Help! Image shot for work goes national

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dinoadventures
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p.1 #1 · Help! Image shot for work goes national

I'm a hobbyist shooter who doesn't usually do commercial work. I do graphic design for an agency with some REALLY big-name clients for a living. One day, I had a request for some concepts of superbowl promo graphics. I couldn't find an appropriate image looking through stock, and at the time it was just for a presentation so the account rep decided it wasn't in the budget to hire our usual photographer. I just so happened to have my camera in the car and I set up a quick shoot just for the concept. It was nothing special, really. I set up a few lights and asked a co-worker to pose for me. No model release, but this wasn't going to the public and she agreed to the usage on the concept
Fast forward a few months and one of the concepts is approved to go to press... and they've decided on putting it on a few small items and a few VERY large ones that are the reason I am posting this... The artwork (with my image on it) is going on
1) a direct mail item composed of two separate pieces (a bag and a mailer) both with the image on it. Circulation is 500,000 to 1 million, shipped nationwide.
2) they want the image to be given to another agency for a full page ad in USA Today. According to the internet, circulation is approx 2,278,022.
So given that these usages are different than initially agreed upon, how should I go about asking them for compensation for myself and my co-worker who was my model? How much should I ask? I've seen a few numbers online and it's in the thousands. How do I go about pricing this?

edit: for item 2, i believe the procedure would be that my agency would pay me and bill the other agency, which would then bill the client. right?

Edited on Nov 13, 2007 at 08:49 PM

Oct 31, 2007 at 11:22 PM

ericevans
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p.1 #2 · Help! Image shot for work goes national

Sounds like you are getting screwed since you work for the company and probably as part of your job they asked you for something and you did it . Your company is too cheap to pay a photographer so what makes you think they are going to pay you ? Sounds like the only person that can put their hand out for pay is the model since there is no release . If I was the model I would be praying every night that they published my likeness without a release so I could sue every idiot involved in this .

More than likely your agency will bill the client and since you work there and you might get a "good job" but I doubt much more . I think you should price it on the average of what you pay for a stock photo if they will let you . If you are the typical designer who buys microstock then you will be getting what the image is worth based on your purchasing habits . If you buy traditional stock then you get the real payday you deserve and pay the model a fair portion .

Let this also be a lesson that you don't do s@$# until it is on paper . You left yourself open for this and have nobody to blame but yourself .

Edited on Nov 13, 2007 at 08:49 PM

Oct 31, 2007 at 11:37 PM

dinoadventures
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p.1 #3 · Help! Image shot for work goes national

I agree with you that I should have had them sign off on usage prior to taking my gear out of the bag, but I feel I have a good shot at getting compensated for this. We do pay our photographer for shoots for many significant things but this was a much smaller project so the margin wasnt there. We buy both traditional and microstock at my agency and they definitely be able to bill for anything I ask them since it will be a pittance relative to the rest of the project invoice. What's a fair portion for the model?

Edited on Nov 13, 2007 at 08:49 PM

Oct 31, 2007 at 11:44 PM

Rocketball
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p.1 #4 · Help! Image shot for work goes national

ericevans wrote:
Sounds like you are getting screwed since you work for the company and probably as part of your job they asked you for something and you did it . Your company is too cheap to pay a photographer so what makes you think they are going to pay you ? Sounds like the only person that can put their hand out for pay is the model since there is no release . If I was the model I would be praying every night that they published my likeness without a release so I could sue every idiot involved in this .

More than likely your agency will bill the client and since you work there and you might get a "good job" but I doubt much more . I think you should price it on the average of what you pay for a stock photo if they will let you . If you are the typical designer who buys microstock then you will be getting what the image is worth based on your purchasing habits . If you buy traditional stock then you get the real payday you deserve and pay the model a fair portion .

Let this also be a lesson that you don't do s@$# until it is on paper . You left yourself open for this and have nobody to blame but yourself .

Although mistakes may have been made, your comments are kind of harsh and really not appropriate.

