Posted by Brad Mangas on October 24, 2009 at 9:32 AM
Kansas Magazine a quarterly publication of approx 40,000 subscribers recently changed hands from Meredith Co. provider of many midwest publications to Sunflower Publishing a smaller and more locally publishing company. This changed resulted in a change of contractual agreements.
Previously with Meredith Co. rates were $150 paid for full page use with an exclusive right for use of 6 months.
Sunflower Publishing new contract, $75 for a full page paid for use with an exclusive right for use of 1 year. Also, and this is a big part of my question, in the new contract it states the contractor (photographer) grants a 1 year exclusive right for any similar image from the same photo shoot.
My question is, is this a norm that others are seeing as far as the exclusive right of 1 year. I am in negotiations with them as present and the payment decrease is an issue as well but the exclusive right seems to trouble me more. 1 year not only for the photos used but for similar photos from the same photo shoot.
I would appreciate knowing others experience with publications and exclusive rights. If this is a somewhat typical practice by publications I may not have much ground to stand on, if not then I plan on standing firm to no more than a 6 month exclusive for the image used only and not anything else.
Following is a copy of that section of the contract if you care to read it.
Thanks for your time.
LICENSE GRANT: Contractor hereby grants to Company the following license and rights in and to the
Works in consideration for the payments set forth herein: (i) the right to publish the Works first in North
America; (ii) the exclusive right to publish the Works in print and to place on broadcast, internet or satellite or
other electronic media for a period of one year following delivery of the Works to Company; and (iii) the nonexclusive,
perpetual, unlimited right to publish, reproduce, modify and distribute the Works for promotional,
advertising (including the use of tear sheets by either the Company, its contributors or advertisers), reprint,
historical or anthological purposes in any form, including but not limited to print, broadcast, electronic, Internet,
satellite or other media. Contractor specifically agrees that the exclusive rights granted to Company pursuant
to Section 3 (ii) above includes all similar works, such as other photographs from the same photo shoot.
Company agrees that nothing in this Agreement shall give Company any right title or interest in the Works
other than the right to use the same in accordance with this Agreement. All rights not explicitly granted are
reserved to Contractor.
You really need to buy Fotoquote Bad! It's invaluable, and not all that expensive. A single sale will repay you. The detail you provide is sufficient for developing quotes to those clients, and best of all it will give you guidance on negotiation.
And that's the key word: Negotiation!!!
I'm sure they cut their photo rates because ad revenues are down. You need a foundation for developing your own counter-proposal and fotoquote gives it. Their rates are based on national averages and more. Among the more interesting things they'll help you with is a way of looking at ad revenue for a magazine.
We base our quotes on a fraction of the ad rate a magazine charges for an ad the same size as your photo. You should go to the magazine web sites and look up the ad rates for those magazines and you'll immediately have a fair idea of what you should be charging, based upon a fraction of that. While waiting for your fotoquote program to arrive, it will also help if you compare number of ads in issues from a year or so ago with most recent issues. That way you can double check their reported rates of ad decline.
Posted by Mark Windom on October 24, 2009 at 3:43 PM
What would bother me even more is clause #(iii). Granting perpetual and unlimited nonexclusive rights may take away your ability to grant exclusive rights for this image to someone else in the future.
I would agree that $75 for exclusive one year rights is too low but welcome to the world of stock in today's economy. Only you can decide if it's fair.
Personally, I would look elsewhere to do business.
Posted by Richard Wong on October 24, 2009 at 4:44 PM
Sounds like a bad deal for that price. You can only get decent rates if you request for them. They can take your price and get the image they want or go elsewhere and not get the image they want.
Posted by Brad Mangas on October 25, 2009 at 3:28 PM
Thanks for the advice and insight guys, and Hank I believe I will take your advice on Fotoquote. I have looked into it before but know I see the real value in it. Thanks for pointing that out.
