Photography: Kevin Sommers
For photographers, the ownership of images seems obvious: they had the concept, set up the shots, used their creativity, drew on their technical skills, and produced beautiful photographs. The results belong to the artists who created them, and they’re the ones who should get to control how the photos are used. For clients, that attitude can come as a surprise. If they’re hiring a portrait photographer or an event photographer to take pictures of them or their wedding, then they should own the pictures. After all, there wouldn’t be any images if they hadn’t approached the photographer, and they are paying plenty of money for them to be created too.
Copyright law sides with the photographer, but that conflict between who should own the images and what the client wants do with them is often a source of tension between photographers and the people who commission them. When those clients aren’t professional image buyers but occasional users, the result tends to be a lot of small-scale copyright breaches. Wedding clients print out the images on their DVDs, email photos to friends, and make copies of the DVD to share with family. On that scale, photographers tolerate it. The smart ones even encourage it, using the sharing as a form of viral marketing, especially on Facebook.
Ignoring Usage Restrictions
But some clients take things a little further. People who need portraits taken for professional reasons — such as to advance a singing career — may either be unaware of the usage restrictions placed on their images, or they may simply choose to ignore them, passing out their headshots and publicity photos to anyone who needs them regardless of the small print in the photography contracts, and any fees that are supposed to be paid for each use.
It’s a problem that has led one photographer to redefine the usage license of the images he produces. Kevin Sommers is a former lawyer married to a retired copyright attorney. After spending several years at a large corporate law firm then running his own law firm, he found that he missed the creativity he had enjoyed in a previous job as a commercial advertising photographer for Caterpillar. He turned his 100-year-old law office building in Nashville into a studio and set himself up as a professional photographer specializing in portraits, model portfolios, music promotion work and headshots.
Like other photographers, Kevin requires clients to sign a form declaring that he retains copyright ownership of his images. Clients, however, are then granted a limited release to copy, post and distribute the images for personal and self-promotional use. The license doesn’t apply to third parties but it does give clients the flexibility to print modeling comp cards, headshots and other marketing material without returning to the studio for a release. It’s a solution, Kevin explains, that’s convenient for both sides.
“They often need to provide an image quickly when a newspaper, magazine or agency needs an image and I do not want to hold them up in case I am not available right then,” says Kevin of his clients. “I travel several months of the year and this is the most practical for everyone involved.”
Singer Beau Davidson, for example, has submitted Kevin’s images to InTouch Magazine, The Tennessean, Cosmopolitan and other media outlets. Kevin receives a credit but Beau Davidson doesn’t have to contact Kevin before each use — and he doesn’t have to pay an extra fee for each publication or pass the bill on to the magazine.
But it’s not just the convenience of not forcing clients to wait for him to issue a release that has led Kevin Sommers to waive fees for those usages. There’s also the inevitability that the pictures would be used anyway.
“I also realize that since they get their images from me in CD or DVD form, they may be used even without the release,” he explains.
Don’t Sue If You Can’t Collect
To some photographers, that may sound like an expression of defeat. A photographer’s biggest asset is the collection of images that he or she builds up over a career. Allowing clients to use those photographs without additional payments, and worse, not chasing down illegitimate use may lower the value of those assets and encourage even more copyright abuse.
To Kevin though, it’s about practicality. As a lawyer, he points out that legal cases can be costly, lengthy and emotionally draining. Each photographer, he says, has to decide on a case-by-case basis whether a copyright infringement is serious enough to pursue. Because his clients are mostly young singers, taking their first steps in the music industry, he says, he has little to gain by taking them to court.
“Winning a judgment does not mean much if you cannot collect it,” notes Kevin. “That should be the first thing they teach in law school.”
But changing usage licenses to acknowledge that clients will use the images the way they want anyway is only one aspect of the change that Kevin Sommers’ contract brings to photography. It also marks a change in one aspect of the photography business model. Photographers may earn most of their income during the time it takes them to shoot and edit the pictures, but the profits for printing images over which they retain reproduction rights can provide valuable extra income. In an atmosphere of intense competition, that’s a benefit that’s quick to disappear. Clients aren’t dumb, says Kevin, they know when they are being overcharged for “print packages” that give them more than they need or want. Letting portrait clients, for example, print as they want saves them money and makes his offers more competitive.
More importantly, Kevin, who usually charges between $300 and $575 for a shoot, sees his job not as a printer but as a photographer. He wants to let the client worry about what to do with the pictures while he focuses almost entirely on creating the shot.
“I… personally do not enjoy the tedium of filling print orders,” he explains. “I am in the business of taking portraits, not selling prints at outrageous rates.”
Kevin acknowledges that his model isn’t going to suit every photographer and every photography business. But it does suit him. The question is how many other photographers find that it’s a solution that suits them too — and whether it will relieve the tension between photographers and the clients who commission them to create pictures.