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I need some advise re: a photo used by ESPN
Peter Buehner, Photographer
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Orono | ME | USA | Posted: 11:44 AM on 02.03.10 |
->> If anyone has the time to give me some advice it would be greatly appreciated.
I shoot for a university as a contracted photographer. Verbally I have agreed to allow the Athletic department usage for promotion in any media as well as verbally agreed to allow them to supply images to the conference websites. As it stands now, I haven't even granted Public Affairs at the same university usage so they contract out another photog for their publications.
I have been trying to get a written contract from them for two years but for various reasons, one side or the other has rejected various versions of contracts. They actually have never had an interest in contracts until two weeks ago...hmmm
A few days ago I stumbled upon an ESPN article that used one of my images. It credited me and the university. My assumption is that the school supplied the image and ESPN assumed that I was a staff photographer (why else credit the university)
I have a short email that I want to send to the SID but would like some input from more experienced shooters before I do.
My feelings are that any images requested from someone outside of the athletic department should be referred to me to negotiate usage fees.
If anyone has a moment, I would love to show you the email or get your thoughts. I also don't know how to price an image used for a web article. Perhaps I should contact the author of the article to find out how he got the image first?
I know how dumb it is to not have a contract. I have written up multiple contracts that they didn't like because they were too detailed. They wanted a contract that said Peter Buehner will supply images to the Universtity for x amount of $. The end.
thanks for your time,
Peter |
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Alan Look, Photographer
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Bloomington/Normal | IL | United States | Posted: 12:20 PM on 02.03.10 |
->> Peter, I understand your concern and your wish for a written contract, but I'm wondering if you may be cutting your own feet out from under yourself for little reason.
Reason for that wonderment - was the usage just on the ESPN website or was it also printed in the mag?
Read this thread
http://www.sportsshooter.com/message_display.html?tid=35260 then decide if your pay from the university is worth the letter/arguement. |
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Eric Canha, Photographer
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Brockton | MA | United States | Posted: 12:33 PM on 02.03.10 |
->> ......Verbally I have agreed to allow the Athletic department usage for promotion in any media......
Wouldn't the ESPN article fall under this verbal understanding that you have with the school? Maybe YOU meant any school generated media, but I'm willing to bet that the school doesn't see it that way.
Either way you are right that you need to get a contract in place. If they have been objecting that the contracts you have submitted are too detailed ask them to submit their own and build from there. Personally, I would explain that ANY right not granted in the contract remains yours. So if they want a contract that says Peter will submit photos to University of X for the fee of $xx then that's fine they just have ZERO usage rights, short of pinning the photos to the wall in the SID's office.
I hear a ticking sound............ |
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Peter Buehner, Photographer
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Orono | ME | USA | Posted: 12:52 PM on 02.03.10 |
->> HI Eric, Alan,
Thanks for your replies.
Alan:
Wow, thanks for that link.
I didn't have any idea of the typical pay for website usage (certainly didn't know that it was so little) but I was also concerned that I get the school to understand that the images are mine as a contracted photographer. I certainly don't want to upset anyone...especially for a couple of bucks. For the future I guess I just want to communicate that they need to go through me for usage.
Eric:
That was my lack of writing skill. I have verbally allowed usage for the athletic department only (not event he entire school) in any media (posters, flyers, website, etc) provided it is promotional use. Not any media organization. They understood that as they are currently offering me a contract (finally) that permits use by the public affairs department at the same school. they have refrained from this up to this point since I haven't given permission.
I didn't sign the contract that they offered me because while they wrote in permission for me to sell prints, their counsel wrote in that I had to assure permission was granted from anyone in the photo. I thought asking for a model release from a University athlete playing in a game was unusual since the University certainly doesn't do that.
again, I really appreciate you taking the time to reply and give out some advice. You have both saved me from making a big deal out of something that needn't be.
all the best,
Peter
thanks to Osamu too for the emails. |
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David Ahntholz, Photographer, Photo Editor
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Cleveland | OH | USA | Posted: 1:04 PM on 02.03.10 |
->> "My feelings are that any images requested from someone outside of the athletic department should be referred to me to negotiate usage fees."
