The Freelance Photographer’s Guide To Success: Business Essentials [1 ed.] 0367635658, 9780367635657

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Te Freelance Photographer’s Guide to Success

Grounded in real-life experiences and scenarios, this practical guide offers editorial, non-profit, foundation, and corporate photographers an honest and insightful approach to running a freelance photography business. Pulling from thirty years of experience as a freelance photographer, Todd Bigelow presents a timely and detailed account of the methods and tactics best used to navigate and succeed in the profession. He explores the topics that define the business of freelancing, including: analyzing photography contracts; creating and maintaining an image archive; licensing for revenue; client development; registering for copyright; combating copyright infringement; and understanding tax issues, freelance business structures, and more. Chapters feature examples of real contract clauses and emails to better prepare readers for the practical daily activities that are essential to growing a success business. Likewise, Bigelow shares conversational anecdotes throughout to provide real insight into the world of freelancing. Based on the author’s sought-after Business of Photography Workshop, this book is an essential guide for emerging, mid-career, and experienced photographers interested in starting or improving their own freelance business. Todd Bigelow is an award-winning freelance photographer of nearly 30 years. He has photographed for many of the world’s best publications, non-profits and corporations; is founder of the Business of Photography Workshop, available nationwide; and is a contributing photographer to Contact Press Images. He received the 2019 Clifton Edom Award from the National Press Photographers Association.

“Todd has not only proven himself to be a talented photojournalist, but his teachings in the areas of the business of photography are exceptional. Todd was on our faculty at NPPA’s Northern Short Course for several years and he presented multiple business of photography sessions to attendees of our three-day photojournalism conference. Te reviews from those in attendance were overwhelmingly positive, with one person telling me that what he learned in one three-hour session taught by Todd was worth the tuition price for the entire workshop! I’d highly recommend his book to anyone interested in learning about the business of photography.” John Walker, Former Chair, National Press Photographers Association, Northern Short Course “Te most important element in a relationship between a photo editor and photographer is trust. When a photo editor picks up the phone and assigns a photographer, they have already placed their faith in the photographer’s ability to come home with the goods. Tere has yet to be an assignment in the close to twenty years of my relationship with Todd Bigelow where he didn’t come home with the goods. He is fully aware of what his client needs. Not only does he deliver but he will give the client something extra. Tere have been many photographs that Todd has taken on his own during an assignment that were far superior to those he was instructed to shoot.” James K. Colton, Former Director of Photography, Newsweek, Former Picture Editor, Sports Illustrated “In my opinion, Todd’s knowledge of the freelance world and willingness to share are a great resource for new photographers. I believe his handson industry experience and practical advice could be a huge help to anyone considering a career in freelance photography.” Cristina Markarian, Program Representative, UCLA Extension, Department of the Arts “After spending more than 20 years as a staff photographer for the Los Angeles Times, I moved to the east coast and embarked on a career as a freelancer. I was immediately lost and overwhelmed by running my own

business. Todd’s lessons about how to effectively run my business – from meeting and maintaining clients to billing to image archiving – have proved invaluable. His insights and advice set me on a path to success in the business part of photography that up to that point I’d had zero exposure to as a staffer. He got me up to speed in no time.” Rick Loomis, Former Los Angeles Times Staff Photographer, Pulitzer Prize Recipient, 2007 “Todd Bigelow has written a must-read business guide for anyone considering earning their living as a freelance photographer. Todd’s wealth of experience as a photographer and an instructor guarantees the information is both relevant and easily digestible. Read this book – and learn from one of the best.” Cradoc Bagshaw, President, Cradoc fotoSoftware “Te perfect book to help you become a profitable independent photographer, whether you are just starting out or a seasoned veteran who wants to make the jump into the freelance world. Tere are valuable, real-life examples from his business. Te section on Archives is worth the price of admission.” William Snyder, Tree Time Pulitzer Prize Recipient, Professor, School of Photographic Arts & Sciences, Rochester Institute of Technology (RIT) “Todd Bigelow brings a powerful and insightful voice to the freelance photography world as both an advocate and an educator.Todd has directly elevated the careers of countless photographers, using his own extensive experience to help emerging photographers avoid pitfalls and take a more professional approach to building and growing a photography business. Tis book, as well as Todd’s workshops, are a valuable resource to freelancers seeking success in the challenging world of pro photography.” Andrew Fingerman, CEO, PhotoShelter “Tis book contains many of the unspoken secrets that successful photographers use to make a living with their images. Todd opens the curtain to valuable business practices that all freelance photographers should

understand and master. Tis is the stuff they don’t teach you in photo class, but will set you on a path to financial success.” David Bergman, Freelance Photographer, Canon Explorer of Light “Te business of photography is evolving so much these days, even the best of accumulated knowledge can become obsolete in 1/250 of second. Te schools of photography do their job molding minds and honing styles but churn-out today’s students bereft of the skill set necessary to navigate the freelance world. Tis book is nothing less than tactical gear.” Jefrey Smith, Executive Director, Contact Press Images “Bigelow has written a very practical business handbook in a no-nonsense, conversational tone for working photographers. With a keen awareness of the pressures on contemporary photographers, Bigelow offers focused in-depth advice on running a profitable business. All will benefit from reading this Business Essentials guide in our ever-evolving field of photography.” Rebekah Mininger, Associate Professor, Owner of Rebekah Mininger Photography

Te Freelance Photographer’s Guide to Success Business Essentials

Todd Bigelow

First published 2021 by Routledge 52 Vanderbilt Avenue, New York, NY 10017 and by Routledge 2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN Routledge is an imprint of the Taylor & Francis Group, an informa business © 2021 Todd Bigelow Te right of Todd Bigelow to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Library of Congress Cataloging-in-Publication Data Names: Bigelow, Todd, 1965– author. Title: Te freelance photographer’s guide to success : business essentials / Todd Bigelow. Description: New York : Routledge, 2021. | Includes index. Identifiers: LCCN 2020052390 (print) | LCCN 2020052391 (ebook) | ISBN 9780367635657 (hardback) | ISBN 9780367635626 (paperback) | ISBN 9781003119692 (ebook) Subjects: LCSH: Freelance photography. Classification: LCC TR690.2 .B535 2021 (print) | LCC TR690.2 (ebook) | DDC 778—dc23 LC record available at https://lccn.loc.gov/2020052390 LC ebook record available at https://lccn.loc.gov/2020052391 ISBN: 978-0-367-63565-7 (hbk) ISBN: 978-0-367-63562-6 (pbk) ISBN: 978-1-003-11969-2 (ebk) Typeset in Adobe Caslon Pro by Apex CoVantage, LLC

So many people have helped me throughout my career, and I owe them all a debt of gratitude, but this guide is dedicated first and foremost to my wife, Judy, who has been with me throughout my entire photographic career. With the exception of my first three and a half years as a staff photographer at a small newspaper, my wife has endured three decades of rants, raves, successes, disappointments and even a few civilized discussions about the freelance photography world. Trough it all she has supported me with sound advice and a steadfast resolve to follow my instincts and stick to what I think is right. She understood early on that my freelancing would involve tremendous sacrifice on both our parts if we were to succeed in raising our wonderful son in a stable environment. In fact, our son had just been born and our hope of raising him without reliance on daycare was a major factor in my decision to leave the stability of a contract position at the LA Times to leap into the ultra-competitive world of freelance photojournalism. Between assignments, I was the primary care giver as my wife worked split shifts a mile from home and would return midday to give me breaks, which I would use to contact clients or handle quick shoots. It was a team effort every step of the way. Our son is now an amazing, independent young man who has achieved success through dedication and hard work. When he received an interview for a job out of graduate school, he wanted to practice answering his interview questions with me. During the practice interview, he went on to talk about how hard Judy and I worked and the impact it had on him. Let me just say there will never be a prouder moment in my life. To my wife, this guide is for you, but you don’t have to read it … you’ve lived it.

Contents

Acknowledgments About the Author Preface

X XIII XIV

1

Where We’ve Been and Where We’re Going

1

2

Freelancing 101: Basics to Always Keep in Mind

7

3

Creating Versus Earning Revenue

13

4

Client Development

19

5

Analyzing and Negotiating Photo Contracts

52

6

Understanding Copyright and Copyright Infringement

86

7

Licensing for Life: Leveraging Your Images for Income

118

8

Rates and Terms

169

9

The 1099 Life

181

Glossary of Terms and Phrases Resources and Suggestions Index

212 220 228

IX

Acknowledgments

To successfully navigate my way through the freelance world required the assistance of family, friends and colleagues dating back to 1991. Freelancing means relying on myself to evolve skills, develop clients, manage finances, embrace technological advances and understand business law. In other words, I know what it means to be on my own, and I can assure you that it’s a constant, and often times steep, learning curve. Tat’s why I’m eternally grateful for the advice, collaboration and knowledge shared with me over the past thirty years. To Jim Colton, I cannot express to you how much your confidence and support, especially as I fought my way into the magazine world, impacted me. You opened doors for me to see editors and trusted me with important assignments that had a domino effect leading to work from others. Even more so, you were warm, friendly, encouraging but real, something that with hindsight appears rather extraordinary among editors.Tere are many others dating back to my early days freelancing including Vanessa Hillian, the LA Times Director of Photography for the Valley Edition, who supported me in so many ways, including working with me to decrease the number of days on my LAT contract as I made headway with the magazines. Richard Derk, a staff photographer at the LA Times who had previously been a freelancer was incredibly helpful with advice about maintaining strong business standards and George Wilhelm, another X

ACKNOWLEDGMENTS

XI

LAT staffer was incredibly encouraging at a time when not everyone saw the reasoning in leaving a contract to forge ahead with magazines. Anh Stack at Black Star photo agency played such a critical role in my early freelance years when she agreed to represent my work and help me develop editorial clients. Years after I left and joined Aurora Photos, Anh again played a key role when she also joined Aurora and leveraged her contacts and reputation to land assignments for me, all the while showing me how to stand up for maintaining image rights. Miriam Marseu at Sports Illustrated went above and beyond to not only provide incredible assignments all over the country, she was a sounding board for me and offered insight and advice for nearly twenty years. I’ll never forget when Miriam called after I had submitted an invoice for a few days shooting a story in Las Vegas. She told me in no uncertain terms to “bill the per diem!” for food otherwise they’ll strip it from the budget. What did I know? I just billed what I actually spent on food, but I sure as hell billed per diem every job after that. Ten there are the countless colleagues who I have long admired for their talent and for their willingness to battle for freelancers’ rights to make a living as increasing numbers of publications pivoted to rights-stripping photo contracts. Ken Jarecke, Yunghi Kim and Greg Marinovich are just three who lead by example and work incredibly hard to support and give back to the freelance community. Yunghi and Ken were extremely supportive when I first spoke about starting the Business of Photography Workshop and played a key role in encouraging me to give it a shot. I’m not sure I would have done it without their encouragement. Ten there is Jeff rey Smith, Executive Director at Contact Press Images, whom I’ve been so fortunate to collaborate with as a contributor to the agency. His support of my work, his deep understanding of the value of photography, his ability to shape projects as they progress and his unrelenting commitment to finding homes for my photography is a blessing that keeps me excited about freelancing. Greg Marinovich, Ken, William Snyder, David Bergman, Jill Connelly and Lesley Krane all agreed to take ample time to review this guide and I am appreciative beyond words! Tey offered invaluable insight that strengthened the book. To Katherine and Alyssa at Focal Press, thank you for being kind, responsive, patient and so well organized! Finally, there are no words for the love and support I’ve received from my wife,

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ACKNOWLEDGMENTS

Judy, who since my first college photojournalism class prompted me to leave my Accounting major behind and pursue a life in journalism. And to my son, Casey, thank you for listening to years of my freelance rants and never ending “reminders” on how to handle your professional life and finances. Every second I had with you growing up validates my decision to go freelance as the best decision I ever made.

About the Author

Los Angeles based freelance photographer Todd Bigelow has handled assignment work for thirty years for some of the world’s leading publications, non-profits and corporations including Sports Illustrated, Smithsonian, Time, ESPN, National Geographic Traveler, People, Te NY Times Magazine, Der Spiegel, Costco,Te Southern Poverty Law Center,Teaching Tolerance, Te Irvine Foundation and more. While at the LA Times he contributed to two team Pulitzer Prizes for coverage of the LA Riots and the Northridge Earthquake. He was a 2017 recipient of the Excellence In Service To Students award for going above and beyond for his students at California State University, Northridge and the 2019 recipient of the Clifton Edom Award from the National Press Photographers Association for his dedication to helping others reach new heights in photojournalism. Portions of his long-term project documenting immigration have been exhibited internationally with over a dozen images residing in the permanent collection at the California Museum of Photography. Te workshop he founded in 2013, Te Business of Photography, is offered by leading universities, professional photography organizations and photography conferences around the country. Todd teaches photography and photojournalism courses part-time at California State University, Northridge and UCLA Extension. He is a contributing photographer to Contact Press Images. XIII

Preface

Te thought of writing a guidebook like this has bounced around inside my head for years and has taken on more importance as more photographers have sought me out for assistance on a number of freelance business issues. I’ve mostly resisted the idea of putting it into writing because I believe firmly in the fact that there is no universal truth to succeeding as a freelancer so why would I, or anyone for that matter, claim to have the answers? But as my Business of Photography Workshop grew and I spoke directly to photojournalists and photographers around the country, especially students, I’ve come to accept that a guide to the business side of freelancing is needed. Tose who’ve studied photography or, for that matter, any art will understand that there is no one way to do anything. In fact, those who’ve broken the mold and challenged perceived norms have often been the ones who made significant impacts in photography. Of course, they’re also the ones who are most often critiqued for their methods that typically call for resisting conformity and challenging the structure. And that’s exactly what this guide is about, albeit with a nod toward the business side as opposed to the creative side. Tis guide is designed for those seeking freelance work from editorial publications (newspapers, magazines, wire services, agencies, websites), corporations, foundations and non-profits. As more and more photographers are XIV

PREFACE

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led to believe that conforming to corporate media standards, in particular rights-grabbing contracts and take-it-or-leave-it rate negotiations, is in their best interest, I’m here to say that you should resist conforming without thoughtful analysis as to how that will impact you as an independent photographer. With that in mind, let me be very clear; this is not a guide to “the” way to build and sustain a freelance career. Rather, this is a guide to the way to build and sustain a freelance career with editorial, corporate, foundation and non-profit clients based on what’s worked for me for thirty years and continuing through this very day. I don’t have the answers because, quite frankly, there are no “the” answers, but I can tell you that my approach has worked. I’ve worked with some of the best publications, non-profits and corporations in the world while incorporating all of the practices addressed within this guide. I’m happy to share what I’ve learned through trials, tribulations, failures, successes and research and I present that to you here, but it’s up to you to take this information and employ it to the best of your abilities. Te key as I see it is to make sound business choices with short-term and long-term goals in mind because, in the end, you and you alone can choose who controls your long-term success. And make no mistake about it; this guide is about long-term success not just about securing enough income to cover one month’s rent. Despite the fact that we are individual freelancers, I know that we share many of the same concerns, challenges and goals. Tis guide is provided solely with the intent to help you navigate the business side of the profession based on the experiences and success I’ve had. I hope you find it useful.

1 Where We’ve Been and Where We’re Going

A steady stream of data and news reports about publications being shuttered or mass layofs clearly indicates a continual shift toward a freelance-dominated profession. One need not have a business degree to understand the direction of the economy, and there is no need to pull you into a discussion on macroeconomics, or the general factors influencing economic direction. However, it’s necessary that you understand our overall economy has moved away from being employee based toward one of independent contractors offering their services on a freelance basis. Whether the transformation is a result of employers looking to shed the cost of employees or is more reflective of a new generation of workers seeking more freedom in the labor market is, for the purposes of this guide, relatively irrelevant. Te fact remains that the gig economy, buoyed by technological advances that make remote work far more possible and efficient than in the past, a fact clearly proven by the world wide shift to remote work during the Covid-19 pandemic, is clearly here to stay and freelancers should feel comfortable knowing they’re not alone. Te number of people freelancing in 2019, according to an article in Fast Company in October 2019, had grown to 57 million people, up from 53 million in five short years. Tat means in 2019 a substantial portion of the nation’s workforce, 35%, were engaged in a wide range of gig-economy 1

2

WHERE WE’VE BEEN AND WHERE WE’RE GOING

work such as driving for ride-sharing companies or picking up daily work delivering food “on demand” for companies like DoorDash or Postmates. It should come as no surprise that media companies and publishers are very active participants in the gig economy as editorial publications deal with contraction. Te Washington Post reported in an August 2019 article that “employment in the newspaper industry fell about 47% between 2008–2018, a decline worse than coal mining over the same period.”Tat decline in employment, unfortunately, is not projected to change and points toward an increasing reliance on a freelance workforce. Te rise of the Internet and the pivot to digital publishing beginning mainly in the 1990s set into motion a series of events that inflicted serious pain on publishers. Chief among the radical changes publishers in general have faced over the last twenty-five years is the loss of valuable advertising revenue that came in the form of print ads. As print began a slow, accelerating spiral, so did the advertising revenue at major media companies that subsequently initiated a considerable shift from costly staff employment to the reliance on freelancers. And that is certain to continue. “Newspapers are continuing to be pummeled by layoffs,” Elizabeth Grieco, Senior Writer and Editor at the Pew Research Center, was quoted as saying in an August 2019, USA Today story titled “Newspapers, Digital News Operations, Hit with Layoffs.” It’s vital to understand how the world of photojournalism and photography have been hit hard over the past dozen years so that you can make reasonable projections for where the profession will be in the future (both immediate and distant) and surmise whether the prospect for earning a viable living is there for you. I can’t make that decision for you because, as I noted in the Preface, we all have individual realities that make a universal answer inappropriate. However, what is universal to us all is the need to know what the future of careers in photography and photojournalism holds for us so we can reasonably assess whether we want to pursue it. And the future is clearly and unequivocally pointing toward a freelance-dominated profession. Some of you may wonder whether that is good or bad and your perspective is likely influenced by your age. Younger photographers are starting careers without ever really knowing what being an employee offers, whereas many of my friends and colleagues who once held staff

WHERE WE’VE BEEN AND WHERE WE’RE GOING

3

positions are now facing continuing careers as freelancers. Terefore it’s worth noting the primary diferences between freelancing and staf photography: Table 1.1 Differences between freelancers and staff photographers Freelance Photographer

Staff Photographer

• • • • •

• • • • •

Employer Owns the Copyright to Photos Paycheck/Income Guaranteed Health Care Benefits Provided Retirement Benefits Provided Employer Purchases/Maintains Equipment

•

Employer Pays Half Social Security and Medicare Employer is Responsible for Your Tax Withholdings and Payments

• •

You Own the Copyright to Photos No Paycheck/Income Guarantee No Health Care Benefits Provided No Retirement Benefits Provided You Purchase/Maintain Own Equipment You Pay All Social Security and Medicare You are Responsible for Tax Withholdings and Payments

