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Archive 2016 · Photo license input please (nature photos)

  
 
wonderer
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p.1 #1 · p.1 #1 · Photo license input please (nature photos)


Greetings. Apologies in advance for the long post but I would greatly appreciate your help!

Let me start by saying I am not a pro, but an avid amateur bird and nature photographer. I have been approached by a friend who is developing a business that will include greeting cards. She has asked about using ten or more of my photographs for her products. We have started discussion regarding a licensing agreement.

One of my first stops was here, and then the ASMP website. I have gone through their information extensively. Another resource I reviewed was the blog of Caroline Wright, Photo Attorney (another helpful website). I’m getting a good idea of things to consider and have drafted a license that will be used as the starting point for discussions and negotiations with the prospective licensee.

Among the elements I’ve included are: media, distribution format, placement, image size, quantity of product using each unique image, duration, region, language, exclusivity, license fee, photo alteration, photo credits, and early termination.

Though I’m flattered my friend likes my work, I also know realistically this may not go far (or anywhere). However, I admire her gumption and can honestly envision her product line being successful and growing. So, I’m taking this seriously and hoping maybe I can advance with her business. There’s still a few things I’m wrestling with how to handle and would appreciate your input. I’ll include some of the draft license elements as background and then pose my challenges.

Copyright: Owned by me, along with all rights other than those specifically conveyed in the license.

Media: Print only, other than electronic display at workshops and her online website.

Size: No bigger than 4/12 x 5 ½ inches unless agreed to by both parties.

Quantity (# of cards or journals printed with unique image): Bookmarked for discussion but it needs to be specified. Additional quantities of an individual image could be handled with a new / separate license. [ASIDE: Are print runs of cards typically done in batches of 100, 200, 1,000 or is that entirely up to the client?]

Duration: She has proposed four years on the basis that it will take that long to develop her products and get them into the marketplace.

Exclusivity: She has proposed exclusive commercial use of the licensed images.

License fee: Unlike pros, I don’t have a daily cost of doing business but I hope to profit somewhat commensurate with her business. More about it below.

Payment in-full schedule: Proposed for each milestone of image transfer and use.

Early termination: May be done with 30-day advance notice by either party. Inventory in-stock would be allowed to be sold but no new print runs would be made and electronic images would be removed.

OK, so here’s where I’m struggling:

The exclusive use over a four-year or x-number of printed products (per image) duration is a little troublesome to me on a few counts. The licensee asserts she needs that long to develop and market her product. I totally get that but it’s a long time for me to take several of my images out of contention for any other commercial opportunity. My first thought is if I agree to it, I must be compensated accordingly. However, I also respect that hers is a start-up venture. In our negotiations, I propose to allow the use over that timeframe but clarify that those images are still available to me for exhibition and personal use.

Hand-in-hand with the exclusive use, I’m struggling with the license fee. Again, I appreciate her burden in developing and marketing the products. Obviously, it would give me a platform of exposure and some income for my photography. I have proposed that the license fee be broken into categories: initial acquisition, electronic use as described in the license, first print run, second print run, and subsequent runs (up to the stated quantity). I think this makes it fair for both of us though I’m still struggling with the actual amount to charge in each category.

Any thoughts or input on how to proceed would be greatly appreciated. I have not consulted an attorney. In the back of my mind, I’m certainly considering it. I don’t envision problems down the road that we can’t solve ourselves but I know that’s probably naïve…

Thanks in advance.





Jul 01, 2016 at 12:58 PM
Z_man
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p.1 #2 · p.1 #2 · Photo license input please (nature photos)


Hire a lawyer.


Jul 01, 2016 at 07:17 PM
wonderer
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p.1 #3 · p.1 #3 · Photo license input please (nature photos)


Thanks z_man. I was hoping to avoid that route but it may be better in the long run.