You should explain that to the SID and get it in writing. Put it on the estimates, and invoices for every project. Because honestly, it doesn't matter what you feel, but what's in writing that matters. You need to have in writing any limitations on what they can, and can't do, with the images. "Promotional use in any media" is sufficiently vague that sending it to send it to ESPN sounds like it is within their rights. Is it not promoting the university? What does it say on the credential they issue you? That could give them broad rights.
I would suggest talking to, not e-mailing, the SID (or contact) to discuss your concerns. Negotiate in person (or on the phone), not over e-mail. You need to stop shooting for them if you're unhappy with your rights vs. pay. You've continued to shoot for them, why would they want more limitations on their use? Not dealing with the situation is working well for them.
ASMP has a paperwork share (http://asmp.org/tutorials/asmp-paperwork-share.html) with some wording examples. There are more examples for members. I'm pretty sure Editorial Photographers also has a paperwork share, too, but you have to be a member to access it. A lawyer would be the best way to ensure there aren't any loopholes, but at least have something in writing that says that the photos can be used by XXXXX University in university publications, but no distribution, re-sales, or use in XXXX (whatever limitations you can negotiate ... like advertising, commercial products for sale, editorial use has to be negotiated between you and the requesting publication, etc.).
The university has a legal department, so any long contracts are probably going to be negotiated with their lawyers. Simple wording with the usage limitations is better than what you now have. If it's too complicated, and the sports department doesn't want to hassle with it, they'll probably just try to find someone else willing to give them everything.
Another way to deal with it is explain that you're pricing was based on a more limited use of the images. If they don't want to limit their use, you have to change your rates so you're sufficiently compensated for the broad use of your images. |
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Peter Buehner, Photographer
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Orono | ME | USA | Posted: 1:30 PM on 02.03.10 |
->> David,
Great thoughts and advice, thanks. I submitted a contract using the ASMP guidelines and blinkbid format and it was soundly rejected as being too limiting and detailed. In fact, after I submitted the first contract, I got an email saying that "they could never sign that contract so we will be finding another photographer". It took me calling and saying, hey this isn't an all or nothing situation but a way for us to come to an agreement. I rewrote it addressing their concerns and still never got a signature. A few weeks ago (more than 6 months after my attempt) they gave me a contract that the University lawyer had written up but it was incredibly vague.
I have tried to get them to see that a contract is in their benefit as much or more so than for me.
The photographer before me quit after similar issues (I wasn't aware of this until I contacted him)and he never had a contract either so they are used to and happy with the status quo.
The odd thing is that I have done several freelance jobs for the Public Affairs department at the same school and they are great about negotiating a contract. It just seems that the athletic department doesn't have a history of using them so are leery.
In their defense, they are all nice and appreciative and pay on time. I get along well with everyone in the AD and the event staff. What they ask for is reasonable for what they pay IMHO.
>There is no fine print on the credential so no help there, I am simply granted an all-access pass to all events.
I will be taking your advice and will set up a meeting with the SID to try to clear the air. I think now that the image I found is not a big deal but perhaps can be the jumping off point to help create something mutually acceptable on paper.
Again thanks for your time, it is greatly appreciated.
All the best,
Peter |
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Eric Canha, Photographer
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Brockton | MA | United States | Posted: 1:33 PM on 02.03.10 |
| ->> Peter in the past I have negotiated the language to state that "releases where and when needed will be obtained by Eric Canha prior to the sale/licensing of images". This puts me in the hot seat when determining where releases are needed. Clearly if the license is an editorial one then the release is moot. In some cases I have to indemnify the league from claims arising from my determination of the release necessity. |
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Chuck Liddy, Photographer
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Durham | NC | USA | Posted: 1:56 PM on 02.03.10 |
| ->> Peter, I think after reading your last post and the statement by the SID "we will find another photographer" is code for "we will find someone who wants to shoot for free" and knowing the previous photographer left under similar circumstances...you might be wasting your time on this venture...but good luck in any case. |
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David Ahntholz, Photographer, Photo Editor
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Cleveland | OH | USA | Posted: 3:13 PM on 02.03.10 |
->> You could reference the language/agreements with other departments to show that what you're asking for is the same as you've been doing for other departments. If you get better agreements with other departments, start searching for more of those assignments. So many people are willing to shoot for with bad agreements, or for free because it's sports, but wouldn't think of it for other assignments. Ultimately, if it doesn't support your business, then you need to find assignments or work that will.