We all make mistakes, and hopefully learn from them.

You are certainly welcome to voice your opinions, especially since they are being solicited, but your approach needs some work. I hope you don't treat your clients like this.......

And no, I'm not a moderator on this board, but I did stay at a Holiday Inn Express last night..........

Nov 01, 2007 at 12:53 AM

Brent Ward
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p.1 #5 · Help! Image shot for work goes national

I would be shocked if you get more than a day off.

Edited on Nov 13, 2007 at 08:49 PM

Nov 01, 2007 at 01:26 AM

dinoadventures
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p.1 #6 · Help! Image shot for work goes national

Brent Ward wrote:
I would be shocked if you get more than a day off.

I'd settle for an extra paycheck or a D300.

Edited on Nov 13, 2007 at 08:49 PM

Nov 01, 2007 at 01:30 AM

ericevans
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p.1 #7 · Help! Image shot for work goes national

dinoadventures wrote:
I agree with you that I should have had them sign off on usage prior to taking my gear out of the bag, but I feel I have a good shot at getting compensated for this. We do pay our photographer for shoots for many significant things but this was a much smaller project so the margin wasnt there. We buy both traditional and microstock at my agency and they definitely be able to bill for anything I ask them since it will be a pittance relative to the rest of the project invoice. What's a fair portion for the model?

If the model was smart they would sit quietly until the piece goes to print and then get a lawyer . Verbal means nothing and unless they have a signed release they are screwed . You may want to look at any papers you signed when you started as you may have signed your rights away and not even know it . As for how much to charge you have given no information that is really useful other than print runs but I take more into consideration than print runs . Run it through Getty's price calculator to get a idea what it may be worth .

My bet is that you get little to nothing but the model may get paid as there is no release . If I was you I would band with the model and play hardball by getting the model to refuse to sign a release until you are both paid . It could blow up in your face though as you depend on them for a paycheck .

I really can't imagine how the rep that works for you gets to keep their job after presenting a image and a ad to a client without making sure all the releases are signed and are in place . He/she should get in deep crap for putting a client at risk of a lawsuit .

As for the future I would get specs for the shot in writing . I would find the potential income and value that the ad could generate and price according to that . The model should be compensated based on the value of the shot . The model signs a release before they set foot on the set . The agency signs agreeing to pay once they have signed a delivery receipt and have possession of the file .

Edited on Nov 13, 2007 at 08:49 PM

Nov 01, 2007 at 01:38 AM

T Hellsten
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p.1 #8 · Help! Image shot for work goes national

first thing first did your model agree to let her image be beamed around the world...

if not the rest is moot...

if so then you did it with your gear on your time then well it is yours not the companies. I would get the model release from her yourself and then hold it and say what is the compensation for myself and the model or better yet you come up with a figure for you and her and then submit the bill if there is no pay then no model release

instruct your model not to sign anything beyond your release without showing it to you

if there is no pay then no ad goes out and if the ad goes out before a release then you and the model have a fantastic case to sue the ad agency...

By reading the OP I don't believe he was doing "his job" his job is a graphic designer not a photographer. they have a photographer but did not pay that person.

another aspect to look at is if you (OP) sell your image to the company their contracted photographer may come after you for infringing on his contract depending on what he has contracted for

Edited on Nov 13, 2007 at 08:49 PM

Nov 01, 2007 at 01:46 AM

ericevans
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p.1 #9 · Help! Image shot for work goes national

Rocketball wrote:
ericevans wrote:
Sounds like you are getting screwed since you work for the company and probably as part of your job they asked you for something and you did it . Your company is too cheap to pay a photographer so what makes you think they are going to pay you ? Sounds like the only person that can put their hand out for pay is the model since there is no release . If I was the model I would be praying every night that they published my likeness without a release so I could sue every idiot involved in this .

