Whittle Down that Contract
Special Guest Post by Rohn Engh
Publications want to encompass all options available in today’s digital era and they want to make their contract as broad as possible. It’s up to the photographer to whittle the contract down to workable—for the photographer—reality. Here are some answers for you.
Contract says: “Photographer hereby grants to Publisher one (1) time publication rights to Photographer’s stock Photograph(s), and ongoing rights, as described below. All rights are nonexclusive.” Translation: This means you can sell and resell this photo to other publishers; it is not an “all rights” sale exclusively to this publisher. If it were, you’d want to charge three or four times your original asking fee.
Contract says: “All rights are applicable in all media, including, but not limited to, all electronic, Internet, disc, optical, digital and other media whether now known or hereafter invented.” Translation: As the Digital Age advances, publishers want to be sure they don’t run into any future snags where it’s not clear if electronic rights are included in the license fee. Should you tack on an extra charge in case the publisher wants to use the image for an electronic purpose, such as a one-time use on their website or sample DVD?
Unless your name is a household word in the industry, you should probably consider going along with their request for electronic rights. This might come as a jolt to long-time photographers who see electronic rights as an additional use. However, at this point in the digital age, “electronic rights” are pretty much a “given” and indistinguishable from standard “print” rights. You have the option of charging an extra fee for electronic rights but in doing so you might (as a newcomer) price yourself out of the market. The answer to this dilemma is probably to charge 10 to 25% more for your one-time use of photos when you get in a discussion with a photobuyer. If they are interested in using your image, they’ll find a way to cover the cost of your higher fee. This way you can assure that the negotiation will go smoothly when they ask, “Does this include electronic rights?” You’ll be able to say “Sure,” and sound like the good guy.
Contract says: “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 OK But, remind them that you are talking about “the above-named magazine,” and if they wish to use the photo for another, separate editorial use (magazine, book, etc.) the fee would be 75% of the original fee.
Contract says: “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 the Publisher’s products without additional payment.” Translation: Whoa! For advertising use, ask them to contact you separately and use the chart in Chapter 8 of my book, “Sell & ReSell Your Photos” to come up with a fair fee based on such factors as circulation, print run, etc.
Contract says: “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: – it should read: . . . in consideration of a one (1) time additional fee equal to seventy five (75%) percent of the original compensation paid.”
In conclusion: The publisher, in this case, has sent you a contract and you are sending the contract back to them with your cross-outs and annotations. Pros do this all of the time. If you don’t make adjustments to the contract, they might consider you an amateur and might avoid you in the future because you don’t have a track record in the publishing industry—which to them means you’re not “hassle-free,” which they interpret as someone who needs some hand holding—which takes up their valuable administrative time. They’d rather pay a higher fee to a person who is “hassle-free.”