This post deviates a bit from what I normally write about. This time I’m taking a break from the typical play-by-play account of my recent travels to write instead about something that bothers me.
By the 1990s the Internet had rewritten the way business was done forever. Fast forward a couple of decades, and the Internet looks a lot different after the advent of social media. Once again, new ways of connecting and communicating have impacted every type of business on a global scale. For creatives, the ability to share one’s work with large audiences without going through an agent or producer is incredibly empowering. Never before has an artist been able to self-publish a song, essay, story, painting, photograph, what-have-you, with a single button press – and have their work seen by potentially hundreds of thousands of people within mere days. The appeal for people to share their lives with the world is not hard to understand. Everybody wants to have their fifteen minutes of fame just like Andy Warhol predicted long before home computers existed. Being a photographer, whether an industry-leading pro or a hobbyist, has scarcely ever been more accessible or marketable. Because of this the industry has been redirected from the point of view of both photographer and client alike. In the modern photography market, which is often driven by social media fads, it is more important and difficult than ever to remind yourself of the value of what you create with your camera.
Instagram is a great platform in the way that it connects people on a pretty level playing field. Compared with more legitimate business marketing arenas, large established brands and small merchandise startups have the same opportunities. Of course following affects how visible any post will be, but any user has the same ability to strategize and put in the effort needed to accumulate that audience for themselves. Content creators and content buyers (or users) can meet, communicate, and collaborate completely under the table. People who never really considered themselves content creators are being approached by businesses for a simple share of an image on their accounts, or more. This market saturation has made it easier and easier for consumers of photography to drive its value down to new lows. I spoke to photographer Kayleigh Rust who says one solution is for people to learn from experienced photographers early on in order to know when to detect an unfair agreement. Let’s take a look at a couple of those examples.
As part of my typical routine of attempting to recoup from my most recent tank of gas, I had recently been making cold calls and sending emails to outdoor brands in search of work. Many of the brands I’ve reached out to have wanted to do a “product-for-content” type of arrangement, which is exactly what it sounds like. The product samples that they would send me to photograph are also my compensation for doing the work and sending them the images. I will usually agree to these terms only in exchange for two or three low-res images that the client agrees to only use for social media. It doesn’t require me to spend a lot of time because for that application most people just want “lifestyle” type imagery – snapshot-style candids that I can capture when I’m out on the trail or climbing, and where I don’t have to worry a lot about minute technical quality or lots of editing because of the low resolution requirement. This depends on the value of what I’m being given of course, and it’s important to consider that the retail value of something is not the real value in the hands of the company that sells it. Recently I got a reply to one of my unsolicited emails from an outdoor brand who wanted a bit more. I won’t share names of companies or people, but suffice it to say that this is a pretty major brand that is carried by REI, Backcountry.com, and Moosejaw. In other words, I know they have a good marketing budget and experience working with photographers. They have a strong brand image and an Instagram following that would make the biggest cliché-outdoorsy #wanderlust reposters green with envy. So I was pretty excited initially that they wanted to build a relationship with me. Their terms did not exactly make me comfortable, however. They were interested in trading their products for my images, and, well, let me share some of the most jarring sections from the agreement they wanted me to sign.
“The Submitted Photographs are being provided for the sole and exclusive use of [company] and [company] shall be deemed to be the sole and exclusive owner of all right, title and interest therein, including all copyright and proprietary rights relating thereto.”
They wanted me to submit to them 10 high-resolution images, each with differentiated scenery, models, and composure. Notice they demanded not just exclusive rights, but all ownership and copyright privilege. There is one instance when that is even remotely acceptable to agree to, and I will get into that further down. And it gets better. For them, I mean:
“[company] has the right to use or not use any of the Submitted Photographs and to use, reproduce, re-use, alter, modify, edit or change any of the Submitted Photographs as it sees fit for any purpose and in any media now known or hereafter devised worldwide.”
This essentially means that they could use my images for anything they want. From posting them on Instagram, to printing them on a mailer, to making them a major part of their branding on a company-wide scale. They could run a million copies of my photo in a magazine ad and I’d never see a cent. Oh yeah, and the “compensation” they wanted to send me was about $100 worth of merchandise (retail). Hiring a legitimate commercial photographer to do that much work and then grant the usage rights that they wanted would have cost them close to $10,000. I went back and forth with their marketing manager three times to revise the agreement to be fair. I never actually asked for real compensation, but instead insisted on the amount and type of work I was willing to do in exchange for what they had already offered me. Each time they feigned understanding and sympathy, only to send me a reworded agreement a week later that said all the same things in slightly different language. Obviously I was not keen to accept these terms and I eventually told them so, but let’s get into it a bit more. After all, the point of this post is cast light on how people who don’t know any better can get sucked into this sort of thing. Also, I wanted to throw this last tidbit in here because it made me chuckle, in a sardonic way.
“Except where prohibited by [company], Photographer may use the Submitted Photographs for their own individual portfolio or their individual social media activity.”
Gee, thanks for giving me permission to publish my own work on my personal website! So generous!
