little incentive to work fast. This is the last thing the client actually wants. If I can go on location and size up the scene and get a great image quickly, then I've pleased everyone and I should be compensated more than if I took 14 hours to do something that wasted everyone's time in the process. It makes much more sense to be rewarded for pleasing everyone rather than disappointing everyone. [Therefore,] I bill based on a creative fee against space in my editorial work and in my corporate work. "

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What's wrong with being the cheapest photographer?

There is nothing wrong with being the cheapest photographer, as long as your pricing is based on concrete factors like your own overhead, the number of jobs you can complete in a month or year, and the benefit being gained by the client from the use of your images. But if your business plan is simply to always be the lowest bidder, then you have a problem. If you are expecting clients to always come to you because they know they can get the cheapest price, not because they like your images or appreciate the level of service they receive, then you must always be prepared to offer the lowest price, even when doing so will cost you money. How low will you have to go? If you are always trying to be the low bidder, then you must always be prepared to go to $0 in order to be the lowest, and if your clients know you're prepared to go to $0, why would they ever pay more?

Getting known as the low budget shooter is a guaranteed way to only get low budget jobs, or else to struggle mightily to try to increase your fees down the line. After all, you've already devalued your own work in the eyes of your potential clients by agreeing to compete on price alone, and in effect saying your images aren't worth more than $0, so why should they suddenly pay more than you originally asked for? Like selling royalty free images (see the related question), competing on price alone is only a short-term solution to a long-term problem, that of staying in business for the long haul, and just muddies the very waters you will need to sustain your career in the future.

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Isn't some work, at any price, better than no work at all?

The short answer is, not usually. But the fact is, that deals that don't work for some of us, might seem attractive for others. As emerging photographers know all to well, you can't get published until you've been published, so that first big tearsheet really seems like a plus. To those who are working regularly, yet another tearsheet is rarely seen as a real bonus in and of itself, (how many tearsheets do you really need anyway?) while to those just starting out, that tearsheet seems to add value to the transaction and makes it worthwhile to consider. Where this near-future thinking falls done is in forgetting that the goal of getting tearsheets, experience, and exposure, is to be able to make a living doing what we love to do, in the long term. After all, you can't spend exposure or experience. But by "pissing in our own stream" so to speak, just to get the experience in the first place, we've poisoned the waters for when we do finally have the exposure and the experience to work regularly and ask for better rates.

For instance, if on our way up the ladder, you've proven to every Art Director and PE that there will always continue to be eager, emerging photographers who are ready to do the shoot for $400 and give up all rights, then what do you think happens when you try to ask for more money? You've already proven to them that you, or someone like you, will do the job for $400, so why should they pay more? In fact, why shouldn't they offer $350, $300, or even $175, just to see who will bite? And if $175, then why not just offer tearsheets and brag about the good exposure? Where does it end? In reality, there are always people willing to shoot for next to nothing, just for the exposure or the thrill of seeing their name in print. As businesspeople who are trying to earn a legitimate living doing what we love to do, we cannot hope to compete with this crop of photographers, and we shouldn't try. But we also cannot allow other photographers who generally want to be in business for the long term to operate under the fantasies either that this rate will enable them to make a living in the future, or that they will be able to charge more for the same services later. One need only to look at the artificial concept of a "day rate" that has remained virtually unchanged across the board for twenty years, to see that this is true -- since photographers accepted it and never demanded more, it never changed. The goal of exposure is staying in business in the future, but if we work for terms now that won't allow us to be in business later, then we're trampling on our dream right from the start.

Also, do not forget the lost opportunity cost of not making marketing phone calls, not shooting new portfolio work, or not meeting with prospective clients because you're shooting that $400, $300, or "film-and-processing-and-a-free-subscription" job. In this instance, no paid work might be better than low-budget work. After all no "paid" work doesn't mean no "work". As for established shooters who argue, "well, I pay my bills with corporate and advertising gigs and I do the editorial for the exposure," then I would still argue that your time is better spent marketing and selling your $2500/day services, than working for a $450 fee that works out to barely $20/hour once you figure in the post production time. What are the lost opportunity costs of not being available to speak with a potential client, of missing that critical email, or of not shooting new work to keep that advertising portfolio cutting edge, because you're out shooting for $400?

