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USE

OF
PHOTOGRAPHY

Use of photography in design work involves


choice and responsibilities. With the
growth of digital libraries of images, stock
photography has become far more accessible
to every designer, although there are also
strong reasons to commission photography
specifically for a project. This chapter
reviews the options available to designers,
considerations in contracting for the rights
for use of photographic images and the
means of using photography while fully
respecting the intellectual property rights
of the photographer.

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Contracting with a photographer Specifications and deadlines At the same time, the designer Fees and rights

It is important to decide whether To begin with, specifications for needs protection against the A professional photographer sells
the designer or the client will the images should be as clear and situation in which the designer is a license to use a photograph in
contract with the photographer, detailed as possible. What is the satisfied with the photography but particular circumstances; he or
since the contracting party will subject to be photographed? Will the client is not. Client, designer she does not sell the photograph
be liable for any money owed to the art director or designer give a and photographer all should make itself or the copyright to it. The
the photographer. If the client sketch to the photographer or be certain that each party will be photographer owns the opportu-
contracts directly, many of the present during the shoot for ap- fairly treated and benefit from the nity to use or sell the image in all
points made in this chapter would provals? Should the images be in project. One way to do this is to other uses, unless he or she sells
be relevant to the client instead black-and-white or in color? How involve the client in the decision- the copyright in writing prior to
of the designer. The designer’s many images are to be delivered? making process with respect to the photoshoot.
willingness to be the contracting In what format will the images the photography.
party will depend on such factors delivered—positive, negative, There must be agreement as to
as whether the photography bud- digital file? Any changes in the assignment the fee and what is purchased
get is relatively small compared should be documented in writ- for the fee. Most photographers
to the total design budget and The photographer must work ing. Even in the rush of meeting seek to sell only limited rights.
whether the client has proven to on schedule. Failure to do this deadlines and finishing work, If greater rights are desired,
be reliable with respect to paying should be a reason for the de- the careful practice is always to they will ask for a higher fee. If the
the designer in the past. Certainly signer to terminate the contract. have a written confirmation of designer is sensitive to this, the
the designer should not take the If the designer’s schedule allows any changes. This helps avoid best approach may be to ask for
risk of paying for photography if some flexibility with respect to the disagreements as to whether the limited rights. This should avoid
there is any risk the client won’t photographer’s deadline, then ill- assignment as delivered meets paying for usage rights that will
reimburse the designer. ness or other unavoidable delays the specifications. If the changes not be exploited.
might extend the photographer’s aren’t written down, it is easier
deadline. However, there must to forget exactly what was dis- On the other hand, the designer
be a deadline for when the work cussed or misinterpret what was must obtain all of the rights that his
should be delivered or else the intended. or her client needs. In the first in-
designer may use another photog- stance, the designer must consider
rapher. If even a short delay would what rights will be transferred to
be damaging, the designer might the client. Rights can be limited in
consider making “time of the many ways, including the duration
essence” in the contract, in which of use, geographic area of use, type
case the deadline will have no of product or publication, title
leeway. The designer will want of the product or publication, and
the contract to require that the whether the use is exclusive or
assignment satisfy the designer, nonexclusive. An important aspect
while the photographer will want of the grant of rights is whether
to include that the satisfaction be the work may be used in electronic
“reasonable” to avoid having to media (such as on a website or
do endless work to accommodate a DVD) as well as in traditional
an unreasonable designer. media. In electronic media, each
category of use (such as a ban-
ner ad, email blast or website) is
considered discrete use.

