Buy it out, Baby!

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“The Post-Production 101”

PART B.2: Buy It Out, Baby!

Your photos have been shot and edited so now you can’t wait to hold them in your hands or more probably on your device and make them your fashion campaign or content for marketing? Like you have hopefully read in the last article about copyright, to do so you’ll need a license by the photographer who is the legal copyright holder for their lifetime and a couple of decades after their death. Likely, you have talked or better negotiated the conditions and fees for the usage beforehand, however in this article, you can learn more about buyouts in general for all the shoots that are lying ahead as well as for those in the past where you’re not sure about the circumstances.

Define the Dimensions of the License

With your first enquiry to the photographer, you may naturally have told them for which purpose the photos are planned to be used. Oftentimes, however, vague indications are given to the photographer at first and so they’re likely to reply to those by asking many – admittedly annoying – questions about this matter. So if this happens to you, please be patient and take it as an opportunity to consider your project in more detail. After all, they don’t mean any harm if they are interested to know more – on the contrary, they are hoping to meet your expectations and offer you an appropriate price for their work. You can find more information on how to define the right mediums for your campaign in Tip No. 2. But to be more specific, regarding the license, you won’t only need to be able to list all digital and/or print platforms but also which countries or regions you are addressing the campaign to, and for how long exactly. 

Thus, when it comes to print, for example, details about the circulation and topicality would be crucial to know for the licensor as well as the objective of the usage. If your shoot is about a look book or catalogue, for example, and it may be distributed at your stores, fashion shows, and exhibitions as well as sent to retailers, showrooms, and agencies who are potential buyers of your collection, the photo material represents a major tool for your sales. If you plan to place ads in magazines or elsewhere by using the photos, this also needs to be known and paid for. A different example would be the exclusive use as press material or for editorial purposes where you’re not actively promoting your brand. In this case, licenses are usually less costly. Campaign photos that are to be stuck to billboards all over the place are seen by everyone and potentially winning customers beyond your established clientele, and these ads are usually placed in magazines, greater catalogues, on websites, and throughout social media too which constitutes a broad usage requiring high compensation. But although print is, in general, the pricier option, the good thing about it is the lucidity regarding the location and duration that comes with it, as opposed to online usage where images can be accessed globally even though they were meant for a European audience for instance. 

Nevertheless, in digital currency, the target group and the expected reach that the photos will have are decisive when it comes to the definition of a license. If you sell in or deliver your products to certain countries only, or your brand mainly uses a certain language for communicating through your channels, this can be considered as the spatial limits of your usage too. As for the other perimeter to lay down in the license agreement, the temporality, the dimensions are harder to define for digital usage, especially, when it comes to social media. There, I dare say, it should be more about the amount of time that you’re planning to actively post or share the respective campaign until you move on to the next marketing actions which are automatically causing the older images to drop lower and lower in your feeds. In this view, of course, outdated posts are likely to stay online for longer than your brand is promoting them and this is why, with some photographers, social media is, possibly, listed as a digital usage separate from the buyout for any websites.

On the other hand, in your online shops and on related websites, images can function as non-verbal calls-to-action, namely convincing visitors to buy your products of yours right away. This being said, you can imagine that you’ll need a buyout that covers the entire duration that the photographs are up on your sites, even if, on the front page, you have started to advertise more recent products. Conversely, you’ll need to take down the images as soon as the license has expired, or negotiate a renewal of it with the copyright holder.

How Much Does the Buyout Cost?

When it comes to pricing, photographers are charging very differently depending on the type of trade they are in, their own work experience, the quality of the equipment they use for your project, the complexity of your commission, and possibly your standing in the market. It is, therefore, not really possible to give you tangible numbers here. What is important to know, though, is what the calculation of their fees is based on, and how the prices of the buyouts are inferred. Usually, the whole structure of an offer begins with the daily rate someone is charging for a photoshoot. From this number, many other factors are derived, like e.g. the number of photos that can be realised within a day and how much it will cost to edit them or further images. Concerning the buyout, this is the clue: it will be adding a certain percentage of the daily rate on top of your invoice and this is usually determined between 50–600%. This being said, you may be wondering how this span can be so incredibly wide, yet, considering the above types there are in usage, it should explain this a little. There are just so many options. This means that when you’re asking a photographer about their daily rates and they reply with a number, you should be aware of the fact that this is a sum far below the full cost you’ll have to expect at the end. However, if you’re aware of the way that you’re going to use the photos already, you can possibly assess the total price a little bit. In other words, the daily rate is relative to the fees for the usage and with a little experience, you’ll be able to develop a feeling of which prices are going to be in your budget for one project or another.