The reality is that we all have different needs at different points in our careers. To the more established photographers, those needs are generally financial; but to the emerging photographers, those needs are generally about exposure. There's nothing wrong with wanting exposure, but the problem comes when we sacrifice our long-term viability for short-term exposure. Likewise, different clients have different needs: for some it will ALWAYS be about money, while others are willing to pay a higher price for better images, better service, and more security. The goal is to take into account both our short and long term needs, and then to weigh not only the opportunity to get published, but also the costs involved with doing so. No opportunity is free. As businesspeople, we must always weigh the benefit of an opportunity compared to all of its costs, tangible and intangible, current and future. And finally, because we all have different needs and different costs, we must weigh the benefit being gained by the client as measured in circulation and ad rate, as that is the only constant factor. Only then can we decide if this is a good deal for us, as well as for our client, at this time.

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What's wrong with shooting on spec?

Shooting on "spec" (or speculative) means to shoot to a client's specifications without the guaranteed payment of an assignment. It can be a tempting opportunity, especially when first starting out, that comes from speaking with an Art Director who mentions, for instance, that they have a story coming up in your area. While they don't have money for an assignment, continues the AD, they'll be looking for photos of X, Y, and Z and they'd like to see your stuff. Often, the AD will mention that these shots will probably be great stock shots for you to have anyway in an attempt to convince you to go shoot them. If this is true, and the images really are good, generic, saleable stock images, then by all means, go build your stock library and submit some images. But be careful. Do not let the client dictate what it is they are looking for to the extent that the images become too specific to be of any future value. For instance, a recent "stock" request mentioned, "There's a great overlook of the James River about 3-4 miles from the Balcony Falls Trailhead. A road does follow the River in some spots, but there's one bend that the road veers more north, making it possible to have a nice wilderness-like photo. " This sounds pretty specific and more like directions that should be given in an assignment. After all, when else will you ever have the chance to license an image from 3-4 miles down the Balcony Falls Trail, overlooking the James River, showing only a wilderness view, not the road that also follows the river?

The problems with shooting on spec are many. First, you're the only one guaranteed to be laying out money for expenses like film and processing, travel, road meals, packaging, and FedEx, not to mention the time involved to travel, hike, shoot, return, visit the lab, sort, label, package, and re-file the returned images. You're by no means guaranteed to make the sale and if you think that they're going to just sit around and wait on you to submit stuff, you're wrong. If they wanted that, they'd give out an assignment. They'll also be calling other eager shooters and probably combing stock libraries as well, so the chances of yours being the only images they'll see are slim at best.

Second, even if you do make the sale, you must first cover all of your own expenses, leaving little money left to pay for your time. In contrast, if hired for an assignment, your client should pick up the expenses of the trip, the film and processing costs, and then pay you a fee on top of that. Many a spec shooter has made a sale, only to discover that it ended up costing them money, just for the privilege of being published. Flattering, but not a very smart way to try to stay in business. Remember, we should never be so desperate or so vain to simply get published that we forget that the goal of getting published is to make a living.

Finally, shooting on spec erodes the number of assignments available by once again proving to an AD that there will always be a photographer more desperate to get published than to make a living.

As tempting as spec shooting may sound, no opportunity is free. As businesspeople, we must always weigh the benefit of an opportunity compared to all of its costs, tangible and intangible, current and future, and only then can we decide if this is a good deal for us at this time. For instance, the potential benefits of shooting on spec are: POSSIBLE publication; POSSIBLE income of a few hundred dollars; POSSIBLY beginning a relationship with a new client; and finally building stock that has only POSSIBLE future value. The costs are: DEFINITE commitment of time for travel, shooting, sorting, packaging, and filing; DEFINITE costs for film and processing; DEFINITE costs for gas and a day's travel; DEFINITE costs for packaging and shipping; and DEFINITE erosion of available future assignments. It seems that if you were to take this on, you would be the only one with DEFINITE commitments, while your potential client remains just that -- a POTENTIAL client -- and assumes none of the risk. This doesn't seem like a win-win situation or a smart business decision.

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How can I help justify my rates to a potential client who's shopping around?

