Author: Leslie

Over the weekend I was doing my reading for my Licensing class when I noticed an interesting linguistic flip. It got me to thinking about how we look at licenses and I thought this alternative might be helpful. In the casebook (textbook) the authors refer to a license not (only) as permission for someone to use some intellectual property, but rather as an agreement by which the IP owner agrees not to sue the user (licensee).

Hmm… an agreement not to sue. I like that. It puts the perceived power back in the hands of the IP owner.

The casebook also points out that in “regular” contracts (not licenses, which are also contacts, but let’s not get confused), if there is ambiguity in the language the courts will construe the contract against the drafter. That means if you present a contract to someone else, like to buy their house, and the contract ends up being litigated for some reason, the courts will be more harsh on you, not the other side, because it was your contract. You had the burden, essentially, to get the wording right and clear and if it wasn’t, well, that’s your bad and you have to suffer the consequences. Using the house example, if you don’t expressly note that the porch swing is NOT a part of the deal, it will be included as part of the house.

However, and this is important, a license is construed by the courts narrowly, that is, in favor of the licensor (the IP owner). If a license does not include something, the courts will assume that the something is NOT included–the porch swing would not be part of the house sale, so to speak (don’t get picky here, the house sale is not a license, but I’m trying to simplify some things  for understanding).

These two things can give you more power in your business. When you know that you are licensing ONLY the uses you specifically name in your license and that your license is your promise not to sue (unless the other side screws up), you hold the power in that relationship! While I am all about seeing both sides as equals, too many photographers see themselves in weak positions. Hopefully this will help balance things in your heads.

[as always, this is not a legal opinion or legal advice–just the musings from my own head–consult a lawyer for your legal needs!]

Used to be, a magazine would call and a photographer would know that the usage was editorial. Now, you need to ask. More magazines are now creating the ads that run on their pages. This article from the NYTimes explains.

They are customized ads that work with the editorial content in placement and ad content. This means they are done quickly. It also means they may try to call them something like “advertorial” when they negotiate with you. Don’t get confused–these are ads and they are worth just as much, if not more, than regular ads. I say “more” because the combination of specific placement and targeting, they are potentially much more effective than just any ad.

Some important things to note from this…

• Digital photography makes the ad customization “cheaper and faster to shoot” in their minds. Faster? yes, probably, but why cheaper? This is their mindset and we need to push back on that idea.
• The ads are being used not only in print, but also are being licensed for use on tv, online, and even packaging. This means photographers need to nail the usage down when negotiating a project!
• The mags say that the ads are more expensive for the advertisers (see end of article) but at the same time they talk about cheaper photography. Hmmm…
• In Condé Nast’s case, they obviously value artists in different fields. How can we get them to recognize similar value in advertising photography?
• Keep in mind when they call that the placement alone (w/o creative!) in these magazines is usually over $100K for one single-page ad; and they are apparently shooting multiple ads (variations) for each project. Add in additional uses as mentioned above, and the value of any project like this is high.

New uses like this are being devised every day. That rapid change is another reason we need to find a more logical usage pricing system (creative fees will always vary depending on photographer and complexity–I’m ONLY talking about usage license prices). It is difficult to quantify value, but if we can systematize usage license pricing, it will make everyone’s lives easier and help hold up the prices as they will be tied to an objective value.

I posted this link on the BAP Facebook page yesterday, but I wanted to go into a bit more detail about it. What the link takes you to is a pdf of the Clearchannel outdoor media rate card–a listing of the prices advertisers pay to rent billboards and the like.

The first think I’d like to point out is that there are a lot more media options than you may have ever thought about. For example, we all know about bus shelters and bus wraps, but we tend to forget about inside of the bus or commuter trains, on top of taxis, or all the ads we see at malls.

Even though there are a lot of things listed on this pdf, these are actually just a few media options. There is media (space rented by advertisers, I mean) everywhere– the conveyor belts and carts at the grocery store, flyers filling your mailbox, and everything digital, of course.

And it all costs to rent. Those prices are pretty much standardized within their relative markets and usually you can get those prices on online media cards like this. By looking at these media cards, you can start to understand the relative value of your work and estimate your fees more accurately.

There are still people who say that basing your usage fees of media rates is an old, discarded way of doing the math. Apparently it was done 20+ years ago, before I got into the biz, and rejected. I have no idea why or what things were like then. But just because it didn’t work then doesn’t mean it’s a bad idea now.

Now it makes sense. As noted in Getting to Yes (Ury, et al), one of the pillars to successful negotiations is using objective criteria–using the media rates (something out of the control of both you and the agency/client you are negotiating with) makes your position rational. If placement costs $800,000 then the usage fee should be greater than placement which costs $300,000. Pencil-pushers can understand this. As I discuss in this month’s Creative Lube, cost consultants are looking at everything to try and get the numbers down–you need to have a rational argument for why you are billing what you bill. Taking yourself out of the equation and, instead, pointing out the simple logic of a more extensive media buy equalling a greater usage fee simply works in these numbers-guys’ heads. They can’t argue with math.

These media numbers are important to know, also, because when you are selling an unlimited license of some sort, you need to know what you are really selling–it’s a hell of a lot more than you may think. Don’t give it away. When you understand the value of your work in the media environment, when you learn what sorts of numbers your clients are used to dealing with, suddenly that $48K for creative AND usage fees for two years GLOBAL unlimited print media doesn’t sound like such a good number after all (see first estimate posted by APE). Yes, $48K is a lot of money to a lot of you, but it isn’t a lot of money in the world of your clients–that is, their perspectives are different. They are used to much higher numbers!

