The aim of this brochure is to provide practical guidelines for the editors, art directors and publishers who buy the pictures of freelance magazine photographers. It is the fourth in a series of publications developed by the American Society of Magazine Photographers (ASMP) with the help of grants from the Polaroid Corporation. The series is designed to address areas of mutual concern to those who make and those who commission photographs of all kinds.
ASMP has a membership of more than 5,000 leading professional photographers in the United States and abroad. The organization was established in 1944 to promote the interests of photographers and to maintain high professional standards. ASMP does not set rates or terms, which must be negotiated individually between photographer and client. But from the experiences of countless such individual negotiations over the years there has emerged a body of practices and procedures to guide this relationship. It is the resolution of these prosaic issues -the everyday matters of payments, rights and credits- that help nurture the classic tradition exemplified by the photographs shown here.
WHAT THE CLIENT BUYS
When a magazine makes an assignment to a freelance photographer, the client receives in return a number of benefits. Some are obvious; others are less apparent or so taken for granted as to be easily overlooked.
The client is contracting for the photographer's time and talent, of course, along with certain reproduction rights to the pictures produced. These rights, unless otherwise negotiated, traditionally consist of one-time, first North American editorial usage in one language.
Photographers bring to an assignment not only their technical expertise but also the lights, lenses and equipment to put it to use. The typical freelance magazine photographer owns and maintains at least $50,000 worth of equipment, which he or she in effect lends to the client free of charge for the duration of the assignment in exchange for a reasonable fee.
When needed, photographers provide written information about their assignments. They supply complete and accurate captions keyed to the film, contact sheets or transparencies. If requested, they provide, when necessary and where possible, signed releases covering the subjects and property portrayed in their pictures.
Photographers recognize that stories and sources constitute trade secrets and carefully protect the confidentiality of both. Some even require their assistants to sign nondisclosure agreements binding them to silence until publication.
Life on the Street.
These runaway kids in Seattle were subject of Mary Ellen Mark’s essay for LIFE and, later, of her award-winning documentary film.
What the client is buying above all is an intangible -the magazine photographer's spirit of independence and enterprise. It is this spirit that enables him or her to produce informative and interesting pictures, without obligation to any special interest. One photographer has described this intangible as the ability "to talk one's way past the palace guard and into the castle to take a picture of the king."
TWO WAYS TO BUY IT
Payment for photographers is customarily determined by one of two different methods. One method is the space rate, which is based on the amount of space in the magazine devoted to the published photographs. The other method is the day rate, which is a specified fee paid for each calendar day spent taking pictures whether the nature of the subject requires 10 minutes or 10 hours of actual working time during that day. The photographer receives whichever fee- the space rate or the day rate- turns out to be higher.
The day rate applies not only to actual shooting days but also frequently to time spent on necessary matters other than actual photography-for example, days devoted to research, preparation or travel. Depending on the individual photographer's agreement with a client, these days may be billed as full days, as half days or as some other fraction of a day.
A different kind of half day sometimes comes into consideration. This is the so-called half-day assignment, for which the photographer is paid at half the normal day rate. Because of the large amount of work that must be done before and after any job, even ones that require only a brief shooting time, few professionals are willing to accept half-day assignments. Even fewer are willing to make photographs "on speculation"-without a day rate and with no guarantee that the pictures will actually run and thereby generate a space rate.
Fees for editorial work always have lagged far behind those paid for commercial photography. The magazine day rate is only a fraction of that paid for advertising and corporate annual reports. During the past decade, moreover, increases in the fees for magazine photography have failed to keep pace with rises in the cost of living. For example, early in 1988 a typical day rate was $350. But had the day rate kept up with inflation in the decade since 1978, it would have been $460- 31 percent higher than it actually was.
Concerns of financial survival increasingly preoccupy many magazine photographers. Like other self-employed persons, they must provide their own fringe benefits, such as paid vacation, sick leave, retirement plan, self-employment social security tax and health insurance. In addition, they must buy and maintain equipment, purchase liability insurance, hire legal, accounting and secretarial help and rent an office and perhaps a studio. Most are able to remain in business only because they own the rights to their photographs and thus can offer them for resale.
A MATTER OF RIGHTS
By tradition, magazine photographers own the pictures they make. This practice was established between magazine photographers and their clients shortly after World War II as compensation for low day rates. It became legally codified as part of the revision of the U.S. copyright law that took effect in 1978-and under this law, only a signed agreement can take those rights away.
Ownership of the copyright is a matter of both principle and pragmatism. Vital to maintaining control over a photographer's own creativity, it also makes possible the resale business that is now essential to making a living. "The only way we survive," says a veteran photographer, "is through resale."
From the standpoint of the copyright law, photographers actually license rights for use of their pictures. In return for the day rate, they are typically granting one-time, first editorial rights in a magazine for one publisher in one language in North America. Clients must negotiate with the photographer for rights to additional use of the pictures-for example, in foreign editions of the magazine (based on the number of countries and languages) or in most instances of advertising aimed at promoting the magazine or story. For significantly higher fees, photographers and clients sometimes negotiate a so-called buyout. Under a buyout, the client purchases all rights to a picture or set of pictures for a specified period of time or permanently.
THE NECESSARY EXPENSES
All expenses necessary to carry out the assignment are customarily billable to the client. Such costs may include film, processing, travel, airfare, tips, meals, car rentals, hotels, film shipments and long-distance telephone calls.
