This article first appeared in Foundations Revealed in 2013
I think I’ve given myself a job here but I’ve volunteered to help steer you through the complicated area of photoshoot types and photography usage rights and some associated issues. Now I’m not going to pretend to be an expert on this. I’ve encountered few problems personally as most people I’ve worked with have been great. But I’ve had a lot of discussion on it, have chatted with some knowledgeable photographer friends and thrown in some of the experience from my previous life in graphic design.
So, to start with we’ll have a bit of an overview then break down the types of shoot set ups you might be involved in. Look at the pitfalls and benefits of each then I’ll run through some of the things to ask and things to watch out for. And also talk a bit about how to cover yourself. Now I want to stress that I’m based in the UK. I’ve tried to avoid anything too legally specific as much as I can, and have stuck with general advice, but do some reading and check up on the laws in your own part of the world. Copyright law does differ. There are also differences as regards things like emails being accepted as written contract. So check that out.
The first thing I’m going to stress is this; find yourself a photographer that you can build a good working relationship with. It’s far easier to give and take and to approach a photographer you get on well with. A photographer could be the most wonderfully talented artist, but if they’re a pain in the backside to work with then they aren’t worth the headache. Believe me, there are lots of very good photographers out there so finding someone, or even a few, you can work with happily, whom you can trust, shouldn’t be that difficult and is definitely the key. Because the bottom line is that your photographer should take the lead with this situation, should guide you through and should make all the terms clear. However that sometimes does not happen, hence this article.
The main thing to remember is this:
The photographer always retains copyright.
This applies no matter what type of shoot it is. To purchase the copyright you’d have to be paying a huge amount of money and it would need to be specially negotiated, it rarely happens. What you are getting is usage rights, sometimes quite specific ones. Remembering that and knowing how far those rights reach is the key to avoiding disputes. Even on a paid shoot you are in effect paying for the photographer’s time, not a product that you then own. The use of the results is still controlled by them. Think of it more in the terms of music, rather than a tangible product. Now the fairness of that is another issue and is a subject that causes a lot of arguments. But for the moment we’re dealing with the situation as it stands.
Before you start
Prepare yourself. Familiarise yourself with the types of shoots. Think about what you want to use the images for and where you will want to use them. Also think about how you want them to look and gather references and prepare a moodboard. I quite often make-up a Pintrest board, usually a private one, which is easy to add collaborators too and allows everyone to see your thinking. Of course if it’s a collaborative TF shoot that may not be appropriate or it may need to be considerably compromised.
TF, or TFP or Time for Prints/Portfolio
This is probably the first type of shoot you’ll encounter. You may be approached by a photographer, by a model or you may spot a casting on facebook or Model Mayhem etc. The point to these shoots is that every person involved gets creative input and everyone gets images at the end and nobody gets actual monetary payment. As soon as one of those elements shifts out of whack the potential for disagreements sets in. The best TF shoots are truly collaborations.
Low or no cost (other than your own costs)
Testing out people you may want to work with again
Lack of creative control
Images may be watermarked/branded with a logo
Usage: Usually pretty strictly portfolio, non-commercial. Stretching to social media sharing with full credits. Equal for every participant. Many photographers will be fine with some other uses as long as the credits are in place. But always always check. Make sure your photographer is trustworthy and on the same page as you. If they get payment for that photograph at a later stage then in all fairness they should pass something back to the rest of the team. However that can be rather tricky to control. The thing to remember is check and credit, credit, credit. Credit everyone, credit the model’s auntie that sent cakes, credit the cat… ok I’m being facetious, but you get the gist. And make sure everyone else does too by the way.
TF mark 2!
(made-up name) Now, and this is when it gets complicated, TF shoots can started to diverge from pure and equal collaboration. It may be the photographer has a strong idea and wants people to help with that, or the make-up artist has a look they want to produce for a graded unit at college. Or it could be you, as a designer, that has a specific idea. But everyone must feel they’re gaining something for their portfolio to want to participate. The complicated bit is sometimes this set up can veer into situations that should really be paid and this can be contentious. There is too much of a culture of working for nothing across the creative industries, and TF shoots can be a red rag to a bull in some arenas. However if everyone is gaining something from it and knows where they stand then it usually works fine, especially if it’s a team that likes working together. However in all fairness, the person driving the idea should do the legwork for locations and in most cases shell out for any studio, travel expenses etc.