--Kim



Jul 02, 2016 at 08:22 PM
andre2112
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p.1 #4 · p.1 #4 · Photo license input please (nature photos)


Register a copyright for the images if you haven't. It looks like you've done your homework and that's good. I'll agree the exclusive rights proposal probably isn't a good idea. There's no reason to limit yourself other than for her benefit. An attorney will be able to advise both of you whether or not she can copyright her completed card that includes your image to protect her from another card maker using her card if that's her concern.
You say you don't have a cost of doing business fee and that's a bit confusing. Does that mean you are not including attorney fees, income taxes, accountant fees for this income, your personal time, and so on into the price of the license?
Or does that mean you just aren't sure what this will all add up to in order to come up with a base amount.
Your idea of breaking it up into separate fees is a good one, except for the changes depending on first, second, print runs. I think it should stay at a set amount for "x" number of prints. She can always renew as needed. Try to keep it simple. Lawyers aren't cheap, and the more complex the paperwork becomes the more your price and her costs will be.



Jul 03, 2016 at 11:44 AM
wonderer
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p.1 #5 · p.1 #5 · Photo license input please (nature photos)


Thank you, andre! My understanding is this is a somewhat unique specialty of law. I don't think I'm going to find anyone locally, in fact I think I looked through ASMP resources and confirmed no one in my area is listed with them as having this expertise.

My statement about the cost of doing business is because I'm not sure what this will all add up to. I've been doing photography for fun, not for money (though I've spent a little of that ). This is a whole new ballgame for me. And of course, there's nothing yet; we haven't gotten to the point that it's anything but..but it is seeming more complicated and expensive already!

I'm grateful for the advice; thank you. I will certainly rethink my approach and explore attorney options.




Jul 04, 2016 at 04:02 AM
mdude85
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p.1 #6 · p.1 #6 · Photo license input please (nature photos)


I think it would make a little more sense for the use to be exclusive from the date the cards go on sale, rather than exclusive from the date the contract is signed. Your intuition is right that you don't want to take your potentially valuable images out of the market for longer than is absolutely necessary, unless you are compensated fairly.

I'd probably suggest an upfront license fee for each photo, plus a royalty fee, say 3-5% of market price, for each card sold (regardless of what image is on the card). That would seem to be a rather simple and straightforward agreement.

Remember it's going to cost a few hundred dollars each time you consult a lawyer, so I would only hire one if you plan to do substantial business with this individual.



Jul 05, 2016 at 10:45 AM
nolaguy
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p.1 #7 · p.1 #7 · Photo license input please (nature photos)


mdude85 wrote:
I'd probably suggest an upfront license fee for each photo, plus a royalty fee, say 3-5% of market price, for each card sold (regardless of what image is on the card). That would seem to be a rather simple and straightforward agreement.


I haven't read the entire thread so this may have been addressed already but you should ask yourself what the role of your photographs is. Are they decoration?... are they easily replaced?... or are they the primary driver for the card's appeal?

If either of the former, 5% may be fine but if the card's central worth and marketability is based on your photograph, the percentage could reasonably be much higher.





Jul 05, 2016 at 06:13 PM
Daniel Smith
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p.1 #8 · p.1 #8 · Photo license input please (nature photos)


Exclusivity: She has proposed exclusive commercial use of the licensed images.

Nope, not a good idea. Exclusivity for the card market would be fine. She does not need total exclusivity for everything. Assuring that no other card maker will have access should be sufficient.



Jul 06, 2016 at 08:46 AM
wonderer
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p.1 #9 · p.1 #9 · Photo license input please (nature photos)


mdude85 wrote:
I think it would make a little more sense for the use to be exclusive from the date the cards go on sale, rather than exclusive from the date the contract is signed.

I'd probably suggest an upfront license fee for each photo, plus a royalty fee, say 3-5% of market price, for each card sold (regardless of what image is on the card). That would seem to be a rather simple and straightforward agreement.

Remember it's going to cost a few hundred dollars each time you consult a lawyer, so I would only hire one if you plan to
...Show more

mdude85, thanks for your input. Great idea on when to initiate exclusive use. No sense tying the images up longer than necessary though I guess what time comes off the front end will be tacked on the back end, so to speak.

