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|| SportsShooter.com: Member Message Board
Should I get paid by SI?
Dano Keeney, Photographer
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Greensboro | NC | USA | Posted: 12:00 PM on 05.04.09 |
->> I have a situation that I wanted to put out there and get some opinions on. I want to preface by saying that I do not have a strong opinion either way... I am curious to see what other have to say.
I am the photographer for my local Minor League Baseball team. Recently a dog mascot made national headlines by having diarrhea on the field during the game and getting ejected the home plate umpire for doing so. The story made it to Fox news among many others. SI contacted the team to see if they had any photos of the dog to use in this week's issue (May 4, 2009). They supplied them with a photo that I shot along with my byline info.
I am curious to see if others think I should have gotten paid for the usage of this photo. It was used in the margins and was appx. 2 inches tall, so I know I would not get rich off the check from this. I am happy and honored to have had my photo used in SI which has always been a goal of mine.
When I asked the person with the team that SI contacted, "Did they say anything about pay?" her answer was, "No... I'm sure if it were a photo of a player rather than a dog- they might have." I don't think it should mater if it is a photo of a dog or A-Rod if it is getting used.
I assumed SI would be prepared to offer payment for any photo used, but maybe I'm wrong... that's why I'm asking. |
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Michael McNamara, Photographer, Photo Editor
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Phoenix | AZ | USA | Posted: 12:05 PM on 05.04.09 |
| ->> It all depends on who owns your copyright....you or the team. |
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Craig Mitchelldyer, Photographer, Assistant
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Portland | OR | USA | Posted: 12:07 PM on 05.04.09 |
| ->> what is your deal with the team? Do you give them usage to supply photos to editorial publications? |
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John Germ, Photographer
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Wadsworth | Oh | USA | Posted: 12:09 PM on 05.04.09 |
->> I would say it first depends on your contract with the team. You said it was a photo the team had used - what is your agreement with the team regarding copyright of photos or what the team was allowed to use the photos for? Do you retain copyright or do they? If they get copyright of the photos or have permission to use the photos in any marketing they see fit when you submit for their use then SI wouldn't owe you any money.
just my take - but I'm no lawyer, nor did I stay at a holiday inn express last night. |
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Dano Keeney, Photographer
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Greensboro | NC | USA | Posted: 12:13 PM on 05.04.09 |
| ->> I considered this also... and there has never really been a major reason to discuss copyright in detail until now. They have never said they want full copyrights and neither have I. Of course I can see in hindsight that this should have been discussed previously. |
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Paul Morse, Photographer
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Washington | DC | United States | Posted: 12:15 PM on 05.04.09 |
->> HA!! I just read the story in SI. When you gotta go...
Sure you should get paid, they should give you a 1/4 page rate. |
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Jeff Stanton, Photographer
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Princeton | IN | USA | Posted: 12:27 PM on 05.04.09 |
->> I am happy and honored to have had my photo used in SI which has always been a goal of mine.
Being happy and honored will not pad you bank account or pay any of your bills. And working for a pro sports team, minor league team, etc., you should always have issues of ownership defined, in writing, before you fire your first frame.
The team can make the argument they are providing access for you and it's their product. What will be your answer to that? |
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Mike Brice, Photographer
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Toledo | OH | USA | Posted: 12:30 PM on 05.04.09 |
->> I think the key question is whether the team pays you to use the images for editorial distribution.
If they do, the team is within their rights to distribute it. If not, then they can't, and should have had SI contact you directly.
It doesn't really matter if you own the copyright or not, if they have paid you for distribution rights.
When you say you are the photographer, this is pretty broad. Do they pay you per game, per image, etc? There are a lot of variables that would impact your question that we just don't know.
This should be a wake-up call that we need to have specific agreements in place because we never know where we will be leaving money on the table. |
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John OHara, Photographer
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Petaluma | Ca | United States | Posted: 12:35 PM on 05.04.09 |
->> Well, the horse is out of the barn. The good PR you will get is probably your payment. This usually comes under the heading of sales, promotion and advertising. Those things go with the client. Third party vendors, that are commercial and editorial usually have to give you compensation.
