The situation:

My shooting partner has a friend that models. She was asked to submit 3 shots to compete for the spot to be in a calendar. We decided to do the shoot free for her as a personal favour. No problem here.

Our original understanding was that the photos would be used to judge the girls, in order to pick 16 of the total 20 candidates who would be in the calendar. Those chosen would get a professional shoot done for the calendar, paid by the calendars organizers.

We did the shoot. Gave her the images. Thats that.

We got a call from the model today. She says the calendar people want to use use the photo as is directly for the calendar (hurray for us, we did a good job).

My shooting partner, doesn't want to ask for money for the shot, because we agreed with the model that we wouldn't charge her for the shoot, and it would be done as a favor.

They're going to pay her royalties for being in the calendar. And she gets to help sell them for extra commissions.

Asking for money would put the model in a bit of a difficult position.

My question:
Should we be getting paid in this situation?
I have no clue on how to approach this situation.
Any advice is welcome!

frankly, I'd agree w/ your partner and chaulk it up to 'lesson learned'. Everyone gets/signs a contract and you spell out your terms in the contract. You agreed to do it for free and have no contract to cover this contingency.

+1 In this case the original agreement is the only agreement.

The main reason for a contract in the first place, is to remind all parties what the original agreement was.

The contract or agreement was for a test shot. This new use wasn't a part of the original contract. She can't authorize use "as is" in the calendar. It's not her picture.

Not sure if this sector has the "You're devaluing the whole industry by giving away your work for free." mantra but in this case, the promoters were going to pay for a pro shoot. Now they won't. It shouldn't put the model in a bad place, but there's no reason that you should feel obligated to donate the image for the calendar. Of course, a little more detail about the nature of the calendar, the shoot and the expected circulation might help provide some insight into this. She's getting commissions on extra calendar sales? Royalties (up front?) as well?

I'd expect it's not the old traditional Girl Scout calendar (in the US). Any idea on if the other model's "test" shoots are going in (potentially) "free" as well?

Lesson learned for next time I guess.
There really isn't much I can do about this now.

The calendar was going to pay for a professional shoot. The calendar should be willing to pay for your work. The argument could be made that the agency is the one benefitting form this the most because looks like they are getting away with free photos and then will in turn sell them for profit. Wasn't the agreement for using the images for trying out? This is stinky and looks like the model is caught in the middle.

Yup... write it and sign it next time.

Oh well.

There is no agency here.

The model is a friend of my partners. The three of us were under the impression that these photos were as a "tryout".

My partner and I are in a bit of a disagreement here:
He thinks we couldn't get much money for the photo, and considers it a favour for the model (his friend). He's saying, we're getting publicity, let's take that and not push it.

I don't care about the money, but on principle, i hate that the studio is trying to screw us by trying to use this shot.

They have a photographer hired out for a day regardless apparently.

One more thing. We never signed a model release with the girl, not forseeing that the photo would ever be used for anything.

Does this mean we don't actually hold the copyright to the image?

Although they may be, I don't know for sure that the studio is trying to "screw you" . What may have happened is that 99% of the "models" sent in snapshots taken by their boyfriend or mom. Your friend sent in a professional picture that the organizer liked enough to use in the calendar. It's easier for them to have a shot already done than to have their photog shoot 16 shots, now he has 15 or 12 to shoot depending on if they are using other shots already taken. Find out about how much they are paying the photographer figure out how much your contribution is worth. Don't expect much because it sounds like a low budget operation if they are paying the models by 'royalites'. Don't be surprised if they have a deal with the photographer and aren't paying him anything but royalties too.

Or if you truly do not care about the money and it's about the principle let them use the shot for nothing or withdraw your photo from their calendar, on principle.

Somebody's making money from this. Not having to pay for one more shoot means they're making more money. Cut down on expenses, increase profit. The test shoot was to help out the model. Publishing the photo in the calendar is for profit. I say good for you in helping out a friend but in regards to the publishing the photos in this calendar, you should be asking questions about being paid for use of the image.

Anyone notice the OP is in Canada? Anything relating to control of the image or model releases really needs to be addressed by people familiar with Canadian law.

synthesist wrote:
One more thing. We never signed a model release with the girl, not forseeing that the photo would ever be used for anything.