More than likely your agency will bill the client and since you work there and you might get a "good job" but I doubt much more . I think you should price it on the average of what you pay for a stock photo if they will let you . If you are the typical designer who buys microstock then you will be getting what the image is worth based on your purchasing habits . If you buy traditional stock then you get the real payday you deserve and pay the model a fair portion .

Let this also be a lesson that you don't do s@$# until it is on paper . You left yourself open for this and have nobody to blame but yourself .

Although mistakes may have been made, your comments are kind of harsh and really not appropriate.

We all make mistakes, and hopefully learn from them.

You are certainly welcome to voice your opinions, especially since they are being solicited, but your approach needs some work. I hope you don't treat your clients like this.......

And no, I'm not a moderator on this board, but I did stay at a Holiday Inn Express last night..........

Dino, you can try to get something for what you did, but the fact is you do not have a written agreement, and you're an employee of the company. So they are already paying you for doing your job, and that's what you did (your job). I'll agree that what they would pay you is probably much less than what they would have paid a photographer for the same thing, but from where I sit, you're gonna have an up hill battle getting anything from this for yourself. The model is a different story altogether.

I am not a person that sugar coats anything . Serious mistakes were made at all levels and people need to realize it . Every shot I take is for publication so having all the ducks in a row before I get to the shoot has saved me from getting sued out of existence . Having a designer who knows nothing about legal issues shoot a ad photo at a agency that handles large accounts is dangerous to the end user .

As far as dealing with clients I am fair but I stand my ground and heaven forbid you try to take my ground away from me .

Edited on Nov 13, 2007 at 08:49 PM

Nov 01, 2007 at 01:50 AM

shatterkiss
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p.1 #10 · Help! Image shot for work goes national

I'm not sure I see what Eric said that was so wrong or offensive. I really agree with all his points. This can be a pretty ruthless and cutthroat business, especially when large amounts of money are involved, and sometimes you can't afford to be too nice.

The original question may come down to this: are you a full-time and salaried employee of the agency or are you a contractor who is paid on a per-job basis with a defined parcel of work? If it's the former, it's likely that your photo will be considered work product and the property of your employer as part of your employment. If that's the case, you're outta luck. If it's the latter, then you've definitely got a strong claim to fair compensation. Be firm but fair, have a good understanding of what your image is worth, be willing to stand up for yourself without burning any bridges.

And as for the agency letting an unreleased and unpurchased image get this far...it wouldn't be the first time a client thought that a comp was a final product and chose to run with it. It is sloppy on the agency's part, though. The second the client expressed interest in it they should have immediately made moves to get rights and releases squared away.

Edited on Nov 13, 2007 at 08:49 PM

Nov 01, 2007 at 02:05 AM

dinoadventures
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p.1 #11 · Help! Image shot for work goes national

T Hellsten wrote:
first thing first did your model agree to let her image be beamed around the world...
if not the rest is moot...
if so then you did it with your gear on your time then well it is yours not the companies. I would get the model release from her yourself and then hold it and say what is the compensation for myself and the model or better yet you come up with a figure for you and her and then submit the bill if there is no pay then no model release
instruct your model not to sign anything beyond your release without showing it to you
if there is no pay then no ad goes out and if the ad goes out before a release then you and the model have a fantastic case to sue the ad agency...
By reading the OP I don't believe he was doing "his job" his job is a graphic designer not a photographer. they have a photographer but did not pay that person.
another aspect to look at is if you (OP) sell your image to the company their contracted photographer may come after you for infringing on his contract depending on what he has contracted for

I suppose i should provide a bit more background...

i spoke with the model this afternoon. she, like me, thought it was just for the concept comps. internal presentation usage, not general public viewing and for sure not natural exposure. she did not sign any release, but she'd very likely sign one from me if presented, but she believes she deserves compensation if it does go national as it seems she feels uncomfortable with the thought of her image being used for mass advertising purposes for free.

btw, our photographer that we use is not staff like i am, he is hired on a freelance basis. they don't have a contract with him to use him exclusively. i also don't do photography assignments for the agency, but i have directed shoots with the photographer we use. the shot in question was done with my personal gear during my workday. i function as a graphic designer, not a photographer. i have no intention of making a living as one.

