A verbal contract is still a contract and copyright still belongs in the hands of the creator of the work. Now it may be argued that the model was indeed co creator of the work. That, I guess, would depend upon her level of creative input into the works created.
I would definitely begin negotiations with the calendar company. It seems creatives make the worst businessmen. Sadly occasionally myself included.
Max pretty much summed it up.
Once you bring up money to the calendar folks my guess is they will decide to not use your picture. I also guess that they will charge the model for like 50 calendars at 3 or 4 bucks each and she has to somehow sell them at a profit to make any money.
Micky Bill wrote:
Max pretty much summed it up.
Once you bring up money to the calendar folks my guess is they will decide to not use your picture. I also guess that they will charge the model for like 50 calendars at 3 or 4 bucks each and she has to somehow sell them at a profit to make any money.
You hit the nail on the head right there. We're new to the business, so the few hundred dollars we would get isn't worth as much as getting our foot in the door at this point. Bringing up money would make them not use our image. Which, if you think more at the margin, we aren't getting paid for anyway, so might as well get exposure.
I sent them the raws this morning. They would like to retouch the models hair in a few spots.
I'm going to put together a licencing agreement that says we licence this image for free to these people; just to make it clear that we still own the image.
Does anyone have a sample document i can modify for this use? If it's more specific to Canadian law it would be better, but i'm assuming any other will do with some modifications.
mdude85 wrote:
This isn't a copyright issue. In this situation the photographer always retained the copyright. This is a usage issue. You gave the model the image for free, but just require the calendar directly license the image from you. Except for the model release, the model is out of the picture (no pun intended). You should license the image to the calendar and you should draft a usage contract since there was no expectation when you shot the image that eventually your image would end up in a calendar. It would be no different than if you shot an image for your blog and a calendar contacted you about using the photo. You would draft a similar kind of contract. I don't know why so many people are considering this "lesson learned." You should license the photo for money, no doubt about it. Good luck in your endeavor....Show more →
This is absolutely correct. You talk of gaining exposure for giving the image away, but I doubt anyone is going to care who took the image. You haven't even mentioned a credit or anything. I would still try to get them to license it correctly, and for a fee, from you.
As I understand, and I will quote from the CAPIC (Canadian Association of Photographers and illustrators in Communications): "Under Section 13(2) of the Act, any person or corporation that hires a photographer (commissions a work) will automatically own the copyright in that work, once the work has been paid for UNLESS there is an agreement to the contrary." ~ http://www.capic.org/copyright.html
Basically, in Canada, unless there is a proper agreement between photographer and client, the client automatically owns the image. This is a major pain in the @ss here sometimes and this post is point and case why this law should be updated to have the creator of the image the copyright holder.
So, here's what you might want to do: allow them to use the image "in good faith" with proper credit to the photographer and website. They get free product, so why not get free advertising in return? BUT, if they would like the RAW file you can charge them a fee for each file - I suggest you charge appropriately considering usage and the fact it is the RAW file. Also, have them commit to a written contract that proper photo credit (to your specifications) will apply.
As for the suggestion it'll help you get exposure just think of what type of exposure you may be getting. Maybe you may be known as a good photographer with lousy business sense... let's hire them! They'll do it for nothing!
synthesist wrote:
You hit the nail on the head right there. We're new to the business, so the few hundred dollars we would get isn't worth as much as getting our foot in the door at this point. Bringing up money would make them not use our image. Which, if you think more at the margin, we aren't getting paid for anyway, so might as well get exposure.
I sent them the raws this morning. They would like to retouch the models hair in a few spots.
I'm going to put together a licencing agreement that says we licence this image for free to these people; just to make it clear that we still own the image.
Does anyone have a sample document i can modify for this use? If it's more specific to Canadian law it would be better, but i'm assuming any other will do with some modifications....Show more →
Wait, so you already sent the raws over.... and only NOW you're putting together a licensing agreement?
I wouldn't have given them a thing without at least some form of material compensation (feel free to define the term in any way you see fit). You'll learn very quickly that exposure isn't worth the paper it's printed on 99% of the time.
synthesist wrote:
You hit the nail on the head right there. We're new to the business, so the few hundred dollars we would get isn't worth as much as getting our foot in the door at this point. Bringing up money would make them not use our image.
How much exposure would you really be getting from a calendar that doesn't have enough money to buy a license for the photos it uses?