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A photographer working on as- All rights and work-for-hire the allied creative professionals menced or if, due to the short
signment will expect reimburse- A client may want an all rights who will be asked to work on the notice of the cancellation, the
ment for direct expenses incurred contract. Having all rights would design project. Work-for-hire photographer will be unable to
in producing the images. The mean the client could use the vests the copyright in the client find other assignments for the
designer should carefully review work in any conceivable way. who is treated as the creator of the days that had been set aside for
the expenses to be reimbursed to However, on questioning the work and gains all the copyright the designer.
avoid the possibility of a dispute client, it often develops that the benefits that would normally
arising. Whether a cap can be client does not need all rights. belong to the creator. This type A different cancellation issue
placed on expenses, such as stat- Rather, the client wants to prevent of contract lowers standards arises if work is unsatisfactory.
ing that expenses shall not exceed competitors from using the protective of artists’ rights, has a Should the photographer be
the estimate by 10 percent, will photography (and, of course, the negative impact on the ability of given the first opportunity to
have to be negotiated along design). One approach would be creators to earn a livelihood and do a reshoot? Will there be any
with whether a markup is to be for the designer to promise by can have a demoralizing effect additional fee in that case?
charged by the photographer contract that no use will be made with respect to creativity. If the designer uses another
on some or all of the expenses. of the design in certain markets photographer, should the first
(The designer will face the same without first obtaining the In all cases, the designer would be photographer be paid anything
issues of cap and markups when written consent of the client. wise to use a written limited rights for the unsatisfactory work?
billing the client.) If the designer Another might be to agree that contract so that both parties These can be difficult situations
requires changes and this causes the client has exclusive rights know exactly what deal is being to resolve, even when both parties
reshoots, expenses may increase in those markets where the agreed to. make their best efforts to be fair.
dramatically. The designer has client faces competitors, but that
to be careful to not get caught in the client will not unreasonably Payments and cancellations Authorship credit and
a squeeze between a client with withhold from the designer Standard practices should copyright notice
a limited budget and an image (or photographer) the right to be documented in a written agree- There should be agreement as
cost which exceeds that bud- resell the image or design in a ment and should call for payment to whether the photographer will
get because of changes. When noncompetitive way. to the photographer within a cer- receive authorship credit for
expenses will be very substantial, tain number of days after delivery the photography that appears in
an advance against expenses may The designer may sometimes of the assignment (not publica- the final design. This would be
become part of the contract (in act as an intermediary—and, tion or printing of the images in expected in editorial or nonprofit
which case the designer would perhaps, as a mediator of sorts— the designer’s final work). This work, but is less likely for
want an advance from the client between the demands of the time period is often set at 30 days. advertising or corporate
sufficient to cover what is being client and the desire of the Any advances are subtracted from assignments. The same holds
paid on account to the photogra- photographer to retain rights the total bill, which should then true for copyright notice, which
pher). Whether or not sales tax and earn more money for greater be paid in a timely manner to would be much more likely for
will have to be paid, and who will usage. Designers must be careful the photographer. editorial or nonprofit usages
be expected to pay it, should also to make certain that their con- than for advertising or corporate
be resolved in the contract. tracts for rights with photogra- Provision should also be made for assignments. Again, the designer
phers and illustrators conform to what will happen if the assign- will have to ensure that the client
the rights that the designers have ment is cancelled. The designer and the photographer share the
contractually agreed to give should be able to terminate the understanding as to what will be
their clients. Ideally, therefore, assignment without liability done with respect to authorship
designers will resist clients that unless the photographer will be credit and copyright notice.
demand all rights or work-for- damaged in some way. This would
hire—both for themselves and for be the case if work has com-