Edited on Nov 13, 2007 at 08:49 PM

Nov 01, 2007 at 02:22 AM

Deezie
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p.1 #12 · Help! Image shot for work goes national

If you're going to pursue some money, I would advise you to elegantly state your points based on what you did and what you feel you are due based on fairness. People who are nice will more often get what they want then people who are right, but act like as*holes.

It is our nature to reward nice people. You will find that at most organizations it is the polite, social people who climb the success ladder much more quickly and adeptly than their more competent, but irascible co-workers.

What you really need to decide is whether or not this is a battle you want to fight. Personally, I wouldn't, because it doesn't seem like there was an understanding verbally or otherwise that you would be compensated. The other party may have a very high opinion of you for going the extra mile and doing whatever it took to do the best work for the company and the client. Given there was no budget for a photographer, why would you think that there would be a budget for you now?

The next time you feel the need to improvise and go the extra mile, offer it with the caveat that should your extra efforts go to final, you will be compensated the going rate.

Edited on Nov 13, 2007 at 08:49 PM

Nov 01, 2007 at 02:28 AM

dinoadventures
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p.1 #13 · Help! Image shot for work goes national

Deezie wrote:
Given there was no budget for a photographer, why would you think that there would be a budget for you now?

The concepts and production are billed separately. A few hours labor for some images for the concepts is far, far cheaper than a few massive press runs (marked up, of course). If this indeed goes to press, the budget would be there.

Edited on Nov 13, 2007 at 08:49 PM

Nov 01, 2007 at 02:32 AM

Brent Ward
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p.1 #14 · Help! Image shot for work goes national

Your "work for hire".

I can tell you from painful past experience that they own the images.

Edited on Nov 13, 2007 at 08:49 PM

Nov 01, 2007 at 03:11 AM

runner301
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p.1 #15 · Help! Image shot for work goes national

Talk to a lawyer.

The argument is that as an employee, the pictures you took, even with your own gear, while performing duties expected of you at work on the company's time will be considered that company's. As you consented when a supervisor asked, you gave tacit approval that the duty was part of your job.

But, if you can prove that there was a verbal agreement that the images would only be used for concept design, then the company must honor that agreement, in which case you could be awarded the market value of the images. Proving a verbal agreement is difficult, and would require depositions, time, lawyers, money, and resentment. In my experience, serious distortions of the truth and *gasp* sometimes even lying can occur. It is usually a toss up, but it sounds like you have the model on your side if you choose this route.

Regardless of the legal perspectives, it is up to you to decide whether the income you might gain is worth the resentment you will produce. Personally, I would be torn, and it would really depend on my relationship with the company.

Good luck and keep us posted!

Have a great day!
Tom

Edited on Nov 13, 2007 at 08:49 PM

Nov 01, 2007 at 03:27 AM

Nathan Whitchu
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p.1 #16 · Help! Image shot for work goes national

Bring this to court and expect to be looking for another job, with the stigma of suing your employer. Plus, despite not being a photographer for the company you are probly covered under "work for hire". The model may have a case, but I doubt you do. Like your job? Want to keep it? chalk this up to a learning experience, and don't do any more photos for them without a raise. I've found that the lessons that usually stick are the ones that cost us money.

Edited on Nov 13, 2007 at 08:49 PM

Nov 01, 2007 at 03:42 AM

CTYankee
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p.1 #17 · Help! Image shot for work goes national

I'll agree...the only person with a leg to stand on is the model. Even then it could be in her contract that the company has the right to use her likeness. My friend once filled out a company survey to get feedback from employees. A few months later, there she was on a billboard with her comment, "company XYZ is a great place to work". Totally unexpected and totally legal since her contract was worded to allow this.