Good Brad. You'll find it invaluable. To tell you how valuable it has been to us, the very first time we used it we quadrupled our instinctive asking price for a job, figuring we'd have to negotiate back to a lower level, but having lots of facts and figures to back up our position. And the client accepted the 4x price without a quibble! Egad, made us wonder if we shouldn't have asked for even more. The big thing we get over and above a range of prices from fotoquote is the confidence to ask for what our work is really worth on the open market, rather than letting any insecurity keep us from asking.
On the exclusive rights stuff, I bet that's really more negotiable that the price. If their price is acceptable to you for single use, saying something like "The only way I can consider your price is for single use, rather than any exclusivity," they might bite. If it comes down to asking you to justify that stance, just tell them that the photos have much more income potential over the span of the exclusive period, and you can't afford to give that up while also accepting their low bid. I.e., pay me more if you want an exclusive!
Discussion
5 repliesPreviously with Meredith Co. rates were $150 paid for full page use with an exclusive right for use of 6 months.
Sunflower Publishing new contract, $75 for a full page paid for use with an exclusive right for use of 1 year. Also, and this is a big part of my question, in the new contract it states the contractor (photographer) grants a 1 year exclusive right for any similar image from the same photo shoot.
My question is, is this a norm that others are seeing as far as the exclusive right of 1 year. I am in negotiations with them as present and the payment decrease is an issue as well but the exclusive right seems to trouble me more. 1 year not only for the photos used but for similar photos from the same photo shoot.
I would appreciate knowing others experience with publications and exclusive rights. If this is a somewhat typical practice by publications I may not have much ground to stand on, if not then I plan on standing firm to no more than a 6 month exclusive for the image used only and not anything else.
Following is a copy of that section of the contract if you care to read it.
Thanks for your time.
LICENSE GRANT: Contractor hereby grants to Company the following license and rights in and to the
Works in consideration for the payments set forth herein: (i) the right to publish the Works first in North
America; (ii) the exclusive right to publish the Works in print and to place on broadcast, internet or satellite or
other electronic media for a period of one year following delivery of the Works to Company; and (iii) the nonexclusive,
perpetual, unlimited right to publish, reproduce, modify and distribute the Works for promotional,
advertising (including the use of tear sheets by either the Company, its contributors or advertisers), reprint,
historical or anthological purposes in any form, including but not limited to print, broadcast, electronic, Internet,
satellite or other media. Contractor specifically agrees that the exclusive rights granted to Company pursuant
to Section 3 (ii) above includes all similar works, such as other photographs from the same photo shoot.
Company agrees that nothing in this Agreement shall give Company any right title or interest in the Works
other than the right to use the same in accordance with this Agreement. All rights not explicitly granted are
reserved to Contractor.
And that's the key word: Negotiation!!!
I'm sure they cut their photo rates because ad revenues are down. You need a foundation for developing your own counter-proposal and fotoquote gives it. Their rates are based on national averages and more. Among the more interesting things they'll help you with is a way of looking at ad revenue for a magazine.
We base our quotes on a fraction of the ad rate a magazine charges for an ad the same size as your photo. You should go to the magazine web sites and look up the ad rates for those magazines and you'll immediately have a fair idea of what you should be charging, based upon a fraction of that. While waiting for your fotoquote program to arrive, it will also help if you compare number of ads in issues from a year or so ago with most recent issues. That way you can double check their reported rates of ad decline.
I would agree that $75 for exclusive one year rights is too low but welcome to the world of stock in today's economy. Only you can decide if it's fair.
Personally, I would look elsewhere to do business.
On the exclusive rights stuff, I bet that's really more negotiable that the price. If their price is acceptable to you for single use, saying something like "The only way I can consider your price is for single use, rather than any exclusivity," they might bite. If it comes down to asking you to justify that stance, just tell them that the photos have much more income potential over the span of the exclusive period, and you can't afford to give that up while also accepting their low bid. I.e., pay me more if you want an exclusive!