Make your adjustments with the team.
I suspect SI knows you should get compensation, and aquired the photo as a Release photo from the team. Misunderstandings lead to clarification . ....John |
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Dano Keeney, Photographer
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Greensboro | NC | USA | Posted: 12:36 PM on 05.04.09 |
->> I AM happy and honored to have my photo used in SI, but I realize that this will not pay bills and obviously it concerned me which is why I asked everyone for their opinion.
I get paid per game and "right to distribute" has not been discussed either. I would imagine that would come up in the same conversation as copyrights. |
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Delane B. Rouse, Photographer, Photo Editor
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Washington | DC | US | Posted: 12:52 PM on 05.04.09 |
->> KEY PHRASE in all this discussion is here:
"in writing, before you fire your first frame" |
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Mark Peters, Photographer
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Highland | IL | USA | Posted: 12:53 PM on 05.04.09 |
->> (The following is just my lay understanding of the issue - you should seek legal advice from a qualified practicioner.)
Are you an employee or a contractor?
Work for hire requires you to be an employee or to have a specific written contract specifying that it is work for hire.
If you are not an employee (as defined by statute) and you do not have a written contract, then it is not work for hire and you arguably own full rights - and they did not have the right to distribute the image - so yes you arguably should be paid.
Bigger issue though is that you should have (and still need to) address the issue of licensing with them. Do not approach this as "hey we need to decide who own the copyright" but rather, "hey, I think we don't have a full understanding on the limited use rights that I grant you when I provide you content." You should start from the position that the copyright is yours and they have a limited use license to use it for their promotional purposes only. |
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Jeff Mills, Photographer, Photo Editor
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Columbus | OH | USA | Posted: 12:54 PM on 05.04.09 |
->> A lot of times when your shooting for a team, its for the purpose of providing that team with images to use for marketing, media guides, program covers, press releases and so forth.
When someone calls up that team and request an image of a certain player for an editorial usage, most teams marketing people are happy to send something over. Its basically their job to get as much coverage as possible, and your job as photographer is to get them the images they can use.
Now if you have a specific argreement over who owns what rights, what specific usage is outlined etc, then you might have a case, but as you don't have any contract in place, I don't think it gives you a very good leg to stand on really.
You could still try to collect from SI saying it was an unathorized image usage, but I think since they were provided the image from the team and you had no contract it would be an uphill battle.
You could of course try to charge the team for damages from the unathorized image usage but given no contract was in place I'm not sure how much of a leg to stand on you have. Plus you have to consider if that would result in some bad blood and affect your future employement with that team.
I'd say chalk one up to experience, be glad you can say your in SI, and sit down with the team and define exactly what usage rights they have for your images.
If they can only use them for a media guide or if they can use them in marketing purposes or if a publication calls up wanting a photo of the pitcher who just threw a no hitter if they are allowed to send people those images and so forth. |
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Robert Beck, Photographer
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Carlsbad | CA | USA | Posted: 1:11 PM on 05.04.09 |
| ->> I'm not going to jump in too far here but.....Shouldn't your heading read: "Should I get paid?" And, by your own admission, you do. By the team. What are they paying you for? The fact that SI is involved does not matter. If it was the local weekly throwaway would you have the same argument? |
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Dano Keeney, Photographer
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Greensboro | NC | USA | Posted: 1:21 PM on 05.04.09 |
| ->> I have now contacted the team to bring up the idea of a contract and they are all ears. They said they would be more than happy to sit down and discuss all issues. They did also mention that they have paid for the photos and in her (the Media Relations Coordinator) mind, they have paid for the photos and they try to get as much publicity as possible with them. (Which I completely understand is her job to do.) Any suggestions on where to start with a contract? |
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Michael Ciu, Photographer, Assistant
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Lorain | OH | USA | Posted: 1:54 PM on 05.04.09 |
->> I think what bothers me the most in this entire thread is "xxx has not been discussed."
