Photographers Rights - Aren't They Mine?

[DebraM63]

Hi:

I am new to this and am forever learning something. My tactic to get opportunities to shoot have been to call and get permission from the event's producer or property owner. This, so far, has been related to horse shows. gymkhanas, and the like.

The latest thing that has come up is that I had called to get permission to be present at a Mule Show that is being held on a private ranch close to where I live. There are not any other photographers going to this event so its just me. I told them from the beginning that I am not offering anything for sale just taking portfolio shots. So again, the ranch owner said it was okay for me to be there.

Later her legal person got wind of it and said that I have to make a CD of all the photos and give it to them, along with the rights to all the photos.

From what I understand that can be a way of doing things, providing that they pay the photographer for the photos / CD. Its not free.

I had indicated from the beginning that I am just taking portfolio shots for practice and improvement in my photography, that nothing would be for sale. It does not seem right that they would expect a CD of a days worth of shooting without paying for it.

I am a metal artist by trade and I know that for photos of my art work, the rights to those photos belong to me. So it seems that if I am taking photos, not for sale / profit, I should not have to worry about handing over the rights to someone else - that the photos are my property if I am taking them and if they want the rights then they would have to pay me, right?

I was only going to post the best of the day on my website, so I don't want bad photos floating around in internet land.

What would be the best solution for this besides the first obvious one - don't take photos here?

I just don't feel like my work is of the caliber to sell so have been carefully trying to pick events to take "practice" pics. I understand about getting model releases, etc., when you are selling photos of people for profit.

I guess the other option is to come up with a price, but how does that work with a full CD of a photo shoot, a set price or price per pic?

Any advice here would be greatly appreciated. I live in California.

Thanks!

[Shadowman]

For information regarding your situation, check out this website.

http://www.danheller.com/model-release.html

My recommendation would be either get a lawyer or negotiate with their legal staff; so in other words get a lawyer.

[Manfred M]

As you would be performing this work on private property, they can impose any conditions they pretty well want, including the ones that they have suggested. They could charge you a fee to shoot on their property, they can demand that you sign over the copyright to them and they can demand that you produce the CD of images you have taken at no cost to them. As long as their demands do not require you to do something illegal, the terms and conditions they impose on you working on their site are totally up to them.

Sometimes the conditions of a contract are fairly onerous because the one of the parties doesn't want you there, but doesn't want to say "NO!" quite so outright. It could be as simple as them not wanting any liability of you getting hurt or have your equipment damaged while shooting on their site.

Just one other point. The company that I worked for prior to retirement would frequently contract out work involving intellectual property. One of the terms of the contracts was always that the intellectual property rights would be turned over under the contract. This would include work by architects, industrial designers, engineering consultants, graphic designers, photographers, video production houses, etc. You own the IP by default, but you lose that if you sign it over to a third party.

The way I see it, you have two choices; try to negotiate better terms and conditions or just walk away. You could also ask a lawyer (I am not a lawyer), but I expect he or she would say very much the same as I have.

[DebraM63]

Thanks for the info so far. what is so frustrating is that I have been so careful in asking permission to shoot at these locations and the owner of the property isn't the one who has a problem but this other person has stepped forward and advised her about the CD etc., and it seems she is likely just going to follow along with that because this friend of hers is advising it. The owner of the property is an older woman who has been very nice to me. I am not interested in making any enemies. I got a message into the woman who advised about the CD to try to get an opportunity speak with her about it to find out exactly what they need or want before I drive an hour over to the show and get either turned away or walk away.

There is no other photographer coming. The one who usually shoots this show hasn't been there in two years as far as I can see so there shouldn't be any hostility toward me ( you mentioned "Sometimes the conditions of a contract are fairly onerous because the one of the parties doesn't want you there, but doesn't want to say "NO!" quite so outright") so I will see what I can find out over this next week or so. I do hope it works out in a way that is good for everyone was really looking forward to it.

More lessons learned.

[Manfred M]

Debra - think of it this way.

The owner is a nice person and says okay to you. The legal person comes back and says something along the lines of "you've opened yourself up to a lawsuit if anything happens to the photographer or her equipment while she is on the property.".

Owner never thought of that and suggests she doesn't want to appear to back out after having said okay, so the legal person suggests conditions that are so onerous to you, that you are bound to back out.

You could ask if this is the case, and what it would take for them to let you shoot without those onerous terms and conditions.

[Mike Buckley]

Anything that is reasonable to both parties is reasonable; everything else is unreasonable to at least one party.