Face-to-face discussions make it much easier find common ground and avoid misunderstandings. After the conversation, if you can agree, write up the terms and send it to them. It's easy to have things go sour because of misunderstandings in e-mails. You can also get a better read on whether the differences are minor or major.
Nobody likes having difficult discussions with clients, but sometimes you need to be gracious, but realistic and say ... Thanks, I'd love to do it, but can't if I want to stay in business.
Good luck. |
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Israel Shirk, Photographer, Assistant
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Boise | ID | US | Posted: 3:54 PM on 02.03.10 |
->> > I thought asking for a model release from a University athlete playing in a game was unusual since the University certainly doesn't do that.
The university most definitely does. On track+field and cross country at Auburn it was part of the paperwork packets they made us go through every season. It's because using an athlete's image in most circumstances would jeopardize their eligibility under the NCAA's current rules. |
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Phil Hawkins, Photographer
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Fresno | ca | usa | Posted: 5:07 PM on 02.03.10 |
| ->> I am intriqued by this notion of "web usage substantially less" than print. Given that any website worth it's salt in visitor counts charges absurd rates for advertising, and the same website might bring billions in intrinsic value on the open market, why do we sit still for reduced photo usage? Screw that. We need to hold firm and not allow web usage to be de-valued. I don't know how we would do that, exactly, but there needs to be a rethinking on the attitude from us as an industry. Even Fotoquote reflects a serious discrepancy between print and web. Their quote does not even take into consideration visitor counts. I realize Fotoquote only reflects what has occurred and does not establish prices, but it does brings into focus what we are doing to ourselves by accepting this status quo. |
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Peter Buehner, Photographer
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Orono | ME | USA | Posted: 6:39 PM on 02.03.10 |
->> Israel:
If that happens at my University, the SID certainly didn't know about it. I have shot several freelance assignments for public affairs and was told by them that I don't have to worry about releases from students. I think that students actually sign off on this in small print somewhere when they enroll. This may be different with athletes. The whole NCAA regulations is complex and I have read the manual in the past but don't claim to be an expert. I do know that images of current athletes are sold all the time. I also think a lot of the NCAA reg's are put in place to protect the athletes institution as well e.g. they can revoke credentials from a private photographer who sells images but beyond that cannot enforce it in any other way.
Chuck:
You are absolutely right that they would and could get photos for free. As of now they do pay me a fair wage. But I stand next to students at virtually every game who shoot with new DLSR's set on full auto and a F5.6 lens and they have a press pass around their neck somehow.
As of now, I have developed a decent relationship with the department, am reliable, and have invested thousands of dollars in equipment that lets me shoot at ISO 6400 and get a decent image. Who knows if I will have a job next year.
Eric/David
I am off to shoot a game right now but I will have a sit down meeting with the SID. Not confrontational just politely inquiring about where they stand on usage.
Phil:
Sign me up. I think the world is still trying to figure out this new technology called the web. When the internet bubble broke in the late 90's it was a wakeup call that people had no idea how to value these virtual things. It sounds like everyone is still trying to figure out how to value it.
Thanks for all the replies and help.
Peter |
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Jim Pierce, Photographer
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Waltham | MA | USA | Posted: 9:21 PM on 02.03.10 |
->> Israel,
"It's because using an athlete's image in most circumstances would jeopardize their eligibility under the NCAA's current rules."
Where did you see this written in the Bylaws? The only thing remotly close is that they, athlets images, can't be used for promoting anything. I have yet to see anything from the NCAA that states images cannot be sold. This is probably more of an Auburn rule.
Peter, consider yourself lucky with only 1 student photog and with a 5.6 lense. Just the past two nights there were 2 student photogs at both (mens and womens) Bean Pot games with mark II and D3 with 2.8 glass. The other schools had the same if not more at the mens games. A typical home mens hockey game has no less than two students, a womens game 1 sometimes 2 BUT 1-2 parents all with 2.8 glass.
I have actually hired a couple of students for tournaments and believe me they know what they are doing and have their own mark II or III's and 300/2.8's. There are many others waiting in the pipline to do it for free or even a slight token
Jim |
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