I initially thought about a per card royalty type of arrangement but dismissed it because I don't want my photography time (and enjoyment) taken up with double-checking her sales receipts, etc. Today, we have a very amicable relationship and all looks rosy but realistically, I know things can change. Still, I will give your suggestion some more thought and your point about time being $ with the attorney is certainly something to consider.

Thanks again!

---------------------------------------------

nolaguy wrote:
I haven't read the entire thread so this may have been addressed already but you should ask yourself what the role of your photographs is. Are they decoration?... are they easily replaced?... or are they the primary driver for the card's appeal?

If either of the former, 5% may be fine but if the card's central worth and marketability is based on your photograph, the percentage could reasonably be much higher.



Thanks nolaguy. At this point based on my conversations with the prospective licensee, I would say my photographs are primary drivers, or close to it. That said, I have no illusions of grandeur. I've seen better work all over this forum and I'm sure the stock houses have equally appealing images. My ambition is not to make the most I can from this venture but I would certainly like to make something since profit is part of the motivation for the product line. What I really don't want to do is have so much time go into record-keeping that my limited time for photography is eaten up that way.

I also figure since we're both new at this, we can establish some parameters that are fair, see how it goes with a relatively few number of pictures and then adjust accordingly if it goes any further. If the venture is successful for both of us, I'll certainly revisit your suggestion--thanks.



Jul 06, 2016 at 08:57 AM
wonderer
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p.1 #10 · p.1 #10 · Photo license input please (nature photos)


Daniel Smith wrote:
Exclusivity: She has proposed exclusive commercial use of the licensed images.

Nope, not a good idea. Exclusivity for the card market would be fine. She does not need total exclusivity for everything. Assuring that no other card maker will have access should be sufficient.


Good point; thank you Daniel!



Jul 06, 2016 at 08:58 AM
wonderer
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p.1 #11 · p.1 #11 · Photo license input please (nature photos)


Just wanted to circle back around and thank you all again for your input.

As a result of your suggestions, I modified several aspects of the draft document. I also made some inquiries to attorneys with this type of expertise. Hourly rates ranged from $275 to $375. I haven't taken that step yet but (swallowing hard) will if discussions continue after my meeting with 'the client' this Friday. If they don't, I guess I can say I've learned alot these past couple weeks and would be much more prepared should another inquiry for use come along.

Thanks again!



Jul 12, 2016 at 08:14 AM
gschlact
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p.1 #12 · p.1 #12 · Photo license input please (nature photos)


Wonderer,
I actually believe exclusivity for greeting cards licensing needs to be paid for up front, with time clock starting at time of signing. Otherwise, what happens if you license for an interim period somewhere else that is before her production? I agree exclusivity needs to be for card market only and you might consider allowing 2 or 3 sizes (costco pensatedlater iN pring licensing mentitled below).

Additionally, maybe include some additional small licensing fee component to include not just prints of cards, but any promotional material for said cards, whether print or digital, and which can be extended to he sales channels. You will be directly compensated based on quantity of her prints, so Any advertising will benefit you too.

I also tend to agree that if your photo is primary reason someone selects to buy the card, then the agreement should compensate you per unit printed. I would say 10% of retail would be fair cost. Shops typically sell individual cards for $3-$6, and multipacks that might get as low as $2-$3 each for thE bunch. I would suggest that payment for any print is due immediately, not upon sale. I would set minimum purchase quantities to units of 500. While 25 cents each ($125 per lot) might not sound like much, realize her print cost (18cents), card stock (5cents each), and assembly (2cents) and logistics labor(2cents) and shipping (5cents ) cost all add up, and must not exceed 50% of retail.(all estimate unit costs totalling 5cents without her profit or other supply orbusiness cost) Any higher cost likely would start to inhibit her capabilities.

Lastly, consider an option for digital card costs should she get approached by an online card company. I would suggest you simply say maybe 50/50 on aNY deal, realizing that it was your content, but she drove the exposure to get picked up and noticed.