First, if you don't believe in the value of your own work and vision, then you will have a very difficult time convincing someone else to believe in it when you're asking for higher fees. All creatives deal with this insecurity, perhaps in part because our art is an extension of ourselves. Yet to a client, the transaction is generally only about business. If you have doubts about the value of your work, you must start addressing them before the phone rings. Remember, this is business, not personal. Confidence and lack of fear are essential. If you operate with an overwhelming sense of fear that this could be the last time the phone rings, that this is The Big Opportunity and you must take the job no matter what, then what kind of ground are you standing on? It will be impossible to see the situation clearly and you will focus only on price and not the client's needs, not your abilities, not your business, and not your own needs.

Second, to be sure you're in the right ballpark, there are software packages and other guides to help you estimate and price assignments. These are referenced in the question on pricing assignments, and links to many of them can be found on the EP Resources page: www.editorialphoto.com/resources. You can also certainly ask colleagues whose opinion you value, but you need to value your own work first.

So, once you accept that your work has value, what do you do when the phone rings?It is all about communication. Before you get to price, ask them questions about their needs. What is the story about? When will it run? How soon do they need the image? How many images do they anticipate using and how large? Do they need web rights or marketing and promotional rights as well? Do not emphasize price, emphasize their needs and how you and your vision are exactly what they are looking for. Think about it, why would you buy one kind of coffee over another?Pay more for gas? Because the experience of drinking that coffee is heavenly. Because that other type of gas will be better in the long run for your car. So explain to your client how you and your images will be better for the assignment than your competition because____________ and _____________ and _____________. Develop an awareness of how your service and photography compare to others' BEFORE the next phone call. Here are some ideas:Your work fits their needs perfectly (you understand their needs because you asked and LISTENED). You understand the story and can create an image that will fit. You know how to handle difficult situations and/ or subjects on shoots. Subject hates getting their picture taken? Not a problem, you've been through this before and nothing will stop you from getting the best possible photograph. Etc. , etc. , etc.

When it is time to discuss the numbers, first, if you're in the "poor starving artist" mode, change the channel. Again, this call is not personal, it's about a business transaction. The client is treating it as such and so should you. Next, don't just quote a price off the cuff. Armed with the information you have on the type of image they want, and when, where, and how large it will be used, ask if you can call the client back in a few minutes. Go to your reference materials and look up the relevant info. Settle on two numbers: the amount you hope to achieve and the least amount for which you will settle. Write these numbers down in front of you. Call the client back and begin to negotiate (see the questions on negotiating tips, cheapest photographer, working at any price, and knowing how much to charge). Be true to your numbers and don't be afraid to say NO to the deal. Remember, you set that number for a reason. Don't be so afraid of losing the sale that you just settle for anything at all. Know your bottom line and the importance of paying yourself first. The bigger goal here is to make a living, not to just make a $35 sale. If you run around doing jobs just to make ends meet, how will your business ever progress? You will be like a hamster caught in the spinning wheel - is this what you envision for yourself? There are only so many hours in the day, so how do you structure your days so that you meet your short and long-term goals? It's probably not by making low budget sales. have the confidence to tick with your numbers.

If you're competing with other cheaper photographers, then ask your client questions that emphasize the level of service you provide, as well as the caliber and uniqueness of your images (see negotiating tips): does your low-budget photographer have the experience and professionalism to pull off a shoot with an important subject? If the subject is 25 minutes late, yet still has to leave at the scheduled time, can the cheap shooter still get a good image in 5 minutes? If the cheap guy shows up but their cheap gear craps out, will they have a back-up? If they set down their cheap camera bag and the subject trips over it and breaks a not-so-cheap wrist, will the cheap guy have the liability insurance to cover the lawsuit that will inevitably ensue? And finally, if the cheap guy can still do all this for that cheap fee, does the client expect to be able to call that shooter again when they need another image next year? Probably not, because all these things cost money and cheap rates just aren't going to keep that low-budget shooter in business very long.

Finally, when you get the work, be sure you follow through on your sales talk. Not only must the images shine, you must also deliver the work in the most professional, polished way possible. Your delivery memo, invoice, packaging and everything about you from start to finish communicates what you sold them on initially. Keep everything polite, professional, and polished, and deliver on what you promised, and you will likely garner a return client.