Edited on Nov 13, 2007 at 08:49 PM

Nov 01, 2007 at 04:07 AM

Deezie
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p.1 #18 · Help! Image shot for work goes national

The concepts and production are billed separately. A few hours labor for some images for the concepts is far, far cheaper than a few massive press runs (marked up, of course). If this indeed goes to press, the budget would be there.

This is not necessarily true. As a partner at a design studio, there are many factors that come into play that our designers are never aware of. Some clients' will come to us after a previous vendor didn't nail a campaign for them. They may have very little money for available for design and will ask us to work on a limited budge,t with the idea that they'll make it up to us on the next one. This happened to us with Sony, and even though they were spending close to a million on media buys, there was very little available for design. Our motto is "whatever it takes" for the client and so we took a bit of a hit in order to ensure longterm goodwill and solidify our relationship with our client. So you never really know what is in play as far as budget goes.

Edited by Deezie on Nov 01, 2007 at 02:31 PM GMT

Edited on Nov 13, 2007 at 08:49 PM

Nov 01, 2007 at 05:00 AM

Micky Bill
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p.1 #19 · Help! Image shot for work goes national

Have you ever taken pictures as part of your job as a graphic designer? If you have, then why is this shot different than other shots that you may have done as 'part' of your job as a designer. The fact that this image is going national really doesn't matter. IMO this is part of your job and is WFH and it doesn't mater if your employer used it for an office newsletter or a national superbowl ad, it's their property.

The 'model' needs to sign a release as being a model doesn;t fall under the job description of very many employees but I could see a graphic desgner taking a photo now and then.

Just think of all the goodwill you have now with your boss, as you saved them thousands of dollars in photo fees, which I am sure they will pass along to the client ;^)

Or you could work for the bestest company ever and they will pay you what the image is really worth!

Welcome to the other side...

MB

Edited on Nov 13, 2007 at 08:49 PM

Nov 01, 2007 at 05:34 AM

Steve Ickes
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p.1 #20 · Help! Image shot for work goes national

Nathan Whitchu wrote:
Bring this to court and expect to be looking for another job, with the stigma of suing your employer. Plus, despite not being a photographer for the company you are probly covered under "work for hire". The model may have a case, but I doubt you do. Like your job? Want to keep it? chalk this up to a learning experience, and don't do any more photos for them without a raise. I've found that the lessons that usually stick are the ones that cost us money.

Thank you for stating the obvious. I really don't understand the replies concerning suing and what not. Yes, he may have done a particular function that might possibly be out of the scope of his job description but we don't really know that. You may have been hired as a graphic designer but it's not too much of a stretch to assume that this could be considered as part of your job. They didn't ask you to clean toilets after all.

Several years ago, I was hired as a regional IT director, an executive level position. However, I did on many occasions find myself troubleshooting servers or other network issues. It wasn't in my specific job description but it was reasonably within the scope of my position to make sure everything ran smoothly. I jumped in to help because I could. I did not suddenly demand additional compensation because I did something not listed on my job description.

Whatever you decide, I would say that no good can come of suing your employer or purposely conspiring with the "model" to do so.

Edited on Nov 13, 2007 at 08:49 PM

Nov 01, 2007 at 05:52 AM

dinoadventures
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p.1 #21 · Help! Image shot for work goes national

Micky Bill wrote:
Have you ever taken pictures as part of your job as a graphic designer? If you have, then why is this shot different than other shots that you may have done as 'part' of your job as a designer.

I have not. I've been asked, but I've told them in no uncertain terms to go pay the photographer because it's not my job. I've done WFH and I've also done photography as part of other jobs, but I didn't want to do it here so I've taken a stance against it. This was an isolated exception.

Deezie wrote:
The concepts and production are billed separately. A few hours labor for some images for the concepts is far, far cheaper than a few massive press runs (marked up, of course). If this indeed goes to press, the budget would be there.

This is not necessarily true. As a partner at a design studio there are many factors that come into play that our designers are never aware.

I work right next to the account rep so I happen to know that it's how this particular job is billed.

