Selling photo from shoot to subject (not the contractee)

[Ryan_]

Hi all.

Recently did shoot for magazine. It was a portrait of someone. At the end of the shoot they asked if they could purchase the photos and I told them I'd just send them to them (as I've done in the past). I have a feeling thats looked down upon by other photographers (not sure) but I never minded doing that for people because I figured I'm already getting paid from someone else to be there. And its not like its my "art" photographs which I generally never give away (only in rare specific situations).

However, this person emailed me and insisted they'd pay for the photos (I believe they will only be purchasing 1 or 2 high res).

So two questions here: 1.) Should I be charging people for photos of themselves that I shot for a magazine? 2.) If that answer is yes, how much should I charge for say one or two high res files?

Thank you for any insight offered

 

[Jim Saunders]

I'd say it depends on the terms of your agreement with the magazine; who retains copyright at the end of the day?

Jim

 

[Ryan_]

I'd say it depends on the terms of your agreement with the magazine; who retains copyright at the end of the day?

Jim

Good question. I just looked up a contract I signed with them in 2015, it states they get a non-exclusive license to the work. I'm almost sure that means I keep the copyright, no? Or am I mistaken?

There is also this though: "...Contractor agrees to not accept free transportation, meals, gifts, junkets, commissions or assignments from current or potential sources or subjects of the Work."

Do you think me selling the high res files counts as taking commission from the subject? I don't think thats exactly a commission, its more of an incidental kind of thing.

 

[Jim Saunders]

I'd say it depends on the terms of your agreement with the magazine; who retains copyright at the end of the day?

Jim

Good question. I just looked up a contract I signed with them in 2015, it states they get a non-exclusive license to the work. I'm almost sure that means I keep the copyright, no? Or am I mistaken?

There is also this though: "...Contractor agrees to not accept free transportation, meals, gifts, junkets, commissions or assignments from current or potential sources or subjects of the Work."

Do you think me selling the high res files counts as taking commission from the subject? I don't think thats exactly a commission, its more of an incidental kind of thing.

I'm no lawyer and you might do better to talk to one, but I'd take the commissions above as referring to a prohibition on entering into new working agreements with "sources and subjects" but if you sold them a non-exclusive license and can show that you haven't transferred copyright then you may have the latitude to sell the images to the subject.

But yeah ask a lawyer.

Jim

 

[unfocused]

Why not just tell the individual that under the terms of your agreement with the publication, you are not comfortable charging them for the photo?

Since the magazine has a non-exclusive right to the images, you could probably sell copies to the individual (yeah, check with a lawyer), but if it has been your practice in the past to just give them a copy (Which incidentally, is what I do as well), I'd just do that.

I would also add, that you would appreciate them crediting you if they use the picture and also recommending you to their friends and business associates. The advertising and goodwill is more valuable than the fee they'd pay and you have a good reason to tell them you don't want to be paid.

 

[Pookie]

This should be stipulated in the contract... there should be no grey area. Often the contract states they are the property of the client paying for them, if it's non exclusive then you can sell as you wish unless it run foul of publication rights.

 

[tpatana]

Why not just tell the individual that under the terms of your agreement with the publication, you are not comfortable charging them for the photo?

Since the magazine has a non-exclusive right to the images, you could probably sell copies to the individual (yeah, check with a lawyer), but if it has been your practice in the past to just give them a copy (Which incidentally, is what I do as well), I'd just do that.

I would also add, that you would appreciate them crediting you if they use the picture and also recommending you to their friends and business associates. The advertising and goodwill is more valuable than the fee they'd pay and you have a good reason to tell them you don't want to be paid.

This sounds like the best plan.

 

[Mikehit]

There is also this though: "...Contractor agrees to not accept free transportation, meals, gifts, junkets, commissions or assignments from current or potential sources or subjects of the Work."

In my (non-legal) view, that clause is there to prevent a subject giving in inducements to the photographer to influence the shoot because this may not give the magazine the pictures they need to illustrate their intended editorial line. And if the subject gives you freebies, then it begs the question just who are you working for?

In your case, the subject has not commissioned you. It is no different to the parent of the portrait subject asking to buy the picture of their child, or a random member of the public asking for a copy of the nice picture you have just taken of the Golden Gate Bridge.
You could, as a matter of courtesy, inform the magazine that the subject has asked for a copy of the picture and you will sell it to them at a fair market rate and you believe this does not contravene the terms of the contract. I would not ask them if it is OK because they will sometimes play safe to avoid having to think about it - if they do not agree they will respond pretty quickly!

 

[monkey44]

There is also this though: "...Contractor agrees to not accept free transportation, meals, gifts, junkets, commissions or assignments from current or potential sources or subjects of the Work."

In my (non-legal) view, that clause is there to prevent a subject giving in inducements to the photographer to influence the shoot because this may not give the magazine the pictures they need to illustrate their intended editorial line. And if the subject gives you freebies, then it begs the question just who are you working for?

In your case, the subject has not commissioned you. It is no different to the parent of the portrait subject asking to buy the picture of their child, or a random member of the public asking for a copy of the nice picture you have just taken of the Golden Gate Bridge.
You could, as a matter of courtesy, inform the magazine that the subject has asked for a copy of the picture and you will sell it to them at a fair market rate and you believe this does not contravene the terms of the contract. I would not ask them if it is OK because they will sometimes play safe to avoid having to think about it - if they do not agree they will respond pretty quickly!

^^^ -- This one ... why not go directly to the original magazine editor? I'd also agree to explain "The subject asked for, and I'm selling him/her (It?) a copy." Don't ask for permission - just make the statement - see what kind of response, but do not phone, you need a written response ...

 

[Ryan_]

Thanks all. I appreciate the input and advice. I think I'm gonna go ahead and just send them to her as I've been doing.

But out of curiosity, for the future if I change my stance on this, and for the sake of knowledge, how much would you guys charge for one or two high res files in this situation?

 

[StudentOfLight]

Thanks all. I appreciate the input and advice. I think I'm gonna go ahead and just send them to her as I've been doing.

But out of curiosity, for the future if I change my stance on this, and for the sake of knowledge, how much would you guys charge for one or two high res files in this situation?

If you are the copyright owner then you can sell at whatever price the market will bear. Your market is different to other people's markets.