I shoot for a local state college. everything was discussed before hand. There is probably a 5% chance of selling something to SI and a slightly greater chance of selling something to a local paper. Knowing that our chances for resale were quite low we still laid out the procedure and who can use what and when. We did sell an image to a local last year and the AD was happy he didn't have to deal with it and I made a few extra bucks for work I already did.
I don't care how small of a team you are shooting for, get everything in writing before you shoot, just in case. |
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Jeff Stanton, Photographer
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Princeton | IN | USA | Posted: 2:26 PM on 05.04.09 |
| ->> Some teams may be small and seem insignificant. But then again, you just never know. I mean, who would have thought a dog would venture into the outfield at a baseball game, take a dump and the photo end up in SI, even if it was a two inch photo. Had their been an agreement in writing defining the terms before the season started, we wouldn't be discussing it here now. |
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Mark Loundy, Photo Editor
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San Jose | CA | USA | Posted: 3:04 PM on 05.04.09 |
->> Dano,
This is more about undefined relationships than anything else. It sounds like your relationship with the team is not defined. It also sounds like the rights licensing to SI was undefined.
Whether you "should" have been paid depends on the nature of these definitions.
--Mark |
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Bill Mitchell, Photographer
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Tempe | AZ | USA | Posted: 3:07 PM on 05.04.09 |
->> Dano, in your upcoming discussions with the team, I highly recommend you retain rights to your photos UNLESS the team is compensating you very well. Considering this is minor league baseball, I doubt that they are paying you enough for you to give up your rights to sell elsewhere.
Yes, teams are always looking for publicity and are usually more than happy to give away photos to publications, but it's usually at the expense of the poorly paid photographer. |
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Dave Doonan, Photographer
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Kingston | TN | USA | Posted: 3:28 PM on 05.04.09 |
| ->> I shot a photo of Ken Mink a 76 year-old player for the Roane State Community College basketball team in October. It never ran but I still got paid. |
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Lesley Ann Miller, Photographer, Photo Editor
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Irvine | CA | US | Posted: 3:30 PM on 05.04.09 |
->> Dano, doing a little Googling I see that your team published a press release on their website. Did they release it to the media? Include your photo?
I see that this website has published two of your photos:
http://bensbiz.mlblogs.com/archives/2009/04/an_ejection_in_more_ways_than.h...
Did they receive the photos from the team? Or did you sell them to this site? Or give them the photos in exchange for a link to your personal website? |
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Dano Keeney, Photographer
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Greensboro | NC | USA | Posted: 3:36 PM on 05.04.09 |
->> They did put out a press release but, this photo was not provided in the release. SI contacted the team about getting a photo specifically.
As for the photo on Ben's Blog... I also shoot for MiLB.com which the photos were obtained through. He originally used the photos without photo credit and when I contacted him he apologized and immediately put a photo credit and link to my personal site (without me suggesting it). |
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Jeff Stanton, Photographer
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Princeton | IN | USA | Posted: 3:43 PM on 05.04.09 |
->> Photo credits, links to websites, promises of future sales and publicity still add up to the middle of a doughnut. Check out Darren Carroll's column this month.
www.sportsshooter.com/news/2210 |
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Lesley Ann Miller, Photographer, Photo Editor
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Irvine | CA | US | Posted: 5:24 PM on 05.04.09 |
->> So let's see if I get this straight. You are paid by the team to provide them with photos, but you haven't defined the usage. You also shoot for editorial outlets, or at least MiLB.com, and hopefully get paid by them, so your expectation is that you be paid by the team for their usage, but also get to resell the photos editorially and get paid again for that usage.
So now another editorial outlet wants to use your photo. It happens to be SI, but it could have been USA Today, or it could have been the Greensboro Shopper. They don't know how to contact you, so they contact the team and ask if they can use the photo.
Now, if you had a license agreement with the team that doesn't include allowing them to distribute photos for editorial promotion of the team, they should have told SI that they don't have the license to give them the photo, and direct SI to you so you could give them a quote for usage.
But, since you don't have any formal agreement with the team, and they were probably excited for the team to be in SI, they simply gave them the photo, for free.
