Negotiating the Contract
Advance Notes: Publications today want to anticipate all options that might come up in the digital era we now
If you receive a contract from a publisher, be prepared to carve it up before signing it.
O.K., you receive your first contract. What's next?
Be prepared to negotiate.
Contract: Photographer hereby grants to Publisher one (1) time publication rights to Photographer's stock photograph(s) and ongoing rights, as described below. The rights granted are nonexclusive.
Translation: This means you can sell and resell this photo to other publishers and it is not an "all rights" sale exclusively to this publisher. If it were an "all rights" sale, you'd want to charge three or four times or more your original asking fee.
Contract: The rights granted are applicable in all media, including, but not limited to, all electronic, world-wide web, CD-ROM, optical, digital and other media whether now known or hereafter invented.
Translation: As we move into the Digital Age, publishers want to be sure they don't run into any future snags where it is not clear whether electronic rights are also included in the license fee.
Should you tack on an extra charge in case the publisher wants to (in the future) use the image for an electronic purpose, such as a one-time use on their Website, or in a sample CD-ROM? Not necessarily. Unless your name is a household word in the industry, you should go along with the client's request for electronic rights, for no extra charge. This might come as a jolt to long-time stock photographers who see electronic rights as an additional use. However, as we move further into the digital age, "electronic rights" are going to be a "given" and undistinguishable from standard "print" rights. So, the door instead is open for you to charge a higher basic fee than you have usually been charging. You have the option of charging an extra fee for electronic rights, but you might, as a newcomer, price yourself out of the market. The answer to this dilemma is probably to originally charge 10 to 25% more for your one-time use of photos when you get in discussion with a photobuyer. If they really are interested in using your image, they'll find a way to cover the cost of your higher fee. That way the negotiation will go smoothly when they ask, "Does this include electronic rights?" You will be able to say "Sure," and sound like the good guy.
Contract: The right to publish the Photograph(s) one (1) time in any form throughout the world in the above-named Magazine. Translation: This gives them "world rights," which is o.k. But, remind them that you are talking about "the above-named magazine" and that if they wish to use it for another, completely separate editorial use (magazine, book, TV special, etc.), the fee for any additional use will be 75% of the original fee. Repeat: editorial use. If the use is for advertising, then you should adjust your fees much higher.
Contract: The right to publish and use the Photograph(s) in the same form as the image originally appeared, for advertisements and promotions for the Publisher and/or Publisher's products, without additional payment.
Translation: Whoa! Cross this out (and initial it). Note that for advertising use, you would ask them to contact you. Then use the chart in Chapter 8 of Sell & ReSell Your Photos to come up with a fair fee based on such factors as
Contract: The right to publish and use the Photograph(s), which appeared in the Magazine, in foreign editions of the Magazine in consideration of a one (1) time additional fee equal to fifteen (15%) percent of the original… --
Translation: This arrangement should read:
"…in consideration of a one (1) time additional fee equal to seventy-five (75%) percent of the original compensation paid."(Cross out 15%, initial it, and insert your change.)
In conclusion:
The publisher, in this case, has sent you a contract. You are sending the contract back to them with your adjustments. Pros do this all of the time. If you don't make adjustments to the contract, the publishers might consider you an "amateur." They might avoid you in the future. If they think you don't have a track record in the publishing industry, it means to them you are not "hassle-free." They interpret that you're someone who needs hand-holding. This takes up valuable administrative time. They'd rather pay a higher fee, to a person who is "hassle-free."
Rohn Engh is director of PhotoSource International and publisher of PhotoStockNotes. Pine Lake Farm, 1910 35th Avenue, Osceola, WI 54020 USA. Telephone: 1 800 624 0266. Fax: 1 715 248 7394 for more information on how to sell photos.
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