•

If you consider the table above you will come to a couple of simple, rather obvious conclusions that should influence your decisions going forward. One, freelancing means you will take on the responsibilities of the employer and the employee.To frame it another way, you better know how to do a lot more than taking photos if you plan on running a freelance business because it’s all on you. Staff photographers can concentrate wholly on taking photographs since the employer is running the business. Two, you and you alone are responsible for your financial health. Tere’s no guarantee if, when or from where the next paycheck will come. Whether you like the idea of running your own business or not, the likelihood that you will freelance at some point in your career is rather high, especially in newspapers and magazines. “More companies are pushing work onto freelancers, temps, contractors and franchisees in the quest for an ever more nimble profit-making machine” is how Te New York Times phrased it in a November 11, 2017 story titled “Plugging Into the Gig Economy.” Of course, I’d be remiss if I didn’t point out what so many photojournalists believe to be the case; Te New York Times is arguably the leader when it comes to hiring freelancers as opposed to

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WHERE WE’VE BEEN AND WHERE WE’RE GOING

expanding their roster of staff employees. On any given day there are multiple “for Te New York Times” photo credits accompanying images from the front page through the Sports section and beyond. (Note: A name followed by “for Te New York Times” is how the paper credits freelancer photographers). Te US Department of Labor, Bureau of Labor Statistics, which provides official data on employment, wages and more, has also weighed in on the outlook for the photography business in general. Tey listed the following projections in 2018: • Salaried jobs may be more difficult to obtain as companies increasingly contract with freelancers rather than hire their own photographers. • Photographers will face strong competition for jobs. • “Because of reduced barriers of entry,” qualified candidates for jobs will greatly outpace openings. • Job prospects will be best for those “who are multitalented and possess related skills, such as editing pictures and capturing digital video.” Confronted with statistics from a government research agency predicting a future of strong competition and the likelihood of unstable income will undoubtedly cause concern for those entering the profession. Keep in mind, though, these facts and projections are not meant to necessarily dissuade anyone from pursuing freelance photography and should be accepted as necessary information to consider before pursuing a freelance life. In other words, it’s vital that the statistical analysis be presented here so an informed opinion can be made on whether, or how, you should proceed. Te knowledge will help you prepare financially and set realistic goals for advancement as you get your business off the ground and running. In fact, it’s virtually no different for any entrepreneur running a business. If you don’t know the trends, competition and direction for your industry, you’re more likely to run head-on into what should have been avoidable obstacles. Te trend for photography is clearly toward an expanding freelance market amid shrinking staffs. Yes, there are sure to be short-term

WHERE WE’VE BEEN AND WHERE WE’RE GOING

5

aberrations as media companies expand and contract with the flow of the economy in general but the long-term outlook is clear. For example, media outlets such as Te NY Times, Te Washington Post, LA Times and Te Atlantic were benefiting from a strong news cycle and even adding a staff position here and there amid their record-setting digital growth, yet when the Covid-19 pandemic sent the global economy into a tailspin, all were deeply impacted. Te LA Times had to furlough staff one day per week and Te Atlantic laid off 68 editorial staffers. Te rate of hiring for staff photographers compared to the overall trend toward freelancing is overwhelming evidence that a return to employment levels of previous decades is extremely unlikely. Freelancing is here to stay. To drive that point home, here are some more statistics from the US Department of Labor, Bureau of Labor Statistics “Outlook for Photography 2018–2028 ”: • “Employment” is expected to decline 6% overall. • Freelancers projected to grow 11% to just shy of 75% of the occupation. • Decreasing cost of digital cameras and the increasing number of amateur photographers and hobbyists will reduce the need for professional photographers. • Stock photographic services (Getty, Shutterstock, etc.) will possibly “dampen the demand for photographers.” • Drone photography is seen as having growth potential. • Demand for portrait photographers will remain constant. • Corporations will continue to hire photographers for advertising campaigns. • Tere will be “reduced demand for news photographers to provide still images for print.” • Newspaper photojournalism staff jobs projected to drop 33%. I remember when I decided to leave the LA Times and the relative security of a steady paycheck as a contract photographer in the mid 1990s to enter the world of magazine freelancing. News magazines such as Time, Newsweek, US News & World Report and German news weeklies with big US distributions like Der Spiegel and Stern were all doing well and

6

WHERE WE’VE BEEN AND WHERE WE’RE GOING

I was picking up steady assignment work while also catching on with Black Star Photo Agency and then Aurora Photos. But even then, it was a constant grind to generate work and that will never change. Keep that in mind as you progress through this guide because despite the radical transformation from staff to freelance and all that came with it, those who are willing to evolve and adhere to sound business principles will be fine.

2 Freelancing 101 Basics to Always Keep in Mind

Developing multiple revenue streams is key to survival as publications and media companies in general continue to sufer from staf and budget contractions. If I were obligated to write just one single sentence to summarize the evolution of freelancing over the past fifteen years, it would be the one above. Tat’s how important having a variety of income is to sustaining a career as a freelance photographer today. Let me lay it out in succinct, personal terms; ten to fifteen years ago about 80% of my income was derived from a handful of magazines for which I did assignment work. And those magazines were mostly under the same Time Inc. media umbrella and consisted of Sports Illustrated, Time and People, in addition to their kid versions SI for Kids and Time for Kids. Te income was flowing in steadily but, like many of my colleagues, I was concerned as it became more apparent that budgets and layoffs were accelerating throughout the media sphere, not just at select publications. Te writing was on the wall and I was heavily dependent on one source of income; editorial assignment work. Te one source was also heavily concentrated under the Time, Inc. corporate umbrella. Tat had to change. Today, my income stream is essentially the polar opposite of what it was 15 years ago. Some of that is definitely by choice due to the rapid growth in Work For Hire and other rights-grabbing contracts (more on 7

8

FREELANCING 101: BASICS TO ALWAYS KEEP IN MIND

that later) that I will not agree to, and some of that is because those publications are mere shells of what they once were or are completely gone. Budgets were decimated, they’ve been sold and sold again and many of the editors who did the hiring have left the profession. Now, my income reflects a more diversified client base in addition to new revenue created to fill the void previously occupied by editorial publications. Tis is how it breaks down today: • • • • • • • •

10% Editorial Assignment Work 20% Non-Profit Assignment Work 10% Corporate Assignment Work 15% Business of Photography Workshop 5% Consulting 15% Licensing (Individual Images & Photo Projects) 10% Infringement Recovery 15% Teaching (Adjunct Professor)

Tat’s a substantial difference in a relatively short period of time and it reflects the need for freelancers to be flexible and evolve with the market, so to speak. Te reality is that it’s nearly impossible to freelance for just one segment of the market, such as editorial, as I had fifteen years ago unless you’re willing to give away, via egregious contracts, long-term prosperity for short-term gain. Even then you will be hard-pressed to receive enough work simply because the volume of assignments versus the volume of available freelancers throws the time-honored supply versus demand scale completely out of whack. Tat’s why I advise strongly that freelancers diversify their income to ensure some sense of financial stability. Most freelancers I speak with settle down when a client starts to hire them regularly but that’s a recipe for disaster in the long run. I worked through multiple times in my career when great clients were sold or had their budgets decimated to the point where they were no longer “great” clients, but fortunately I had other means of income to help me through the process. Don’t get caught being overly invested in one source of income. In addition to seeking a diverse base of clients, there are a number of common sense things a freelancer can do to make their professional life less stressful. Let’s take a look at a number of them.

FREELANCING 101: BASICS TO ALWAYS KEEP IN MIND

9

1. Your professional life and personal life are inextricably combined when you run your own business. If you choose to live beyond your means, especially when you’re starting out, you will unnecessarily compound the financial stress that is inherent to freelancing. Trust me, the stress from wondering when the next assignment will come and when the last assignment will be paid is more than enough. You don’t need to add to that by leasing an expensive BMW when a modest, fuel efficient and reliable (aka cheap) car will suffice. Remember, there are two sides to your financial comfort. One is income and one is expense. You are limited in controlling how often and how much money comes in, but you can completely control how often and how much money you spend. Control it and you’ll sleep better! 2. Have excellent and accessible credit for use in renting equipment and covering expenses incurred during a shoot. I can assure you that the vast majority, if not all, of your clients will require that you bill them for the shoot and expenses. You will rarely be advanced money to cover travel, assistants and rental gear. You’re a professional and will pay your expenses up front, so managing your credit and access to capital is absolutely essential. Once the assignment is completed, you will submit your bill with itemized expenses and be reimbursed. How long does that take? Well, it depends. 3. Be prepared to cover assignment expenses for months at a time before reimbursement. As noted above, you’re expected to cover expenses. Te time it takes for clients, even many respected publications, to pay a freelancer’s invoice has grown in recent years. A normal time is 28–30 days but many now state in their contract that payment will be made 60–90 days from receipt. For clarity, you can be expected to go without payment for the assignment, including expenses you already paid, for two to three months. Make sure you are aware of your client’s payment terms and, in their absence, that you clearly state your terms. 4. Payments to you are untaxed. Freelancers are responsible for their withholdings and subsequent payments to any local, state and federal agencies. Talk to an accountant so you have a plan

10

FREELANCING 101: BASICS TO ALWAYS KEEP IN MIND

5.

6.

7.

8.

in place to set aside a portion of each check and make quarterly payments to state (if applicable) franchise tax board and the IRS. Maintain excellent records of all business expenses and assignment income. For obvious reasons, you need to maintain a record of your expenses so that you can defend against an audit should one be initiated. Freelancers have a wide range of deductible expenses that are subtracted from gross income to determine the taxable income, so maintain a written record with receipts. You are a business and most cities require you to register and pay applicable fees. You will need to check with your city’s requirements to determine how to register your business and adhere to any income reporting requirements. In Los Angeles where I’ve been registered for many years, it is more of a formality than anything else. Yes, it’s required, but no fees are owed unless I earn income in the hundreds of thousands of dollars. I merely have to register and list my income annually. However, reports are that cities cross reference their business records with state income filings to assure that everyone is registered. Tose that are not registered face potential fines, so do yourself a favor and know the requirements for where you are located. Set a budget and invest in your business. It’s a myth that the least amount of money invested means a larger profit margin. Quite to the contrary. Any business, including a freelance photography business, is reliant on what the business world refers to as capital investment. Simply put, this means that a business needs money to grow. Te initial investment might be on the heavy side as you invest in professional cameras, lenses, audio equipment, computers, software, websites and promotional materials to name just a few common capital expenses. But you should allocate a percentage of your income toward reinvestment so that you are not continually faced with taking on more debt to upgrade equipment. Figure on cameras and computers needing updating every 3–5 years. Practical and well-planned investments will help you stay relevant and grow. Value your work and don’t fall for “exposure compensation.” Until you can hand your landlord or lender a screenshot of your

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work as payment, don’t buy into exposure as a form of compensation. It’s not. Compensation for professionals worldwide comes in the form of currency. Can you pay someone to paint your home, fix your car or cut your hair by telling the contractor that you will tell all of your friends? No. Te same applies to freelance photographers. Te value you bring is not only calculated by how long it takes to do a shoot. Value is derived from the time, education and experience you have derived while honing your craft. As an example, if a client offers a low fee by claiming, “it only will take 30 minutes,” your response should be that the reason you can produce a great portrait in 30 minutes is due to the experience and knowledge that you’ve accumulated over the years and bring to the assignment. 9. Understand your Cost of Doing Business (CODB). Tis is an often overlooked and misunderstood part of freelancing. Basically, a CODB will give you a base figure for you to consider when a client offers a fee. I’m often asked about “standard” rates for assignments and I do my best to share what I know to be normal in the editorial, corporate and non-profit arenas, but that’s not the only factor to consider especially if the job is more commercial in nature (think headshots for a small business). Follow this basic format to determine what you need to earn when you accept an assignment: • Add up your annual expenses to the best of your ability. • Project a practical, gross annual salary you’d like to earn. • Estimate the number of days you’d like to work annually. (Note: Te average workdays per year in the US are 260). Example: • Expenses + Salary ÷ Working Days = CODB • 10,000 (Expenses) + 50,000 (Salary) ÷ 200 = $300/Day 10. Develop an efcient image workfow. In the years I’ve been teaching, I’ve discovered that most photographers have their own image workflow and are not interested in changing it. Tat’s fine.

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As I said before, take what is useful from this guide, discard what is useless and add your own. If you’re confident your workflow is sufficient, stick with it! But hear me out on this: Does your workflow account for more than just processing images? Does it take into account editing not only for your client but also for a stock photo agency and, just as importantly, your own archive? Rest assured, an edit for a client is not always consistent with an edit for an agency or your own online archive. Agencies and archives are more inclined to accept a wider range of images than a client with one particular need for the images. Tat’s precisely why I edit images during my workflow that take into account a much wider view of a shoot. Te truth is that I’ve long allowed for mediocre images to remain in an edit for my archive or agency because those images have resulted not only in inquiries, but also in paid licenses. I’ll delve more into that in the section on Licensing, but it’s necessary to note here that your workflow needs to account for client, agency and personal archive submissions. Finally, your workflow should also account for submission to the US Copyright Office for registration of your work! Tese factors are but a few of the fundamental things each of you can do to help yourselves start, build and maintain a viable freelance career. Keep them in mind as you progress and I’m confident they’ll keep you on track much in the same way they have for me.

3 Creating Versus Earning Revenue

Remember that creating revenue and simply earning revenue are very diferent. Freelancers must frst create revenue and for that you need a strong foundation. If you quickly scanned the statement above without much thought to the meaning, I urge you to read it again. And again. And again. Yes, it’s that important. Aside from the obvious legal differences between freelancers and staff photographers that I list in the first chapter, the difference between earning and creating revenue is at the core of freelancing and it’s paramount that you understand it. Tey’re definitely not the same thing and the sooner you come to accept this the sooner you will begin to build your client list. As an example of the difference between simply earning and creating revenue, let’s contrast the difference between how a staff photographer for the LA Times earns money and how I earn money. Let’s just call the staffer Jane Doe. Jane works for a large, metropolitan newspaper that has been around for over a hundred years. She is scheduled by her boss to work a particular shift and fulfill the assignment requests that come through the photo assignment desk. Troughout the day Jane receives direction on where to be and any last minute shoots that need to be handled, including breaking news. When she completes one shoot, she 13

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heads off to the next or heads back to the office to process and upload the images. At the end of the day Jane heads home, charges her camera batteries and prepares to repeat the process each day that week. She absolutely earns her pay, but she certainly didn’t have to create it. Now, compare Jane’s method of earning money as a staff photographer to my method of creating revenue as a freelancer. To state the obvious, I don’t have a schedule or a workplace environment dictating where I am to be Monday through Friday. I don’t have an assignment desk texting me to say “Todd, you need to shoot the Lakers at 7pm, but first we need you to shoot the Women’s March downtown.” As a freelancer, I don’t have a preset client base provided to me by an employer. So can I just wake up each day like Jane, an employee of a company, and know that I am going to earn money that day? Absolutely not. And that’s the difference between earning and creating revenue. As a freelancer, I have to first create my revenue before I can earn my revenue. I have to wake up each day and go to work developing clients who will hopefully hire me when they need a photographer. If they do hire me, only then do I actually earn the revenue, but it was all the work I did researching, contacting and developing the client that created the opportunity to make the money! Lest you are mistaken, no one is paying you to create these opportunities. It’s entirely up to you how much time and effort you want to put towards it, but I can tell you with utmost certainty that if you plan on merely launching a website and then sitting back to wait for clients to come calling, you’ll struggle much more than is necessary. Creating the revenue is key and there are a number of things freelancers can do to help themselves create and earn revenue. For starters, you have to get your work noticed and that requires diligence and consistency. How much? Well, I started in the film era and there were no online portfolios. Hell, there was no “online” anything. So I got on a plane and flew to New York and Washington, D.C., among other places, and cold called for appointments to see photo editors at publications. If I got an appointment, which wasn’t hard since most editors want and need to have a roster of freelancers, I showed my work and encouraged them to consider me if they needed anything shot. I’d leave a business card and a promo card and then follow up at various intervals in an attempt to keep my name in front of them. Sometimes it paid off,

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sometimes it didn’t. But I needed to create those opportunities by making potential clients aware of my work, availability and location. Today, that’s even easier and I’m still doing it. Te digital world ushered in a whole other way to create inroads with potential clients along with terrific tools to raise your profile. What you use and how you use them is up to each freelancer, but here are several methods to consider that have worked well for me that go beyond just a social media bullhorn.

Be Active! Publish Your Own Work on Digital Platforms I’m talking about not limiting your images to just your Instagram or Facebook account, but actually publishing your work to your website and blog. Tere are a number of reasons why this makes sense and chief among them is that the more places potential clients can find and view your work, the better. Let’s face it, there is so much visual clutter in the digital world that getting noticed is not always easy. If you step up your game and go beyond a desire for social media adoration, your chances of creating revenue will expand. One example, and I address this later in the book as well under Client Development, is to self-assign work. Tis exercise in self-discipline will help you to stay relevant by constantly creating images even when commissioned work is slow. It reasons that this will help you gain visitors to your website and, ultimately, increase the likelihood of creating revenue either by licensing or picking up assignments from new clients. Self-assigned work is perfect for building your portfolio to highlight your strengths, but it’s useless if the images are not published for others to see. Take the time to research how and where your images can be displayed in order to maximize those who lay eyes on them. For example and generally speaking, if I self-assign a social issue or news project and do not succeed in getting a magazine or website to publish it, I use the options available to me to assure the work can still be seen. In addition to my website where I post public photo galleries tailored to specific topics, I also have a Wordpress blog where I can post images, write about the project and link back to my main website for potential licensing. With a couple of agencies representing my various work, I let them know so they may choose to post images on their blogs, social media accounts and newsletters. To state the obvious, posting to your own accounts or those

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of your agency does not result in creating immediate revenue, but the proactive nature of publishing to your own platforms can only help.

Make Distribution of Your Work Easy and Effective As you pursue clients, you want to consider ways in which you can entice them into viewing your work and ultimately giving you a paid assignment. Tere are platforms out there like PhotoShelter that have a myriad of tools built into their websites that will make these tasks much easier and I encourage you to look into them. Getting your work seen no longer requires only getting on a plane and meeting in person with a portfolio in hand. Now you can do a shoot, upload to your website and send a nice, professional email to a hopeful client with a gallery link that was automatically generated when you uploaded the images. All your potential client has to do is click on the link and view a nice set of images that they might be interested in publishing. At the very least, your work landed in front of a potential client that just might entice them into hiring you the next time. Tat’s how creating revenue happens and I’ve included an example below of how I upload photos, generate an email with embedded links and thumbnails and distribute it to a potential client. It took about three minutes to create and send. (Note: Tis is an example for this guide only but identical to ones I’ve sent countless times over the years.)

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• When the images were uploaded to my PhotoShelter website, a link was automatically generated for the gallery. All the editor has to do is click on the link to land on my site and view the gallery. • Using the “Visibility & Access” option, I shared the gallery using the internal, customizable email that included automatically generated thumbnails. • Different settings are allowed whereby you can choose password protection. If chosen, the password can be automatically included. • You can control whether the recipient can “View Only” or have download access. At this stage, I strongly advise “View Only.”

