Don't Get Taken Advantage Of

Stand Your Ground. It’s More Valuable In the Long Run.

Photograph by  Kent Meister

Photograph by Kent Meister

Whelp… I thought I had this bid negotiation thing down and only had experience, to this point, working with people that were ignorant to the value of photography so I let things go; in the hope there would be educational value with potential clients on what quality photography costs to set me up for larger future projects. Turns out I either know nothing about bids & negotiation or I just haven’t met the right project yet or I’m not a good enough photographer. I believe a little bit of all three have a sense of truth behind them but let’s stick to the facts and not dwell on the “what if’s”.

Fact 1: I’m a bad ass photographer and I take bad ass photographs. In that I’m more grounded than in any other element of this creative game. I’m not what I say I am because of how you perceive me, I am because of what I know about myself. There’s long lived intrinsic value in that which pierces even the biggest let downs. IF you don’t have that… search to find it and don’t stop until you do.

Fact 2: I have a good idea on the value of my photography. I find that fair value then push it a bit to leave room for negotiation. Turns out… no one knows how to negotiate from local mom & pop shops to top end PR firms in Beverly Hills. So, be prepared to demand negotiation when a potential client respond with “thanks but we’re going to move a different direction.” Every time this has happened I respond with, “Ok, what is more inline with your budget?” Low and behold… they give a number they can work with!! So odd, but know that going into it.

Fact 3: I have met the right project for me, but not the right project for the potential client. Don’t let this get you down. Be sound in your foundation (via Fact 1) and know it’s just not the right time. Keep pushing and eventually the right relationship will form for both you and the client.

Story Time:

Back in January I pursued a personal project to shoot 35mm headshots of Nate Bargatze. It turned out great! So much so that he’s used the shots on all of his social channels AND his PR firm (based in Beverly Hills, CA) reached out to license them for his upcoming tour that could last up to two years. The photographs would be used for digital / social marketing, possible press use, and event posters; essentially editorial use. I’m totally good with that and give a quote of $2,000 with and exclusive license for 2 years. Keep in mind this quote was given after a phone conversation expressing this number and left the call with a negotiable green light. The conversation went like this from there:

PR: Unfortunately that is out of our budget. We are going to move in another direction.

Me: I completely understand. What number is more inline with your budget? I’m flexible. 

PR: To be transparent - Our budget is $550 to be able to use it in perpetuity. This is in line with the usual costs.

Me: Thank you for your transparency. If that’s your top end, let's go with it. Like I said, I’d love to build a longer relationship with you and I’d be happy to be a small part of his tour’s success. 

PR: Great thank you. We will draft up paperwork.

Alright… definitely got low balled but my Kodak Ektachrome portrait of Nate captured with my Leica M7 would be used for his tour poster… pretty freaking rad (big personal win) AND I have a fun connection that could actually lead to more work that is inline with my goals.

A day passes

Lawyers sent paperwork over:

Assignment of All Rights. Assignor hereby irrevocably grants, sells and assigns to Assignee all right, title and interest (including, without limitation, all worldwide copyrights and all other incidental, subsidiary, allied and ancillary rights) in and to the Property throughout the universe in perpetuity, including, without limitation, any works based upon, derived from, or incorporating the Property or any element thereof, and in and to all income, royalties, and payments now or hereafter due or payable with respect thereto, without reservation. The Property may be exploited, or withheld or withdrawn from exploitation, as Assignee may determine, and may be exhibited in such manner, by such means and in such media as Assignee may determine.

Ok… incase you weren’t aware or understand everything above… this is what is called a “Buy Out” where you do not own the property (i.e. photograph) any longer and in order to use said property I would have to request permission and give reference to my own work. None of this is alarming if this was the intended use of the property, but it wasn’t. AND… no where in the contract was it stated on the intended use of the image. According to this contract my photograph, once this contract is signed, could be used for ANYTHING his PR Firm or Nate wanted. For example: book, dvd, merchandise sales, etc. I was ok with the firm using the image forever, but only under the stated means they intended to use it as long as I retained my creative rights.

My response to the lawyers:

The conversation I had with NAME was for the photograph to have an exclusive license for up to two years and I would retain copyright, not a transfer of rights. Once that has been changed I’ll be happy to sign and return. 

PR Firm Response to me:

Our legal team mentioned some confusion on the terms - 

We need to be able to use the artwork in perpetuity otherwise we cannot use it for the short period. If we only are granted rights for two years we won’t be able to remove all the times we’ve used the artwork in the past online and be liable. (Editors Note: Pretty weak argument, but ok.)

Let me know if you’re able to sign the paperwork as is.

Me:

Understood, exclusive rights in perpetuity is fine, but we didn’t discuss releasing the assignment of all rights. 

Also, nowhere in the contract does it state the intended use of the photograph. We discussed digital / social marketing, possible press use, and event posters.

If we can change the contract to reflect exclusive rights vs. assignment of all rights and state the photographs intended use I’d be fine with it. 

PR:

Radio silence even after a second ping.

Now… how would you think I feel at this point? I got low balled on the photo. The contract didn’t reflect what was discussed. The PR firm is giving me the cold shoulder…

I feel proud! This wasn’t a loss, this was me exercising my knowledge and value to a very large PR firm. I approached this fairly and received a very unfair response. Now… I can’t blame them at all. It’s their business to get the most for the least… I get that, but I’m not one to roll over on my values and who I am. Would it have been absolutely amazing for my photograph to be used for Nate’s tour… yes. Would that be worth selling out for a very small paycheck to do so? NO.

All in all I love exercises like this. As I grow and projects come and go, I need experiences like this to know where to give and take. $2,000 for exclusive rights FOREVER is one hundred percent fair for a Comedian/PR firm of this size. If I’m wrong in that then I know nothing about my value.

I hope this story helps you in some way. Thanks for reading along.