Edited on Nov 13, 2007 at 08:49 PM

Nov 01, 2007 at 01:38 PM

prof_fate
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p.1 #22 · Help! Image shot for work goes national

Perhaps you work at a really nice and loving place, generous with money and all that other good stuff.
I never have. There would be glimpses of 'the love' but when money was on the line, TFB.

If I had employees that made mistakes such as these and then essentially blackmailed me to get paid I'd fire the lot of you - and for good reason. Accident or planned? How is the boss to ever really know?

You both have jobs and didn't buy lottery tickets. You all made mistakes and its time for you to learn from them, and pay the price for YOUR mistakes by not getting paid extra.

The model should sign the release and ask for some money, NICELY. I infer from what you have written she works for the same company. If she starts to get a lawyer, holds their feet to the fire on getting paid, etc, she may win the battle but lose the war - meaning her job. And if your name comes up that you advised her to hold out, well, what do you think the boss will think of that?

Edited on Nov 13, 2007 at 08:49 PM

Nov 01, 2007 at 02:31 PM

ericevans
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p.1 #23 · Help! Image shot for work goes national

prof_fate wrote:
Perhaps you work at a really nice and loving place, generous with money and all that other good stuff.
I never have. There would be glimpses of 'the love' but when money was on the line, TFB.

If I had employees that made mistakes such as these and then essentially blackmailed me to get paid I'd fire the lot of you - and for good reason. Accident or planned? How is the boss to ever really know?

You both have jobs and didn't buy lottery tickets. You all made mistakes and its time for you to learn from them, and pay the price for YOUR mistakes by not getting paid extra.

The model should sign the release and ask for some money, NICELY. I infer from what you have written she works for the same company. If she starts to get a lawyer, holds their feet to the fire on getting paid, etc, she may win the battle but lose the war - meaning her job. And if your name comes up that you advised her to hold out, well, what do you think the boss will think of that?

Actually the model should put her hand out and when it has a check in it then she signs the release . That is the only way she will get paid . Otherwise she needs to to them to piss off until the check is written . If the shoot was on company property during her normal business hours she may be screwed anyway .

Edited on Nov 13, 2007 at 08:49 PM

Nov 01, 2007 at 07:47 PM

PhotoGuy76
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p.1 #24 · Help! Image shot for work goes national

Ok, having read this thread, I have a question: The guy used his own camera and did something that wasn't his job, and probably not in his job description. Does that have any impact?

Second, let's assume this isn't a company, but a college where a student shoots a photograph of some part of the campus using the school's camera as part of a class assignment. Whose image is that? A twist.

Edited on Nov 13, 2007 at 08:49 PM

Nov 01, 2007 at 08:58 PM

prof_fate
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p.1 #25 · Help! Image shot for work goes national

PhotoGuy76 wrote:
Ok, having read this thread, I have a question: The guy used his own camera and did something that wasn't his job, and probably not in his job description. Does that have any impact?

Almost every job description has 'other duties as assigned'. Besides, the boss asked and he did it. too late now to squawk about it. the only reason to squawk is greed - he wants paid extra AFTER agreeing to do the work for his regular pay...
If you have a regular job and take pics for the boss/company the company owns the copyright unless it's spelled out in some other form. as a graphic designer i'm sure his employment contract says any cretive work he does belongs to the company.

S
Second, let's assume this isn't a company, but a college where a student shoots a photograph of some part of the campus using the school's camera as part of a class assignment. Whose image is that? A twist.
Not a twist. Who owns the gear has nothing to do with it. You can rent gear to make a photo or a movie - the rental outfit has no rights to the art you create.
where or what you shoot isn't a factor either - to SELL the image you may have to have a property release or a model release.

As always, you've got to read what you sign when you get a job or go to school. If you are going to art school and create a sculpture during a semester long class and at the end sell it for $500 who's money is it? Whose sculpture was it? the person that created it.

Edited on Nov 13, 2007 at 08:49 PM

Nov 01, 2007 at 09:54 PM


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