Stay Current on Who is Growing If you stay informed as to the overall health of the profession and channel your outreach to those who are growing, you will be making efficient use of your time. With most research at your fingertips, freelancers can quickly discover that some publications, non-profits and corporations are doing well while others are perhaps retracting. Te Pew Research Journalism Project has a wealth of information including a State of Te News Media that provides details on data and trends. Further, Nieman Lab, Columbia Journalism Review and others also provide information that you might find useful. Tis is the type of work that freelancers need to do that is anything but fun, completely uncreative and, to be honest, a grind. But it helps to focus your attention on potential clients in the effort to create revenue. So do it!

Shoot Stock Photos to Help You Gain Traction with Clients I pay significant attention to stock photography because it plays a fundamental role in creating revenue. At this stage when your goal is to create revenue by developing clients, I can attest directly to how shooting images that fulfill the stock photography needs of publications can lead to the same publications hiring you on assignment. It’s happened to me multiple times and one of my longest clients first came to me for stock images from the US/Mexico border.Twenty years later, they’re still hiring me for all types of assignments. Consider working with a photo agency or at least getting on a newsletter or photo request list from publications and agencies. Doing so will give you insight into what images are in demand (Example: Solar energy or

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images related to climate change) and perhaps result in being licensed for use (more on licensing later). Either way, the distribution of your images for stock photo use can help you develop clients, which, of course, leads to assignment revenue. Te ultimate goal for freelancers is to develop a reliable, diverse client base that will sustain you financially as you pursue the type of photography you love. Not only does that start with a commitment to creating revenue, it ends with the same commitment. In other words, the push to create revenue, not just earn it, should never end and you should expect more long-term gain than short term. Sometimes you will shoot a nice photograph that will quickly lead to a new client or a quick licensing fee, but creating sustained income over time will come from a continuous effort. I remain steadfast in my commitment to seeking new clients just as I did many years ago when I flew to NY to push my work in front of potential clients. It’s imperative that every freelancer commit to this process.

4 Client Development

If your website functions merely as a place to showcase your portfolio, you’re ignoring functionality that will help your business grow. Te answer to the question is nearly always the same. When I present it to my students in the classroom, rarely does a hand get raised. When I ask a room full of photographers during photo conferences or events, maybe 10% of those in attendance raise their hands. What’s the question, you ask? How many of you have a portfolio that also functions as an archive? Te reason I ask is to gauge photographers’ understanding of the difference between a website serving solely as a portfolio showcase as opposed to one that serves as a portfolio showcase and a repository for your work that facilitates client development and engagement. Tere is a big difference between the two and I’ve listed them in Table 4.1. Clearly, there is a distinct advantage to utilizing a website that functions as a portfolio showcase while also serving as an archive. If you’re still not sure what an archive is, just consider it all of the images you’ve shot throughout your life to which you own the rights. If you’re a freelancer and have not literally signed away the rights to your work in any manner, then you own the image rights and can store, license,

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Table 4.1 Differences between a website only and a website with an integrated archive Website Only

Website and Archive

• •

• Displays Your Best Work • Displays Your Bio and Contact Info • Seamless Image Distribution to Clients • View Only or Downloadable Galleries • Creates Direct Licensing Opportunities • Generates much Stronger SEO • Cloud Storage

Displays Your Best Work Displays Your Bio and Contact Info

distribute and otherwise use the images in manners you see fit (I will break down when releases are required and other restrictions later in the guide). Let’s look a little further at the advantages to an archive and how it works. When visitors to your website land on your site they should, of course, encounter an image or images that represent your talent and vision. In other words, these are your “portfolio” images and reflect your best work. For sake of simplicity, let’s say your website has a revolving set of a dozen images representing your portfolio. Tat’s fairly normal. Ten perhaps you have another four or five galleries devoted to Personal Projects, Portraits, Landscapes and Lifestyle with each gallery consisting of another dozen photos each for a grand total of 50–100 images. Tat means there are only 100 images at most to drive SEO (Search Engine Optimization), which is a key component in being discovered. Let’s put it this way; each image has SEO potential so the more images on your site the better the potential search engine ranking and the more likely it is that you will appear when someone searches for a photographer or images. About now is when hands shoot sky high and students ask me, “Wait, you mean you want me to have 10,000 images in my portfolio?” No, that’s not at all what I mean. What I mean is that an archive will serve as a partition of sorts and allow for a portfolio to be “out front” on the landing page while also allowing the tens of thousands of additional images to be placed “in back” where they are searchable and viewable by search engines! By setting up your website in this manner

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you get the best of both worlds. You get a portfolio out front with whatever galleries you choose to make available but also the enormous benefits of the much stronger SEO derived from 10,000 searchable images instead of 100 images. Here’s another way to think of it that will make what I’m advocating even easier to understand: You walk into a store and see a shirt you like. You flip through the rack and don’t see a blue one. What do you normally do at this point? Do you just walk out of the store? Or do you find an associate and ask, “by chance, do you have this in blue in back?” In back is the store’s archive! No store keeps every item in the front of the store! Tey have a “back,” which is the storage area that is akin to your archive. It’s searchable and allows for you to keep images that someone might want without having to place it out in the front (aka your “portfolio”). Remember, those images are fully searchable via search engines so someone might click on the Google link and land straight into your archive, essentially entering your archive while bypassing your portfolio. From there they can request a license or determine you would be the right photographer to hire. I cannot overstate the importance of maintaining a portfolio and archive in one. Well over 70% of my website visits come via Google searches and the visitors are landing on a crazy array of images, many of which I do not consider worthy by any means of being “out front” in my portfolio. Yet each one of those visits provides the potential for new clients and new licensing. Just as important as developing strong SEO is the seamless distribution of images to clients via your archive. Again, if your website only functions to showcase your portfolio and does not allow for private client gallery access then you’re limiting yourself needlessly. Whereas a decade ago most clients wanted the images transmitted via FTP protocol, now none of my clients request it. I merely run my images through my workflow and upload them to a private gallery that is unseen and inaccessible to anyone but those to whom I provide a link that is automatically created upon upload. Te client only has to click on the link and hit “Batch Download” to ingest all the images into their system. It’s easy and efficient, which always makes for a satisfied client. To take it a step further, the seamless distribution of your images that is available through archive-based website platforms like PhotoShelter allows you to create

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and share galleries with potential licensees or clients in minutes. Here’s a real-life example of how my images with strong SEO allowed me to respond within minutes to a licensing request for this photo discovered via a Google search:

• A professor at a Boston university landed on my site and contacted me in January 2020, for an image from a personal project I shot in the 1990s on prison ministry. He found the photo during a Google search and the image was in my archive, not in my portfolio. He was interested in licensing it for a textbook he had written. • Te professor requested a specific image he found during the Google search. I responded with a link automatically generated by PhotoShelter with all the images available, not just the one image he had mentioned. Te image gallery was set to “View Only” and the photos were not downloadable. • Te professor immediately responded and thanked me and commented that he now was interested in a second image. We agreed on the terms of use for both and the licensing fee. • Te professor paid the fee via PayPal and I quickly selected the two images, hit the “Quick Send” button and the professor downloaded them minutes later.

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Tis is the perfect example of the advantages of an archive and portfolio website. Te images were discovered via a Google search (SEO!) and I used the functionality built into the site to quickly deliver images that led to a licensing fee for two images, not just the one originally requested. In order to make the most of your time seeking clients, you should also consider other ways to showcase your work. Using an iPad or other tablet is a great way to show your work in person. You do not want to rely solely on a website for a couple of reasons. One, if you’re going to meet with a creative director, photo editor or designer with the intention of enticing them with your work, it’s a good bet that they have already visited your website. Most in-person meetings don’t occur unless the potential client has, at the very least, looked at your work online. Terefore, meeting in person with a nice, easy to hold and navigate iPad that will beautifully display your images and videos in a different format is advantageous over showing the editor the same website they’ve already seen. I’ve reviewed portfolios at photography conferences many times and more often than not the conference’s wireless connection is dubious at best. You do not want to sit in front of a hopeful client and watch the wheel-ofdeath spin on your laptop as your site attempts to load! It’s a waste of time, to say the least. By using a stand-alone photo app on your iPad you are not reliant on a wireless connection and you can design your images to display

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in a fresh, impactful way that doesn’t just mirror your website. I use an app that works seamlessly (there’s that word again, which should indicate how important it is) with my PhotoShelter-based website that allows me access to my archive wherever I am. If I decide at the last minute to add a photo to a gallery that I intend to show a potential client, I can grab it in seconds. I touched above on the topic of reviewing portfolios but I want to return to that now. It’s absolutely essential that students and young professionals seek professional critiques of their work. Relying on your own perspective, or that of your professors in school, is wholly insufficient. Why? You want a completely unbiased, direct opinion on your work and you are most likely to get that from someone who has no connection to you. Your professors know you well and might be honest (I hope they are), but they are still too involved in your development and less likely to be brutally honest. Yes, you want brutally honest. You want to hear from those in the business who will share their insight about your work and offer direction. Tere are many workshops and conferences where portfolio reviews are included and I encourage you to attend them and show your work in person. Not only will you have the chance to network and receive unbiased insight into your work, you can also develop clients because many of the creative directors and editors who staff these workshops are the same who hire freelancers. Below are just a few of them and they’re provided in no particular order or with any implied endorsement. Do your research and see which ones work for you. • • • • • • • • •

Eddie Adams Workshop Missouri Photo Workshop Santa Fe Workshops Summit Series Workshops Palm Springs Photo Festival American Society of Media Professionals (ASMP) Events Professional Photographers of American (PPA) Events National Press Photographers Association (NPPA) Events American Photographic Artists (APA) Events

Use these workshops, local events and conferences to continually develop your portfolio, build your network and make connections with those who

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hire. Organizations like ASMP, APA and others have local chapters that schedule social networking gatherings as well as workshops and they’re great ways to stay connected to the professional community while developing a network. Te reality is that those who hire freelancers are constantly looking for new talent and they find that talent in a myriad of ways. It’s literally part of their job to assure they have a reliable, talented roster of photographers who they can work with so don’t be shy about promoting yourself. So, how do they find photographers? I’m always on the lookout for new people. I try to go to portfolio reviews and take as many meetings with photographers as my schedule allows. Senior Photo Editor at Buzzfeed on the PhotoShelter Blog I’ll do my own research. If there’s an area I’m covering and I haven’t worked with photographers in that area before, I’ll do cold research on the Internet. Note: Remember, you’re more likely to appear in searches if your SEO is strong from having an archive as opposed to just a small number of portfolio images. International Photo Editor for Te Washington Post speaking to Photo District News, August, 2019 I do a lot of portfolio reviews which definitely leads to work for photographers. Photo Editor Mother Jones magazine speaking to Photo District News, August, 2019

Be Proactive Developing New Clients Attending portfolio reviews and conferences is but one step in the process of developing your portfolio and clients. Once you feel your website represents you as a professional and speaks to your vision, passion and talent, it’s time to get proactive by reaching out to potential clients and getting them to look at your work. I suggest being consistent with your outreach and promotion while staying laser focused on the ultimate goal of getting the eyes on your work. Social media plays a role in all of our lives and should obviously be a component of your outreach. Where photographers, especially those

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early in their careers, stumble is in failing to differentiate between being “on” social media and having a “social media strategy.”Te former alludes to our addiction to scrolling Instagram, Twitter, Facebook, SnapChat, Reddit and TikTok endlessly for entertainment whereas the latter alludes to a professional, business-like approach to social media with a goal in mind. To put it another way, being “on” social media is for personal satisfaction whereas employing a “social media strategy” is using the platform to grow your business. As a professional, you should consider having an account that clearly places you in that role. If you choose to keep a separate, personal account, that’s an option, but either way I advise keeping your posts from any account in line with the perspective you wish others to have of your business. It’s crucial that you remember that creative directors, photo editors, gallery owners, curators, advertising firms and others who hire freelancers are looking for talent on social media, therefore it’s imperative that your presence reflects your professionalism. Tat is a principal part of employing a strategy for social media as opposed to just being on it. Let’s say, for example, you aspire to photograph for high-end fashion brands or publications and your website reflects that desire with fashion-themed work. If you post to Instagram, it will behoove you to post images that align with your fashion-oriented work and show a professionalism that might positively capture the attention of a creative director sourcing new talent on the platform. On the contrary, if you’re posting personal images of your drunken outings with close friends on the same account, you only serve to cast an unprofessional pall over your brand that could keep the same creative director from keeping tabs on you for future collaboration. Te manner in which you choose to engage is important, so always engage with the growth of your business in mind. Strategically speaking, there are a number of things a freelance photographer can do to build engagement and leverage it for income. First and foremost, though, you should take the time to understand each platform, what you stand to gain from using it and any potential concerns, such as Terms of Service that result in extensive third-party image rights. Once you have chosen your platforms, engage by building your brand with consistent postings (always watermark your photos to deter image theft) that serve to showcase your expertise. If it’s lighting, include behind-the-

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scenes photos and videos showing your lighting techniques as well as the end results. If it’s sports photography, post your best photographs highlighting unique angles or peak moments while also offering context with the text. Te consistent approach will build a following over time that you can then target when you initiate print sales or limited-time licensing discounts. Beyond being discovered by new clients on social media, your engagement with a specific aspect can open the doors later to hosting your own workshops, classes or consultation services. My friend and colleague David Bergman is a perfect example! He built his music photography following as, among other things, Bon Jovi’s tour photographer, into a brand that leverages contacts to offer workshops where students actually go to a concert to shoot on site. His following on social media allows him, and many like David, to directly engage a targeted audience while also allowing others, including those who hire, to see precisely what David is all about as a professional. It’s a two-way street. In addition to using smart hashtags so followers on a platform can find you, I recommend engaging in various themed postings. Tese can be anything but should be tied directly to your strengths. As an example, I use the hashtag #FromTeArchive to post various images located in my archive. Most often I will see what’s going on in the news and post something relevant and include a link to the images on my site. It raises the possibility of my photographs being seen by photo editors on the platform who then wish to license them while also serving to strengthen my Search Engine Optimization (SEO). I recently began a new theme titled “Two Minutes with Todd” on YouTube and on my blog that is designed to provide freelance photography business advice in short, easy-to-understand videos. I post them from my business account on Twitter and Facebook every Tursday and views are helping to build my “brand” as a business-minded freelancer. Relying only on social media to build clients would not be sufficient. Let’s look at a step-by-step process for reaching out directly to potential new clients. 1. Research and Contact Clients

• My website allows for free registration and editors at publications have registered their email contact info. When I see this, I send

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•

•

•

•

a very concise, professional “Tank You for Your Interest” email, thus establishing a channel for periodic updates on my work. Your website and/or blog should allow for the same. Research websites and visit newsstands. Staff contact info is often provided on websites for publications, non-profits and corporations. Print publications at newsstands typically have a masthead listing the names of those working as photo editors and creative directors. If you can find a newsstand these days, it’s worth your time. Consider paying for access to a database such as Agency Access that provides contact information for photo editors, designers and creative directors. Tis can cost $600 or more per year, but landing one decent client would pay for that cost. As mentioned above, social media platforms provide an obvious potential connection to editors. Although many of my colleagues overlook LinkedIn since it’s not designed strictly for showcasing photography, I’ve developed several clients directly via LinkedIn. It’s also a great way to stay in touch as photo editors and creative directors move to different companies, websites and publications. Make this a part of your social media strategy to build clients. Browse, post and set alerts on job-based websites including LinkedIn. I’ve forwarded many job opportunities to my students for companies like REI and Patagonia who’ve posted staff jobs on LinkedIn.

2. Once You’ve Found a Potential Client, Make Initial Contact via Email

• Email is the preferred method by those who hire. I’ve spoken at many conferences and heard this too many times to count. Don’t call them; send an email when first trying to develop them as a client. • Your email should be short and indicate a clear understanding of the work they do and why you would like to work with them. • Have a professional signature with your contact information including city, phone number, email and website. You must make it easy for them to contact you. • Embed a photo or two directly relevant to the work they do. You can turn the photo into a link so they can click on it and land on

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your website. Make sure to watermark the photo and keep it small so as not to overwhelm their inbox. 3. Following Up

• If you receive a reply from the email, terrific! Reply with a thank you and, if you’re in the same city or plan to be at some point, ask if they have time to meet for a quick cup of coffee so you can say hello in person. • If you do not receive a reply, continue to reach out on a limited basis. I recommend three or four times per year (once per quarter), at most, with the same short, professional emails. 4. Promo Cards

• Promo cards, also called mailers or “leave behinds,” have long been a staple for freelancers in their quest to develop and maintain clients. Tese should be of the highest quality and designed to capture the attention of the recipient. Remember, photographers are constantly courting those who hire photographers so you need to make sure your promo is noticed. • Te photo(s) you use as your promo are designed to capture the recipient’s attention but the real goal is for them to have your website and contact information readily available! Prioritize the placement of your location (Los Angeles, San Francisco, Boston, etc.) and phone number and then make sure the rest of your contact information is included. Tere are additional considerations freelancers should take into account when seeking paying clients. Tat being said, I cannot overemphasize the advantage of going beyond solely relying on digital connections! Don’t misunderstand what I’m saying, though. I not only believe in using the technology available to expand our networks, I personally use all tools available in my business. But the profession is oversaturated with digital only connections and you, as a freelancer, are looking for a way to break through and connect at another level. In my opinion, many freelancers fail by stopping once they’ve connected via email or social media.

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If one stops and really thinks about the role of a freelance photographer one would conclude that freelancers are temporary representatives of a company. For example, if you accept an assignment from the Los Angeles Times to photograph a star athlete at UCLA on a Friday afternoon, then you are representing the LA Times when you arrive at the university, meet with the university’s contact for the shoot, execute the shoot and then depart the field. Doesn’t it go to reason that making a personal connection with the hiring photo editor would serve to your advantage when the editor chooses whom to contact? Don’t you think the photo editor would feel more comfortable sending you if you had previously met with them and provided a positive impression concerning your professionalism, ability to communicate and generally represent the publication? Yes, of course that personal connection will help. Do yourself a favor and make those personal connections so you can develop loyal clients. Meeting my clients personally has always served to my benefit. I recently was speaking just outside of Washington, D.C. and had several hours between my talks. I emailed a D.C. based editor with whom I had previously connected digitally and asked if I could buy him a quick cup of coffee near his office just to say hello. He replied that he’d be happy to, so I quickly jumped on the subway with my iPad and met him at a Starbucks. Two hours later and quite a few laughs, we parted ways but not before he took several promo and business cards to share with his colleagues who also edit at the large non-profit. Within weeks I received an assignment from one of those other editors. Te recommendations above all start and rely on you to do the work. Tat’s fine because you determine whom you wish to pursue, how you wish to pursue them and how much effort you wish to put into it. It’s all up to you. But you should also consider engaging with a photo agency to raise your profile and develop new clients.