Low or minimal costs (other than your own) unless it’s you’re idea and you take on costs
Some creative control
Compromise unavoidable, you aren’t paying as such after all
Potential for disagreement
Possible watermarked/logo branded images
Same as before.
Non-commercial for all.
To Loan or not to loan
From our point of view the most hands off version of this is the simple loan. Now this is a minefield all on its own and should be approached with extreme care. As soon as you make your presence known as a corset maker you will be approached with requests for loans. Usually from models and often miles away in another country/state/continent! It is VERY easy to get bitten with this so work out your comfort level with it and proceed with caution. I’m not going to tell you what to do and don’t do as different things work for different people. But I will tell you my own personal conditions.
- I don’t loan to models unless I know the photographer and it meets my other terms below
- I don’t loan to anyone out-with reasonable travelling distance.
- If I can, I prefer to attend the shoot
- If I haven’t worked with the person before I charge them a deposit which I refund when the garment is back with me in good condition.
- I make sure they sign something detailing the items they’ve borrowed and make sure I have their full contact details. This could be anything from a simple delivery note to a full release document. Depends on circumstances and your own approach.
- I check who they are, who they’ve worked with etc. This is where networks come in.
These things are borne from experience. For instance, once when I started out I loaned to a very famous website that features alternative pin-ups. This required me posting to the US at my expense to a known creative person (even has her own Wikipedia page) and in return I was to get the items featured in a video shoot, be credited and get a banner ad (which I supplied) on their very high traffic website. That fell through and it was to be a shoot instead which I would get shots from and the items returned. I never got the shots, nor did I get the items back. I think I got the banner ad, though I never saw it, as I did have spike of traffic to my own site. I emailed many times and got no response. Eventually I wrote it off to experience. So now nobody short of a major publication gets anything unless I could physically go to their door to demand it back!
Attending is a similar safeguard. I’m in effect acting as bodyguard for what might be a very expensive pile of garments! And I’m there to lace up. I’ve had one too many shots back of badly laced, or loosely laced corsets when I’ve not been able to hang around. Also it means if a model is being stroppy about wearing a corset (and some are) you’re there to perhaps leave it loose laced until the last minute, and ensure she doesn’t just swap it for a comfier outfit once you’ve left (has happened to me).
If you can’t attend then a returnable deposit means you at least have something to cover specialist dry cleaning (again, ask me how I know!). It also is an incentive for them to get things back to you promptly. Also the borrower should be paying any postage if they aren’t collecting in person (insured of course) and you really want the photographer to have insurance that covers sets/props/ costume.
It is a great way of getting a variety of shots for your facebook page with minimal cost and effort. You get to try out photographers too. But, it’s a gamble. There are shoots where you can’t use a thing, others where you love every one of them. But for no or mimimal cost it can be worth it. It’s just up to you to weigh up the options carefully and work out a way of handling it you are comfortable with and what level of control you need. For some that’s a flat out no to loans, which is fine too. Remember though, that should Vogue call you up looking for a loan for a spread then you’ll probably throw caution to the wind and that’s fine (and at that level you’ll be expected to). If you want proper exposure you sometimes have to learn to not be too precious about things because sometimes the opportunity is far more important than some slight risk to a corset. You can probably remake the corset but that sort of chance may never be repeated. So, it’s a balancing act, be cautious but don’t cut your nose off to spite your face.
Trying out creatives
Low or no cost
Surprising results you may not have thought of yourself
Risk of loss or damage
No creative control
The possibility of your work being out there, badly presented in bad photographs Images never appearing Possible watermarked/logo branded images
As TF, very much at photographers discretion. You may only get shares on facebook and never get anything sent to you. Or you may get a dropbox full of them. Be clear about what you want from it.
Where things can go wrong:
I’ve linked a case between a photographer and a well known latex designer. This illustrates why you should never lend to the model unless you’ve discussed things with the photographer. Even when lending to a stylist it’s wise to make some contact with the photographer involved if you can. Because remember, the photographer will hold the copyright. Get the information, you don’t want to land up in court.
