Album Cover ... Rights etc.

[poloman]

I have been asked to do the photography and assemble an image of multiple elements for a CD cover.
The artist is a young piano player/singer that was an american idol runner up.
I have already quoted a cost for doing the shoot and assembling the image. Now, we are negotiating usage and rights.
The manager (dad) started with a copyright grab presentation. I get no rights they get them all and I must pay if I want to sell a poster.
I had offered the idea of royalties based on the number of CD covers printed as I think they really need to keep outlay to a minimum right now. He didn't seem to like that.
I am now thinking that if I were to part with my copyright, it would be for a hefty sum.
You advice and insights are much appreciated especially if you have played this game a few times.

Thanks in advance.

[DDCSD]

You may want to shoot Lefty Ray a PM. He does a lot of CD covers.

[HaroldC3]

I am now thinking that if I were to part with my copyright, it would be for a hefty sum.

Yes indeed. And that may be the route to go depending on your plans, if any, for the shots you take.

[PhotosGuy]

I had offered the idea of royalties based on the number of CD covers printed as I think they really need to keep outlay to a minimum right now. He didn't seem to like that. Did you explain the when you gave them the original quote, or is he just being a jerk?

You might want to include this provision in future contracts. I put it at the bottom of my invoice, too:
"3. Grant of Rights. Upon receipt of full payment, Photographer grants to the Client the following nonelectronic rights in the Work."

[poloman]

Thank you all.
PhotosGuy ... When the dad called, he tried the steamroller thing on me. :) "We own all the rights, you don't understand, etc."
I think of people like this as having never learned sandbox manners. They immediately try a grab for all the toys. Doesn't mean we can't work with them though. Just have to keep our eyes open.

[Lefty Ray]

I "license" my photos for use. So if they want to use them in a CD package, I put that wording in my contract like "license to use in ___". Same thing for posters, t-shirts, etc.

The key is I grant licenses, not copyright transfer.

Forget about royalties. Just get paid upfront a set fee for whatever you ar going to do.

[poloman]

Thank you so much Lefty!
You have confirmed where I was going with all of this. They may bail out on this but what the heck. If I'm not getting enough money, I might as well go fishing. :)

[PhotosGuy]

I might as well go fishing. That's always a good idea! :D

[RobNYC]

If they give you a contract... watch for the words "work for hire." Work for hire typically means you transfer copyright and all other rights to them.

[poloman]

Thanks for the heads up Rob. I was aware of this but the reminder might be incredibly helpful.

[sctuk99]

My friend is a pro freelance music photographer. He never sells copyright to any of his images. The contract you want to draw up with the dad is for image use licence etc. The manager must pay you for full copyright, not you pay him in the future if you want to use your own photos.Copyright belongs to the creator, until you sign it away.

My friend always gets cheeky people trying to get copyright on his prints, he puts a 0 or two on the price if they want to purchase copyright to "own " the image, that usually puts them off :D

[poloman]

Yeah,
This guy tried the steamroller thing right away. Then played innocent when I told him I owned the copyright. He ended with saying he was going to seek an attorney and so should I. :) It will be an interesting week and I will keep you all apprised of the situation.

[stevefossimages]

Well, sounds like you have the right amount of patience and frame of mind for this. If it was me and we were still negotiating rights and no work had been completed and the manager was already talking lawyers for him and lawyers for you, I'd do one of two things.

1. I'd give him a communication that was not for negotiation. A take-it-or-leave-it set of details.

2. I'd just walk away and tell him to find another photographer.

Frankly, I'd do the latter. It's always nice to diversify the revenue stream, but a steamroller who's already mouthing off about lawyers is no one I'd want to enter a business contract with.

[poloman]

I have done a lot of corporate work in my career. This is my favorite type of client. Because he is so bombastic and almost impossible to deal with, if I can make it work and keep myself in enough money, he will never use anyone else. People like this trap themselves.

[Lefty Ray]

<<People like this trap themselves>>

So very true.

[lavenlaar]

Poloman - although not much of any advice, somebody once told me charge whatever you are happy with ! Me personally, i'd be thinking that you are trying to cash in on this as well....(my own opinion) don't blame you for making a buck, but me id be happy with $xxxx with rights signed over and see MY pic on the cover of the CD. No use losing sleep and having solictitors eating into the profit you just made.