Breaking into Teaching as an Adjunct Professor Te need to develop income from resources beyond shooting plays an increasingly vital role for freelancers; particularly those who tend to rely on editorial clients with shrinking assignment budgets. Offering your experience and expertise to colleges and universities as an adjunct professor is recommended.

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I’ve taught at my alma mater, California State University (CSU), Northridge since the late 1990s as an adjunct professor in their academic programs for journalism and art majors. I also teach a selection of photography courses through UCLA Extension, which is open to the public, not just UCLA students. Both of these situations, and in particular CSU, offer reliable income to supplement other income from shooting and licensing. Remember, the successful freelancer in today’s profession should develop revenue streams from various clients to piece together a livable income. Working as an adjunct, also known as a Lecturer, in most colleges and universities in the United States, requires a minimum of a bachelor’s degree and relevant, exceptional experience in your field. How much experience is required depends largely on the many different districts in place, so you’ll have to check, but you typically do not need advanced degrees to meet the minimum requirements. Te role of the adjunct is an important one as they provide current and practical alternatives in the classroom to the tenured professors, many of whom have not worked regularly as freelancers in years. With that understanding, the colleges and universities know that those working in the field don’t always have terminal degrees (usually Master of Fine Arts or, in some cases, PhDs) but offer recent, relevant and real understanding of the profession. Te California State University (CSU) system with twenty-three campuses, the LA Community College District with nine campuses, and countless others throughout the nation rely heavily on adjuncts to teach courses ranging from basic photography and photojournalism to advanced courses for undergrads and graduate students. It goes without saying that it can never, ever hurt to remain in touch with the professors who taught you in college. Having someone on the inside, so to speak, and being an alumnus of the university will only serve to give you a leg-up on the competition. What university doesn’t want to showcase their own success stories, right? If you graduated and your resume attests to a certain level of success and expertise, I guarantee that the university will lean toward hiring you because doing so will lend obvious credence to the program that you, the adjunct professor of photography, actually completed. Most universities and colleges maintain a part-time applicant pool that remains open to applicants on a rolling basis. Find the information

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on the university’s website, or on any of the many job search websites like Indeed or LinkedIn and apply to as many as possible. Make sure your resume is updated regularly and try to make contact with professors or chairpersons if you share similar friends or colleagues (again, any inside track is a good track). Courses for adjuncts are considered temporary work, just like freelance, and largely dependent on meeting course enrollment, so keep in mind these are not tenure track, permanent positions that you can rely on like an employee would. In fact, some courses are only offered every other semester or quarter and some can be cancelled literally days before they begin for a number of reasons. Public institutions are also largely dependent on state financing, which can mean course cutbacks when the state is suffering from an economic downturn and vice-versa when the economy is healthy. If you’re fortunate enough to receive the offer to teach multiple classes per semester or quarter at a public college or university, you might meet the minimum requirements to receive health benefits as well. Te CSU’s threshold for receiving health benefits is currently six teaching units, which typically means two, regular three-unit courses. For freelancers, receiving health benefits is a bonus that is hard to beat given the out-of-pocket expenses usually incurred when buying benefits on their own.

Using Self-Assigned Work to Develop New Clients If you’re the type of photographer that needs to be assigned work by someone in order for you to pick up the camera then you might want to reconsider your career as a freelance photographer. Self-assigning has tremendous upside for a freelancer’s career but definitely challenges those who veer toward the lazy side. Laziness is a cancer for any business, but I can assure you that it’s near fatal to freelance photographers. Te upside to assigning yourself work is twofold. First, you keep your creative flame lit and that is vital to maintaining a healthy outlook for your freelance business. Like a lot of entrepreneurs who enter a field mostly out of love, photographers are most happy when they’re making the images that they want to make. Admittedly, the subject matter of commissioned work is not always as interesting as self-assigned projects, so self-assigning work is a good method for maintaining a positive disposition as a freelancer. Secondly, assigning work to yourself should help

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you develop new clients that will then pay you to shoot subject matter that keeps your fire lit. Tat’s the ultimate goal, isn’t it? Let me share an early example of a self-assigned project that led to commissioned work from a number of the nation’s best news publications and a non-profit. I decided in 1994 to document the US/Mexico border as a self-assigned project. I was deeply interested in better understanding the relationship between those who lived and worked along the 2000-mile boundary and those who were seeking to enter the country by crossing without documentation. Trough research and an instinct that rural parts of San Diego were dealing with an influx of migrants in their own way, I invested significant time and money into finding and gaining access to residents who had formed, for all intents and purposes, a vigilante patrol. I traveled nearly four hundred miles round-trip to document this self-assigned story and maintained control of the images and timeline. Nearly a year after beginning and along with my agency at the time, Black Star, I approached Te New York Times Magazine to gauge their interest in publishing the project. Tey readily agreed to run a multi-page photo essay. Soon thereafter, Te NYT Magazine, with whom I had never previously worked, assigned me a similar story in Texas. Time magazine, Newsweek and Focus (German newsweekly) also commissioned me to shoot immigration stories in various cities along the border, as did the Southern Poverty Law Center. To this day, I continue to get assigned work along the border and it all began as a self-assigned project. With that in mind, let’s consider how to leverage your self-assigned work in a step-by-step manner.

Taking Your Self-Assigned Project from Idea to Publication Start by asking yourself what really interests you as a photographer. Strip away any consideration at this stage to what you think is commercially appealing or is currently trendy and just hone in on what sparks your creative fire. We’ll get to the rest of it later but it’s essential first and foremost to be excited enough by the subject matter to propel you forward. Tat excitement is particularly significant for photojournalists because we tend to find personal interest in subject matters related to social issues and newsworthy topics, thus propelling us to spend significant time, energy and resources to capture meaningful images. However, the same

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can be true for photographers whose interest is in portraiture or nature photography; find subjects or choose creative approaches that interest you on a personal level, so you push the envelope in creating the photographs. Te idea is relatively simple; your interest has to be high enough to get you out the door and working on days when you have no paid assignments. Equally important, if not more so, and especially for photojournalists, is taking into consideration self-assigned projects that provide a different perspective or unique look at newsworthy subject matter. In an era of shrinking budgets and contracting newsrooms it would be utterly senseless to invest significant time and financial resources to produce a personal project composed of images widely available and deeply discounted from wire services and agencies. Freelancers need to find a way to produce photographs that stand out from the images that stream into newsrooms worldwide via Getty Images, Reuters, Associated Press, European Photo Agency and countless others. Tat doesn’t mean you can’t shoot the same subject matter as, say, the Associated Press or Getty Images, but it does mean that you should find a way to shoot that subject differently. Otherwise, a photo editor will respond to the pitch with a curt “I’ve seen this a hundred times already.” It’s imperative to find a new perspective or more in-depth approach to the project. Tere are four stages to the self-assigned photo project: Idea, Execution, Pitch and Licensing for Publication. 1. Te Idea

It all starts here, so choose your subject with particular attention to what is discussed above. You have to really want to invest your own time and resources, which might be limited given your need to shoot paid gigs for clients, to create a personal project and any half-hearted approach will diminish the likelihood of producing a publication worthy project. With your commitment in hand, you need to develop your project idea. A key component at this stage is researching the subject thoroughly, perhaps investigating what approach other photographers have taken and considering the logistics of shooting the subject matter. It’s likely that you will spend most of your time at the idea stage on your computer, speaking to subjects and, if needed, contacting those who can help you gain access

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and provide useful information. Do not overlook this part of the process because doing so is akin to building a skyscraper without the planning and engineering stage. In other words, the likelihood of your project collapsing is exponentially higher if you don’t do the research first. Should you decide to pitch your idea instead of a completed project (more on this below) to a publication, and you glossed-over the research phase, you open yourself to serious credibility problems if your idea fails to pan out. Real Case Scenario: Te Idea Stage

I was immediately struck with the thought that the Covid-19 pandemic was an inherently different disaster than all others I had photographed. When I shot Hurricane Katrina, the Northridge Earthquake, tornadoes in Oklahoma and countless wildfires, the crisis was always contained within geographic boundaries. Tat was hardly the case with Covid-19. All over the world people were experiencing the same crisis, which meant I only had to walk out my door to experience the same situation as others worldwide were experiencing. Te idea for my project came to me on March 19, 2020, which was the day Los Angeles imposed a strict shelter-in-place order in response to the Covid-19 pandemic. From a purely personal standpoint, I was deeply interested in photographing what was clearly a global crisis, but I wanted to do it in a way that reflected my own neighborhood. Hence, my idea was to create a visual Portrait of a Neighborhood Under Lockdown. Tis was a simple idea, mind you, but one that my research showed had not yet been published. My research and basic outline at the idea stage was fairly straightforward; I scoured the major publications worldwide and saw that many of them were focusing their photography primarily on deserted cities devoid of workers and, of course, the front-line responders and hospitals. It became apparent to me that the photos showing empty cities were visually interesting, but the market was quickly saturated with them. Plus, it was not as personal as I wanted my images to be, so I pressed on with my idea. Te fact the cities were empty due to lockdown orders supported my impression that neighborhoods would be adversely impacted with everyone working and sheltering at home. Te last part of flushing my idea out was to simply walk, walk and walk some more through my neighborhood and talk to people to see how the pandemic lockdown had changed

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their lives virtually overnight. To reiterate, this was a simple approach to a topic being covered worldwide yet it provided a different perspective. Before you move on to executing your idea and creating images, it’s prudent for me to point out that you have an important decision to make regarding when to pitch your project to a potential publication. I address that under Te Pitch section of this topic, so make sure to keep that in mind because some photographers might decide it’s beneficial to pitch your idea before it has been executed. 2. Execution

Now for the fun part! With the idea on solid ground, grab the camera and start making images. You likely don’t have anyone telling you what to shoot or how to shoot it and there are no preconceived ideas delivered to you by editors expecting particular images, something that can and does happen frequently with assignment work. In other words you have creative freedom! As great as that is, the onus is entirely upon you to take the idea and execute it in a manner that reflects your style, approach and research so it yields a strong set of unique images. No excuses. It’s up to you to deliver. My first rule of thumb is to begin shooting without any preset notions of how long it will take or how easy it will be to execute the idea. Tose are traps that often ensnare inexperienced project photographers and lead to underdeveloped stories with images that don’t set themselves apart from those streamed by wire services and agencies. Keep in mind at all times the need to create images with a narrative different from what’s already been produced so it’s advised you let the story develop without artificial timelines. Some projects take longer to produce than others, but letting it develop organically is important. Don’t mistake what I’m saying to mean that you can take a lazy approach and there’s no consequence to that. Tat’s not at all what I mean. You just need to give yourself the time to create the images necessary to generate interest from editors looking for a unique perspective. When it comes to self-assigned projects that involve a series of images it’s also best to avoid creating a shot list while opening the doors to discovery. Obviously, there are exceptions based on the project, such as a portrait series on World War II veterans, but generally speaking it’s best not to suffocate the execution by treating the project like a series of bullet

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points. Having an expectation of what to photograph is important, but you don’t want to jump from one point to another with blinders on or you run the risk of missing the best images. Tink of the approach as akin to traveling; you will miss out on the discoveries of wonderful small towns and hole-in-the-wall taverns and cafes if you follow a prescribed itinerary of visiting only predetermined, famous destinations. Let the discovery of images be core to executing your idea. Te most revealing images in any project are usually the “in-between” moments that can never be conceived in advance. Tose are the images that will help create a meaningful narrative and deliver spontaneity, realism and emotion to your project. Photographers can only discover these organic moments by spending time with the subject and delving deeply into the topic. In fact, photojournalism has often been called the “art of hanging out,” which I feel is incredibly accurate. Even with portraiture, the most revealing and impactful images can come when the subject is comfortable with your presence and reveals moments that would otherwise have remained hidden. When executing your project, allow time for the unpredictable images to surface! During this stage of your project it’s easy to engage in the never-ending loop of social media updates. I encourage you strongly to avoid posting any of your personal project work to social media until the project has been published. Doing so while the project is underway creates a real risk of negatively impacting the interest from publications that regularly inquire about the images being previously published or distributed. You want to be able to answer this common query with an emphatic “no” if you wish to maximize the chances of getting the project published. In addition, alerting others to what you’re working on will increase the chances of them taking the idea and executing it themselves or, should they be doing something similar already, beating you to the pitch and potentially ruining the market for the project. Once you feel you have completed the shooting phase and are ready to move forward, be sure to organize your images, and I don’t mean just on your computer’s hard drive. Specifically, you should create unlisted galleries to facilitate the pitch and distribution of the images for publication. An unlisted gallery is just what it sounds like; it’s on your website but is not listed for anyone to see. It’s private and access should be restricted to

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those with a password you assign and share (this is a simple, basic function on PhotoShelter). Te point is to have everything ready so that you can provide the link to view the images in your pitch to the editor. I typically create two unlisted image galleries when I’m working on a project. One is my preferred set of images comprised of a tight selection of my favorite and most significant images. Te other is a looser selection of images that I still feel strongly about and would be pleased to see published but include images that go beyond just my first choices, so to speak. It’s very common for editors to want to see a wide range of images, hence the need for the two galleries. Te images in these galleries have all completed my workflow and are ready to be published. Links to the galleries are automatically generated and all I have to do is set a password and activate the download option if an agreement to publish is reached. Real Case Scenario: Te Execution Stage

With the idea being that I was going to photograph my own neighborhood during the Covid-19 pandemic lockdown, I started shooting with absolutely nothing planned beyond staying within the framework of what constituted my suburban Los Angeles neighborhood. I began on the very first day that people were ordered to stay at home by walking for several miles through my neighborhood (as a member of the media, I was considered an essential business and allowed to work). With one camera and a small messenger bag, I looked like any resident on a walk. I don’t want to intimidate people and make a scene of myself with cameras hanging all over. Being low key is a benefit when doing this style of documentary work. Te first several days I talked to a lot of people out walking and made some images of neighbors’ kids who had taken over the empty streets and school parking lots for their playground. Being as this was my neighborhood, I immediately recognized how different it was to see kids riding bikes and scooters down the middle of the empty streets so I captured some telling images. Truth is, I didn’t really think of that prior to walking but instantly knew that those were images reflecting how the pandemic was impacting the neighborhood; with everyone restricted from going anywhere, the wide streets that previously were nothing short of drag strips for cars and certainly no place for kids had overnight become gigantic, deserted playgrounds.

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As the days turned into weeks of walking and talking to people I discovered that there were retired nurses making masks for health care workers, a rabbi awaiting a Coronavirus test result performing morning prayers on his front porch, a pastor recording sermons inside his empty sanctuary, a single working mother who suddenly became the de-facto teacher to her two kids when the schools closed, a woman giving away bags of gloves and masks to her neighbors and a man everyone knows sitting forlornly behind a screen door waiting for neighbors to walk by so he could socialize safely at a distance. Tere was much more, but the point is that none of these images were possible if I had set out with a preconceived “shot list” to execute. Te strength of the images, to explain it another way, came from how the images felt authentic and honestly showed how my one, little neighborhood was dealing with the global crisis. Along with the director at Contact Press Images where I’m blessed to be a contributing photographer, we decided the story was strong enough to start shopping around. Te images were already in two unlisted galleries, one with a tight selection of preferred images and one with a wider selection, and links ready to be distributed in the pitch.

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3. Te Pitch

Making a pitch, or offer, of a completed self-assigned project to potential publishers is a lesson in humility even for the most seasoned freelancers. But, if you’re willing to check your ego at the door or, even better, if you had your ego smashed years ago during your ascent through the freelance profession, you’ll be fine. It’s like they say in baseball; swings are free! Sometimes you strike out and other times you get a hit but you won’t know until you take a swing. However, before you step eagerly into the batter’s box and swing wildly about, I suggest you take a few minutes to consider strategy and perform a bit more research. After all, you’ve likely invested significant time taking the project from idea through execution, so do your due diligence before throwing that hard work away with a poor pitch. Before we go further into offering your self-assigned project to a potential publisher, whether it be a website, magazine, broadcast station or non-profit, I want to make sure you understand that there are a myriad of ways to devise your actual pitch but you will have to decide when it’s best to make it. As I’ve alluded to several times prior, there is no “correct” answer as to when it’s best to make the pitch, only preferences. Your choices are to pitch your project before, during or after execution. Personally, I prefer after, which is why I list it at this stage of self-assigned work. However, let’s look at all three, starting with making the pitch before execution of the idea. Offering your idea to a publication before you execute it has an upside and downside. First, the upside because everyone likes good news first, right? Te upside is that the publisher will offer you a fee, typically along the lines of “we’ll give you three assignment days,” to execute the project if they like the idea. So, right away you’ll be shooting what is essentially your own commissioned work. Tat’s great, right? Well, no doubt it’s nice to be paid to shoot a project and you’re likely to pick up a new client should it go well, but you will also relinquish a significant amount of control over your own project. Te photo editor will ask to receive the images by a particular date and will certainly assert some influence (usually a lot of influence) over the direction and, ultimately, the selection of the images for publication. Like I said, there’s pros and cons, so you’ll have to decide if the guaranteed assignment money at this stage is sufficient for the idea you developed and the time you’ve invested.

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I’d be remiss if I did not warn you of a potential issue when pitching before you execute the idea. Ideas are just that; ideas. Nothing has been shot so there is always a slight chance that the idea will be passed along to another photographer to shoot. Does it happen often? Not to me, but it has happened to me on two occasions as well as to several colleagues. For that reason, my suggestion when making the pitch at this stage is to be extremely concise and utilize descriptions in place of specifics wherever possible. Te goal is to create an informative pitch with enough information to generate interest but with as few detailed specifics as possible. If you’re successful and the publisher asks for more information, I would first ask to be commissioned, or put on assignment for the shoot before revealing any additional details. To reiterate, having your idea taken and assigned elsewhere is not entirely common, but it’s definitely not unheard of either and it’s one of the reasons to avoid pitching before execution of the idea. Te second option revolving around when to pitch your subject is to pitch the idea during the time you are executing, or shooting, the idea. In this scenario, you’re taking the idea and have begun to shoot it, but you pitch the idea before completing the project. Tis has many of the same pros and cons of pitching an idea before shooting any of it, but there is a slight advantage in that you can prove to an editor to some degree how the project will look since you’ve photographed a bit of it. If you’ve never worked with the client to whom you are pitching, showing the images from a partially executed project can help seal the deal. However, since the project is not yet completed at this stage, you will again be offered assignment days and be paid to shoot the rest of the project. As was the case when pitching before, though, you should expect to relinquish control over image selection as well as be assigned a deadline to complete the project. If they accept the pitch and say they will give you three assignment days, then make sure you will be able to complete it to your liking within that time frame. Remember, this is your self-assigned project so assuring it’s executed to your own standards is important. Te last option as far as when to make your pitch is after you’ve taken the idea and executed it to your own standards, abided by your own timeline and selected your preferred set of photographs to show. Obviously, this is the stage when you retain as much control over your project as

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possible, but you do not receive any assignment fees to execute it. Without the direction, input or deadlines imposed by any outside source, you can shoot the story until you and nobody but you feel the images represent your vision. Once you have met your self-imposed standards you present the project as a completed package ready for publication. Your goal, of course, is to negotiate a fee that reflects an equivalent standard to the time spent shooting it, but I can tell you from experience that it seldom happens that way. Tat should not deter you, though, because there is a value to retaining complete control of the execution. For example, if you spent seven days shooting a project and enticed a publication with your idea pitch after you had completed it to your standards, would you accept the equivalent of four assignment days in fees? Is retaining control through the process worth it to you? Again, I’d be negligent if I didn’t share that publications, in my own experience and those of my colleagues, prefer to receive a story pitch after the self-assigned project is complete. All they have to do is take a look, decide if it works and negotiate a fee with you. For the publication, the guesswork and logistics of managing a project are gone and there are no unanswered questions regarding how the final images will look, so I feel it is easier to pitch at this stage. Once you’ve decided when to make your pitch, you need to decide where to pitch the project. Now that may seem like a simple decision because maybe you have one or two clients who treat you well and you owe it to them. Tat should certainly be taken into consideration but only if you feel the project is a good fit for your long-time client. If the images align with your client’s overall market, then absolutely utilize your connections as it might result in a relatively easy and successful pitch due to the trust you’ve earned over time working with them. Additionally, it will keep you in good graces with your client by showing them that you will reciprocate their loyalty by sending an idea or completed project (depending on when you pitch it) their way. If, on the other hand, you either do not have long-term clients or those clients are not a good fit for your project, you will need to find a home for the images. Tis will be a more challenging and time-consuming approach than simply emailing someone you already know, but don’t fret because this is where you can use your project to introduce yourself to new people who, hopefully, will hire you for future assignment work.

