Q: I have just shot a new flagship store for a well known high street brand for the architect who designed it. I have a set daily rate that I usually charge him as he is my oldest client.

I don't have a contract with him for my photography, it's just a verbal agreement, but I assumed the photos were just for his use for PR and to put on his website. He has just asked me for an exterior shot because his client ie the high street retail company that commissioned the architect, wants to send out something to the press. I didn't know he was going to give these photos to his client ... if they want to use my photos can I ask for some more money from them? If so how much? 

I suppose all this needs to be agreed beforehand and I should have some kind of written agreement to avoid any confusion in future. Is there a standard agreement available that covers copyright and usage I can use in future?

A: Two expressions come to mind- ‘Never assume anything' and ‘Get it in writing' !

The value of photography is not so simple as a ‘daily rate' and a photographer should protect his copyright and clarify the usage on every job. Say, for example, you suddenly saw your images on 48 sheet posters all over the UK and they were integral to making a profit to your architect's client. Unless you had something in writing initially, stating what usage you've agreed, things could get complicated. Although, in your favour, just as there is nothing in writing stating the limit of the usage, neither is there anything specifying any usage i.e. you haven't granted permission for this usage so would have the right to ask them to stop using the images. It's just best to avoid any wrangles in the first place.

Surprisingly, I come across this situation all the time: photographers just quote a general rate and don't enter into any conversations about usage. I'm not sure whether this is due to ignorance -on their's and their clients' part- fear of putting their clients off or the desire for an easy life. It's ironic therefore that an action originally intended to ‘please' a client sometimes results in a damaged relationship or losing the business altogether

The fact remains, the value of an image should be based on how and where it is used, i.e. an editorial piece in a local magazine does not command such high fees as a worldwide press and poster campaign for a global brand - but unless usage is stated in the first place your clients won't know where they can and can't use the images and you have no control of where they might be used. Furthermore, you should always state which client/brand the images can be used in association with, otherwise, as in this instance the images can be ‘sold' on, or it might be assumed that they can be used by other companies.

Lets backtrack for a minute and let me tell you what you should have done. On any job, you should send out a copy of your terms and conditions of business. I always have them as the last page on my estimates and invoices so my clients can't say they didn't receive them. If the photographer is then commissioned, the terms and conditions are automatically accepted by the client by the very fact that they have been received and the job has gone ahead (unless they are disputed or the clients terms override them). Your terms and conditions should include such things as payment terms, indemnity, cancellation fees, etc. and the two important clauses that would safeguard you in a situation like this would be ‘Copyright & Ownership of Materials' and ‘Use'. I've highlighted the pertinent points in the following extracts from my terms and conditions.

1) COPYRIGHT AND OWNERSHIP OF MATERIALS. The entire copyright in the Photographs including ownership of all materials is retained by the Photographer at all times throughout the world. Photography Fees are based on a License to Use the photograph/s within the constraints specified on the estimate. In the absence of such license having been specified in writing by us, there is no usage granted whatsoever. Copyright is at all times retained by the photographer. Any changes to the usage rights required must be negotiated with xxx. For the period specified The License is granted exclusively. This period commences upon first use of the photograph/s. Where Photographs are stored electronically, they must be erased at the conclusion of the agreed usage period.

2) USE. The Licence to Use (normally our invoice) comes into effect from the date of full payment of the relevant invoice(s). The period of usage commences from date of first use (or 6 months after shoot date, whichever is sooner). No use may be made of the Photographs before payment in full of the relevant invoices(s) without the Photographer's express permission. Any permission which may be given for prior use will automatically be revoked if full payment is not made by the due date or if the Client is put into receivership or liquidation. Where use is restricted in the License to Use, permission to use the Photographs for other purposes will normally be granted upon full payment of a further fee, to be agreed with xxx The Licence to Use only applies to the advertiser and products as stated on the invoice and its' benefit shall not be assigned to any third party without the Photographer's permission. Accordingly, even where any form of ‘All Media Licence' is granted, the Photographer's permission must be obtained before any use of the Photographs for other purposes e.g use in relation to another product or sub licensing through a photolibrary.

Aside from this, on the top of any estimate /invoice I always include the following information so every bit of information is down in writing.

Date:
Estimate/Invoice No:
Your Purchase Order No:
Client:
Photographer:
Art Director:
Shoot dates:
Usage: i.e media, territory, time
Description:

And my advise on what to do now? You have assumed that these shots will just be used for PR and your client's website, but your client has probably now been asked by his own client for some images. No one wants to say no to a client and some people are even afraid to ask their clients for more money -however it is just being professional.

As it is a big retail company I would imagine they know what they are doing when it come to using images, they are probably used to the fact that they need to pay for images for their own pr purposes. So, I think you should simply explain to your client that the images you shot were intended only for his own use and going forward you shall send a usage licence with your terms of business attached for clarity. If his client would like to use the images for their own PRpurposes then the usual PR rate would be applicable .

In photography, usage is determined by media, time and territory. So in this case it might be PR, 1 year, UK and Europe. The figure you originally mentioned to me isn't a million miles away from the going rate for years PR use. For the record PR or Press and Publicity photography commands a higher fee than editorial but lower than advertising or other commercial usages. You might want to increase that figure if the usage is for Europe as well or the images will be in circulation for a longer period of time. This is for images you shot over 1 day, if you are commissioned to shoot further shots over 1/2 day the rate would be pro rata.

I suggest you start the more formal system straightway, i.e put in writing what he wants you to shoot now/fill in all the relevant bits-

Date:
Estimate/Invoice No:
Your Purchase Order No:
Client: name of architect
Photographer:
Art Director:
Shoot dates:
Usage: e.g PR, UK, in perpetuity
Description: For 1/2 day photography on location. All permissions and location releases to be supplied by client.

And include a full set of terms and conditions.

I would treat the fact that the high street brand want to use the images as a separate business transaction, which requires separate documentation. Include all the above and the amount you want to charge them. This should be sent directly as the contract will be between you and them- i.e its not necessary for your architect friend to be involved. Of course there is always the chance that your client also has some 'verbal' agreement with the high street brand, perhaps allowing photography of their premises on the proviso that they can also use the images! Let's hope not as things could then get a bit messy. Even if this is the case, it is still professional practice to grant an official usage licence and charge appropriately. And it's just another case in point of the importance of getting things in writing.

Only last week, strangely enough, I have had a very similar situation. A high street name commissioned one of my photographers to shoot their interior for a trade press campaign, and now the architect wants to use the images for his own PR. As the copyright belongs to the photographer and the usage licence has been granted to a particular company, this architect understands that the images aren't free for his use and is happy to pay usage fees - the images will be potentially benefitting his business after all. I did of course, run this by my client, as usually licences are granted on an exclusive basis - i.e only the client that paid for the images can use them until the usage period has elapsed.

Hope this clarifies things for you anyway. Its funny how its always the ‘mates rates' jobs that throw up issues, issues that can easily be avoided if its all in writing!