I didn't read this whole post, but she just has to turn to the calendar company and say, "I'm sure the photographer would be willing to negotiate an agreement to use the photo as is. Here is his number..."
You made an agreement with her to give HER three photos, not to have them published by another party.
I also don't think this was bad business (yet), but what you do from now on will determine good or bad business, for now, and probably the future. My 2c
Oasisbill wrote:
I didn't read this whole post, but she just has to turn to the calendar company and say, "I'm sure the photographer would be willing to negotiate an agreement to use the photo as is. Here is his number..."
It's really not the model's job or responsibility to make this sale for you. This issue is between the photographer and the licensee (the calendar). As long as the model has a signed model release, she should not have anything to do with this issue.
The OP should contact the calendar directly and make sure the photo does not get printed before it is licensed! Good luck ....
synthesist wrote:
I've decided to do this for free at this point.
However, the publishers are asking for my RAW's for editing. I feel a little sketchy about this.
I don't want to give the impression that I'm throwing away my ownership of the image.
while i am not familiar with canadian law, i have sold images for calendar use here in the us. i have never and would never given a file to a company for reproduction without a licensing agreement. if you give them the raw file without one, you have no control over what happens to your image: it could be used for posters, or used inappropriately and because you have just given them they image, you might be without recourse or have severely limited your recourse.
the very first image i shot that was used in a calender was an image that the calendar company saw in the models portfolio. the model, put the calendar com-pany in touch we me and we negotiated an agreement and fee based on: use; placement (interior page vs. cover vs back cover); and run quantity. there were also limits placed on the time frame they could use the image as well.. a very important part of that agreement was the disclosure and acknowledgement that i had a model release, but did not have a property release, and the indemnity language. i will note that my relationship/situation with the model was different than yours.
as for the issue of friendship, the fact that this subject has arisen is indicative that the relationship is already strained or will be soon --if you all are not aready boiling, there is a good chance that you will be soon as the model is making money off of the image that you all collaborated on, and you guys are not. i found myself wondering what kind of "friend" would come back to collaborators and tell them, someone wants to use "our work" and pay me, and not at the very least suggest splitting the money with you. this suggest -at least to me that the model does not place much value on the actual photography (image capture and retouching) portion of the work. and actually am seeing this attitude on the rise.
in re-reading your post what has gone down seems to be different than what you and your friend were initially told by the model. i don't see why there is reluctance to having this discussion with the model. if you do decide to move forward and give the calendar company the raw files (i'm still shaking over the thought) you might want to consider getting some sort of liability release/waiver from the model and the company.... in fact since i am not an attorney, i would suggest that you might be best served in consulting local legal assistance or if you belong to a professional org in seeking some assistance/guidence through them.
regards,
synthesist wrote:
I've decided to do this for free at this point.
However, the publishers are asking for my RAW's for editing. I feel a little sketchy about this.
I don't want to give the impression that I'm throwing away my ownership of the image.
Throwing away what....You just said you are giving them for free. You already gave the impression that your images have no value to you.
Anyway ownership of copyright and use rights are different. If you what to let them have free use of them write it up in a contract. Spell out the length of time, ownership and other details. Make it a one time deal for this one printing of xxx copies. Be specific.
mdude85 wrote:
It's really not the model's job or responsibility to make this sale for you. This issue is between the photographer and the licensee (the calendar). As long as the model has a signed model release, she should not have anything to do with this issue.
The OP should contact the calendar directly and make sure the photo does not get printed before it is licensed! Good luck ....
I agree with you actually. I figured that they asked her to use the photo so she has to say something, but maybe better for the photographer to contact them as soon as possible...
I think the OP is stupid thinking that taking a photo for a model for free and giving it to a calender printer to make money for free is the same thing.
The only thing now is to live with the bad bargain you have set up by accident and put a smile on your face, so that perhaps you can get some mileage. I used to shoot in toronto but that was in the day where photographers had the same rights as we do in the US. The change in the law (I had heard of it) is absulutely frightening because it is basically reducing the photographer to a lackey who owns no rights. As if it were a brick wall one was building - not something creative.
The moment they pay you ... you don't own a thing. You may in fact have to pay them to use your shot in promotions. If you try to get a better deal, unless you have leverage .... and you don't (or are you a big name photographer?) ... they go to someone else with a digital cam.
However none of that is the point ... it is what it is.