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A freelancer pitching a strong, self-assigned project has always been a welcome way to make contact with potential new clients. As Brad Smith, former Director of Photography at Sports Illustrated, once told the PhotoShelter Blog, I am exceptionally interested in a photographer with original story ideas. Tat’s one thing you can’t put value on. Some ideas might be cliché and have already been done, but I remind photographers that when you pitch an idea, the worst thing that can happen is someone says no. Don’t be shy about sharing. Deciding where your project will be warmly received requires that you really think hard about the subject matter, style and overall message of the photographs. Do your research first so you can make the pitch to the right place and you’ll meet with more success and waste less time (both yours and the potential publisher’s). For example, if the subject matter is edgy and the images have a serious political undertone, I would advise researching publications and websites that have political coverage as a mainstay and push the spectrum beyond the typical stories. In other words, platforms like Rolling Stone, Te Atlantic, Te Nation, Axios, CNN, MSNBC, New Republic and Politico to name just a few. A number of factors are important considerations, though. Using the same example, if your project tends to reflect principles more aligned with the political right, then pitching the project to more conservative platforms would make sense. Searching for a publisher of your project based on the subject matter and overall message of the images is not, in and of itself, enough research. Once you’ve settled on a place that you think aligns with your project, you must take time to look through the stories that they have done fairly recently to assure yourself that they have not already published something similar. Tis is especially true when pitching stories that have garnered global attention! Spending the additional time scouring recent articles can pay off for you in several ways. One, you won’t come across as a lazy idiot pitching a project they just ran. Two, you will save yourself the time of tailoring the pitch to that publication and, three, you are more likely to succeed by indicating in the pitch that, to your knowledge (key phrase)

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the publication has not yet run a project along the lines of the one you’re pitching. For all of these reasons, the importance of taking the time to research where to pitch your executed idea cannot be overstated. Now that you’ve devised a short list of where your completed project might draw interest, you have to figure out exactly where to send the pitch. Now, this is exactly when all that “busy work” you’ve done over the years making contacts on LinkedIn and various other social media and especially in person at workshops, portfolio reviews, conferences and social photo gatherings will pay off! Go into your contacts list and see whose information you have related to the publication you’re interested in pitching. If you haven’t reached the point in your career where you’ve developed a strong network, ask colleagues if they might have contact information for anyone at the publications you’re interested in. Beyond that, my recommendation is to see if the potential publisher’s website has a masthead listing the name, title and, sometimes, email address for everyone on staff. It’s here that you will find photo editors who you can then direct your pitch to. No masthead? No problem! Try Google with search terms such as “photo editor New York Times” or wherever it is you’re considering and follow the links to a contact. As a last resort, consider requesting information for whom to contact with a story idea via the general contact form that most websites have. Believe it or not, that really has worked for me, just be careful about revealing details of your idea as mentioned above. Real Case Scenario: Te Pitch Stage

Keep an open mind when you’re considering possible homes for your project because we are in a digital, global world where images are in demand to fill space. Previously, self-assigned photo projects could be found in traditional media outlets such as newspapers and magazines, but as those transitioned from print to digital twenty years ago, so did all other media outlets. Whereas it would have been pointless twenty years ago to consider pitching a photo project to ABC or National Public Radio, now you’d be foolish not to contact them if the project is a good fit. Te point is that everyone has a digital presence and they need content to keep their websites fresh and unique, so expand your horizons a bit if you’re still of the mindset that there are no publishers interested in self-assigned projects. Trust me, there are.

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I began researching online many of the powerhouses in the news media and concentrating on their coronavirus coverage. What I quickly discovered is that most had created an entire section of their site to just coronavirus news and information. I looked at the The Washington Post, The New York Times, National Public Radio, ABC, NBC, CBS, Rolling Stone, Time, The Atlantic, The Guardian, BBC and many others while keeping in mind that the project was not really a hard news project, but more of a feature story. At that point in early April none of the sites I visited had published a project like mine, so I made note of who was running particularly nice photo spreads. The Atlantic certainly was as was Rolling Stone, NPR and NBC. With a decent idea on where I wanted it to be published, my agency and I moved on to actually making the pitch for the project and we did so in an email with links to my client-only blog post and, subsequently, to the unlisted image galleries. Let’s recap for a minute where you’re at in the process, shall we? You developed an idea and took it to the execution stage whereby you started shooting. After determining that you wanted to retain full control and therefore pitch the story after completing the project, you created your pitch, researched potential publications and devised a list of where you would like to pitch the project. Great, now let’s finish things up by discussing how to pitch the project and get it licensed. 4. Licensing for Publication

Now you’re at the stage where you need to deliver the goods in the most pleasing, easy way so you can secure a licensing fee from whoever decides to publish it. Tink of this as the interview stage of a job application; you’ve done all the necessary work to get to an interview and you absolutely must make a good impression. Stumbling and fumbling at this point can end the process, so speak clearly and concisely and make yourself sound like the perfect fit for the job. Tat’s exactly what you are going to do with your pitch, but it’s all about the images and how they will be a perfect fit for the publisher’s website (or magazine, newspaper, etc.). Finally, how you make your pitch is so important. Tis is where I often differ from many other freelancers, so again, I’ll preface my recommen-

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dation by saying that if you have your own method that’s proven successful, then by all means stick with it. My approach has worked for me many times over the years. In the how-to-pitch and license your project stage of the project, the first thing I do is to write my pitch in a word document. I prefer a story format aligned with those found in magazines or newspapers, albeit a short story since most editors will not have the time to read some long-form journalistic pitch. Te next step is to create a new post on my blog where I copy the same pitch and post it with my preferred selection of images. Now, here’s the key: Tis post must be set to client viewing only! Do not make this a public post for people to see since it contains your entire unpublished project. You want this to be by invitation only whereby only those with the link can view it. Layout the images large and with as much attention to design as possible and give it a well-thought-out headline. If it’s done well, there’s a chance you might even receive a writing byline and extra compensation as well. Tis has happened on several occasions including my 2016 election project, Te Battle for Voters. It’s advised that your pitch be made via email, so grab that list you created during the third stage of this process and start to craft your email. Please be sure your email contains the following: • A concise paragraph detailing what your project is about and why it makes sense for the recipient to consider it for publication. Use the information you derived while researching the website to indicate you’re familiar with them. Make your pitch sound interesting and exciting but do not oversell it and do not make assertions that cannot be backed up by your photographs. • Indicate in a professional manner that you are pitching the idea around and “hope to hear that there is interest.” Tis way you are alerting them to the fact that you are sending the pitch to others at the same time. Waiting to hear from each before proceeding is not feasible, but it’s best to make it clear in the email. • A link to a private blog post with your best images and a longer explanation of the project (more information on this below). • Your contact information in a professional email signature.

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Real Case Scenario: From Licensing for Publication Stage

With the images for my Portrait of a Neighborhood Under Lockdown project having come together well enough, I began the process of preparing and pitching the project to potential publishers with an open mind towards magazines, newspapers, television and radio networks all of whom had strong digital platforms. However, long before the pitch reached the stage where I would contact a potential publisher, a lot of behind-the-scenes preparation goes into it. I cannot stress enough how important it is to utilize an online archive to facilitate the management, licensing and distribution of images. I manage all of my self-assigned projects using the PhotoShelter platform. So, let me share how I moved my project’s images through the workflow and ultimately into a gallery of final selections for viewing by interested publishers. • First, I created a “collection” on the unlisted side of my archive that simply means the images are not publicly viewable and are accessible only through the link that was automatically generated when any collection or gallery is created. For this example, the collection was titled “Coronavirus.” • Within the collection, I then created individualized galleries of all shoots related to “Coronavirus.” For example, when I shot a rabbi performing morning prayers on his porch due to the lockdown, the gallery was titled “Rabbi Praying at Home” and all of my processed, high resolution images from that shoot were uploaded to the gallery located within the Coronavirus Collection. I repeated that for “Empty Church Service,”“Woman Giving Away PPEs” and so on. • When the director at Contact Press Images and I decided there was a solid set of images documenting my neighborhood under lockdown, I created a new gallery in the Coronavirus Collection and titled it “Portrait of a Neighborhood Under Lockdown_Selects.” Tis gallery, also unlisted since it was inside the unlisted Coronavirus Collection, was comprised of images that we preferred and would offer to those who showed interest in the pitch. I also created a second gallery that contained a wider selection of images than would fulfill the editor’s request to look at more photos, not just the dozen or so I absolutely wanted published (Hint: Photo editors want a say in

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the final selection, so don’t expect to dictate the exact set of images). I know I can’t necessarily dictate the exact selection, but I can heavily influence it by tailoring the wider “selects” gallery to include only the images my agency and I have signed-off on. In summary, make sure you create two galleries and have them ready before you start pitching. • I set the option on the galleries to View Only so those who receive a link can view the images but cannot download them. Once a publisher agrees to publish and the fee and terms are set, I simply change that option to allow for downloads (I can further set the size of the image they can download, if I decide it’s necessary). Te blog post was complete, the image selects gallery ready and the concise, professional email was set to be delivered to those I think would be interested based on the research I had done. Te Atlantic, a venerable journalistic institution, had been doing fantastic reporting on the pandemic and was known for publishing nice photo essays. However, I had to search around for whom to contact since I had not previously dealt with anyone there, so this was going to be a “cold contact.” Once I found the contact, I sent the following email with a few watermarked images included, a link to my personal blog post on the project and contact information.

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For those who say cold contacts don’t work, I’d say they either have never really tried or they need to improve their pitches. On many occasions I’ve received replies and licensed the projects. In this particular case, the person I emailed replied shortly after with, “We are interested in this story, do you want to have a brief talk tomorrow about it?” From that point forward, and with the director at Contact Press Images taking the lead, we talked about a fee for a slideshow and were ready to proceed but it stalled out. Tat’s not unusual and certainly not something I ever take personally. I understand that editors have a trillion things that they are working on and sometimes an initial interest to publish doesn’t result in them actually publishing it. After several days, my agency and I decided to thank them for the interest and again began pitching the project to others. I had researched NBC’s coverage on their website and thought it looked very nice. As was the case with Te Atlantic, I didn’t personally know anyone on NBC’s digital news team, but I searched my contacts on LinkedIn and remembered that I did know someone on the video side. I emailed him and asked if he knew whom I could make a pitch to on the news team and he forwarded a name. From there, I repeated the process as I did with Te Atlantic and, again, received a nice response indicating they would love to publish the project. Te negotiation on terms and fee was quick and fair and the editor connected me with a designer who requested access to the selects gallery for downloading the images. Since everything was already in place, I simply changed the View Only permission to Download Images and provided a password. My work was done and within 48 hours the project appeared on their website.

Photo Agencies: How Do Tey Work and Do I Need One? Photo agencies have, just like magazines and newspapers, been deeply impacted by the evolution of the profession. Small, boutique agencies offering very personal relationships with freelancers were prevalent twenty years ago but have slowly and somewhat painfully been forced out of business by mega agencies such as Getty Images. Hence, there are fewer agencies for freelancers to consider and the majority of those do very little, if any, assignment representation. Photo agencies fall generally into two categories:

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1. Stock/Archive Representation for Licensing Only

• Tis is just what it sounds like. Te agency will accept your photographs to store in their archive and license them to third parties for use. Te relationship is based strictly on a mutual agreement that the freelancer will supply images to the archive and, in return, receive payment for third party use. • Te licensing of your images by third parties (think magazines or companies) could lead to those parties hiring you for assignment work. • Te agency does not supply personal representation to seek or channel assignment work to the freelancer. 2. Assignment and Stock Representation

• Although there are fewer of these agencies than in previous years, they do still exist. Teir role is to serve as a repository for your images to develop licensing fees as well as to generate or distribute assignment work to the freelancer. • Clients sometimes prefer dealing with an agent or agency because all the logistics of an assignment are handled by the agency. For example, let’s say an international law firm needs new portraits shot of all their lawyers worldwide to refresh their website. It’s far easier for them to contact an agency, negotiate a fee and let the agency handle the logistics of arranging the shoots and delivering the images. Te freelancer represented by the agency will receive a portion of the assignment fee (the agency takes the other portion) and only have to deal with their agent, as opposed to the actual client. • Agents perform much of the groundwork that freelancers would otherwise have to do while courting a client. Tings like sending promos, arranging for coffees to keep in touch, sending updated projects for their consideration are examples of how an agency with assignment representation will function. • Agencies also partner with other agencies worldwide to form a loose distribution network. Tis can also serve in the photographer’s interest when developing clients. Below is an example of the network of subagents that my previous agency, Aurora Photos, had in place before their sale to Cavan Images.

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Client development is such an integral part of a freelancer’s life. Tere is no beginning, middle and end to the process. It’s a constantly evolving process whereby you will find yourself at various stages of your career with a stable set of clients as well as a dearth of clients. Similarly, through no fault of your own, you’ll find that even your best clients will sometimes wither to nothing due to their own financial struggles or, as is often the case, the editors who hired you moved on to new jobs or left the profession. It’s all just a part of the business, which is why it’s of tantamount importance that every freelancer consistently works at client development.

5 Analyzing and Negotiating Photo Contracts

Unfortunately for photographers, the magazine industry is well-organized, and many publishers are modifying contracts under guidelines issued by the Magazine Publishers Association, which unsurprisingly calls for language that benefts publishers at the expense of content creators. Te quote above by PhotoShelter CEO Allen Murabayashi speaks perfectly to publishers increasingly issuing contracts stripping freelancers of rights to their images – images that have traditionally belonged to them. Commenting on his company’s blog specifically about the 2016 Time Inc. photo contract viewed widely as an income-destroying rights grab, Murabayashi cemented his point more broadly by stating, “more publishers will adopt Time-esque as more photographers show a willingness to sign the contract.” Read the last part again. “As more photographers show a willingness to sign the contract.” I could not agree any more. Te reality is that photographers are all-too-often their own worst enemy and have contributed to the demise of their own financial stability by succumbing to client demands often without a simple request to negotiate. I’ve been dealing with photo contracts for almost 30 years now and have folders bulging with them dating back to the early 1990s, so I can 52

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personally attest to how publishers have moved to strip freelancers of their rights to their work. Tose who have taken the time to sit through my two-day course know that I place a huge emphasis on understanding and evaluating photo contracts. Why? Te simple answer is that the contract governing your business relationship with a client is the single most important variable in your ability to earn a living, bar none. I’ve come to realize there are a variety of factors that influence how a freelancer deals with photo contracts including age, experience and education. As the father of a 23-year-old son who is extremely determined to begin his career straight out of grad school, I have an intimate understanding of the ambitions driving young professionals, including photographers. I see in students and young professional photographers the same desire to succeed as I see in my son, but if ever there was a situation in which blind ambition could inhibit long-term success, this is it. Photo contracts dictate to photographers vital terms, such as copyright ownership, who controls the rights to their photographs, lifetime royalties, indemnification and payment details. Yet who among us can legitimately claim that we had the capacity to analyze complex, multipage contracts written by Fortune 500 lawyers when we were 23 years old? Te unspoken reality is that the cards are stacked so heavily against young photographers when it comes to contracts as to be justifiably seen as predatory in nature. Te age of the photographer is influential because young adults are driven by an insatiable ambition to get their careers off the ground after years in the classroom.Tey want, and need, to get working and will understandably accept nearly any offer to shoot an assignment. Many are burdened with significant debt and have zero interest or ability to turn down a paid gig based on terms that they hardly even understand. Who can rightly blame them? I can’t. But I will place blame on university photography and photojournalism programs if they fail to adequately prepare their students to deal with the inevitable onslaught of contracts. After all, the success of a program’s students should be the ultimate concern for any university or college photography program. Te experience a photographer has will also influence whether or not they accept a photo contract provided by a potential client. Most freelancers with several years or more in the business will likely develop a better understanding of how certain contractual terms will impact their

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lives. For instance, an experienced photographer who pays attention to a contract’s terms is more inclined to raise concerns if it fails to state when they will receive payment whereas a young, inexperienced photographer will assume payment will be made promptly. But reading the section in a contract about “Payment” is something a photographer is probably more inclined to do while either ignoring or, at best, skimming the sections pertaining to copyright, licensing rights and indemnification. Te reason most photographers, including those who are “experienced,” accept bad contracts is because they are chiefly concerned with short-term goals. Te short-term goal is working and getting paid, so the freelancer is likely to read the payment section, sign the contract and shoot the assignment. But other sections devoted to copyright and licensing unarguably impact the long-term goal of financial stability and deserve the freelancer’s undivided attention. Otherwise the freelancer is foregoing long-term success for the short-term goal of getting paid.Tat might work for a few years until the photographer realizes health care, raising a family and retirement are long-term commitments that require a different approach. Many publishers understand where the profession is at and take advantage of it by issuing contracts that drastically undercut the ability for freelancers to sustain themselves over a long career. So what’s a freelancer to do? First, you cannot make a critical decision like agreeing to a contract without understanding what you are agreeing to. It’s important enough to repeat that I feel strongly that colleges and universities issuing degrees in photography or photojournalism must evolve their curriculums to reflect the issues their students will face as a freelancer. If you’re already working in the profession and never received any formal guidance pertaining to photo contracts, then it’s up to you to get educated so you can make informed decisions that will benefit your business going forward. Some photographers are afraid they won’t understand the legalese and may opt to engage the services of a lawyer for this reason. If you decide to work with a lawyer to help you determine if a contract is fair to your side, be prepared to spend a fair amount of money because you should expect every new client to provide a contract requiring your signature. If you decide the expense is worth it, I advise that you avail

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yourself of a lawyer experienced in the freelance photography world, and I list some of them in the Resources and Suggestions section. Whatever your choice is you should expect to pay a fee for the contract analysis service. My experience is that a lawyer is not needed to conclude if a contract needs altering primarily because many of them contain similar language, although some definitely go further than others to unnecessarily complicate matters with confusing legal terms. By becoming familiar with certain contract clauses and the impact the terms will have on your future, you will be better prepared to determine if the contract is good or needs negotiating. Te good news is that this guide will help you develop an analytical perspective in reference to the most important clauses in a photography contract (Hint: Tink image rights, third party rights, copyright and indemnification). Te reason I can analyze contracts with no help is because I’ve seen so many that have identical terminology. Te simple process of familiarizing myself with the important terms and then dealing with them repeatedly in contract after contract made most contracts relatively easy to scan in a matter of minutes. I detail in the following section some of the important topics and terms that pertain to photo contracts and how to approach them with a critical eye. If you feel that such analysis is best served by hiring a lawyer, by all means take that route. Keep in mind, however, that many contracts are sent, and require acceptance, in a pretty short period of time because an assignment is pending. If it takes a day or two to let the assigning client know if you can work with their contract, you might actually lose the opportunity.