Remember that it isn’t just the photographer that could cause a problem regarding usage, it’s any member of the team, it could even be you! So ask about anything you’re in any doubt over and stick to agreements made.
Neither free nor conventionally paid. A small section as it varies too much according to circumstance to really give advice on. But we make a desirable, valuable luxury garment. Many models love corsets, some photographers do too. A shoot in exchange for a corset is a viable and relatively common way of working. Just be sure every party is happy with the equality of the transaction (including you). As for usage rights etc, I would treat this similarly to a paid shoot as you are giving a corset as payment, if it’s for the photographer. If it’s for the model then it’s an arrangement purely between yourselves. So that’s the free and trade variants, now to paid.
You as the client
Now a paid shoot is a different beast in many ways and in some it isn’t. If you commission a shoot you are the client therefore you brief the team creatively to the degree you want to. You have approval on location, model, styling. You get the shots you request and only you have the use of them. Unlike TF shoots, the other parties (photographer, model, make-up artist) don’t get to share images randomly unless you, the client, want them to. However, you do not get the copyright and your usage rights are not limitless. You must, MUST, clarify what the usage is with the photographer. In writing preferably. In the UK an email counts, but check that applies in your locale. If there is no contract then you’d be as well doing TF. I’ve broken down the main areas you may need covered for usage.
I’ve broken it down to web and print. I would also add to establish how long these rights are for and if there are additional rates required.
Now this may all seem unnecessarily detailed but believe me it will be worth checking if you land with a strict by-the-book photographer who throws a flaky on you for making a genuine mistake! It should be the photographers responsibility to ensure you are aware of the extent of your usage rights, however that often does not happen. Sod’s Law guarantees that the time you don’t check these things will be the time something happens, so cover yourself.
You pay for studio lookbook type images. Everyone is paid, however you have no written contract and nothing informing you of usage rights. At short notice you get a phone call from a high profile media outlet asking to use one to promote you in relation to an even you are participating in. You say yes. The next day you are contacted by an irate photographer complaining about the use of the shots and their name not being credited on them.
Are they in the right?
Legally yes, morally I’d say no. The usage rights for those paid for lookbook shots do not automatically cover you for their promotional use on a third party website. That is a different category of rights. Crediting the photographer would not have solved that but probably would’ve smoothed the water due to the publicity gained. However, there was no contract, the photographer did not make the client’s licence to use clear, but as the copyright automatically resides with the photographer the lack of a contract means they are still covered but you are not.
Result: the photographer has lost a client and gained a reputation amongst the client’s peers as unpleasant to work with. The client has images she has paid for but feels uncomfortable about using but has gained a valuable bit of experience.
Lesson: if you’re paying out money (and it can be a tidy sum) get a contract.
In addition to your own rights check the model release/agreement has been arranged, which should be a given, but…
A model has rights over the use of their image. So that should be covered by a written agreement too. A model release as such is not actually needed legally I’ve been told (UK). What they should have though is an agreement of their own regarding the usage etc. If they’re an agency model that should be covered, but the agency may have some controls over usage that affect you, so another thing worth checking. Cover yourself too, you don’t want a model having power of veto over a shot you love on a paid shoot. Be guided by the photographer.
While on the topic of models, ensure she is over 18 and able to give permission herself. You don’t want an angry parent chasing you down. Especially for a corset model.
I would also clarify if the photographer is ok with the image being edited in any way by a party other than them and if they are ok with graphics use such as adding logos, removing backgrounds, overlapping text and so on. This should fall under categories already mentioned, but again, never hurts to check, especially as some photographers have real issues with this.
Now as a graphic designer this is a bone of contention for me. I have altered and adapted countless photos in my previous job. I fail to see how you can design anything other than the most basic brochure or a poster for instance without touching the image in some way. Whether it’s to add a logo, crop or do something more complex. I also can assure you any image sent to a publication will have some sort of image correction done to it to maximise compatibility with the press and paper stock being used. Many photographers seem blissfully unaware of this. But it’s definitely worth sounding out their views on what you can and can’t do to the image in a graphic design context. I do appreciate that an amateur could really mutilate an image and that a photographer may not want a pink sparkly model’s name over it for instance.