Does this mean we don't actually hold the copyright to the image?

If there is no model release, the calendar cannot legally print the image.

You still own the intellectual property to your image, so the calendar has to license it for you.

Write up a terms of use, and name a nominal fee for the calendar. it's not hurting anyone, only maintaining the status quo. The calendar wont mind shelling out a little money to use a good image. So don't feel bad about it.

Go Make Some Money!

Publishing or sale does not necessarily require a release - it's the "use" of the calendar. I suppose it could be editorial/educational but rather doubt it. Given that the model expects to get paid through sales of the calendar, having a release signed seems to be a minimal problem for either the calendar publisher or the model. She doesn't sign, she doesn't get paid, they don't use it. No biggie for any of them. Nor will the photographers get paid. The calendar guys use the pro they've got hired now and other models. There's no leverage to hold over the calendar guys heads there.

In Canada, if work is commissioned, it's owned by the commissioning party - but not until paid for. Since this was not paid for, the photographers would control reproduction rights. Again, it's up to them to reach an agreement with the publishers.

It would seem to me that the publishers have a different set of "expenses" to consider because if they add one of the other models, it's adding 1/12 or so, etc., to their effort. However, the the photographers did a set-up and shoot for one model alone. Given the publish/sales description, there may not be much to look for from the publishers.

I don't think the OPs did anything necessarily wrong beyond putting a lot of effort into the courtesy shoot. They didn't expect to get paid. The publisher changed ideas mid-stream so even their approach was modified - not having paper up front wasn't really the problem.

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.

They want to use the photo for nothing and now they want your raw files. Its a never ending and very slippery slope.

I wouldn't give them $#!t. You fulfilled your obligation with the model adn kept your word. Now the calendar wants to do some kind of business with you. I see that as teh opportunity youwere looking for to negotiate some actual business. Make them a sweet deal so you can call it done. You can use that photo to promote your business, too, right? It's yours, after all. I dunno - I could be wrong. Maybe the calendar folks could offer you some business.

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.


IMHO which is worth nothing...you went in thinking/knowing you were not getting any money for this shoot, but when it turns out that someone is getting money the expectation turns? I would consider it lesson learned, let them use the raw file but get something from them stating you are not restricted from using the images so you are not giving your rights away...perhaps this may "help" thim to understand" that the photos were more than "snap shots"?

Again just my opinion....

Maybe I don't fully understand copyright law - - but if you didn't give the model full
rights to the photo, you still own it. She cannot make commercial use of it
(getting paid for it in a publication) without your permission. You, on the other
hand, can't sell it to the publication without a model release.

I think you need to get her to sign a model release, and then negotiate with the
publication for the price of the image - - you're still giving her the image for free,
and the publication will pay you (hopefully) what they would have paid the other pro
for taking the image.

Maybe you could even end up being the "pro" that shoots the other models!!

That would sure make it worthwhile (assuming you would get paid)

Am I missing something?

John

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.

jetmutant, I sorta see your sentiment, but disagree

you went in thinking/knowing you were not getting any money for this shoot, but when it turns out that someone is getting money the expectation turns?

In a word: Yes.



Regardless of the lack of a formal agreement, there was a spirit by which the images were taken. They expected nothing from this shoot because it was presented as a test shoot, which would NOT be used in the calendar.

Had they initially been told that a good image might end up in the calendar, then it's on them if they agreed to it. Had they not been told, but the model knew, then it's her fault.

Most likely? The calendar people knew. They didn't want to say anything because they could probably get enough people to agree to let them use the photo for free.

Ya see it's a funny thing, but models tend to know photographers that will shoot them for free (funny huh). So, anyone starting a calendar just has to prey on the model. She can figure the logistics out on her own. And enough models, means enough opportunities to get people to agree to their terms.

Not only that, but this company is now offering her the opportunity to sell the calendar for a commission. So she spends her time selling the calendar, with no paycheck for it, until she sells. At which point of course shes paid... with a small percentage of the profit the calendar people made from her sweat equity.

If it wasn't so tragic, I'd call it brilliant.

I will now consider setting up shop and starting a calendar business.

Max

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.

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!

My Canadian 2 cents!