Kayleigh told me a story similar to my own about being approached by a company wanting to exchange some clothing for images. When she replied to say she could only give them web-quality images, she was unfollowed by them on her social media accounts and never got a response. She runs into a lot of issues with receiving credit even for simple social media shares. “I think there is a major disconnect with giving proper credit and a big brand like that should know better,” she tells me. Like a lot of photographers, she’s fed up with what she calls “sloppy social media management.” Paid image licensing for social media use is not unheard of in the realm of commercial photography, but most social media platforms are built for easy sharing of content. This is all fine when a regular individual user shares something from another account, but it’s another thing entirely for a business to do so. This is because businesses, unlike private users, use social media for one reason and one reason only: as a marketing tool to promote themselves and make money. Businesses aren’t on Instagram to keep up to date with their friends. If the content is used by a business as promotional material, then by definition it is a form of commercial use and the original poster of the content should be entitled to some compensation. Companies that don’t even bother to credit a photographer in a repost of their photo are especially devious. The unfortunate reality is that most platforms have little to no safeguarding features for this kind of thing. Social media is a free-for-all where photographers and content creators must fend for themselves and police their own work. For now it is the price we pay for easy connectivity and exposure.
Another friend of mine, Nick Roush, is optimistic. “There’s definitely still a place for real photographers that can deliver powerful images consistently or can deliver an image that conveys a specific mood or tells a story,” he says. He tells me at this point in his career, he is focusing on “searching for clients that understand why I charge what I charge.” His mantra is not to bother with clients who question his rates, because the moment they do, they’ve established that they don’t see value in his work. He feels undervalued doing any type of product-for-content exchange. If a company sincerely wants to work with you, they will offer you more than their own merchandise or the infamous “it will be great exposure.”
The most troubling thing about these ordeals is not the disappointment of learning a potential client just wanted major photography work done for free, but the realization that someone somewhere would eventually fall for their tactics. After all, the only reason such a major company would even dare to approach a photographer with such ridiculous terms in the first place is because somebody else had set the precedent for them. At some point in the past somebody had agreed to this, and then the company realized they could get away with it by using Instagram to reach out to poor chumps with a decent eye for photography and offering them a “partnership.” This isn’t entirely the fault of social media, creatives without business experience have always been hoodwinked out of their work. And there have always been people ready and willing to undercut those with more experience, that’s just business. As Mark Christy of Camptrend puts it, “If the exchange doesn’t seem fair then we just won’t take it. I think it’s not Instagram’s fault really, I think photographers who give their work away for way under market value are the ones who hurt professional photographers as a whole.” The unfortunate reality for those of us trying to eke out a living with this is that there are now armies of people eager to do this and they are connecting with companies on these platforms in huge numbers. This makes it harder and harder for me to be able to ask for fair compensation in these situations. And it isn’t just about people like me being devalued, it’s wrong for companies to take advantage of anyone, whether hobbyist or pro or somewhere in between. Let’s get into that in more detail for those who have found themselves in a similar situation.
It might feel exciting at first to be noticed by a brand who is interested in sharing your work, but it is important to draw the line somewhere with what you will do for free. When you set the bar low for yourself early on in your career, your clients will always come back with the same expectation. Worse, they will project that expectation into future dealings with other photographers. It is very hard to break out of the cycle of being unpaid or underpaid once you have set that example for yourself. Remember, it doesn’t matter if you’re shooting with an iPhone or a 1D X Mark II. It doesn’t matter if you’re a complete novice or Annie Leibovitz. The instant you press that button and create a photograph, you own all exclusive rights and copyrights to it. It is your own intellectual property, just the same as if you had written a song or filed a patent for an invention. The only case in which that differs, as mentioned above, would be in a “works for hire” situation. This is a legal phrase that is used when some type of production is the direct output of a full-time hired employee, or in my case, when an outdoor brand wants to take advantage of me. It dictates that full ownership belongs to the employer rather than the creator. For example floor plans drawn by a drafter working for an architecture firm are the property of the firm and not the drafter. Photos of school children taken by a full time photographer working for a chain portrait studio like Lifetouch or J.C. Penney are not the property of the photographer but of the company itself. There are very few other exceptions for a photographer. Another I can think of might be shooting something for a major entity that is highly sensitive or classified. Nevertheless when you see that phrase in an agreement for freelance work, as I did, it should raise a red flag bigger than a military parade in Pyongyang. So what is the difference between exclusive rights and copyright? Owning the copyright to something means it is your intellectual property. Nobody can take that from you unless you willingly relinquish it, or are tricked out of it by legal jargon. This is the highest and least restrictive level of usage privileges. When you own the copyright to something you can do absolutely whatever you want with that property, and you have the right to enforce other entities’ infringements on your privilege. Having exclusive rights to something comes next in the hierarchy. When you grant exclusive rights to an image to a client, they do not own the copyright per se. You are entering into an agreement to effectively allow them to manage the copyright, usually for a predetermined period of time. In other words you still own the image but are agreeing not to distribute it, publish it, or otherwise commercialize it outside of that contract. From an image licensing standpoint this is extremely costly to the client compared to a royalty-free license because the photographer has to make up for shutting away that image during the terms of the agreement. Usually a company will only pursue this type of license when they want to use the photo for a central part of their brand image and they don’t want it seen anywhere else, like on a competitor’s website or advertising media. Once again, when somebody wants exclusive rights to an image in exchange for products, red flag. If you are unsure of where to begin discussing the value of your work, there is a handy and concise article on Format.com that explains fair practices for image licensing. I also recommend familiarizing yourself with the Getty Images price calculator. Getty pretty much dominates the high-end stock imagery market and their pricing matrix is the closest thing to an industry standard that I know. Keep in mind that commercial photography licensing is a business, and the value is dictated by the market you are selling in. If you’ve never sold your work before, use this tool merely as a starting point. Your client may not be willing to pay Getty prices, but that doesn’t mean you should give it away for nothing. So never be afraid to turn down an offer that you know isn’t right.