[Karl Johnston]

I used to believe you were right, ^

Until I really started making a living from stock photography alone...
Seriously, forget the copyright grab it's not even worth the few thousand.
I have single licenses running generating me several hudred a month ...and the rights belong all to me.
The name of the game is Licensing, Licensing, Licensing

[poloman]

Thanks for your comments.
The manager (dad) called me yesterday. Tells me that he has a studio in Indianapolis that will do an on location shoot for $75 and then give him a CD for $25 with permission to create as many copies of his CD cover as he likes.
I told him he had really better go that way. Cautioned him that he may get no post processing of the images, told him to double check on licensing with them and reminded him that he won't have a finished product yet. Wished him and his son well.
Interestingly, he says he will call me Friday or before.
He states that I can't use the image for anything without his permission, but understands that he needs to buy licensing for usage. As I usually get a release from my clients, is he right? Can I not use the image without the release?

[Tommy]

As I usually get a release from my clients, is he right? Can I not use the image without the release?

Check this out...
http://photography-on-the.net/forum/showthread.php?t=73103

;)

[poloman]

Yeah, that's what I thought.
Thanks Tommy.

[Karl Johnston]

Interestingly, he says he will call me Friday or before.
He states that I can't use the image for anything without his permission, but understands that he needs to buy licensing for usage. As I usually get a release from my clients, is he right? Can I not use the image without the release?
Sounds like he's trying to worry you into changing your price or you'll lose his business.

You hold the copyright on the image; you have the final say in how you use that image, however, depending on what licensing agreement you agree to...you may or may not have the right to redistribute it to more than one client.

I have that kind of thing happening right now with one RM license. Depending on the client and depending on the terms and depending on whether you reallllly think you're going to make more than the client is offering selling that image to multiple parties determines whether or not its a good idea to go with his offer.

It sounds a bit like he's trying to hustle you; personally I would let them go..or you can stick to your guns, be firm with your offer and see if they comply.

That said, you can write whatever you want on your license...its essentially an agreement between you and the buyer that tells the buyer the illustrated ways in which they can use the image.

If they don't agree to your terms then they have to go eslewhere..those figures sound like garbage, by the way. 75$ ? 25 $? Screw THAT they're dreaming!

edit: actually I don't really know about an album cover, though, that sounds pretty low

[poloman]

Sounded absurd to me....
Looks like I may be going fishing instead. :)

[noxcuses1]

Those prices ARE low for CD cover licensing. I've done business directly with a major label and negotiated a licensing fee for an inside photo usage and it took a few emails and about two phone calls. I would walk from this "stage dad"...the faster and quicker the better. Sounds like he is and is going to be a ham to work with if you decide to shoot his son.

[DDCSD]

You hold the copyright on the image; you have the final say in how you use that image, however, depending on what licensing agreement you agree to...you may or may not have the right to redistribute it to more than one client.

This is incorrect and a really reckless statement. Following this line of thought could result in a very large lawsuit.

It doesn't matter if he (poloman) owns the copyright. That doesn't mean that he can use the image for whatever he wants without a model release, regardless of the licensing agreement.

[Lefty Ray]

Here is briefly what you can do and cannot do. 90% of my sales go to the artists themselves. Whether it is for a CD cover, publicity photo, t-shirt, etc. The other 10% goes to "editorial" purposes

Cannot do:
(1) Print the image on a t-shirt and sell them. (2)Print posters and sell them. You cannot put their image on merchandise and sell it. In this instance you gotta buy a license from the artisit to do that.

Can do:
(1) Sell a license to the artist for use of an image(s) on; t-shirts,CD cover, publicity one sheet, posters, koozies, etc that the artist will give away or sell.
(2) Sell the image(s) for editorial purposes. Say the artisit in performing in Anytown, USA and the local paper wants to use your image, you can sell it to them. If I do this, I put a lot of strings attached, like no wire service distribution, I retain the copyright, no newpaper image sales, and so on. This is how the paparazzi get away selling images of celebrities to magazines.

Another editorial use is if the artist dies (read Michael Jackson) or becomes newsworthy (or Jay Leno worthy), then you can sell that image to magazines, newpapers, TV, etc. Again I put a lot of restrictions in the license.

Here is an instance where something I shot 2 years ago and it finally came to surface. In 2007 I was hired to shoot a string of concerts for aparticular artist. I gave them the usual license list of what they can do with the images. Along with my fee, I added this line in my compensation part "Plus 2 t-shirts if produced from the resulting images." Well, this year the management company produced an anniversary t-shirt for the artist which had 2 of my images on it and guess what? I have 2 t-shirts in the mail.

Anothe important angle is to list what NOT is included in the license. I had an up and coming band which hired me to shoot a publicity photo for use on the B&W 8 1/2x11 One Sheet. I really charged almost nothing. Well, they liked the photo so much hey used it for their CD cover. I could have protested, but I got paid and did not completely spell out what could be done with it. Live n learn. Now, I add a line "For use of this image in a CD package (Cover or interior), an additional $x,xxx.xx is required."

[thebishopp]

Yeah, that's what I thought.
Thanks Tommy.