To answer your question, "Should I get paid by SI?", the answer is no. Had the person who gave SI the photo properly disclosed the licensing of that photo, then SI could have decided whether or not they wanted to pay to use it, after they received a quote from you. But not only were there no licensing rules, but the person from the team who gave them the photo didn't even think about the possibility that SI should pay for it, and therefore, the concept of "price" was never introduced.
For you to go to SI now and inform them that the team didn't know the licensing of your photos and that they violated your agreement, thereby meaning that SI should have been told that the photo would cost money to use, is not only a bad way to do business with SI, but isn't even really true, as there weren't any licensing agreements in place at the time for the team to violate.
You could always ask the team to pay you a penalty fee since they were the ones who gave it to SI without proper authority, but once again, who knew that at the time, since you didn't have an agreement with them?
Give up on demanding payment from SI, it's not going to happen. Think about what happened here and talk to your client about how they want to use your photography, then charge them appropriately for it. And have those uses in writing. |
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Dano Keeney, Photographer
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Greensboro | NC | USA | Posted: 5:32 PM on 05.04.09 |
| ->> I do not intend on asking SI for payment and never did. I simply wanted to know if others thought I should have gotten paid in this situation. I am already now in the works of coming up with a contract with the team. |
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Alicia Wagner Calzada, Photographer
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San Antonio | TX | USA | Posted: 11:34 AM on 05.05.09 |
->> "there has never really been a major reason to discuss copyright in detail until now."
Now you know, for the future. There is a major reason to discuss copyright in detail the minute you begin talking about shooting images for a client. Otherwise this will be a common occurrance in your life.
And in case you are nervous about putting a contract in front of your client- keep in mind that they have contracts with all kinds of business that they deal with. Present them with your contract and they will see you for the professional that you are. |
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Chuck Liddy, Photographer
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Durham | NC | USA | Posted: 12:50 PM on 05.05.09 |
| ->> I guess I REALLY am getting old. I still am nothing short of amazed and befuddled by these threads which seem to pop up every couple of weeks. Simply jumping into these "deals" to be able to shoot a sporting event without any thought to the ownership of the photos is just crazy. As Darren Carroll alluded to in his column (and what many of us have been trying to get across for years on this site) If you choose to treat this "job" as a "hobby" you will be paid accordingly. Meaning, you most probably won't get paid. Sure, I'm a paid staffer at a newspaper and don't do much freelancing anymore (that'll probably change soon with the pay cuts and all) but I know several successful freelancers and the one's who are truly successful have one thing in common...they are BULLISH on their rights. I also know a bunch of people who shoot sporting events on spec or just go hoping someone will pop up out of thin air and want to buy their photos...like THAT happens...and, well we all know where that goes. Nowhere, except to be able to say "Hey I was on the sideline at the game". I guess I just don't understand how a person could not think about usage and rights before even signing on as a team photographer. |
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Mike Janes, Photographer
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Attica | NY | USA | Posted: 2:10 PM on 05.05.09 |
->> Chuck, unfortunately in MiLB most team "photographers" are fans with cameras just happy to be there as teams just don't pay. To make it worse now what's happening a lot is autograph hounds are trying to become photographers so they can further there collection not realizing you have to separate being a fan and media.
Dano, tell Greensboro to call George at Jamestown and ask what rights they have with images. The answer is in house only, they are not allowed to give anything away to a third party at all as per our arrangement. When people call asking for an image they have to refer them to me so we can discuss usage, and it's never free. What rights the team gets is how much they are paying, and my guess is they are not paying enough to give your images away to third parties. |
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Dano Keeney, Photographer
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Greensboro | NC | USA | Posted: 2:28 PM on 05.05.09 |
| ->> I hope that no one thinks I am some fan with a point & shoot that just wants to get close to the action of a "real, live game". I DO get paid by the team for shooting and in my opinion, I get paid pretty well. No, I do not think it is enough to give up copyrights to my photos which is why I am discussing this with them now. Did I think that SI would ever come to them and request a photo? No. Do I see that I should have been prepared for ANY situation before it occurred? Yes. I was fresh out of college (20 years old) when I got the gig with the team and honestly it didn't cross my mind to make up a contract. Maybe I was dumb, but that was the way it happened and I am working to fix it now. |
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Doug Holleman, Photographer
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Temple | TX | USA | Posted: 5:47 PM on 05.05.09 |
->> "Recently a dog mascot made national headlines by having diarrhea on the field during the game and getting ejected the home plate umpire for doing so."