In my experience, as confusing and complicated as it may sound at first, breaking down all the items in an offer or invoice is giving you full transparency about what you’re actually paying for and helping you to understand all the steps in the process. By this, you have a far greater say in what you really need and want with a clear chance to communicate and adjust parts of the plan in time. Although we are used to flat prices when shopping in our daily lives if we knew how much of what we pay is spent on production, transport, profit, taxes, or other things we would likely reconsider our personal buying decisions. Thus, demanding or accepting flat prices by photographers raises the risk of ending up at cross purposes and leaving everyone frustrated or unsatisfied. By contrast, when you see all items listed neatly underneath each other you can find out whether you agree with all parts of the offer or wish to negotiate parts of them. After all, most photographers are open to talk about their prices rather than never hear from you again.

Get Permission to Process the Images

Photography and typography (resp. graphic design) seem to be the perfect love affair – they are complementary and simply look great together. In advertising, there rarely is a way around combining photos with logos, slogans, and other graphics – how else would any customer know which brand it is that’s communicating with them? However, typography is wearing the trousers in this relationship. Why so? Because by setting anything on a photograph, whoever does it becomes a processor of the image and they hopefully have a proper permit to do so. Furthermore, publishing the modified work would be another violation of copyrights if its owner didn’t explicitly agree with it. Regarding their photos, by copyright law, it is the photographer who can always decide whether any editing is allowed or not. Given that in the commercial world, apart from photoshopping, further editing is normally required, I suppose, when defining the usage it’s almost needless to say that there’s going to be graphic design. Yet, it’s crucial to name the formalities, like WHAT is going to be done and by whom or which agency. When this information is known it will be worked in the license. Maybe, naming all processors just sounds like another torturous work step for your busy day and you’re secretly wondering who hired who here. But having a sophisticated license agreement, in fact, constitutes a decent degree of safety for yourself as the client. It gives you permission to do business as usual with your marketing partners without facing any later legal troubles, e.g. accusations of copyright infringements that simply resulted from poor communication.

The Question of Giving Credit

To start this paragraph with the viewpoint of a photographer, when it comes to promotion, there’s nothing more effective than the creator’s name next to images they’ve shot, whereas the spread of a work without their name is worth (almost) nothing if not actually harmful. Nevertheless, credit, or the lack of it, has become a major problem since the rise of the internet and social media. Images can get copied and shared easily without many hurdles like getting the permission of the copyright holders, and quite often even without their notice of how much profit is created for others with their pictures. This has brought to life agencies like e.g. Copytrack who police the internet using blockchain technologies, etc. to find pictures of their members’ that are in use without their consent. 

But clearly, when you commission a photographer to shoot your campaigns, this is a different situation involving a proper license agreement between you both. However, you should think about whether or not you are willing to name your business partner because this is another item on the agenda of negotiating the usage. Admittedly, it’s neither very common to mention the photographer’s name on an advertisement poster nor to put them in the caption of a social media campaign when it’s been a paid job. However, leaving out the credit is not implicit in the fact that you paid for their services – on the contrary – if it’s not explicitly part of the deal you always stay obliged to add their name when you use their photo. Consequently, buying out the right to drop it increases the compensation you owe them for the use. Yet, if you gallantly decide to always give them credit this may lower the price of your buyout and make you an even more pleasant business partner.

Let Go of Expired Pictures

A regular license for commercial photography is usually two years tops. With the launches of more and more off-season capsules- and pre-collections plus the concluding requirement for more marketing material, it has even become a standard to buy out images for a couple of months or weeks only. This brings along a constant change on the platforms of the respective brands. Yet, more traditional brands and those who are smaller equally undergo a cycle of permanently replacing their photos along with their product range, although following a slower rhythm. Therefore, a usage right of two years or fewer should be, mostly, sufficient. 