If I was in your situation -- using their property and event to improve my skills and using it only for that reason -- I would happily agree to their terms. Your cost of that educational experience is very low. However, I would ensure a written agreement is made that provides access that ensures opportunities that otherwise would not be available to the other spectators. I would also make sure an agreeable definition of "rights" is included in the agreement. As an example, considering that it is a learning situation, I would probably want the right to post the photos at CiC for critique. My point is that giving them rights to your photos may or may not include giving them exclusive rights.

Again, if the only reason I would be doing this would be as a learning situation as you describe, I personally wouldn't care if they have exclusive rights. Similarly, if I was photographing your art purely for the experience, I would be happy to give you exclusive rights at least for the first shoot. If you then invited me for another shoot, I would charge you.

Using a lawyer that would charge a fee to negotiate everything would be a waste of time and money in this situation for me.

[AlwaysOnAuto]

You may have also just discovered why the other photographer hasn't been there in two years.

[Mike Buckley]

I do hope it works out in a way that is good for everyone

The best salespeople are the best listeners. So, consider simply asking the other person what is helpful to them, what is important to them, and why. That's the listening part. The selling part comes in when you then try to ensure that most if not everything they hope for will achieved. If you can sell them on that while also ensuring that most everything you hope for will be achieved, the situation will indeed be good for everyone.

[Rob Ekins]

Seeing as you want to shoot it, I would give them copies of the images you are happy with, no photographer delivers every image captured, I would also give them a licence to use agreement like this, ticking off the usage rights you are happy for them to to have.

[Mike Buckley]

Owner never thought of that and suggests she doesn't want to appear to back out after having said okay, so the legal person suggests conditions that are so onerous to you, that you are bound to back out.

You could ask if this is the case

That might work but I think the possibility is rather small. If the reason really is that the owner didn't think things through, the lawyer will probably not acknowledge that because doing so makes their client look bad. Moreover, putting the lawyer in that situation possibly removes all room for negotiating anything agreeable to you other than agreeing to all of the lawyer's terms.

[Manfred M]

That might work but I think the possibility is rather small. If the reason really is that the owner didn't think things through, the lawyer will probably not acknowledge that because doing so makes their client look bad. Moreover, putting the lawyer in that situation possibly removes all room for negotiating anything agreeable to you other than agreeing to all of the lawyer's terms.

Mike - I agree with you. The owner / lawyer have put themselves in a bit of a box and admitting anything would weaken their negotiating position, but the alternative is to walk away; something that Debra doesn't seem to be willing to do just yet.

One way to look at it is that the owner / lawyer have established a negotiating position and have essentially made an offer regarding the Ts & Cs they are willing to accept. The question is whether this is a final offer, i.e. "take it or leave it" or something open to negotiations. If Debra really wants to shoot, she could make a counter offer to see if it is acceptable. If it is, you have a win-win. On the other hand, if they up the ante and demand even more, then it is definitely time to walk as the ranch owner really doesn't want anyone there shooting.

I personally would walk away. If someone doesn't want me there shooting, I can take the hint.

[JBW]

Hi Deb, first a small reminder? there are no inalienable rights in a world that has lawyers. All you can work with is what my mother and her mother drilled into me: It never hurts to ask. Just don't expect the answer to always be yes.
Brian

[Mike Buckley]

Completely agreed, Manfred.

It never hurts to ask.

It becomes easier for a lot of people to be comfortable making the ask if they begin by realizing that "no" is the second best answer you can get.

[Saorsa]

Since you have previous friendly contact with the owner, call her to apologize and tell her that you won't be coming because of the terms being demanded by the lawyer.

It's a lot of work and trouble to make everything presentable and you don't want raw work out there.

[Mike Buckley]

Since you have previous friendly contact with the owner, call her to apologize and tell her that you won't be coming because of the terms being demanded by the lawyer.

I would make that call only if I had first been turned down by the lawyer. You don't want the lawyer or the friend to perceive that you went over the lawyer's head (behind the lawyer's back). I also wouldn't refer to terms being demanded by the lawyer. I would simply thank the owner for getting the lawyer in touch and explain that, unfortunately, you weren't able to work things out. And there is definitely no reason to apologize; you didn't do anything wrong and the owner and her lawyer probably would agree.

Even so, in this situation, I can't imagine why agreeing to the lawyer's terms would be objectionable.

[Manfred M]

I would make that call only if I had first been turned down by the lawyer. You don't want the lawyer or the friend to perceive that you went over the lawyer's head (behind the lawyer's back). I also wouldn't refer to terms being demanded by the lawyer. I would simply thank the owner for getting the lawyer in touch and explain that, unfortunately, you weren't able to work things out. And there is definitely no reason to apologize; you didn't do anything wrong and the owner and her lawyer probably would agree.

Even so, in this situation, I can't imagine why agreeing to the lawyer's terms would be objectionable.