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How can I convince clients that licensing an image, rather than buying it outright, is in their best interest?

Because by law we own the rights to our images, freelancers are entitled to charge for every use. In fact, we rely on this source of future income to help balance the cyclical nature of our business, to provide for our families should we become unable to work, and to provide a source of income even into our retirement years as we do not have access to more traditional pension and 401(k) programs. If a client wishes to own the images outright, we must charge a fee commensurate not only with all of the potential benefits that client might receive, but we must be compensated for all of the other potential lost revenue from that image over its entire life. Does the client really need the right to use the image to advertise their lawn care product in the desert regions of the world? Probably not, so therefore they don't need "all rights" or even "worldwide rights". The desire for "all rights" or for owning an image is usually one of convenience. If you can help the client to define their needs more specifically by asking questions and listening to the answers, you can probably save them money and retain the ownership of your image.

In addition to giving your client a better price, explain that licensing also allows you, rather than the client, to assume the risk of future income. For instance, if your client simply wants the convenience of being able to use the image whenever and wherever they choose, and so they pay you many thousands of dollars for that right, what is their cost per usage if they only end up using it once or twice? Instead, by licensing them a limited, specific set of uses for a lesser fee, you are willing to take on the risk that the image will make money in the future. They do not have to assume the risk of laying out money up front, only to see if they can get their money's worth down the road. Be sure to explain to them that the image will always be available in the future should they decide they need additional uses beyond what they originally licensed.

Also, licensing agreements are good for the photo buying community in general as they keep the pool of available stock large. If every client owned the rights to every image, then there would be little in the way of existing images to choose from when time or budgets didn't permit creation of original images.

And finally, some clients understand the problem of liability exposure. Even with "iron-clad" agreements in the form of a model release and copyright transfer, the reality is that anybody can sue anyone for anything these days. Liability even extends to you as the photographer if your client who now owns your image uses it in a way that pisses someone else off. Likely you could get out of the way of such a tactic, but at what cost of time and money? Maintaining control of your images by licensing only limited rights is the surest way of preventing this.

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What are some negotiating tips?

  • Start with two numbers: target amount and minimum amount. Write them down so you can see them during the process. Stick with them, these are your goals in the process.
  • Ask questions and LISTEN to the answers -- chances are they're giving you the information you need to reach a successful conclusion.
  • Never give up something without getting something in return: if you're willing to make a concession, state it plainly so that the other party is aware you're doing so and be prepared to ask for one in return.
  • Don't ever assume in your head they won't go for something -- ask them!
  • Develop and offer options -- bundle rights into a "package deal" for a lower price than if purchased separately, for instance, or agree to extend an embargo period in exchange for a higher initial fee. But never give something up without getting something in return.
  • Justify your price based on your specific experience and abilities. Reference similar assignments or previous clients to bolster this claim.
  • Remind the client that your price pays for not just an image, but for quality of service as well. This includes completing the assignment on time and within budget, planning for contingencies, anticipating needs, and being available when the client needs you (see question on justifying your fees to a client). Again, use specific examples to bolster this claim if possible.
  • Empathize with your client -- show that you understand their needs by restating them and then calmly and plainly restate yours. Ask them to meet you in the middle.
  • Don't be afraid to compromise, but don't be afraid to walk away. The most powerful negotiating tool is the confidence and the willingness to say NO which comes from confidence in yourself and your work, a successful, diversified business, and a thorough grasp of your short and long term financial needs.

These are just a few suggestions. There are dozens of books on negotiating strategies available in the business and self-help sections of bookstores and libraries, as well as many websites with information. For starters, try the Small Business Administration at: www.sba.gov and move on from there.

Finally, remember that there is no right answer or "perfect" amount. Every photographer has different needs and so ideas of what is fair will differ considerably. But remember that this is business, not personal, and you won't get what you feel is fair unless you're prepared to negotiate it. This doesn't make you or your client a bad person, greedy, or hard-hearted, it just makes you active participants in a business relationship. You may say, "But I just want to shoot!". Still, you have chosen to be in charge of a business - your own business - and these are skills you must learn sooner or later to prosper. Why not start learning, and start benefiting, sooner rather than later? In the words of a famous photographer, "I've never been paid more than I asked for. "

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What do I tell magazines who want to perpetually re-use images from an assignment that they originally paid for?