Photo illustrators in particular may incur high expenses because their work often requires stylists, hairdressers, models and technical assistants and they often need to buy or rent props, studios, wardrobe and special lighting equipment. But even photojournalists engaged in traditional reportage frequently need to hire assistants in order to handle the complex lighting requirements brought on by the demand for color instead of black and white.
Major or unusual expenses such as hiring an assistant or chartering a helicopter must be discussed beforehand. In fact, it often is advisable for photographer and client to agree ahead of time on a rough estimate of costs. This amount then can be advanced to the photographer, who will account for expenditures to the penny and without adding the percentage markup that is common to expense accounts in commercial photography.
The alternative to an expense-account advance is that photographers must spend their own money and then wait, sometimes for several months, to be reimbursed. In effect, they are lending money interest-free to magazine publishers, even to those relatively prompt ones who make it a practice to pay within 30 days of being billed. "We act as bankers," says a veteran photographer, "with zero percent interest."
PHOTOGRAPHS ON FILE
Most photographers count on their stock -the pictures kept on file for resale- to generate one quarter or more of their gross income. Stock is so important, in fact, that they often refer to it as their "retirement plan." These picture files may actually be maintained by the photographer or, more often, by the photo agency he or she has selected for that purpose.
Minimum rates for publication of stock pictures are usually established by photographers and their agencies. Though a photograph may be published in only postage stamp size, it still is billed for at a minimum quarter-page rate. And the client who gets out his ruler and reports that a picture amounts to only "25/64 of a page" nonetheless will usually pay the rate for a half page.
Photographers and agencies commonly charge a research fee for handling stock-picture requests. The fee is payable even if the pictures are not published, and it is sometimes applied against the space rate if they are used. The purpose of the fee is to cover a portion of overhead costs and help discourage frivolous requests.
CREDIT WHERE DUE
Historically, photographers have considered as part of their payment the inclusion of a proper credit line with the publication of each picture. This is not a matter of ego but of pragmatic value, for the credit advertises the source of the photograph and thus helps promote its resale. In this way, it helps compensate for the comparatively low fees paid for magazine work. To focus attention on the importance of the credit line, photographers will often charge triple space rates in its absence.
Credits usually appear either in a space adjacent to the picture- the location preferred by photographers- or in a clearly designated credit box elsewhere in the magazine. Credits for an entire picture story typically appear on the opening spread. Magazine covers commonly are credited on the contents page.
Photographers and magazines sometimes have to be concerned about another kind of credit. In a fashion story, for example, the production budget can often be reduced by granting a credit line to designers, clothing manufacturers and stylists. When it is the photographer who makes the arrangements, it is important that the magazine is consulted in advance and agrees to adhere to such agreements.
HOW LONG IS REASONABLE?
Another issue closely linked to the resale of photographs is their timely return by the client. Because of the journalistic nature of most magazine photography, market value tends to decline with the passage of time. The longer a set of pictures sits on an editor's desk the less valuable it becomes for marketing to other media.
For assigned photographs, the allowable holding period before publication depends largely upon the frequency of the magazine's publication. A monthly might reasonably keep them for up to six months before deciding whether to publish; a reasonable holding period for a weekly might be six weeks.
In the instance of photographs requested from stock, a small holding fee commonly is charged if they are not returned within two weeks. After publication, the magazine has a responsibility to promptly return all photographs safe and undamaged. Many magazines use a bonded and insured courier or send the photographs registered and insured, via the U.S. mail.
When pictures are returned after an assignment, the photographer in turn has the responsibility of exercising sensitivity and restraint in marketing them to other magazines. A reasonable interval of time should pass after publication before they are sold to a competing magazine. What is reasonable should be worked out to the mutual satisfaction of the photographer and the client who made the assignment.
WHEN PICTURES GET LOST OR DAMAGED
Transparencies sometimes come back from the client so scratched or smudged that they are worthless. Occasionally, they get lost and do not come back at all.
The extent of the magazine's financial liability varies with the predicted resale value of the lost or damaged originals. Compensation varies, but $1,500 per photograph is about the average. Magazines have paid considerably more when the lost image was impossible to re-create or required high personal risk or unusual expense to produce.
A clear-cut provision covering the cost of replacing lost or damaged originals often appears in the photographer's invoice or contract. "This provision needs to be there to get people to take care of this original property," says a well-known photographer. "I certainly don't want the money as much as I want the transparency to be taken care of."
IN EACH OTHER WE TRUST
Many of the procedures and practices described here are customarily committed to writing by either the photographer or the client. Spelling them out in the photographer's invoice or a letter of agreement helps avoid misunderstandings and is highly recommended, especially when photographer and client have not worked together before.
But above and beyond the paperwork, a keen sense of ethics and a concern for the traditions of magazine photography must inform the actions of both parties. At its best, the relationship between photographer and client flourishes in the atmosphere of mutual trust summed up in the following comments.
PHOTOGRAPHER: Editorial photographers live in one of the few remaining "handshake" professions, where, based on trust and a client's phone call, we can find ourselves on a jet plane flying to another continent, with no signatures and no contracts having crossed between us.
PICTURE EDITOR: Each situation has its own answer. I'm not interested in giving blanket rules, because every time I do I'd have an exception to it. Given the time pressures in this business, I rarely sign a contract with anybody when I send them out. I do it all by word of mouth, and my word is my bond.
It is this ongoing tradition of trust and respect that enables so many magazines to grace their pages with wonderful photographs.