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A typical photo credit would appear The client or the designer may also including not only valuable origi- Resources
as: “Photograph by Sarah Pho- want the photographer to give a nal transparencies but also storage Legal Guide for the Visual Artist (Tad
tographer.” If the photographer warranty that the work is origi- media that contained digital ver- Crawford) and Business and Legal
is to receive a copyright notice, nal and not an infringement of sions of the work. If any physical Forms for Graphic Designers (Eva
this could take the form of “© copyright, an invasion of privacy, object is to be transferred in Doman Bruck, Tad Crawford) both
Sarah Photographer 2009.” Other libelous or otherwise unlawful. addition to the transfer of rights, offer sample contracts accom-
forms of copyright notice are also If the photographer gives such a the contract should specify the panied by extensive discussion.
possible, such as “copyright” or warranty, the photographer will ownership transfer. Pricing Photography (Michal Heron)
“copr.” The photo credit and copy- be subject to damages if any of gives instruction with respect
right notice would ideally be placed the warranties are found to not Assignment of money
to negotiation and includes
adjacent to the image, whether be true. and duties
pricing charts for different stock
horizontal or vertical, but can also The designer will need to be usages. The Graphic Designer’s Guide
be placed elsewhere as long as the The use of pre-existing images able to assign rights to the client. to Pricing, Estimating and Budgeting
reader will be able to relate them is another possibility for the Since the photographer has been (Theo Stephan Williams) discusses
to the image. If copyright notice designer. Use of stock images used based on his or her unique how to create a successful rela-
is not adjacent to the image, it avoids the many contractual issues style, it won’t be acceptable tionship with suppliers such as
might be wise to add the word that may arise when photography for the photographer to assign photographers. AIGA Professional
“photograph” in front of the is done on assignment. In using the work under the contract to Practices in Graphic Design (AIGA,
copyright notice. stock images the designer has another photographer. Tad Crawford) gives information
to be careful not to exceed the on fees, negotiating and dealing
Releases, warranties and license from the stock agency. If A creative relationship with suppliers. For more informa-
stock photography additional usage is needed, the de- tion and resources, please go to
signer has to go back to the agency The relationship between designer
Assignments often require and photographer can be highly AIGA’s website at www.aiga.org.
photographing people. If these and clear the rights by paying
an additional fee. In some cases creative. It can lead to visual solu-
images are used for advertising tions that are stunning and exceed
or trade purposes (such as on a the stock agency may limit use of
photographs because releases have the client’s expectations. For
product or for product packaging), creative relationships to thrive,
a release must be obtained from not been obtained from models.
Ignoring the agency’s restrictions however, there must be a basic
the person. This is true whether business understanding. A careful
or not the person is a professional as to use for advertising or trade in
such a case is inviting an inva- discussion of the creative goals
model. The release should be in and the business issues should be
writing. Although the photogra- sion of privacy lawsuit against the
designer and the client. followed by the signing of a written
pher will obtain the release, the contract. Such a contract grounds
release should protect the client both parties by resolving ambigui-
Ownership
and the designer as well as the ties and clarifying expectations. It
photographer. If either the de- Unless there is a special reason to is an important step in the shaping
signer or client is uncomfortable obtain ownership of preliminary of a harmonious partnership that
with the language in the photogra- materials used to create the leads to the creation of work of the
pher’s release, it would be wise to photograph, these would remain highest excellence.
ask for a second release to be the property of the photographer.
signed for the designer or client The photographer would also keep
(or both). ownership of any physical materi-
als submitted to the designer and
expect these to be returned,

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CREDITS

AIGA | the professional association for design Disclaimer: Legal information is not legal advice.
164 Fifth Avenue, New York, NY 10010 This publication provides information about the
212 807 1990 www.aiga.org law designed to help designers safely cope with
their own legal needs. But legal information is
PUBLISHER not the same as legal advice — the application
Richard Grefé, AIGA of law to an individual’s specific circumstances.
Although AIGA goes to great lengths to make sure
our information is accurate and useful, we rec-
EDITORIAL CONTENT
ommend that you consult a lawyer if you want
A Client’s Guide to Design:
professional assurance that our information, and
Joanne Stone and Lana Rigsby
your interpretation of it, is appropriate to your
particular situation.
Use of Fonts:
Allan Haley
Contributing editors: Sam Berlow, IN-KIND PAPER PARTNER

Matthew Carter, Jonathan Hoefler, Arctic Paper


Zusana Licko and Frank Martinez arcticpaper.com
Cover: Munken Polar, 300 g/m
Use of Illustration: Text: Munken Lynx, 130 g/m
Brad Holland and Tammy Shannon
PARTIAL IN-KIND PRINTING PARTNER
Use of Software: Blanchette Press
Business Software Alliance Richmond, BC, Canada
blanchettepress.com
Sales Tax:
Daniel Abraham and Marci Barbey DESIGN
Grant Design Collaborative, Atlanta
Guide to Copyright:
Tad Crawford
PHOTOGRAPHY
Jerry Burns, StudioBurns, Atlanta
Use of Photography:
Tad Crawford
FONTS

Standard Form of Agreement for Design Services: Interstate and Filosofia


Jim Faris and Shel Perkins
COPYRIGHT
© 2009 AIGA
First edition published in 2001.

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