Put this in terms of their business model. If it's a magazine, ask them what would happen if advertisers could pay a one-time fee and advertise over and over again. Would the magazine be able to afloat? Would they keep their job? Can they think of any other product or business for which you pay a one-time fee and you can get a perpetual "refill"? Remember, we provide a service to create a product, we do not provide a product. The service is consumable (it cannot be resold -- once the time is gone, it is gone forever), but the product is not, it is re-usable. When a client pays for your creative and technical services, they also get the fruits of that service, the product (the images), to use for whatever project they have specified. That does not entitle them to consume the product entirely as well.

For example, imagine hiring a band to play at your wedding reception. You have heard them in local clubs and you like their style, so you ask them to play (the service) a mix of favorite cover songs as well as some of their own music (the product). In fact, you ask them to compose a new song for your "first dance" (original product). You wouldn't expect them to never play that song again would you? You wouldn't expect them to never play ANY of those songs ever again would you? No, of course not. You are paying for their creative and performing services for a short period of time, you are not paying to control the creative product. Original photography is no different -- it is the product that results from the service the client is paying for. All of our clients understand these arrangements and use them in their everyday lives. Movie rentals, cell phones, pay-per-view TV, computer software, music CD's, video games, and internet connections are all services that we pay for that result in a product that we are entitled to consume, but only in specific, limited ways.

Another point to consider making is budgetary. Ask if their budget is based on what was spent the year prior (many are, at least partially). If they aren't paying for re-use, then when budgets are made for the following year, they will have short changed themselves and may have a hard time meeting expectations in the following year. No one appreciates this scenario, so encourage them to look at their long-term needs.

And finally, are you just hearing this request now that the photo has already run? Assuming you sent thorough and complete paperwork with your film (see www.editorialphoto.com/ep/forms/ (EP Subscription required) for examples and the question regarding the paper trail for a discussion), then you can also point out that the fee was for only for the usage described in your invoice and delivery memo.

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What is a "buyout"?

The biggest problem here is that there is no real legal word known as "buyout", so both parties need to be clear on what they are expecting. Copyright is a collection of personal property rights granted by the U. S Copyright Act. These rights may be transferred in part or in whole. The rights can be transferred as exclusive or nonexclusive. The transfer of copyright as an exclusive right is not valid unless it is in writing and signed by both parties as determined by the 1989 U. S Supreme Court case: Community for Creative Non-Violence v. Reid.

While a temporary transfer of copyright rights is usually done as a licensing agreement, a permanent assignment of copyright is like the sale of personal property. The original copyright owner sells the rights to a third party, and thus can no longer exercise control over how the third party uses the material. This can produce confusion when terminology is not clear with the artist and the licensee. One example is the use of the phrase "buyout". To a photographer or illustrator the word buyout typically means a license for unlimited usage, with the artist retaining the copyright. On the contrary, to many publishers and ad agencies, "buyout" means that they are buying out all the rights, including the copyright. In contrast, a licensing agreement is an agreement where the copyright owner maintains his or her ownership of the rights involved, but allows a third party to exercise some or all of those rights, often temporarily and/or in limited ways.

For examples of licensing agreements and other business forms, see: www.editorialphoto.com/ep/forms/ (EP Membership required). For suggestions on how to price usage, see the question on knowing what to charge, the EP estimator at:www.editorialphoto.com/resources/estimator, and the list of stock pricing resources on the EP home page. For definitions of other terms, see also the glossary of business terms at:www.editorialphoto.com/resources/glossary.asp

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What are some strategies for building a strong, viable long-term business?

Probably the single most important piece of advice is to diversify your client base and your income sources. This is much easier to do when you're first starting out than once you've been established for a while. Diversifying frees you from having to say yes to a bad deal when it is presented by a client who is your single largest source of income. It also frees you from having to accept bad deals from any single source of revenue, like magazines for instance, when they begin to lower rates and claim more rights. Having a diversified client base allows you to say no to a bad deal and having the ability, the willingness, and the courage to walk away form a bad deal allows you to negotiate from a position of strength. There is no stronger position than knowing that your client needs you more than you need them. It frees you to dictate your own terms and then decide how much you want to compromise -- if they want your images, they must meet your terms, or close to them.