Guy
gschlact




Jul 13, 2016 at 10:56 PM
wonderer
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p.1 #13 · p.1 #13 · Photo license input please (nature photos)


Thank you gschlact! That's a lot of good input, but unfortunately it may be a little late for this go-round. I just sent a draft to the client with the understanding that we'd look at licensing up to 10 images under whatever agreement we come up with. Of course we have no deal yet but we are meeting tomorrow to discuss the draft.

I'll address some of your input directly below (in a hurry; formatting glitches but my input is in paragraphs below).

gschlact wrote:
Wonderer,
I actually believe exclusivity for greeting cards licensing needs to be paid for up front, with time clock starting at time of signing. Otherwise, what happens if you license for an interim period somewhere else that is before her production? I agree exclusivity needs to be for card market only and you might consider allowing 2 or 3 sizes (costco pensatedlater iN pring licensing mentitled below).

Hmmm, definitely some possibilities to think about. Since I've been doing my work solely as an amateur (no license; no payment) I was caught a little off-guard by this request. It's hard for me
...Show more

Thanks again, Guy. Will keep all your suggestions in mind as / if we move forward.



Jul 14, 2016 at 06:06 AM
wonderer
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p.1 #14 · p.1 #14 · Photo license input please (nature photos)


Well, the client and I met a couple weeks ago. We're getting closer, but we're not quite there yet.

Let me preface my situation by saying I am friends with her and understand that she is in the early stage of developing her business. I appreciate her desire to use my photographs and see potential, though no guarantees, for both of us to grow from this relationship.

Initially I proposed an initial 'acquisition' fee, an electronic usage fee, and production run fees that got increasingly more expensive based on runs of 200 cards. That fee topped out, but stayed in effect once 600 cards were printed. This structure did not limit the number of cards that could be printed within the four-year period of the licensing agreement.

During our meeting the client informed me she envisions runs of 100. She wants a simpler arrangement, with more flexibility since she may print smaller runs when necessary. She didn't like having to keep track / remit payment in the way I initially suggested. Ultimately she wanted to pay a 'flat fee' for unlimited use / production during the four years.

I'm attempting to restructure the payment plan, moving toward her wishes. I can't bring myself to allow unlimited use in a four- (or even a two-) year period. But I do appreciate where she's coming from and think I can simplify somewhat. Using many of your suggestions, I'm now proposing essentially a fixed rate for 500 cards.

Is there a way that I can reasonably verify that her card printing does not exceed our licensing agreement? I really do not want to be going through her books or publishing invoices.

Lastly, would the printer she uses be considered a sub-licensee and if so, how is that dealt with from a licensing perspective?

Thanks in advance for your advice.



Jul 31, 2016 at 03:07 PM
gschlact
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p.1 #15 · p.1 #15 · Photo license input please (nature photos)


Wonderer,
When I have seen these types of cards in gift shop type, or speacialty stores, the photos are always either mounted onto the cardstock, or I served I to a framing sleeve on the card.

Why not just setup an arrangement where she places orders for the photos with you to drop ship to her? If you have your own commerce site, she could order online, pay for it at your predetermined price (printING cost + license cost combined), nice and straight forward. If you don't have a commerce site, she would placeorder with and pay you (again print cost+license cost), and you woukd have your inline service fulfill the print and ship to her. Very simple math, not much effort to fulfill (simple order placement), and will use her saved address for shipping.



Jul 31, 2016 at 05:27 PM
wonderer
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p.1 #16 · p.1 #16 · Photo license input please (nature photos)


Thanks for the response, Guy.

Unless I'm missing something (which is entirely possible) I don't think your straight-forward approach is going to work in this case. The client won't be using the photos directly affixed to the cards. She intends to print the images on card stock of her choice, and she is very picky about that (in a good way).



Jul 31, 2016 at 07:31 PM
c.d.embrey
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p.1 #17 · p.1 #17 · Photo license input please (nature photos)


RDKirk preaches that there is no such thing as a free lunch. I preach that there is no such thing as a magic bullet.

Your problem is that your client is a friend. She wants it for next to nothing, because she is your friend. You don't trust her, and are clueless about how this is done in the real world.