Is that what they call "unearned runs?" |
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Jeff Mills, Photographer, Photo Editor
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Columbus | OH | USA | Posted: 10:28 PM on 05.05.09 |
| ->> Wow Doug, I'm actually glad I wasn't drinking a soda or coffee when I read that because I would of literally spit it out over the monitor laughing |
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Jeremy Lyverse, Photographer
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Las Vegas | NV | USA | Posted: 9:27 PM on 05.18.09 |
->> yo dano, just a thought- it sounded like you had the best of both worlds, but probably too late now that you've breached the topic with the team. it seems no one here mentioned the fact that under US copyright law, from the mere act of pushing the shutter button, you are creating the work, ie the picture, and therefore own it due to our lovely rule of law. (yes, yes, you must submit the pic to dc, etc... but it would hold up in a court of law from just the act of creating it)
all the comments here seem to be concerned with what the team thinks, or what they have to say, but technically it doesn't really matter, because you are the legal copyright holder, until you give/sell/license it away, in writing, or verbally perhaps if you want to split hairs. so you were being paid to shoot, and could then completely legally resell/license the image as you wished again and get the always elusive but enjoyable double-dip!
i also would venture that you have every legal right to pursue compensation from a publication that used a copyrighted image, regardless of the fact someone else sent in the image. i would say that the fact-checking burden falls on the shoulders of the publication, especially an operation the size of SI. imagine if they routinely acted this way, and printed copyrighted photos every issue, without approval from said copyright holders, they'd be in court on a constant basis!
in the end, its always good to get these things in writing, but im just saying, from a legal stand point, you were in the right all along. get paid!
*for the record, im not a laywer, but my father is! |
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Chuck Liddy, Photographer
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Durham | NC | USA | Posted: 1:09 AM on 05.19.09 |
->> *for the record, im not a laywer, but my father is!
great. |
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Chuck Liddy, Photographer
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Durham | NC | USA | Posted: 1:14 AM on 05.19.09 |
| ->> sorry, I meant to say " I slept in a Holiday Inn Express last night, so take my advice!" |
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Samuel Lewis, Photographer
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Miami | FL | USA | Posted: 7:43 AM on 05.19.09 |
->> Mark,
Your question of employee vs. contractor is a good one, but it is not dispositive here. The better question is what is the nature of the relationship (and since Dano has admitted that neither he nor the team have ever clarified what is or is not permitted) and what has been permitted in the past.
If Dano has permitted the team to distribute images to editorial outlets in the past (and he seems to imply this by with his comments regarding press releases), then he'd have a difficult time claiming now, after the fact, that his license to the team did not include the right to redistribute the images.
The lesson here is to sit down and clarify rights up front, before something like this happens. I would expect the most difficult task to be changing the arrangement now that the team (or at least the team's marketing person) has grown accustomed to being able to do what she wants with the images. I have some ideas for approaching the negotiations, and Dano can contact me via e-mail or off-line if he would like to hear them...
Jeremy,
I am constrained to follow Chuck's comments, but perhaps with a bit more detail. It is apparent from your comments that you misapprehend the bigger picture, the legal implications of the past conduct, and the ramifications of demanding compensation or attempting to redefine the relationship after the fact.
The issue of pursuing compensation is not as cut and dry as it undoubtedly appears to you, and it would be foolhardy to pursue the publication. While the publisher might pay to eliminate the claim, the publisher will also seek to have the person who supplied the image (in this case, the team) pay the claim. Even if they don't, the publisher could simply decide that the team will never appear in the publication again. Of course, all of this would likely cause the team to end its relationship with Dano, because frankly, they don't need someone who is going to rock the boat.