Along the same lines as negotiating from a position of strength, is to learn some negotiating skills. When faced with a less strong position from which to negotiate, having the skills to maximize your position are essential. Purchase a book or take a class, and don't be afraid to ask for what you and your business need to stay healthy and viable.

Also, remember that photography is ultimately a service business. By treating your clients with respect, by anticipating their needs, and by providing them with a valuable product at a reasonable price, you will begin to build long-term relationships (at least out of the ones that aren't always strictly about price). Remember, "there's no better advertising than a satisfied customer. " Besides, It's far less expensive to cultivate your existing client base, and do more work for fewer clients, than it is to continually seek new, one-time-only clients. When you do an additional job or stock sale for an existing client, you don't have to repeat preliminary steps such as finding the client, making initial contact, showing your work, defining their needs, and building their trust because you're working upon a foundation that's already been laid. So, repeat sales are less expensive to obtain than new sales. You'll need to continue to seek new clients, of course, just don't overlook the existing ones. The Small Business Administration's website has other great tips on building long-term relationships in the "Marketing" area of their website:www.sba.gov/smallbusinessplanner/manage/marketandprice. See also the questions above on being the cheapest photographer, on pricing assignments and lowballing, on negotiating, and on justifying your fees to a client.

Remember that you will always need money and you will always have bills. If you also always have a fear of losing a job because you need the money, then you will never be able to negotiate from a position of strength and command a higher fee.

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How do I find an attorney?

These recommendations come from EP member Linda Wasson who is not a lawyer herself but who has worked in the field for many years, in addition to her photography.

Finding an intellectual property (IP) lawyer should be done with care and diligence, as these are your rights, property, and income that you are seeking to protect. Ask plenty of questions, such as:

How long have they been specializing in IP?

Do they represent any other photographers or, if not, what sort of artists do they represent?

Do their cases represent mostly plaintiffs, defendants, both? To about what percentage - i. e. , 60/40, 50-50, mostly defendants, mostly plaintiffs?

Are they the litigator for the firm? If not, who is, and how many litigators are there?

What sort of cases have been litigated recently? What was the outcome?

Any lawyer who is reputable will be more than happy to answer the above questions, and will probably even appreciate it as an informed client is one that is easier to work for as they don't ask trivial questions and they understand the importance of patience in the judicial process. Have your books and records in order - a sad story won't do much good without hard evidence to back it up.

Next, be clear on your motives. Are you out for lost income, or revenge? Set your priorities and think as rationally as possible. Again, a good lawyer will appreciate these things. Remember that the absolutely best attorney will *always* do a good letter first and foremost and hopefully avoid costly litigation, which is a win/win situation (for both you and the attorney). An attorney that says, "by George, let's sue them," is jumping the gun, running up costs and possibly bypassing the negotiation route which can also save feelings in the long run. Remember, an Art Director that recalls you sued her last publication when it wasn't yet to that point (i. e. , things could have still been worked out if you'd been a little more patient) may hesitate to use you again at a new place of employment in the future.

As for attorneys taking a case "on contingency", especially if you've never worked with them before, that's like someone asking you to do a shoot, incur expenses, bring us the photos, and then *maybe* we might pay you for them, and we're not sure about how much we will pay. Not very palatable, is it? Lawyers might seem a bit hard nosed at times, but that's because they know they can get screwed too, just like photographers. Many attorneys will offer a brief consultation free of charge to determine fi you are mutually compatible. Beyond that, expect to pay at least partially up front for their services.

As to where to find an attorney, try:www.martindale.com . It's probably the largest database of attorneys in the world, and you can research their education, background, and expertise. Also, most attorneys and firms now have their own websites. There is also a list of IP attorneys on the EP website at:www.editorialphoto.com/copyright/lawyer.asp . You might also try asking friends and colleagues who have used an IP attorney, or even calling a local law library and asking for a book that lists local attorneys.

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