Anyhow, you may yourself have some evergreen products or it might occur that the demand for a collection or a piece has been unexpectedly high and you’d like to keep selling and promoting it a while longer than your photo license would actually allow it. If that’s the case, as mentioned above, the right thing to do is to contact the photographer and ask for a renewal of the license which implies another compensation for the respective duration that you wish. Paying for the images another time might seem a little painful at first, however, this is only fair considering that licensing them for a longer period of time from the start would have cost you more anyway. So, if you’re still not willing to be charged a second time, which is fair enough, there’s no way around saying farewell to the pictures and stopping to use them whatsoever. After all, they technically don’t belong to you anymore. As if letting go of the images on your platforms isn’t hard enough, I’m sorry for breaking to you that you’ll also have to delete and/or destroy them completely. Remember, as described in the last article, even just storing them on a data medium is representing a form of usage.

So to keep you from any troubles, be advised that any further use beyond your license would be literally illegal. It may seem tempting to “hide” old images on an archive page way down below your websites but getting caught with that can have expensive consequences for you respectively your brand. Like I mentioned above, copyrights infringements can be detected by specialised software, or it is the photographers themselves who double-check thoroughly on your sites to see whether you’ve respected the expiration of your license once the day has arrived. In the worst case, when these issues have to be discussed in front of a court a written license agreement and its deadlines speak for themselves. Furthermore, if you put the copyright itself in question, photographers can usually prove that they are the rightful holders by the analysis of the images’ metadata, and in the case of analogue photography, when they have the negative films or further documentation. That being said, you can probably imagine that a penalty is way more costly than re-licensing the images in the first place or even shooting complete new images of your products. 

Excursus: the German Copyright Law

In 2017, the German copyright law was supplemented with a couple of new rules regarding the granting and compensation of usage rights. Basically, the “Gesetz zur verbesserten Durchsetzung des Anspruchs der Urheber und ausübenden Künstler auf angemessene Vergütung und zur Regelung von Fragen der Verlegerbeteiligung” (translation: “law to improve the enforcement of claims by the copyright owner and practising artists of adequate payment and to regulate publishing departments”) protects copyright holder’s from exploitation by their clients. Empowered by these, photographers can claim full disclosure of how their images are used by all parties, not less than annually, and if it turns out they are used beyond the license they can demand an extra fee. 

Another situation when they can charge more is described under §32a UrhG (which you can find here) which is commonly called the “bestseller paragraph”. If the work brings in more to the client than initially estimated and the compensation, therefore, turns out to be in disproportion to the profit made the photographer has the right to have the license agreement adapted to the circumstances, thus to receive a higher fee.

To prevent abuses in the context of so-called “total buyouts” which are granting the client exclusive rights to the images and even prohibit the artist to showcase their own work, since 2017, these can only be obtained for a maximum duration of 10 years. Indeed, this license can be extended by another 10 years, however, only after the first five years have passed. Indirectly, by this law, it is easier for artists to keep track of what the client is doing with their images as well as keeping the number of exclusive buyouts to a minimum as they are rarely fair-paid and oftentimes resulting from the pressure of the market or dependencies.

(Source: https://www.spiritlegal.com/de/aktuelles/details/neues-urhebervertragsrecht.html) 

Conclusion

To repeat my statement from the last tip article, I am not a lawyer, thus, my words cannot be considered as legal advice. These lines, however, are to spell out how important licenses are for all parties in a creative business relationship and why. By reading them, I hope, you can establish a feeling for the variety of buyouts you can ask for and what those prices you may have been wondering about are composed of. Last but not least, immersing in this subject may show you how delicate the matter of usage is, creating awareness, empathy, and a better understanding of creative work in general which – let’s be honest – we all love so much.

Epilogue

If you enjoyed reading this article, or you found it helpful in one way or another, I would love to know (reach out)! You are also welcome to support my work and writing by donating whichever amount this is worth to you. I will thank you with lots of telepathic love and more interesting journal entries. Cheers!

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