What
happens when the film is lost? Or damaged? Or returned to the wrong party?
Always insure, Always be sure.
"the
client may not want to be shackled to the photographer whenever they want
to use an image they've hired him (or her) to create"
"the
loss of a full roll of 12 transparencies may result in a value of $18,000
if the client looses or damages the film"
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Proshooter.com
is John Lacy,
a commercial photographer
based in the
metro Detroit area.
We produce high quality photography
mostly for business to business marketing.
Our principal markets are the construction industry and the automotive
manufacturing industry. A significant portion of our work is also divided
among the hospitality industry (hotels, resorts, casinos & restaurants)
Our specialties include
>>
Architectural
(interior & exteriors),
>>
Automotive
(interiors & exteriors,
studio & location),
>>
Industrial,
shooting manufacturing facilities & equipment.
>> Environmental & Studio
Executive Portraiture
for Editorial, Annual Report
and similar,
>>
Studio Product
including electronics,
glass, plastic, package goods & food.
In addition to photography we also offer
>> Digital Retouching
>> Large Format Printing
>>Graphic Design & Offset Printing for brochures, catalogs and promotional
materials and
>>
Website Design & Hosting.
We've been in business since 1987
[please note that this article was written in 2001. While we have moved
exclusively to digital formats, currently up to 50megapixel, some may still
be interested in some of the information contained here]
Just to be clear, this discussion involves the original film from a
contracted photo shoots. Post production products such as prints, murals
and publishing are the responsibility of the buyer once delivered. We
always stand behind our products and will replace any post prints or
murals found to be defective in materials or production.
So what happens if original films used by the client, agency, printer or
other parties is lost or damaged? While we are very fair and flexible with
our terms, licensing, fees and expenses we cannot afford to be so liberal
when it comes to the product of our labor. In the last several years more
than one client (generally a client's agency or printer) has claimed to
have lost our film while under their control. This has lead to much debate
as to what is a reasonable resolution.
Many times clients
are under the impression that they own the film which we have shot for
them. 90% of the time this is not the case. The ownership and
copyright are retained by the studio (us) unless the client has purchased
a buyout as part of the licensing agreement.
A long string of legal cases has established a standard
value to each image which may have been lost or damaged while under the
control and the responsibility of the client. In virtually every case the
courts have sided with the photographer. That value is $1500/image. That
means that the loss of a full roll of 12 transparencies may result in a
value of $18,000 if the client looses or damages the film. When you're
talking about a job with 8-10 rolls of film you are talking about some
serious money!
Why are these assessments so high? Many times exceeding the cost of
producing new film in a reshoot? First, to send a message that the care of
original art is important and not to be taken for granted. Secondly because
many times a reshoot will never be as good, the relationship between the
artist the client will never be the same and lastly to allow the
artist some latitude in negotiating with the client should film be lost or
damaged despite everyone's best and sincere intentions.
When hired to "create" an interpretation of a concept ("art") I
am the author and creator and therefore the sole owner of the copyright of that image, be
it a photographic piece of film, print, or computer image (file). My work is protected by
the copyright laws of this nation, but more about that in a minute.
In most cases it's not so much a matter of the film having been lost. It's
a matter of simply having it returned. We have worked with agencies and
printers who despite labels to the contrary will return the film to the
wrong party. Typically this is someone with the client company who may not
be aware of the licensing agreement and presume to own the film and refuse
to return it. In some cases they will make scans and prints which may be
in violation of copyright law. In these cases
we only wish to maintain control of the images, allowing us to provide the
highest quality and best options in their use.
If that sounds like I want to be sure to profit from additional
uses like murals and prints it's true, but I also would like to have the opportunity
to crop and/or retouch the image as well as oversee the production of
display materials or other uses to maintain a high standard because the
images represent me as the artist.
The client, very reasonably, may presume that he has hired me to produce his vision
and interpretation whether it's highly conceptual (broken glass in a purple sky) or very
literal (shot of the building). But unless I am hired as "work for hire" and
acting as his hand in the creation of the work and a written contract saying so
specifically I am the sole creator. While not required, I declare and document this by
providing the client with both an estimate prior to the job and an invoice after, each of
which specifically indicate that I am the author and copyright owner and am licensing
specific rights to them (which may range from broad or narrow).
In doing this I protect my interests. By controlling the image I can
oversee and maintain the quality of a body of work which represents me as an artist and a
professional. It also allows me to manage the future use of the images whether by the
client, myself or additional parties (some works may be resold as stock, others of
proprietary nature may not). The rights licensed and the use of my images while negotiable
are in my control.
I also have the option of relinquishing these rights. I have a couple of clients
who insist it is in their best interest to obtain all rights including the copyright at
the time of purchase. he client may not want
to be shackled to the photographer whenever they want to use an image
they've hired him (or her) to create. I offer these clients a "buyout" option. The buyout gives
them all rights and the original film, leaving me with only the right (as I specifically
indicate) to use the image in my own promotion. I cannot resell or even reproduce the
image outside of the provisions of the agreement without their permission. For a buyout I
typically will request a 200% premium over my fees. This is a high premium to pay, and
generally unnecessary, but I have some clients who are all to happy to do so to completely
control the images. For clients who contact me and negotiate fees based on
"per-use" a buy out may be very practical if they plan to use the image again
and again.
So what happens when despite all efforts and the
best intentions the film is lost or damaged? We are willing to be quite
reasonable in determining a fair settlement whenever such a thing may
occur. Our goal is not to benefit from the mishaps that just happen in
life. It is only in the most extreme cases where a fair settlement cannot
be agreed that the highest restitution may be pursued. I would expect that
anyone willing to understand our position would be receptive to a quick
and reasonable resolution.
We of course want to provide the highest level of work and services for our
client's. It can be uncomfortable to deal with such issues as these as they may be seen as
a wedge to be driven between the parties, but it is best to make everything as clear as
possible from the outset to avoid such misunderstanding down the road. It is our
responsibility to our clients and ourselves as professionals.
The copyright laws are maintained and upheld by the
Library of Congress and the U.S.Copyright Office. Detailed information about the laws can
be found on there websites. Here's a link to a page I maintain with links to several of
these sites: http://www.proshooter.com/copyrigh.htm
"A work that is created (fixed in tangible form for the first time) on or
after January 1, 1978, is automatically protected from the moment of its creation and is
ordinarily given a term enduring for the author's life plus an additional 70 years after
the author's death."
USCopyright Office Circular 1 Copyright Basics.