Other things to consider
In addition to the usage categories described above you’re going to want to agree the number of images, the format, the size. Also practical matters like what happens should one of the team not show up (these apply to TF shoots too).
When it comes to it, a professional and experienced photographer will be reasonable, knowledgable and will guide you through all this and it should all be obstacle free. It’s in their interest to make sure you’re clear on your mutual positions. The problems mostly seem to come from those who are more amateur than they believe themselves to be or who have egos that overtake their abilities.
Covering your own back
Remember you need some protection too. You’re entitled to ensure your brand cannot be misrepresented, and on a paid shoot that the image has some exclusivity to you. Make sure that is established. Make it clear what you need and what you want to use the images for. You don’t need to cover and pay for every eventuality (you can always get back to them later) but don’t limit yourself either. If the photographer isn’t supplying anything then draw up your own contract, or at least ask questions in emails that you then keep on file as proof the conversation took place (see note in paragraph 2 about your own country’s legal position). If you are in any doubt about any aspect then get legal advice.
On TF shoots be careful who you work with and keep an eye on the future use of the image. Nobody wants to see their corset on an ad for a strip club a year later, and it’s happened. Trouble is, protecting yourself against things like that can be tricky. However that garment is your property, your brand is your property and you don’t want a situation to arise that implies an endorsement from your company. If it’s a worry, get it in writing, you are entitled to impose your own conditions on any loan or TF collaboration. If that’s not acceptable, move on to another professional. It’s your business too, and remember of all the creatives involved in a fashion shoot, designers are the minority and therefore in demand. If photographers want to shoot fashion, they need you. Corset makers are even more of a rare beast. I did read one photographer say that he’d tell anyone who asked him to sign something to take a running jump! Not a constructive attitude. But as above, if a contract would not be appropriate at least get it in an email. If things do go wrong then you do have redress in some instances. For instance, if it is used by another corset company you may be able to pursue them for ‘passing off’. However this is going to depend on location and individual circumstances. Again, seek legal advice.
The very fact the photographer retains the copyright potentially puts the other creatives involved at a disadvantage. The photographer very definitely holds the cards. Now in most cases that is fine. Most people are trustworthy and a dream to work with. But nothing is guaranteed. The only way you can maintain complete control is to take the pictures yourself , but obviously that is not ideal, there is no substitute for professional shots. However it’s no coincidence how many designers start out with straight, self-taken, mannequin shots on their websites and in their Etsy listings. If you have a decent camera, an eye for lighting etc you can pull this off. However, for modelled shots and when you want to step up your professionalism, you really do need the real deal. And to be fair, professional product shots are usually far superior to your own efforts.
The thing to remember is this: Unless you really are working with amateurs/ hobbyists everyone involved is a professional trying to earn some sort of living and everyone has costs. You have probably sunk a small fortune into getting those collection samples made, as well as your time (sanity!) and the cost of maintaining your skills. The photographer has the upkeep of equipment, the upgrading of skills and a considerable amount of time editing. The model has to maintain her physical self and keep on top of her skills (never underestimate the value of a good model). Make-up artists and hairdressers have their materials and time spent creating and perfecting the concept. All parties should respect that in each other and work out fair agreements for all. Pay when you need to pay and expect reasonable rights to the results when you do. When it’s TF, compromise and allow everyone their input. Most of the time it works great, and having the knowledge to back it up helps that to happen.
Some useful links:
These are UK links, mostly passed on to me by a photographer friend, but check them out, once you know what you’re looking for you should be able to find ones relevant to your location to double check your particular position.
A note on contracts in the UK. As far as I know this will be similar in the US but please check. http://www.bluefinprofessions.co.uk/news/an-exchange-of-emails-could-create-a-binding-contract
An overview of licensing and copyright for photographers http://www.photoassist.co.uk/fullarticle.asp?ano=1161
This is helpful in seeing how categories differ http://www.londonfreelance.org/feesguide/index.php?language=en&country=UK§ion=Photography
The copyright law website:
It’s worth contacting the Law Society to get hold of a IP solicitor in cases of dispute and/or when forming a contract with a major company.