Just read over that and I don't think it's 100 percent acurate. Now I may of missed it but I do believe you can sell the photos you took without a release if it is "non-commercial".

Now I'm not an attorney but have done a bit of research on this.... an interesting bit of info can be had with an interview done with Ed Greenburgh, a NY based IP attorney with over 30 years experience and a published author on the subject.

http://www.scottkelby.com/blog/2008/archives/1645

Based on what he is saying (and confirmed by previous research but it is nice to have someone of his experience speaking on the subject):

The simple act of selling the photo doesn't make it commercial use. You can sell them as limited edition prints, display them in your gallery for sale, or as fine art. You just can't display them in a manner that would suggest they advocate your product in some way.

Specifically putting them in an advertisement for your services would probably turn it into commercial use whereas you could display the print for sale with no problem.

If you display them anywhere for sale though I would probably put up some kind of disclaimer which states that the people/places/things in the photos do not in any way constitute an endorsement of your services or products but are for sale as limited edition fine art prints.

[Karl Johnston]

This is incorrect and a really reckless statement. Following this line of thought could result in a very large lawsuit.

It doesn't matter if he (poloman) owns the copyright. That doesn't mean that he can use the image for whatever he wants without a model release, regardless of the licensing agreement.
You misunderstood, I was referring to he has the final say in what he does with this situation with his images.

I think it's reckless to say it could result in a "very large lawsuit" in this instance...considering the client and the situation, its a precaution to have all the paperwork in line, of course, but its not like every single instance will relate straight to a lawsuit. It's just not worth it for something so small.

I wasn't implying that he could use the image for *anything he wants* and of course he needs a release from the parent.. but that's a separate document from the licensing agreement, in this case..i don't think we've even discussed the relevence of the release, yet, aside from the fact that one is needed from the parent if you're going to work on the assignment.

OP: To be honest, I'd let it go..they're low balling the hell out of you, its not even worth it to try to negotiate with them..they just don't have the money if they're offering such meager amounts.

[chakalakasp]

You misunderstood, I was referring to he has the final say in what he does with this situation with his images.

I think it's reckless to say it could result in a "very large lawsuit" in this instance...considering the client and the situation, its a precaution to have all the paperwork in line, of course, but its not like every single instance will relate straight to a lawsuit. It's just not worth it for something so small.

Many lawyers will take privacy tort cases on contingency, meaning that any Joe Schmoe can sue you if you commercialize their image without authorization. It most certainly is worth it, unless you as a photographer have no assets whatsoever. That's how it works in America, anyway.

/I am not a lawyer

[poloman]

Well, this thread will certainly help to prepare me for the next time this happens. The dad was supposed to call me yesterday "at the latest". No call so I did go fishing. Caught 3 bass. Much better payment than I have received from his CD cover so far. :)

[DDCSD]

You misunderstood, I was referring to he has the final say in what he does with this situation with his images.

I think it's reckless to say it could result in a "very large lawsuit" in this instance...considering the client and the situation, its a precaution to have all the paperwork in line, of course, but its not like every single instance will relate straight to a lawsuit. It's just not worth it for something so small.

I wasn't implying that he could use the image for *anything he wants* and of course he needs a release from the parent.. but that's a separate document from the licensing agreement, in this case..i don't think we've even discussed the relevence of the release, yet, aside from the fact that one is needed from the parent if you're going to work on the assignment.

OP: To be honest, I'd let it go..they're low balling the hell out of you, its not even worth it to try to negotiate with them..they just don't have the money if they're offering such meager amounts.

You're right, you didn't imply that the photographer could use the images for "anything he wants". You said, and I quote "You hold the copyright on the image; you have the final say in how you use that image, however, depending on what licensing agreement you agree to...you may or may not have the right to redistribute it to more than one client.".

Again, a very reckless statement and horridly incorrect advice. The only disclaimer you put on it was that he may not be able to give it to more than one client. Now, if this is not what you meant, you really need to read what you type before you hit the "submit reply" button. There really isn't much in that statement to misunderstand.

We're talking about a pseudo-celebrity here. If the photographs are used in a manner that implies that the subject endorses something, they will likely (almost assuredly) sue. The dad already mentioned "contact your lawyer" about absolutely nothing, so you can be assured that he will go after someone that he thinks is damaging the kid's career.

[RobNYC]

Remember one thing - you can't get blood from a stone. If a company with deep pockets commits a tort, then sure - if there is something to collect, you sue. Surely everyone's financial situation is different. We all talk about lawsuits in the abstract. When people consider suing you, any wise lawyer takes into account whether or not you've got something to collect or they won't waste their time. They might send a cease & desist letter, threaten, etc. But no lawyer will take a case on contingency when he knows he isn't going to collect anything. If the other person is wealthy and pays a lawyer outright to make you miserable... oh well!