Negotiating is Key • Be professional and courteous while negotiating a contract to your liking. If you want to be treated with respect, treat your client the same way. • Negotiations are usually uncomfortable, but try to avoid giving in to all their demands just to avoid the discomfort. • Starting at the bottom of your acceptance level leaves you nothing to compromise on and negotiations are a compromise. You can’t have it all your way and you can’t let them have it all their way.

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Leave yourself room to compromise by not starting at your basement, so to speak. • Many clients will issue new contracts on a regular basis so it’s important that you consider the relationship you have built with your client. Are they a longtime client, a new client, a referral? Are they including writing guarantees of assignments in exchange for extensive rights to your images (not likely)? Take it all in. • Most, if not all, contracts are issued with the presumption that they will be accepted without question, but that is seldom (if ever) how businesses operate. • Understand what is important to your client, what is most important to you, and where you can find compromise. Understanding your client’s needs and measuring those against your needs will give you the best chance to negotiate a mutually beneficial contract. I acknowledge that negotiations are not always successful, but if you care enough to try while also being willing to say “no, thank you,” successful negotiations are possible. Let’s take a look at how that worked when ESPN presented me with a new contract in 2018.

Case Study: ESPN Contract A new contract from ESPN accompanied an assignment request to shoot a UFC event. Included were new terms that cited broad “brand” use, which were non-existent in the previous photo contract. Tis new brand use permitted extensive rights across the many ESPN branded platforms. Truth is, I anticipated these new terms granting extensive brand rights after Time Inc.’s 2016 contract referenced in quote on p. 52 slipped the word “brand” into their terms (more on Sports Illustrated ’s contract later in the chapter). Te new ESPN contract was, for the most part, quite fair and I only had a couple concerns so I asked the photo editor if I could address them. He asked if I would simply put them in writing and he would take a look. Te mutual respect and professional courtesy we extended to one another was not something unique to me in any way, shape or form. I do not have the standing in the photo world to “demand” changes with the threat of walking away! Yet my intentions are to look out for my family and business, so I respectfully requested the following:

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ESPN Original Term #1 from the Contract

1. For Digital and Non-Print Uses: Via all non-print means and media now known or hereafter developed, whether in the same or a different context from the initial usage. My Concern About the Terms

I advocate strongly for contracts that allow for usage “in original context.” Tis means that a publication can post, publish or “use” the image(s) as much as they want in “the original context” of the first use. So if they originally use one of the photos in a story on the top UFC fighter, then that is “the original context” for that image. Any use beyond “the original context,” meaning they wanted to use the images for another story two months later, would require an additional payment. Te original terms, as you can see, stated the images could be used “in the same or a different context” and did not have a time limit. I also requested that the end of the three-month exclusive embargo on the images be more clearly defined. Final Negotiated Terms

For Digital and Non-Print Uses: Via all non-print means and media now known or hereafter developed, in the same context of the initial usage. Upon expiration of the three month Exclusive Period, all photographs are subject to additional payment as stipulated in 2(b) below. ESPN Original Term #2 from the Contract

2. Additional Fees for Outtakes: In the event that ESPN wishes to use images that are identified as selected outtakes from a Shoot that were not initially published by ESPN during the Exclusive Period (“Outtakes”), we may do so without advance notice or additional permission, and: (i) for print uses of Outtakes, we shall pay you pursuant to the Magazine Rate Card set forth in Schedule A and we shall have the right to use such Outtakes in accordance with Paragraph 1 above; and (ii) for non-print/digital uses of Outtakes, we shall pay you pursuant to the Digital Rate Card set forth in Schedule C and we shall

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have the right to use such Outtakes in any and all non-print media, in perpetuity. My Concern About the Terms

I had concerns about the use of the word “Outtakes” as well as the fact that the terms only referenced ESPN and did not mention ESPN affiliates. Since the new contract was clearly looking for wider use, I wanted to specifically reference more than just ESPN. Some might view this as a technicality, but it’s nonetheless worth trying to negotiate. I also try to avoid the term “in perpetuity” and requested those final two words be altered to read “one time, non-exclusive.” I requested that the word “Outtakes” be replaced with “any photographs” and that “affiliates” be added. Final Negotiated Terms

Additional Fees for Photographs: In the event that ESPN or ESPN affiliates publish any photographs once the Exclusive Period has expired, ESPN may do so without advance notice or additional permission, and additional fees will be paid to the photographer as follows: (i) for print uses of Photographs, we shall pay you pursuant to the Magazine Rate Card set forth in Schedule A and we shall have the right to use such Photographs in accordance with Paragraph 1 above; and (ii) for non-print/digital uses of Photographs, we shall pay you pursuant to the Digital Rate Card set forth in Schedule C and we shall have the right to use such Photographs in any and all non-print media, for one time, non-exclusive use. ESPN editors were open and receptive, and the change resulted in additional income from the additional uses. Tat additional income plays such a key role in freelancers’ lives and helps to offset the myriad expenses incurred by freelancers such as the cost of purchasing and maintaining equipment, paying insurance premiums, software subscriptions and more. But you must, and I mean must, be willing to read the fine print of a

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contract and understand what the terms mean. Let’s now look at some contractual terms regularly used in photo contracts.

Case Study: Time Inc./Sports Illustrated 2016 Photo Contract Of all contracts in recent history that I’ve personally dealt with, the 2016 Sports Illustrated photo contract issued to freelancers in late 2015 was the most problematic. Tere were major revisions from previous contracts that introduced new terminology and required a very careful, thorough analysis before deciding how to proceed. Te contract was eleven pages of legalese that drastically redefined the relationship between the publication (then owned by Time, Inc.) and freelance photographers, including those who would have access to freelancers’ photographs, who had the right to distribute the images, what (if anything) would be paid to freelancers for using images beyond the first time, who would have successor rights should the publication be sold, and when payments would be made following an assignment. Tose were just a few of the major points that a bevy of regular freelancers, like myself, had to grapple with if we wished to continue shooting for the storied publication. Each of those contract changes would, if agreed to, impact my freelance business. Who Would Have Access to the Photographs? Tis was, by far, the biggest change in the contract from previous years. Prior to 2016, the publication had rights to use freelancers’ photographs in the context of the original story or assignment and any additional use required an additional fee for the freelancers. For example, I photographed PGA events around the country and would be on the course usually for four days. Te first two typically were dedicated to photographing scenic settings as well as “stock” shots, meaning photographing as many of the players as possible for the Sports Illustrated archive to have updated images at the ready. Te final two days of my four-day shoot were devoted to those in contention to win and, of course, photographing the champion from that event. Why was this important? Because the story that would run with my photographs would nearly always be about that week’s event and include the champion and pertinent moments. But the images I shot of all the other players would go into the archive and often be used in smaller, subsequent stories in years to come. Since these “stock” images were not used in the

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original story, the subsequent use by the publication yielded an additional fee for me.Tat was simply how it always worked and it provided an extra incentive to work hard, produce good images and receive extra licensing fees necessary to run a freelance business. Tat all changed with the 2016 contract revision. New terms instituted called for the “Assigning Brand” use of freelancers’ photographs, a term that was not part of any previous contract but had huge implications. Agreeing to the terms meant the loss of the much-needed extra income derived from Sports Illustrated using images from previous shoots as described above. Te contract term read as follows: Te rights to use and reuse, and authorize and license the use and reuse of, the Photographs in and in connection with any and all publications, products, content, and services now existing or hereafter created and displaying or exhibiting the name, trademark, or logo of the Assigning Brand. Te “Assigning Brand” terminology meant that freelancers were no longer granting images to the publication, Sports Illustrated, but were now granting images to the brand, Sports Illustrated. Tat, my fellow freelancers, is a huge difference in usage rights that would drastically reduce or eliminate secondary use fees. To be clear, anything that has the SI logo, name or trademark associated with it would have free, perpetual rights to my photographs under the “Assigning Brand” term, regardless of original use. Such rights would also be extended to “products and services,” which means that promotional/commercial use of my photographs would also be granted for free. Licensing images commercially is most lucrative for freelancers and can easily yield five-figure paydays, thus should be easy to see why this drastic change in contractual terms was deeply problematic. Who Would Have Successor Rights? As is common for photo contracts, the terms are binding upon any sale or transfer of the publication, which means that any subsequent owner of Sports Illustrated will have the “Assigning Brand” rights. Te contract term read as follows: Tis Agreement will be binding upon and inure to the benefit of any firm, corporation, or entity into which Publisher or any Publisher

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Brand is merged, or which purchases, acquires, or becomes the successorin-interest of Publisher or any Publisher Brand. Freelancers who I’ve spoken with don’t give this provision a lot of thought because they have no control over whether a publication or company is sold. I get that, but the significance of this provision is exemplified in the sale of Sports Illustrated and should raise significant alarm bells for freelancers. It was well known when the new contract was issued that Sports Illustrated, like so many other publications, was financially struggling and was likely to be sold. In 2018, Meredith Corporation, owner of Good Housekeeping and other niche publications, bought Time Inc. publications including Sports Illustrated. However, their ownership was short lived and they promptly sold Sports Illustrated to Authentic Brands in 2019. Who is Authentic Brands? It’s a brand management company whose owner, Jamie Salter, is known for buying distressed businesses and leveraging their name and content in licensing deals. In a September 8, 2020, article in Te New York Times under the headline “Te Two Men Buying Your Favorite Retailers,” Authentic Brands was described in this way: Te company, founded by Mr. Salter in 2010, bets on famous names in fashion and entertainment, often buying their intellectual property with the aim of striking licensing deals with those who want to use the brand names internationally or on new products. Te article goes on to describe how Authentic Brands’ business model is all about licensing content, not running a storied publication: Authentic Brands’ purchase of the Sports Illustrated brand last year is viewed as a prime example of the company’s bottom-line approach to licensing. It sold the rights to operate the magazine and website to another company, which gutted the staff, while simultaneously putting the Sports Illustrated name on protein powder, CBD cream and swimsuits. With Authentic Brands having added the Sports Illustrated name to swimsuits, protein powder and CBD cream, any images produced by freelancers under the 2016 photo contract can be used to promote those products and the freelancer will receive zero compensation.

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Who Had the Right to Distribute the Images? Another key change in the 2016 contract specifically for Sports Illustrated freelancers was the loss of licensing options to third parties. Previous to this contract, freelancers were given the option to have their images included in the Sports Illustrated archive (subsequently managed by Getty Images) but it was not mandated. If I so chose, and I did with Aurora Photos for years, I could have the images I shot on assignment licensed through an agency of my choice. Te revised Sports Illustrated contract eliminated that choice for me and mandated that all syndication rights be granted to them. Te terminology read as follows: Syndication Rights means the rights for the Assigning Brand, only if the Assigning Brand is Sports Illustrated, to sublicense to third parties the exclusive right to license the Photographs directly and through sub-agents, including Getty Images, for editorial and commercial use by third parties. When will Payments be Made? Freelancers desperately need to have a clear understanding as to when they can expect to receive compensation and expense reimbursement for their work and it’s nearly always detailed in the photo contract. Here is a photograph taken from the 2016 photo contract that revised the contractual terms for payment.

1. Client addresses payment cycle that is “60 days of receipt of the invoice.” Previous to the 2016 revision, the payment cycle for nearly all freelancers was 28 days.

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a. Te sixty-day term proposed in the 2016 contract is twice as long as the previous contract. Tis means you will not receive payment for two months. b. You will wait sixty days to receive reimbursement for any expenses including travel (airfare, hotels, cars, meals, tolls) or for rental gear or assistants. c. Notice the “receipt of invoice” reference. It’s up to you to file promptly since the sixty-day cycle starts when the client receives the invoice, not from the end of the assignment. 2. Client addresses the manner by which you must submit an invoice. Tis part stayed unchanged and is now fairly common with larger publishers. a. Te client has outsourced payment services, which requires you to submit all documentation of assignment and expenses via an online portal. Registration required. 3. “Unless early payment discount terms are selected during invoice submission …” a. Te lengthy payment cycle of two months can be avoided if you choose an early payment term upon invoice submission. b. What is not detailed in the contract is that these “early payment discount terms” require you to surrender a portion of your invoice. In other words, you will pay them to pay you in a more timely fashion. If you’re shaking your head, think of it as a convenient Payday Lender typically found in a strip-mall. If you want to receive your earned paycheck before payday, you can choose to pay a percentage of your check to the lender. It’s the same thing here; choose the early payment option and give up a percentage of your invoice to receive payment earlier. c. Te percentage is based primarily upon how much earlier you wish to receive payment. In a dollars and cents hypothetical, if you invoiced Time Inc./Sports Illustrated $1000 but selected an early payment of 30 days instead of 60, you might surrender around 5% or $50.

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Te Southern California News Group Photo Contract

1. Client states that, “freelancer must submit an itemized bill to the Publisher each month.” a. According to what is written, your invoice is to be submitted each month. Tat is not how it typically works when freelancing. As seen above in the previous example, an invoice can, and should, be submitted upon completion of an assignment and then the payment cycle begins. Being restricted to “each month” means having to wait until the end of the month, or the beginning of each new month, to submit an invoice. Presumably, if a freelancer shot an assignment on February 3rd, they would have to wait until the end of the month to submit an invoice that contains the February 3rd assignment along with any additional assignments from that month. b. What is clearly not addressed regarding paymentis how long the publisher has to remit payment to you. Is it thirty days, sixty days, ninety days or more? You or the client, to avoid extensive delays, must define the payment cycle. c. Also, what is clearly not addressed regarding paymentis if the freelancer is paid for unpublished work? Te contract says the invoice must contain “the first date of publication.”Well, let me assure you that some assignments are not published for a variety of reasons. Further, publication of assignments is often delayed for a variety of reasons. What happens if SCNG assigns you to shoot an assignment and the reporting is so deficient as to render the story insufficient for publication? Or, what happens if you’re assigned to shoot a protest that turns out to be a complete bust and unworthy of publication for that reason alone? Well, according to the contract that states “date of first publication,” SCNG is not required to pay you anything.

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d. Te freelancer must address the lack of payment terms and ask for clarification on payment for unpublished photographs.

Client Didn’t Provide a Contract? No Problem, Give Tem Yours Freelancers are going to receive a contract defining rights, payment, indemnification, employment status and more the vast majority of the time. Tat’s why it’s important to get comfortable reading and analyzing contracts. Tey’re going to land in your Inbox whether you like dealing with them or not. But what should you do in the event a new client simply tells you via email or by phone the fee they will pay and what they want you to photograph? Tat certainly does happen and you need to be prepared by issuing your own contract to the client. Sometimes this spurs them to send you their contract while other times they thank you and agree to the terms you provided. Either way, it also serves to avoid the dreaded situation that most freelancers have experienced and that’s the “oh, we forgot to send you our contract” situation, which occurs after you’ve already done the shoot. Only then does the freelancer realize that the contract is chock full of egregious terms. Suffice it to say, it pays to supply your own contract if one is not supplied to you. But what should you include? At this stage of my career I deal mostly with repeat clients as well as new clients who are reputable publications or non-profits, so I’m typically provided a contract. However, I do receive requests from overseas as well as domestic, smaller organizations who do not supply a contract and it’s for them that I include the following, basic information in a contract called “Assignment Contract.” Before you think that you must create your own legal documents, let me say you do not have to do that! All the contracts and terminology I’ve long employed are derived from the wonderful software made by Cradoc, Inc. It’s called FotoBiz and contains a wealth of information and templates for my business, including built-in and customizable contractual terms provided by a number of professional photography organizations. I use it extensively; therefore I extol its virtues. I do not receive payment from Cradoc beyond a small percentage of sales from those who use my affiliate code to purchase their software (very common for photographers,

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organizations and companies to participate in “affiliate programs”). However, let me reiterate that you are obviously free to use any software you find helpful, but FotoBiz and FotoQuote are the industry standard and built into platforms such as PhotoShelter and more. I have enough work to keep me occuppied, so I use the software that makes my professional life easy to manage. I’ve listed the sections included in my Assignment Contract and then detail further why each section is necessary for a freelancer to include. Again, I do not issue this contract unless I fail to receive one from a new client. By no means do I subject repeat clients to my assignment contract each time since it’s almost certain they will provide one eventually.

Assignment Contract Terms 1. Message to Client: I begin with a professional, courteous note addressing the contact and referencing our previous conversation regarding the assignment request.Tis is done with an understanding that editors and creative directors who hire freelancers deal with many freelancers and assignments so referencing it concisely will serve to remind them who you are and what you had previously discussed. 2. Assignment Description: A brief description reiterating what the editor and I had discussed previously. Tis serves to put into writing the specifics of the assignment so there is no dispute later as to what I was asked to photograph. 3. Detail of Fees: Line items detailing your “Creative Fee” for the assignment. Line item for “Total Fees.” 4. Detail of Expenses: List any predetermined expenses such as mileage, parking, tolls and assistants. Consider a reference that the expenses are an estimate and any additional expenses are dependent upon prior approval by the client.

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Line item for “Total Expenses.” 5. Total Assignment Estimate: Line item with your Fees and Expenses added together. 6. Terms and Conditions: Tis is precisely where you will state the vital terms related to rights granted, payments, ownership of images, indemnification, resolution of disputes and cancellation/postponements to name a few. Fortunately, the software provides all you need and the various terms supplied by ASMP and others are fully customizable (just cut out or add what you want and save it with a new name like “Invoice Terms.”) Here are some of the specifics I include in my Assignment Contract: a. License: Reiterates the information they provided related to how the images will be used. Example: i. ii. iii. iv. v. vi. vii. viii.

For Use in “XYZ Magazine” Interior Placement Size (¼ pg., ½ pg., ¾ pg., full pg., etc.) Print and Web One Time, Non-Exclusive Use United States No Model or Property Release Perpetual in Original Context

b. Copyright: Clearly states all ownership, including copyright, is retained solely by the photographer. c. Payment: Due upon receipt irrespective of whether the client makes any use or publishes the photographs in any manner. d. Rights Granted: All rights are restricted to the license stipulations. No rights are granted until the photographer receives payment in full. e. Photo Credit: States that a credit is mandatory and failure to credit subjects the client to fees equivalent to three times the invoice.