The model release is not for the model. It is for the photographer. What it means, in you not getting one from her is that YOU can be sued if you try to use the photo in ANY way, including on your web. You do not have permission to use the shot, except in some editorial fashion. Usually it is an empty threat, but as soon as the photo is making money for a company (companies have resources) then many have an interest in controlling exposure of the shot. ( pun intended ) So, I would not chance it.
There is actually no contract. For it to be a contract there has to be a tangible benefit for both parties. I guess it could be argued that you "exposure" is you end of the bargain.
But what I think is important has nothing to do with anything of a concrete nature. You are in this situation. The model will probably be angry if you cause her any difficulty here. The company does not need you. If there is any hint of trouble, they will either shoot her with a pro or dump her. You also have a black mark from then on with them - and word does spread.
So don't try to make some pathetic amount of money after the fact - just smile and present yourself as a guy who helped out as a friend. Accentuate the positive and try to build contacts from this.
The fact that you should ALWAYS act in the way you want to in the future ... I don't think that has to be mentioned. If you ever want to get paid - never NOT get paid. Never. If you want to give things as a favor and do it for the ego ... well ... don't sweat it. Many do. They all have side jobs ... usually in I.T. .
Pavel wrote:
Accentuate the positive and try to build contacts from this.
Wow, a company that is supposed to shoot models with a professional, but sees a shot it likes from an audition, and instead of doing a re-shoot with a pro, decides merely to use (read: steal) that shot without licensing and compensating the original photographer. What a great contact!! And so ethical, too! Remind me to PM the OP for their name and phone number so I can put them on my list!
The photographer was doing a favor for a friend who is a model, but only after the fact did he learn the calendar wanted to use the shot instead of do a re-shoot. The photographer deserves to get paid for the photo, preferably a similar amount to what the calendar would have paid a pro, and it's not too late for that! (Well, maybe it is if the OP already sent the RAWs over....)
get used to the reality mdude. A photographer causing trouble is not in the biz too long. His shot of the model is likely convenient for them at best. He does not have the kenedy assassination on film. No name, no contacts.
They did not steal a thing. He gave it away. Lesson learned.
I lived and did business in Canada and the law is different there now than it is here. If they pay you for a shoot - the photographer does not own any aspect of the image. It is not like here in the states. It makes the bargaining position much worse. Let me repeat, because I think you may have missed the point. The OP would not have this problem if he did not do the shoot for free. Get it? Free? As in .... he gave it away, thinking it to be of no potential.
Stealing? He gave the shot to the model. No contract. It is her's to do with as she pleases. Might as well make lemonade.
Well, I agree with you in theory Pavel, but the OP and the model were both under the impression that the photo would be used for specifically for auditioning for the calendar (not so that the model could add something to her own portfolio for any future use as it arose). In fact the OP and model were told the calendar would do a re-shoot of the models that were chosen. OP gave his photo away to the model so that she could be chosen for a professional shoot --- he did not give his photo away for the calendar to use it in lieu of a professional shoot.
I read the Canadian law Pavel. The calendar is NOT the owner of the copyright since the calendar is not the client! At best, the model is the client (even though that is unclear, since she did not pay for the photos). If the calendar wants to use the photos, then the OP should have the right to sell the photo to the calendar and relinquish the copyright thereto. However, in the future, the OP should be more clear that even though the model may be ordering the photographs, the photographer retains the copyright to them.
I think then that I didn't read the thing carefully - sorry. I did mean to say however that yes since there was no work for hire from the calendar owner with the OP, they do not own the copyright. He does. But the model feels like she has the pictures and is likely so glad how this is working out. If they re-shoot - he is out of the loop. It is a compliment in a way that they did not bother to re-shoot, right.
But in the past I've noticed that if someone brings to light that the client has shaky rights and the the photographer is somewhat unhappy - that they tend to shoot it themselves in a case such as this. So he would be out again.
That is why I think this one should be chalked up to an "oops" and try to get milage out of the deal by using it as an opportunity to show both the model and the catalogue bunch - that here is a new, skilled shooter. That kind of strategy is the last I would argue for if this was before the "oops" ... but I feel that it is the best out of an imperfect situation.
Off topic, but I think that the Canadian law is terrible! This empowers clients to look as photographers as hired monkeys. It really bugs me! This, micro-payment and digital makes photography a commodity and it is really tough to make a living nowadays if you are not established already.
) So, I would not chance it.
