Architectural Photography & The Law: Licensing Fees

Architectural Photography Almanac has partnered with Leslie Burns, an intellectual property attorney based California to answer reader questions about intellectual property and the law. By far the most common reader questions have to do with licensing, fair use, and intellectual property infringement and enforcement, so we thought it was the right time to make a commitment getting a professional involved to help architectural photographers around the world better understand copyright law and avoid the headaches and chicanery that go along with navigating the world of image use and rights.

After seeing how creatives got screwed so often in business, I decided I’d love to go to law school to protect them better. It took a while before I could make that happen, financially, but in 2008 I got offered a full scholarship and leapt at the chance. I loved law school. I passed the California bar on the first try and have been licensed and practicing in California since 2011.

Leslie Burns

We are extremely excited to welcome Leslie on board and can’t wait for her contributions to the blog. If you have reader questions about photography and the law, please send them to us and we’ll get them to Leslie to answer here. Let’s give her a warm welcome and on behalf of photographers everywhere who will stumble upon this article for as long as it lives on the internet, a giant thank you for helping us navigate a total minefield.

Leslie’s answers are for educational purposes only—she can’t offer specific, personalized legal advice on a blog. If you do have specific questions about a potential case or personalized guidance, head over to her website and give her a shout!

Our first question, as promised, has to do with licensing fees and publication. Take it away, Leslie!

Question: I found your article about charging licensing fees very helpful as I am very new to the Commercial/Architectural Photography game.

I had a publication (STRUCTUREMagazine) use one of my photos I took for a project, without permission, without credit & without compensation. I contacted them, and asked to start a conversation about being compensated. They have a contract with the author of the article who had sent in the photo saying that he has permission to use for third party print.

I was compensated by the structural engineer of the project to take the photos, and I don’t want them to have to pay for print licensing in addition, as I have a close relationship with them.

This is a small-mid size publication who does get revenue from ads & subscriptions. They do not pay the authors of the articles, and they do not pay for any photos included in any of their publication.

Are they able to get around having to pay the photographer, with this contract?

This is so frustrating. I was finally published in a magazine, but then not compensated for it.

Answer:

Great question! 

First off, publications lie all the time about not paying authors, photographers, pretty much everyone. As much as I hate to say it, never believe it when a business of any kind, including a publication, cries poor. Just because a publication says it doesn’t pay authors or photographers doesn’t mean that is true. 

More importantly, remember your work has value or they would not want to use it. Remember too that (almost) no one gets to use your work without your consent–that’s what copyright law is all about. So, assuming the work was used without that consent (aka a license), someone should pay for that use.

Looking at this publication’s media kit gives us an interesting piece of information: it turns out that if the article the photo ran with was a “company profile,” then (surprise!) the original client actually PAID for that. See page 5 of the Media Kit. Paid placement or no, the photographer should check to see whether that use is covered by the original license.

See, this sort of situation hinges pretty much entirely on the photographer’s contract/license with their client. What rights were granted to the structural engineer here? If, for example, the photographer granted “unpaid placement” rights, then the engineer could offer the photo to an unpaid article’s author or the publication without infringing on the photographer’s rights and the publication could run the photo without asking the photographer or paying for it. But, if the client here only had unpaid placement rights but the photo ran with a paid company profile, then that use was beyond the scope of the license. In either case, it looks like the original client likely provided the photograph and told the publication it could use it. Oops!

As for the lack of attribution (credit line), again, that depends on the wording of the contract with the original client. If the license included a requirement that a credit line run with all uses and the publication didn’t do that, then a photographer may have a claim against the publication or the author or the original client, depending on who made that error.  

Now, I see that the photographer here doesn’t want to go back to his original client for more money, but that is probably a mistake. Generally, photographers have to stop being afraid to approach their clients for more money when the client wants (or simply grabs) more rights. It’s great to have a close relationship with a client and back when I was a photographers’ rep, I had several clients who were actual friends. But sometimes it’s just smoke and mirrors. Photographers should look at the relationship objectively to make sure it isn’t abusive. For example, does your client often use your work beyond the scope of whatever license they purchased and every time it claims it was just some sort of whoopsie? Then it’s not a close relationship: you are being taken advantage of and being sold a story that it’s a close relationship with a flaky friend. We like to think of all or most of our clients as friends, but it is a business relationship, not a friendship, and the implicit “rules” are different. A real friend won’t ask to borrow your car to run errands while theirs is in the shop then drive to Tijuana for a week; but in a business relationship, no matter how friendly, the client will try to get as much as it can for as little as it can. That’s just good business to many businesspeople, even actual friends. Don’t be afraid to stand up for your rights and your business!

If a photographer finds themself in this situation and asks for more money but gets rebuffed, then they have to consider legal action. The first thing a lawyer will do is check to see if is this a contract matter or an infringement matter. Okay, this is kind of lawyer nerdy, but it makes a big difference. If a photographer has in their contract something like “No rights are granted until full and timely payment; client agrees that any use beyond the scope of the license is copyright infringement” then a court will probably accept that the claim “lies in copyright law” as we lawyers say. If not, then courts will likely say the matter “lies in contract law.” So what? Well, if it lies in contract law, then you can’t sue for infringement and probably you will have to file suit in state court instead of federal court and it changes what damages are available (no copyright statutory damages, for example). It may make filing suit just not worth the bother because under contract law, you have to prove up all the damages. How do you prove the value of the lack of a credit line? If you can’t prove damages, then you can’t collect any under contract law. But, if it’s an infringement (lies in copyright law) and the work is timely registered or you are willing to use the new Copyright Claims Board (aka “Copyright Small Claims Court”), then you don’t have to prove any damages to get statutory damages (and maybe your attorney’s fees). If statutory damages are available, there are many lawyers who will consider taking the case on a contingency fee (that is, they get a cut of whatever they win for you).

Best general advice? Make sure you have good contracts and license language and make sure to get your clients to sign them. Most problems, like this one, can be avoided then.