What you need is a relationship with a Prepress Company and a High End Printer.

A prepress shop prepares your files for printing—color correction, slight touch ups, etc and liaises with the printer. The printer will do test prints on the exact card stock your client has requested, before doing the print run.

I have a friend who does this type of work. He gets an additional discount, from the printer, because of his volume. This really isn't that hard to do, but you can't do the work in PS and have it printed by an online photo service.

To recap. Your client picks the photo and card stock. You send the file to prepress for tweaking. The printer makes test prints on the chosen stock. Your client approves. The printer does the print run. You collect a fee fpr the photo, and make a mark-up on the prepress and printing. You know exactly how many prints are made.



Jul 31, 2016 at 08:58 PM
Michael White
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p.1 #18 · p.1 #18 · Photo license input please (nature photos)


Last year I inherited a large farm or half of it actually my deceased uncles estate got the other half. I contacted his executor and we both agreed to sell it whole and split the costs and profits. I contacted a lawyer in the area whose area of law was real estate and thru him I hired a tax accountant and investment specialist so that I was covered by every aspect of the sell and distribution of the proceeds. I still use the tax accountant and investment specialist but the lawyers duty has ran its course.

My point being is when your dealing with money a lawyer is worth every penny to ensure your protected and that there are no open loop holes to burn you down the road. Get one that specializes in your need in this case royalties from good produced by you. Some will work off a percentage if you can't afford to pay them hourly. Shop around.



Jul 31, 2016 at 10:29 PM
wonderer
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p.1 #19 · p.1 #19 · Photo license input please (nature photos)


c.d.embrey wrote:
RDKirk preaches that there is no such thing as a free lunch. I preach that there is no such thing as a magic bullet.

Your problem is that your client is a friend. She wants it for next to nothing, because she is your friend. You don't trust her, and are clueless about how this is done in the real world.

What you need is a relationship with a Prepress Company and a High End Printer.

A prepress shop prepares your files for printing—color correction, slight touch ups, etc and liaises with the printer. The printer will do test prints on the exact
...Show more

Thanks for the input, c.d. . There have been several times in the course of trying to navigate this situation that I've thought, 'the hell with it; it's not worth the headache". You're right on both counts of what's challenging here though it's not really that I don't trust my friend. I don't trust four years. I'm wise enough to know things can change drastically in that timeframe. The other challenge is that I was perfectly happy to do the photography part and keeping sharing here and in other forums. I was not looking to market my work or create products from it.

Your description of how it should work makes good sense and I appreciate the lesson. I think I have to decide how much of this (if any, honestly) I want to bite into. I admit there is now some desire to make something work with the client's proposal but I don't want to get so involved in chasing it that I lose time, energy and momentum for what I really enjoy--which is immersing myself in the habitat and witnessing / documenting incredible moments in nature.

Thanks for the input; you've given me a lot to think about (damn you ).

Edited on Aug 01, 2016 at 06:37 AM · View previous versions



Aug 01, 2016 at 06:23 AM
wonderer
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p.1 #20 · p.1 #20 · Photo license input please (nature photos)


Michael White wrote:
Last year I inherited a large farm or half of it actually my deceased uncles estate got the other half. I contacted his executor and we both agreed to sell it whole and split the costs and profits. I contacted a lawyer in the area whose area of law was real estate and thru him I hired a tax accountant and investment specialist so that I was covered by every aspect of the sell and distribution of the proceeds. I still use the tax accountant and investment specialist but the lawyers duty has ran its course.

My point being
...Show more

Thanks Michael. I have come to accept this reality, though I did not start there. Though I sometimes get a little distracted, in my research of this situation, I now recognize the value of investing in an attorney, assuming the client and I move are clearly moving forward (see response to c.d.embrey above). Though I really wanted to avoid the expense and formality, I do realize I would be shooting myself in the foot to do so.

Your example is a good lesson learned. Thanks for taking the time to share it here.



Aug 01, 2016 at 06:30 AM
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