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f.

Indemnifcation: Te client indemnifies the photographer. g. Assignment Postponement/Cancellation: Clearly details what percentage of the Creative Fee is owed if or when the postponement/cancellation occurs. Also clearly states any and all expenses incurred up until the time of the postponement/cancellation are due in full.

A few points detailing why these are important terms to include: • License: Specifies in writing how the client can use the images. For example, if they put your image on the cover, you will be allowed to bill a cover fee that is always significantly more than an image placed inside a magazine. • Copyright: By U.S. law, copyright remains with the photographer unless they sign it away in a written document. A copyright term in the contract clearly works to establish that you retained all rights to your work. • Payment: Given the belief by some that an image must be “used” to mandate payment, your statement specifies payment is due even if the images are never “used.” • Rights Granted: Reiterates the licensing terms as well as stating that the rights are not transferred until full payment. Tis serves an important role in that failure to pay within a reasonable amount of time opens the client to potential infringement claims if they’ve already published the images. • Photo Credit: Having your name clearly listed with the photograph will facilitate licensing in the future as others will know where to turn to find the photograph. • Indemnifcation: Protect yourself by stating in the terms that the client is responsible should any legal proceedings arise from the use of the photo. • Assignment Postponement/Cancellation: Tis term is designed to protect you from clients who literally book you for a shoot and then continue to seek a cheaper alternative.

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Your Invoice Serves as a Contract If you are accustomed to submitting your invoice in a simple Word document, you need to reconsider that approach. An invoice should contain information that, again, clearly reiterates the terms under which the assignment was executed. As is the case with all other contracts, I started with the templates provided in the FotoBiz software (Cradoc, Inc.) and

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customized it to fill my needs. Te result is a professional, easily understood breakdown of fees, expenses and terms. As an example, consider a standard invoice I delivered to ESPN for a shoot of the UFC. Te invoice contains a message to the assigning editor briefly describing the assignment, a breakdown of the Creative Fee and Expenses and an automatically generated invoice number. Te final page contains a short statement referencing the previously signed contract as the governing obligation for how the images may be used.

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Common Contractual Terms You Need to Know Common contractual terms are terms used repeatedly in photo contracts I’ve received over the years along with a basic interpretation of their meaning and application. As mentioned at the beginning of the chapter, becoming familiar with these terms will greatly enhance your critical evaluation skills. I do not offer these as a shortcut to skimming a contract for such words and making a decision based on their appearance or nonappearance. Rather, these terms should be seen as warning signs to proceed with caution while giving you insight into what the client is requesting. Before proceeding, it’s integral to your understanding that you know the basics of United States Copyright Law that I will cover elsewhere in this guide, but for sake of your understanding of this section, I offer a quick summation. US Copyright Law is clear that an employer owns the copyright to an employee’s photographs. Presumably, in exchange for the employer owning the copyright, an employee receives a guaranteed salary and benefits such as medical, retirement and, typically, company-issued gear. Conversely, the law is clear that freelancers, also known as an “Independent Contractors,” own the copyright to their photographs. Presumably, the freelancer keeps the copyright but does not receive a guaranteed salary or benefits of any kind. Clearly one could interpret by the law that owning the copyright to photographs is valuable. Keep that in mind as you proceed through the following terms. Work for Hire (WFH)

To use a sports analogy, coming across this phrase in a freelance photo contract is equivalent to drawing the outside gate at the Kentucky Derby. Te odds of you winning are really low. It’s also common enough as to be glibly accepted by many freelancers as “just the way it is these days.” But it’s not just the way it is and never should be accepted without a clear understanding of what it means and what’s at stake. A contract with a “Work for Hire” clause means the work is especially ordered or commissioned by an employer to an independent contractor/

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freelancer as a supplementary work and the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. So what does that mean for you: 1. Te client issuing the contract now owns the images forever and you cannot license them for additional revenue, assign rights or control how they’re used, published or distributed in any manner. Te images you created with your vision, your gear and your abilities are not yours. 2. Te freelancer is not offered anything beyond the specific assignment fee for the copyright to their images such as a guaranteed salary or benefits typically provided to employees. 3. A “Work for Hire” contract must be agreed to via a “written instrument” and “signed by both parties.” Your client cannot claim ownership of the images verbally or in any other manner except by a written agreement signed by both parties. Perpetual Use by Subsidiaries, Afliates and Assignees

Perpetual use is sometimes confused with Work for Hire but they are not the same. A WFH contract, as noted above, results in the transfer of your copyright to the client, which, of course, means the client can use the photographs however they want and forever. Te difference between WFH and Perpetual Use is that the client does not receive the copyright to your work but does receive the rights to use, display, publish, adapt and distribute the images forever. Te request by clients for perpetual rights has grown over the past decade as publishers attempt to secure image rights so that they may use and distribute them across all of their and their affiliate’s publishing platforms. Freelancers should use caution in determining if allowing perpetual use is beneficial to them since it means they are relinquishing potential licensing revenue when the images are used beyond the assigning client’s first use. It should come as no surprise to those reading this guidebook that the extreme consolidation of publishing companies, particularly newspapers, has resulted in a publisher having hundreds of “affiliates” under their control. Perpetual use allows for each one of a publishing company’s affiliates to use the images forever (unless you can

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negotiate a restriction). Let’s take a closer look at just one example based on the following facts: • Two of the largest newspaper publishers, Gatehouse Media and Gannett, agreed in 2019 to merge. • Previous to their merger announcement, Gatehouse Media, the largest newspaper publisher in the country, owned 451 papers with a combined circulation of nearly 4.5 million. • Gannett, the second largest newspaper publisher that operates USA Today, owned 216 newspapers with a combined circulation of 4.3 million. • Te merger results in Gatehouse Media operating 667 newspapers across the country with a circulation approaching 9 million. As a result, if Gatehouse Media were to issue a Perpetual Use contract (and I’m stating this as a hypothetical but it’s more likely than not that they will), freelancers would be agreeing to allow all 667 of Gatehouse newspapers to use their images from the shoot forever without any additional compensation beyond the one assignment fee. To be clear, this is not a copyright transfer, yet the rights assigned to the publisher are virtually the same while the photographer retains the copyright. Te argument against agreeing to Perpetual Use is an obvious one: You are allowing extensive rights without fair compensation to account for those rights. Freelancers need the secondary income to help fund their business and support themselves and their families. Although a Perpetual Use term is better than a Work for Hire clause, it nevertheless deprives you of the possibility to earn additional income from additional uses of the images, something that has always been the case in freelancing. What is a viable alternative? Insisting on the contractual term “In Original Context.” Original Context

Tis is absolutely a key component to a good contract as it provides “perpetual use” but restricts that use to how the image was originally published. Any use beyond that original publication will generate additional fees for you.

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Prior to publishers distributing content online, a publisher would hire a freelancer and publish the photo to accompany a story in the newspaper or magazine or, to take it out of the realm of journalism, even in a foundation’s newsletter. In other words, the images were printed and that printing signified the original use. Any use beyond that original printing

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required that the publication contact the freelancer, request additional use of the image and pay a fee to use it again. It happened all the time. However, with the world turning to the Internet, publishers began consolidating their print operations and expanding their digital operations to reach more people. As a result, many publishers want to own the rights to freelancers’ photographs so they can systematically be published without any additional consent or fees required. Photographers, in an effort to find a middle ground compromise with clients, should seek to have any perpetual use request be “in the original context.” What this does is allows for the publishers to use and publish the image perpetually only in the form in which it was originally published. Any use beyond that “original context” requires an additional fee.

Tere are countless examples over the years when the inclusion of “original context” in a contract led to additional revenue for me. Consider the email above whereby my non-profit client requests an additional use of images beyond the original context. I was assigned to shoot in Tijuana in late 2018 when migrants were massing along the US/Mexico border to seek asylum from the US government. I supplied my client with a wide range of photographs and they used several on their website with a story about the growing crisis. However, as I suspected would be the case, the images would be in demand for future stories by my client. As you can see below in Section 4, their contract said they had “unlimited web use in original context.” As a result, I’ve earned several times my assignment fee in additional uses of my images by my client. Tis is what you want!

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Royalty Free

Before trying to explain this common contractual phrase, you have to know that “royalty” is the payment you receive when you grant rights to use your photos to others. Actors typically receive royalties when a station syndicates their show (think “Te Office” or “Friends”) and freelancers also receive royalties when their work is syndicated.

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You should also understand that “Royalty Free” can take on different meanings dependent upon how it is used, and it’s used very often in contracts of all kinds. It’s also used in regard to a specific way to license your images (more on that in the Licensing chapter). Tat being said, the most common use of “Royalty Free” means that your client, or anyone with whom you enter into a contract such as social media platforms including Instagram, Twitter, Facebook, etc., receive the rights to publish and distribute your images for free. Now, don’t get me wrong, assuming you were hired to do an assignment and are not working for free or simply submitting a photo randomly, you will still earn your assignment fee. However, the terms in the Rights Granted section will be where you find this phrase. Here is an example from a photo contract from Te Athletic.

Another extremely common use of “Royalty Free” is in regard to a specific model of licensing. It’s here where it takes on a bit of a different meaning, as it is often misunderstood to mean the images are completely free. No, that is not what it means. Without going too far into the licensing models at this point (much more on licensing later in this guide), “Royalty Free” is the most popular licensing model for agencies worldwide because it allows for unlimited, perpetual use of an image in exchange for one, initial payment. Publishers, corporations and non-profits love this type of license because there is no requirement to track usage or contact anyone for future use of the image. Tey pay one fee and receive perpetual, mostly unrestricted rights.To describe it another way, a client who requests use of a photograph

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pays a one-time fee and receives free use of the photograph in the future. No additional payments (hence “royalty free”) are required for any future use of the image, but the photograph is not actually free because the photographer/agency receives an initial payment. Brand Use

Please proceed cautiously if you see “Brand Use” appearing in contracts presented to you by potential clients. As detailed earlier in this chapter, this is a phrase that first appeared to me in the Time Inc./Sports Illustrated 2016 photo contract delivered in late 2015 and is a rather clever way for large publishers, media corporations and commercial brands to acquire extensive rights to a freelancer’s photographs without fair compensation. Often vaguely or confusingly stated in contracts, “Brand Use” refers to you granting rights to any entity associated with the “brand” of the assigning party. Some contracts will define specifically what the client considers as an “association” or “affiliation” with the brand while others will choose to be vague and allow for a variety of interpretations. Either way, the injection of “Brand Use” into photo contracts issued by magazines and newspapers is particularly alarming for freelancers because it will drastically impact the income they derive from secondary uses by clients. It’s vital that you understand the significance of this term so it warrants repeating some of the discussion from earlier in the chapter. Previous to the 2016 Time Inc./Sports Illustrated contract, I had never seen specific references to “Brand Use” in any photo contract dating back to the 1990s, so it caught my eye as well as the eyes of dozens of other regular freelancers for Sports Illustrated. In all the contracts before the 2016 edition, rights to use the images were granted to the publication that hired the photographer. Tat meant if Sports Illustrated hired me, then Sports Illustrated had the rights to publish the photos for whatever story they hired me to shoot. If People or Time hired me to shoot an assignment, then People or Time received the rights to publish the photos with whatever story they hired me to shoot. In any case, no one else received those rights because I wasn’t hired by anyone else. When another publication owned by the same publishing company (aka “brand”) wanted to use the photos I shot, then I received a licensing fee for that additional use.

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Tat all changed when “Brand Use” was slipped into the 2016 Time Inc./ Sports Illustrated photo contract.

As detailed above in a photo from the 2016 contract, the phrase “Brand Use” states the freelancer now grants rights to the “assigning brand,” not just the publication hiring them. It goes on to claim that “any publications, products, content, and services now existing or hereafter created and displaying or exhibiting the name, trademark, or logo of the Assigning Brand” receive rights to use the photographs without any further compensation to the photographer. To summarize, this contract now demands rights to essentially anything (publication, product, service) that displays the name, trademark or logo of the “brand” that hired you. So, if a freelancer agrees to these terms and Sports Illustrated hires them for an assignment, Sports Illustrated is considered the “Assigning Brand.” As the “Assigning Brand,” Sports Illustrated can use any of the images in any publication (digital or print), with any product, in conjunction with any service for free, forever, as long as it’s associated with Sports Illustrated. Te freelancer will not receive any additional fee. Te massive “Brand Use” rights requested with this contract resulted in many freelancers, myself included, refusing to work with the publication or any affiliated publication. Simply put, a freelancer was previously hired by a publication, not a corporation, and any use beyond the hiring publication required permission and additional fees. As I noted above in “Perpetual Rights” section, paying for reuse is common and fair to freelancers who are responsible for the expenses associated with running a business. Many colleagues and I were not prepared to give that income

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away to a corporation wishing to leverage photographs across extensive “brand” holdings without fair compensation. Flat Fee

Some of the common contractual terms cited above are inherently significant to your ability to build and sustain a long-term freelance business. Tat’s not so much the case here with “Flat Fee,” though it is important for you to know what it means. “Flat Fee” refers to the total fee for any given assignment, expenses included. Whereas most publications I shoot for pay an assignment fee plus my expenses detailed in my invoice, some publications, and a majority of non-profits, prefer to pay a “flat fee” that includes your assignment fee and expenses. Tis is simply a matter for the freelancer to assure they calculate any expenses likely incurred before accepting the all-inclusive fee. Otherwise, you run the chance of accepting a rate that is actually too low once you pay all expenses out of that fee. Again, it’s no big deal so long as you do your homework before accepting the assignment. For example, I have several clients who prefer a “Flat Fee” approach. Tey call or email to inquire if I’m available and then offer a $1000 “Flat Fee” for the shoot. If the shoot is for a portrait in town, I know that the normal expenses billed would be mileage and parking. A quick calculation would mean that I would likely end up with a $950 rate after paying those expenses.Tat’s acceptable. However, if the same client wants me to go to Las Vegas to shoot the same portrait, I would have to take a minute to check flights and consider things such as baggage fees for checked gear, rental car or ride-sharing expenses and more. In this hypothetical, I would likely request a bit more to cover the additional out-of-pocket expenses. Below are some of the most common expenses that freelancers should consider when accepting a “Flat Rate”: • Mileage billed at Federal Rate. • Assistants (prior approval necessary) – photographer’s assistant, make-up artist, stylist, wardrobe. • Rental Equipment. • Lighting Kit Fee (if using your own lighting).

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• Digital Capture Fee (standard capture, download, sort and deliver). • Post production (if outside the standard download, convert and deliver). • Travel (car, taxi, gas, parking, tolls, flight, hotel, tips). • Food if out of town (per diem or itemized. $60–$75/day is editorial standard though it’s advised you ask your client). • Scouting: Scouting days are half of your creative fee day rate. Indemnifcation

Te significance of this term cannot be overemphasized even if the likelihood of it coming into play is low. Indemnification means that one party promises to cover the losses of the other party if a third party initiates a lawsuit against them. Tis term is so standard that freelancers who focus their concerns on other sections of contracts related to rights granted and payment terms mostly overlook it. Tat’s unfortunate because in the slim chance it is enforced, it can be financially devastating. For clarification, let’s turn to another hypothetical situation. Let’s assume you are assigned by News Today NY to photograph a portrait of a man and his Pitbull and they ask you to sign a contract before shooting the assignment. Te contract states that you “agree to indemnify” News Today NY and you sign it. You’re not sure what the exact story is so you shoot a nice portrait of a man and his Pitbull and, at some point during the shoot, the Pitbull is on top of the owner as they playfully engage. It turns out the story is about illicit dog fighting, something you were unaware of at the time and News Today NY uses the photo of the dog on top of the owner because it looks like the Pitbull is attacking him even though they are playing.Te owner of the Pitbull sues News Today NY for defamation of character claiming the photograph was used in a way that associates him with dog fighting, his reputation is ruined and he lost his job. In this hypothetical situation, and despite having no ability to control which photograph was used or how it was used, you would be a defendant in the lawsuit because you agreed to indemnify your client. Te following image shows a screenshot from a contract for a large media corporation with hundreds of websites and publications around the world. You can see for yourself what it states about indemnification.

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When it comes to indemnification, it’s advised by major photography advocacy groups such as American Society of Media Photographers (ASMP) and others, including myself, that the term be edited to reflect the reality that a freelancer has virtually no control over the image once it is submitted to the client. Due to the fact that freelancers are not involved in how an image is used or where it is published, the indemnification should be reversed and the client should agree to indemnify the photographer. Hence, in the hypothetical situation above, the freelancer should request that the News Today NY’s contract regarding indemnification read as follows: “Client will indemnify and defend Photographer against all claims, liability, damages, costs, and expenses …” If the client will not indemnify you, then request that the clause be struck entirely from the contract. Doing so would serve to eliminate any preordained commitments to defend one another. If someone is sued, then let a court determine who is responsible. As a final note on indemnification, I’m not advising that you walk away from a client solely on this term appearing in a contract. Tat’s for you to determine, as the likelihood is small that something will occur, but it’s equally important for you to understand the seriousness of agreeing to it. At the very least, it’s worth negotiating. If Accepted

So I decided to try a new barber. I had never been to him before but came across his shop while searching online. I checked out some of his work and it seemed pretty nice but since I hadn’t been to him before I was a little nervous. When I got there I told him that I’d be happy to pay him if I “accepted” the haircut and if I didn’t accept his work, I wouldn’t pay him. Let me ask you, do you think he threw me out of his shop,

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hurled a few four-letter words at me, punched me in the eye, or all of the above? Tis didn’t really happen but if you read photo contracts you would conclude this is a perfectly acceptable business practice. Tis phrase permeates many contracts I receive and makes me wonder how many other businesses operate with the concept that the work must be “accepted” for terms, including payment, to be in effect. Hairdressers? House Painters? Plumbers? Landscapers? Musicians? Mechanics? Restaurants? No, none of them do, which is why my tale of offering a new barber a fee based on “acceptance” is ludicrous. Te phrase “if accepted” should be removed from freelance photo contracts because that’s not how the profession, or business in general, operates. Further, “acceptance” is not defined in the contract and is left open to interpretation. In other words, can a photo editor not accept the assignment if the portrait was shot in a way the photo editor finds uninteresting or technically deficient? A term with consequences related to payment must, at the very least, be clearly defined. Some of you might disagree with me under the pretense that the client hasn’t worked with the freelancer before and therefore shouldn’t be on the hook for payment if the shoot turns out subpar. Tat perspective is destructive and flies against the reality of how businesses operate worldwide. Troughout society business relationships are initially formed out of trust that the person selected for the job will get it done in accordance with expectations. Further, that same trust forms the basis for when a client chooses to work with a freelancer either for the first time or the hundredth time. At the initial point of collaboration, trust was formed in several ways. A photo editor can assess the freelancer’s website that features examples of work, a biography, testimonials and examples of published work performed for other clients. If the editor decides the work is nice and wants to hire the photographer, then the trust factor comes into play. If the shoot turns out nicely, great, the photo editor has someone new to rely upon and the freelancer gains a new client. A true win-win! If the shoot does not work out as well as hoped, that’s unfortunate, but either way the photographer gets paid. Have you ever tried a new restaurant on the recommendation or Yelp review only to discover it was not as good

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as you hoped? Did you still have to pay for the meal or did you tell the owner you decided not to “accept” the quality after eating it? What recourse do clients have if a shoot does not turn out well and is not “accepted” by them? Te recourse is not only obvious; it is the standard for anyone who seeks an outside contractor of any kind to perform work. Te freelancer or contractor does not get hired again and damages any potential referrals, just like a barber won’t be hired again after making you look like a fool. Te recourse, however, is not to withhold payment after services are rendered. Tat is why photo contracts that contain this undefined phrase are troubling. As you can see with the following images, Sports Illustrated, as well as another large media company with hundreds of publications and websites, routinely includes the phrase in their contracts. In fact, the large media company literally references “acceptance” in two of the first three contract terms so the significance is indisputable.

