When To Sell... And When Not To Sell

A visitor to our forum recently had a question about a non-profit agency for disadvantaged children that was requesting permission to use photos from her website. The photos would be used in the agency's library.

The question went like this (I've used the word COMPANY in place of the actual name of the organization):

Q: I have been asked by the COMPANY Photo Library in London to supply them with about 20-30 shots of a particular subject for a flat fee of around U.S. $900. For that price they want non-exclusive unlimited reproduction rights.

They want to be able to use those images in their library, which seems to me they will be making money off the photos.

If they are for internal COMPANY use only, maybe I will do it, but if they lease the photos to third parties, I would want standard commissions. Seems like a Work-for- Hire deal here, but I would retain copyright.

Any suggestions about the best way to handle this?

A: It usually takes some back and forth negotiating with a situation like this. Very often, the final "wedding" actually goes smoothly and you gain a lifelong photobuyer who recommends you to other similar buyers. However, sometimes the whole thing ends in a "divorce."

So, with that in mind, here are a few comments:

This is very similar to the occasion when you place your images with a federal or state Travel Organization or a Bureau of Economic Development. Unless you specify other arrangements, the images often become "public domain." You lose control. You don't know where your pictures are being used.

"Unlimited reproduction rights." Depending on what the COMPANY means, this could become the equivalent of Royalty-Free, which is not altogether bad, but you would not be able to license those images as Managed-Rights in the future, unless the prospective Managed-Rights buyer would excuse the competition from COMPANY.

"Model releases." They are not required, in 95% of cases, if the pictures are used for editorial purposes (information,entertainment). The usage becomes a "commercial" use if the pictures are used for advertising COMPANY's services. It doesn't matter that COMPANY is a non-profit; the pictures are still being used for 'advertising.'

OUT OF CONTROL

Are the pictures in the COMPANY's library "free", or for sale? You'll have to clarify wether the COMPANY will lease your pictures to third parties, some for editorial use, some for commercial use. In some instances they may give them away -free.This is where the waters get muddy. "Standard commissions ..." you should pursue this on the condition that you would lease the pictures to them if they would give you, say, 50 or 60 percent of any sales. If they like your work and want to continue working with you, perhaps they would joint venture with you in this manner.

"Work-for-hire." The Copyright Law says that they don't 'own' your pictures, (Work-for-Hire), unless you make a written agreement that you turn over the copyright of the images to them. If that's what they want, to own all rights to your pictures, ask them to make you an offer you can't refuse. Unless that written agreement is made, you definitely still own the copyright to your pictures. And the good news, you can always regain complete control of your pictures, later on, once your agreement with them expires. Check out the Copyright section at the Kracker Barrel to see what options you have.

All of these points revolve around a central question: "How much do they want to bend in order to gain use of your images?" And remember, your images don't have to be award-winning pictures, but they do have to be the kind of images COMPANY has been searching for, and need.