One other thought. Usually lawyers don't insert themselves into a situation unless they are asked to, so I suspect the reason the lawyer got involved in the first place is likely that ranch owner called the lawyer for advice.

By-passing the lawyer by going directly to the ranch owner is probably not going to be effective, as in one way or other, that lawyer will get involved again. Remember, the lawyer's role here is to minimize legal risks for the ranch owner and nothing else. Giving a sound legal opinion that will stand up to third party scrutiny (i.e. in front of a court) is the lawyer's job. Keeping Debra off the ranch is a very good way to reduce any legal risk to the ranch owner.

If Debra was a commercial photographer who was fully ensured (liability insurance), that might put things into a completely different light.

[Mike Buckley]

Just to be clear, my thinking about contacting the owner directly is a good idea only if the sole reason is to genuinely thank her for considering the photographer's proposal. Doing so would be a common courtesy.

[DebraM63]

Hi All:

I have been reading through all of these posts and I really appreciate all the valuable information!! All things I will make notes of for future reference. It all makes good sense and good points.

I did want to clear up about the lawyer. I may have mislead you - this isn't an actual lawyer to my knowledge, I think it may be just a concerned friend. I looked up the woman's name and I can't find anything related to a law practice - just that she is friends with the ranch. I have a Facebook message sent to her asking her to clarify what she thinks I need to do with regard to the photos and asking that she please call me so we can work it out. She has not seen the message yet.

That being said, if she is not a lawyer or the like, then I should be able to work this out with directly with the owner if she is still willing to work with me, unless she still wants the guidance of her friend.

The gist of the conversation wasn't really about any injury/liability just that her friend was saying she needed to get a copy of a CD with all the pics on there with the ranch retaining all the rights to the photos.

I figure that since I will not be entering the arena or anything like that, I would not be any more of a liability / injury risk than if I were just a spectator so I have to believe that won't be a problem. I did tell her I will not be entering the arena - just standing outside by the fence or even up in the stands or the like.

I am going to print off a copy of the release form that Rob Ekins included above and make a facsimile of that to bring with me.

So I have decided to make these my terms:

I will agree to a free CD with photos from the event. I will pick the photos though, which will be the same edited photos I will be keeping for my website, Facebook, etc. I won't give them the throw aways. I don't want any bad photos out there.

I will give them the user rights but I want full copyright and full rights to use the photos on my website, Facebook or other promotional situations related to my photography.

I think that would be reasonable. The whole point of going to get the experience is to be able to have something to put in my portfolio on my website, not just here for critique so I do want full use of the photos.

So that would basically be a free CD of usable photos from the event in exchange for the generosity of allowing me to hang out and shoot pics all day or weekend. I feel like that is a reasonable barter so that I feel like I am not "working for free" which ultimately effects the bottom line for other working photographers.

And considering that there is no one else on board as a paid event photographer this year, they will still get some photos.

If they don't agree to that, then I think its best to pass on this event. Novice or not, I feel like I still need to maintain some control over what I shoot. I will, of course, be sure to thank the ranch owner for her consideration anyway.

Does that sound like a reasonable thing?

[Rob Ekins]

Debra,
I will post a link to the original word doc when I get in front of my computer later today.

[James G]

Debra, I'm no lawyer, and I can add very little to the advice you have already received. The legal position on 'private' property is that the owners can pretty much set the rules.

One thought occurs, which may be relevant in any further discussions you have.

You have made it clear you are not, at present, engaged in any commercial activity with your photography, so are essentially a member of the public turning up at the event.

It is reasonable to suppose that others will be there with their cameras, i-phones, P&S's etc so, is there a general restriction on photography? If not, what specifically makes you different from other visitors to the event?

I suspect, that apart from 'commercial' concerns this could be an issue with 'Health and Safety', and access/mobility difficulties.

I have been to venues in the past where 'general' photography is permitted, but concerns are expressed when organisers see a tripod.

Because setting one up can present a hazard/obstruction to others at a busy event the tendency is to say OK but ask me not to use the tripod.

I have on a couple of occasions negotiated to use the tripod as a monopod support . (I often photograph Stained Glass in Abbeys and Cathedrals and at 'busy' times it can be an issue.)

So, it might be worth exploring a little more why they are actually concerned about.

Regarding concerns about commercial use of images...I usually make it quite clear that: -

1) Images are for my own personal use.
2) Also, that I am quite happy to sign an appropriate document agreeing/confirming this.
3) If they would like digital copies of the images I am quite happy to provide them as a courtesy.

Certain venues here in the UK levy a charge for photography. It both amuses and slightly annoys me, that I invariably have to pay, and will be challenged to show proof that I have done so, but anyone with a Point and Shoot or camera phone blithely clicks away and nothing is said. Obviously the official line is that they are not taking real photographs