You must learn to separate your personal perspective (“$48K is more than I’ve made this year! I’d be thrilled to get this!”) from the actual, objective value being exchanged in this transaction. The objective value for that broad usage (global unlimited print!) is a hell of a lot more than $48K (and remember, that number quoted by that photog INCLUDES the creative fee as well as usage, so the usage is actually less than $48K!).

Think about it… how many taxi tops, bush shelters, and grocery carts are there in the whole world…

The new Creative Lube podcast is available and deals with these pencil-pushers. They have changed the way we do business and there are steps you need to take to make sure it doesn’t cost you money.

Thanks to everyone for their patience while I slogged through 5, count ’em 5 law school exams. That was insane, but I got through it (hopefully successfully) and am back at it.

And already I’m thinking about the future. Specifically, next summer. I will be hitting the road then to speak at various creative groups. If you are interested in having me come to your city, please contact your local APA, ASMP (AIGA, etc.) group and tell them to invite me to speak. While I’ll be contacting the groups as well, it’s always helpful to have it come from the members. This is your chance to have me in the room, to ask questions, and to learn as much as possible from me. I also try to have at least one day available for one-on-one meetings in each city. I hope to travel mostly in May and the first half of June of 2010… kind of like a concert tour.

Stay tuned for more updates as things start to firm up.

In the meantime, if you want quickie updates and links to articles of interest, etc., I encourage you to become of Facebook BAP fan. I post many more quick thoughts and ideas there.

Don’t forget to subscribe to the new Creative Lube podcasts. If you were getting Creative Lube via iTunes or through some other feed, you won’t get any new ones without signing up!

Upcoming episodes will include topics like social media, websites, alternative promo ideas, what buyers respond to, and how to edit your work for your book. An annual subscription will mean you get at least two episodes free (as compared to buying individually). Get it here: http://burnsautoparts.podbean.com/

Condé Nast has been a temple in the publishing industry for as long as anyone can remember. But even it is undergoing some changes with the downturn in the print economy. This article is particularly interesting because, to many “normal” people, the attitude it portrays is shocking.

It reminds me of an interview I saw once with Steve Martin. He was on Letterman, I think, and he was talking about the trappings of fame and how it changes your attitude. It creeps up on you. He said that when he started doing stand up, he would drive himself to the gigs. No problem. Then his manager would drive him more often than not. Okay. Then one day in some city they sent a limo. He said, “No no, I don’t need a limo. Really. Thanks but it’s completely unnecessary.”

His manager said “Shut up and take the limo–they sent it, just enjoy it.” So he did.

The next night, in the next city, Martin headed out of his hotel for the gig. He looked around and said, “Where the hell is my limo?!”

The people at Condé Nast are freaking out because they can’t order lunch at Nobu and don’t have Orangina in their fridges. They’ve gotten used to things that most of the rest of the world would see as unnecessary and expensive frou. Creatives run the same risks. We work in a world where we get regular access to people and places and things that others may never experience in their lives. It’s easy to turn into a bit of an ass about it all. Don’t. Remember that we’re really lucky to get to work in this world. Keep grounded and you will appreciate it more each day rather than get jaded.

In other words enjoy it, but don’t forget that the bells-and-whistles are just the show.

That being said, you can also use that show to build your business. For many of our clients, end-clients in particular, going on a photo-shoot is a bit of Hollywood. There are (often) models and lights and stylists, etc. It may feel normal to us, but for them it is a toe-hold on a world they don’t get to live in like we do. If you can remember that and put on a good show for them, they’ll remember that always and appreciate it. Start with great craft services on your shoot. Wonderful food will wow clients all the time. Comfortable places to sit. Nice drinks. Take care of the basics with flair. Make the shoot an experience, and your clients will love it–the agency people will appreciate how great you are making them look in front of their clients and the end-clients will love you too.

The downside is that the next time, they’ll expect it. The upside, of course, is that there will be a next time.

I’m heavily buried in the last few days of study before exams, so rather than write something that will probably contain way too much about law school and not enough about photography and the creative industries, I thought I’d share some links to other good reads… and a could of must-see vids. Enjoy. (and send good exam mojo, pls)

Doug Menuez on free and its threats.

The post-recession future of advertising?

From advertising to SCTV and back again.

What do fired ad people do? Many change their lives. (Btw, Mark Harmel is a photographer who contributed on this project.)

And the best 6 minutes of advertising goodness. One shot (although reportedly take #40), no edits, and you’ll likely be thirsty after.

Heather Morton has another must read post. This one is on the role of the Art Buyer and really gives us a good look at where the responsibilities lie.

When you read this, make sure to keep in your mind “How can I use this information to improve how I approach/work with Art Buyers?” That way you won’t fall into getting upset or frustrated when you read about the limitations on an AB’s “power” etc. Hopefully you will come away with the understanding that while they aren’t there to be your advocates, they really do want to push their constituents to use the best photographer for the project.

Wacom promotes EclipseDigital and their rip-off of artists. (Thx Mark H for the heads up!)

I think EclipseDigital has all sorts of bad things going on. For example, you can’t get the full T&Cs until after you give them your contact info and, essentially, sign up (although it appears you’d get it before you upload anything). That is smarmy at best and I have to wonder if it doesn’t actually run afoul of some legalities. Also, just who are they? I don’t trust companies that don’t have real people somewhere on the site–like bios of the execs or something.

But the core issue for professional creatives is the unfortunate promotion by Wacom. For any of you who use or are thinking about using their products, take a moment to complain to them about this. The more they know their core users are upset, the less they will do things like this in the future.