The matter becomes much more complex when it comes to asserting your legal rights against a client. While Dano may be within his right to demand compensation, the team would also be within its right to terminate its relationship with him, terminate his license to commercialize images, etc. Thus, making a demand because he has the legal right might be penny-wise and pound foolish.
Finally, in case you missed it, Lamarckian evolution has long since been discredited.
For the record, I _am_ a lawyer and a photographer. However, none of my comments should be taken as legal advice. |
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Felix Marquez, Photographer
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Bethesda | MD | USA | Posted: 9:54 AM on 05.19.09 |
->> Should you get paid? Maybe!!! It all depends how you approach, act or react to the answers or comments from each and every one of the parties involved including yourself.
1) You : If like you stated before " I am happy and honor to be published " then you have been "paid".
2) The team : review how you and them dealt with similar situations in the past. I am talking about photographs taken by you; released by the team to others for editorial or PR use. Did they get paid? Did they ever discuss payment of any form with the publications or Companies involved? or they just simply released the photograph(s) without even thinking. Has the team gotten paid in the past and you never knew about it? The team could very well simply paid you for the photograph again, better yet give you a bonus based on the fact that they have received additional publicity because of your work.
I believed that you could still be compensated for your work it all depends on how much homework you are willing to do; but most importantly how you go about doing it. Politeness rather than accusatory statements take you a long way, and also gets you more money now and in the long haul.
3) SI : As reputable and recognizable as they are they will have no problem paying you or the team for work used on their magazine. The team or you or better yet both need to contact SI first and make them aware of the situation, and how do you go about invoicing them for the photograph. Once again a friendly approach will work wonders...
Good luck and like must people said above learn from this case and work towards getting an agreement in writing for the best of everyone involved.
Be fair but firm during negotiations.
my .02 cents |
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Manuello Paganelli, Photographer
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Los Angeles | CA | USA | Posted: 12:08 AM on 05.20.09 |
->> I just saw this here. Find out which photo editor works on that page or send an email to my friend Jimmy Colton and explained what happened. Mentioned that it was an innocent mistake and like everybody told you here get it all in writing from the people that you shoot for.
But Jimmy, or Steve fine, maybe able to work something with you. They are all cool folks. You got nothing to loose. But hell, learn the biz.
YOu asked this minor league club "Did they say anything about pay?" Maybe the question would have been "Did you ask for payments or sent them my way right after they phoned you?"
I dont get it why most folks in here dont do that first. Is like hitting the head on the hard floor over and over until it cracks. Folks if that is the case, come over I got a great hitting bat.
BTW is anybody in here a plumber?? Or a great auto mechanic so you can work on my 1972 "2002" bimmer?
I would fix it but I dont have the time for that. But it would be my honor if you can come to my place and work for free for it will be an honor for you too.
You will be able to gather as much honors as you possibly can so one of them can pay for your mortgage, the other for your health insurance... Yeap lots of honors like one of those "EMPLOYED OF THE MONTH" plaque.
More 2 Come
Pag
www.ManuelloPaganelli.com |
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Andrew Carpenean, Photographer
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Laramie | WY | USA | Posted: 12:19 AM on 05.20.09 |
->> Pag,
I think you mean beamer, not bimmer. Beamer is slang for a BMW. |
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Christopher Koutsis, Photographer
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huntington | ny | USA | Posted: 12:21 AM on 05.20.09 |
| ->> Thank you, Manuello. Finally, a comparison I can wrap my head around. Most photogs here like to compare themselves to doctors and lawyers. It's nice to hear from a photographer who doesn't have a HUGE ego. |
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Clark Brooks, Photo Editor, Photographer
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Urbana | IL | USA | Posted: 10:47 AM on 05.20.09 |
->> Mr. Lewis wrote:
"Your question of employee vs. contractor is a good one, but it is not dispositive here. The better question is what is the nature of the relationship... (see complete post above - again) ....Lamarckian evolution has long since been discredited."
FWIW, I concur with Samuel's assessment. Dano, it good to see your negotiating with the team to clarify the rights and limitations. I hope you will share the outcome of the negotiations so that other reading this thread in the future can learn from your situation as well. |
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Michael McNamara, Photographer, Photo Editor
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