How to Assure Timely and Full Payment I’d be remiss in my duties to provide a guidebook with practical insight if I did not pointedly address what every freelancer is chiefly concerned about; payments. Payment for services is obviously not a specific term as much as it is a specific section of a contract detailing how and when the freelancer will receive payment. First and foremost, you must pay attention to the contract’s payment section and clearly understand what they are saying as well as what is omitted. Yes, it’s equally important to identify what is not said because

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that is where you can either ask questions or place payment terms in your own contract (more on that shortly). A fair number of contracts I’ve received clearly define the payment terms with specific references to how long the cycle is between receipt of invoice and payment, as well as the process the freelancer must adhere to in order to be paid. However, if you receive one that does not clearly define the payment terms, I recommend simply including in your terms that “payment is due upon receipt” of your invoice. Tis chapter dealt with photo contracts, essentially the single most important document that determines the income freelancers will generate throughout their career. For the relatively uninitiated, I recommend that all of your decisions regarding contracts take into account both short-term and long-term goals. As you do, consider that some shortterm goals, such as acquiring big-name clients, might require deciding to forego the ownership of your images that will most definitely impact your long-term goal of passive, licensing income. Conversely, too much consideration for long-term goals might dampen your ability to gain clients in the short-term. Tere is no one answer and no easy way to achieve financial stability as a freelancer because we are all unique individuals with our own goals, but the ability to analyze a contract and determine if it’s in your best interest will help you find your way.

6 Understanding Copyright and Copyright Infringement

Te famous “I Have a Dream” speech by Dr. Martin Luther King, Jr. was copyrighted in 1963. His estate closely governs the use of the 17-minute speech with the licensing fees helping to fund the Civil Rights Movement then and now . Let me just say that if it’s good enough for Dr. King, it’s good enough for me. Martin Luther King, Jr. protected his intellectual property against unauthorized use and used the licensing proceeds derived from copyrighting it to help fund his life’s mission. Why shouldn’t freelance photographers do the same? Why not use the law to not only protect our work, but to generate much needed licensing fees to advance our work? If Dr. King recognized the value of copyrighting one’s work, shouldn’t freelance photographers do the same? Yes. Of all the topics I address to friends, colleagues and students, copyright by far is the most dreaded, feared and misunderstood of them all. Out of a class of 15–20 students, maybe two or three register their images with the US Copyright Office, a dreadful number that only serves to weaken the most important law governing freelancers’ rights. Most admittedly don’t understand how the law works

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and are, surprisingly, unaware of the volume of copyright infringements that occur. Te law was first put into effect in 1790 and, as you can imagine, has been through many iterations over the decades. Freelancers need not have dissertation level knowledge of the law in order to understand the provisions that apply to them any more so than a driver needs to understand the engineering that resulted in a vehicle’s smooth handling performance. Instead, a basic understanding of the key principles is enough to maneuver through the winding, curving streets of copyright law.

Te Basics of Copyright You Need to Know Periodically throughout this guide I will remind you of your need to do your own research to arrive at conclusions for what is best for you. Tis is one of those moments. I am not a lawyer and do not profess to have the answers, but I have successfully navigated copyright for many years now and have a firm understanding of how to use it to protect my freelance business. However, as I have done, you should take the time to read books, spend time on intellectual property blogs, research precedent setting cases, speak to lawyers and come to your own understanding about copyright. I am happy to offer my information for you to include in your research, but I only ask that you do not stop here at learning. At the very least, visit the United States Copyright Law website at www. copyright.gov. Copyright protection is granted by law but is actually grounded in the Constitution. It is designed to protect original works and those works, whether they are poems, sculptures, music, drawings or photographs, must be in a fixed form. Ideas, to the contrary, cannot be copyrighted because they are not in a fixed form. As you might have ascertained already, many of the issues that freelancers deal with on a regular basis are intertwined. You can’t really talk about licensing images without talking about contracts since a contract will often determine if you retained the right to license. Further, you can’t really talk about copyright law without talking about how infringement impacts licensing revenue. All of the topics are linked but it’s necessary to isolate the subjects so we can hone in on the pertinent points.

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Top Ten “Must Know” Facts About US Copyright Law

1. Copyright protects original works of authorship. Tis applies to photographs, songs, sculpture, books, drawings and much more. 2. Copyright is initiated when it is created into a tangible and viewable form. For photographers, many refer to this as the point “when you click the shutter.” 3. How long copyright lasts depends on when the photograph was created. For work created on or after January 1, 1978, copyright lasts for the life of the author plus 70 years. For work created prior to that date, please consult copyright.gov. 4. If you sign a Work for Hire contract, you do not own the copyright. 5. Tere is a limit of 750 images in one registration and the fee in most cases is $55. 6. Te US Copyright Office (USCO) requires an Excel spreadsheet listing filenames, titles and date (month/year if published) with each registration. 7. Unpublished and Published photos cannot be registered together. 8. Te US Copyright Office will not decide for you what is considered “Published” or “Unpublished.” You must decide whether to register before or after publication. 9. If you register your work as “Unpublished,” you do not have to change that if/when the work is “Published.” Te USCO wants to know if the work is “Published” or “Unpublished” at the time of registration. 10. Te Fair Use provision of the law allows for use of copyrighted work to be published without consent of the copyright holder. I’m not going to go through the facts listed above one-by-one, but I will key on the most important points for you to gain a fundamental understanding of US Copyright Law. First, let’s address when a photograph

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is copyrighted. As noted above, an image is copyrighted in the United States when it’s “created into a tangible and viewable form.” But that leaves out a vital piece of information; the law requires that the photograph be registered with the USCO in order to gain maximum protection and to initiate an infringement lawsuit.

Copyrighted Photographs Fall into Two Categories 1. Unregistered Photographs Section 504(a) and 504(b) of the US Copyright Law pertain to remedies for unregistered images. Unregistered images are the photographs that are protected because they were created into a tangible, viewable form but never registered with the USCO. Or, to put it in photography lingo, the images were copyrighted when you clicked the shutter and did nothing further. Unregistered images provide remedies for infringement that are more limited than Registered Photographs. Tink of unregistered as images with “limited protection.” • Injunctions A court with jurisdiction over the matter may issue an order that stops or restricts parties involved in a dispute over the use of a photograph. • Actual Damages Te actual value of the image is what the photographer can pursue in an infringement case when an unregistered image is in play. Value is typically defined as the licensing fee previously received for the image or the provable standard licensing fee for the industry. In other words, if you have a proven $200 licensing fee history for an image, the “actual damage” is arguably $200. • Lost Profits Tese are difficult to prove in most cases, especially when the infringing party is using the photograph in question on an edi-

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torial blog or other similar use where “profits” are difficult to prove. However, if you can prove you lost profits, say, for example, by getting the infringing party to provide sales history for shirts sold with your image on it, then you’re entitled to pursue those lost profits. It’s a difficult process that can entail hiring experts that will cost money to the photographer bringing suit. 2. Registered Photographs Section 504(c) deals with images registered with the USCO. Registered images are those that the photographer has uploaded (or, in rarer cases, delivered on a disc) to the USCO website and met all the requirements mandated by the USCO. Tink of registered photographs as those with “full protection.” • In order to initiate an infringement lawsuit, the image must first be registered with the USCO. You cannot sue if the image is not registered. • Photographer may sue for statutory damages in place of actual damages. • Statutory Damages are damages awarded by a judge or jury and are set by a “statute.” Tese awards are typically at higher levels than Actual Damages (between $750 and $30,000) and, if the violation is found to be “willful,” damages up to $150,000 may be awarded. • Statutory Damages is easily one of, if not the, most important reason to register your images with the USCO. Tat’s not to imply that registering your images equates to big financial verdicts. Not at all. What it does mean is that the potential for an infringing party to pay significantly higher fees is often enough (in my direct experience) to force a fair settlement. • Allow photographers to recover fees paid to your attorney. • Tis is another factor that can cause the infringing party to sit up and take notice. With a registered image, if the infringing party does not prevail in a lawsuit, they can be held liable (and often are) for the photographer’s attorney

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fees. Most defendants realize this can be a heavy financial burden and thus choose to seek a reasonable settlement. • Registration must be made before the infringement commenced or within three months after first publication of the work. • Te date a photograph is used without authorization is the date of infringement.Te date of infringement is compared to the date of registration (as listed by the USCO on a registration certificate) to determine if the image was “Unregistered” or “Registered” when the unauthorized use occurred. Tis is key to whether Actual Damages or Statutory Damages can be pursued. • Basically, the USCO gives the copyright holder the “full protection” of registered images for 90 days from first publication regardless of if the image was registered. Tat means that the photographer has three months from the day the image was first published to register the photographs and still be able to sue for Statutory Damages even if the image was infringed before the copyright was registered. Here’s a hypothetical to help you understand: • A photo you took is f irst published on January 10, 2020. You have 90 days, or until April 10, 2020, of “full protection” under the US Copyright Law, even though the image is not yet registered. • A website publishes your photo without authorization on February 17, 2020. You still have not registered the image; however, the 90-day window is still in effect. • You discover the unauthorized website use and register the image with the USCO on March 19, 2020, well within the 90-day window. • You commence a lawsuit against the infringing party and can pursue them for Statutory Damages despite the fact that your image was not registered at the time it was infringed. Tis is permitted because of the 90-day window from first publication that the USCO allows.

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Registering Your Work with the USCO Te United States Copyright Law extends protection far beyond only images taken in the United States or by US citizens. In fact, any photographs that fall under the protection of the US copyright law may be registered, so make sure you pay attention to the list of “Top Ten ‘Must Know’ Facts” (see p. 88) because those will help define if the images fall under the protection. In most cases, for freelancers, the images will fall under the protection of the law. For example, a photograph that falls under the protection of the US Copyright Law must be “original” and the photographer must have the rights to the image. If the image is original, which will be the case for the vast majority of time, and you did not sign away your copyright (and you’re not an employee of a company), then the images fall under the protection and you may register them with the United States Copyright Office. As a citizen of the United States, your images may be registered with the USCO. Tis includes any images you take while in foreign countries but, again, I must stress that you always need to have the rights to register your images. If you signed away the copyright in a Work for Hire, or you are an employee of a company, you do not own the copyright and therefore cannot register the images. Foreigners may also register their photographs with the United States Copyright Office if they are a citizen of a country with which we share a copyright treaty, and there are many countries that fall into that category. For a full list, including the various treaties and agreements governing them, please visit www.copyright.gov/circs/circ38a.pdf or search the USCO website for “International Copyright Relations.” In addition, all unpublished photographs may be registered in the United States regardless of a photographer’s nationality, as can all works that are first published in the United States. Registering your photographs with the United States Copyright Office should be a standard part of your business. Whether you register photos during your assignment workflow, which is what I typically do to eliminate the question of “Published” or “Unpublished” work, or once per year as an annual registration, you should commit to protecting your work. In the section below I will walk you through the current online system for registering your images. However, before you create a login at https://

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eco.copyright.gov/, you must prepare your images to assure you adhere to USCO’s guidelines. Here are a few things you must do before you actually access the online registration system.

Preparing Your Images for Registration 1. Export copies of the images you are registering from Lightroom to a new folder. Images must be 600 pixels on the longest edge and 100dpi. Maximum number of images permitted in one registration is 750! 2. Te folder must adhere to USCO naming convention standards and those standards depend on if the images are being registered as Unpublished or Published. Failure to name your folder properly may result in delays or rejection: • Unpublished Images Folder Naming Convention in Order: • • • •

Number of photos (178) Unpublished Photos (must use this phrase) Title of Images (Mammoth Winter Lifestyle) Example: 178 Unpublished Photos Mammoth Winter Lifestyle

• Published Images Folder Naming Convention in Order: • • • • • •

Group Registration Photos (must use this phrase) Published (must use this term) Date Range (list range for when published) Number of Photos (178) Title of Images (Mammoth Winter Lifestyle) Example: Group Registration Photos, Published July 19–July 23, 2019; 178 Photos of Mammoth Winter Lifestyle

3. Compress the folder into a zip file. Te images are now ready for uploading. 4. Te USCO requires an Excel spreadsheet also be uploaded with the compressed folder. Te spreadsheet can be found on the USCO website or you can make your own, but it must adhere to their requirements. • Case number. Tis is assigned by the USCO online system when you begin the registration process.

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• Column for “Title of Photograph.” Tis is the same for each image (Example: Mammoth Winter Lifestyle). Tip: Type it in first line of spreadsheet and drag the cell down the column for it to populate to the row equaling the number of images being registered. • Column for “File Name of Photograph.” Tis is different from the “Title of Photograph.” Each image is required to have a unique file name. Tis is very easy to do! When you export from Lightroom, simply select the option to rename your images as “Custom Name-Original File Number.” Your images will then all contain the Custom Name that serves as the Title of Photograph (“Mammoth Winter Lifestyle”) plus the Original File Number assigned by the camera. Tat is now the File Name of Photograph and each image will be unique. (“Mammoth Winter Lifestyle-4619”). Tip: Go to your folder with all the images to be registered. Select All (Command A) and Copy (Command C). Now go back to your spreadsheet, place your cursor on the first cell in the “File Name of Photograph” column and Paste (Command V). Voila: the file names should all be listed. Here is an example of one of my registration spreadsheets for unpublished images.

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• If the images are being registered as “Published,” then you must also list the month and year each image was published in another column provided in the USCO “Published” images spreadsheet. 5. Save your spreadsheet with the following guideline: • Name the same as you did with your image folder but with the added case number. Example: 178 Unpublished Photos Mammoth Winter Lifestyle_ Case 1–7461670431.xls You are now ready to register your images!

Registering Your Images: Step-by-Step Visit at https://eco.copyright.gov/ and create an account if you don’t yet have one. Note that the system is best accessed via Firefox or Safari web browsers. Once your account is ready and your images and spreadsheet are accessible, follow these steps. Tis example is for Unpublished Photos since I register all of my work during workflow when the images have not gone anywhere (only from my camera to my computer). 1. Log in. 2. Select “Register a Group of Photographs” from menu at left.

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3. Select “Start Registration.” 4. Type of Group. a. Select “Unpublished Photographs” if Unpublished. b. Check “I Agree” box and Continue.

5. You are now on the “Titles” page. a. Select “New.” b. “Title of Group” box, use the title of your folder of images. Example: 676 Unpublished iPhone Italy Travel Photos c. d. e. f.

Fill in Year of Completion. Select Number of Images in the registration (Example: 676). Hit “Save”. Review the Titles page and select “Continue” to proceed.

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6. You are now on “Author” page. a. Hit “Add Me” if you have previously registered work or fill in the information. You want to do this as an “Individual” and not an “Organization.” b. You must answer the question in the middle of the page that asks, “Is Tis Author’s Contribution a ‘Work for Hire.’” c. Select “Continue” to proceed.

7. You are now on “Claimants” page. a. Select “Add Me” or fill in the information. Again, do this as an “Individual” and not an “Organization.” b. You are the author, so you do not need to select a “transfer statement.” c. Select “Save.” d. Select “Continue.” 8. You are now on “Rights and Permissions” page. a. Select “Add Me” or fill in the information. Again, do this as an “Individual” and not an “Organization.” b. Select “Continue.”

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9. You are now on “Correspondent” page. a. Select “Add Me” or fill in the information. Again, do this as an “Individual” and not an “Organization.” b. Select “Continue.” 10. You are now on “Mail Certificate” page. a. Select “Add Me” or fill in the information. Again, do this as an “Individual” and not an “Organization.” b. Select “Continue.” 11. You are now on “Special Handling” page. a. Unless special circumstances, you do not need any special handling. Leave all info blank. b. Select “Continue.” 12. You are now on “Certification” page. a. Check the “I certify” box. b. Type in your name. c. Add the spreadsheet file name with registration case number! (Example: 676 Unpublished iPhone Italy Travel Photos Case 1–8530567611). d. Select “Continue.”

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13. You are now on “Review Submission” page. a. Confirm all is correct. b. Select “Add to Cart.”

14. Select “Checkout.” 15. Select “Pay Credit Card/ACH” and “OK” when it asks if you would like to proceed. 16. Select Payment Option. a. Provide payment information. 17. Review and Submit Payment. a. Check authorization box to proceed. 18. Payment Successful Page. a. Select “Continue” to be taken to page where you will upload images and spreadsheet. 19. You are now on “Submit Your Work” page.

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a. Click on “Select files to upload.” i. Navigate to your compressed folder of images previously prepared and select. ii. Click on “Start upload” and upload your files. iii. System will display “Successfully uploaded” when complete. b. Click on “Select files to upload” again. i. Navigate to your spreadsheet file for the images you uploaded. ii. Click on “Start upload” again to upload spreadsheet. iii. System will display “Successfully uploaded” when complete. c. Click on “Click here to complete your submission after uploading all files.”

20. You are done!

Effective Date of Registration Te Supreme Court of Te United States in “Fourth Estate vs. WallStreet. com” ruled unanimously in March 2019, that the “effective date of registration,” basically the legal date of registration, is when the application has been reviewed and accepted by the USCO. Tis is a very important point. Previously, it was argued that the effective date was when application was

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accepted. With the new ruling, photographers will see a reference to the “Registration Decision Date” on the copyright certificate that is mailed to them that indicates the registration was completed properly. Receipt of certificate can take anywhere from several weeks to several months. Te USCO will notify you by email if your registration is incorrect or additional information (such as spreadsheet) is needed to complete the process. Based on my experience, the online registration process can take thirty minutes to complete when done the first time or two. However, after a few registrations you will find the process easy and relatively quick. I average about 5–10 minutes to register. Just remember to have your photos in a properly labeled, compressed folder (max. 750 images in one registration!) and your Excel spreadsheet properly completed and ready to add the Case Number once you open a new registration.

Te Fundamentals of the Fair Use Provision Te US Copyright Law first recognized a provision that allows for the sharing and publication of copyright protected work without the approval of the copyright holder in 1976 and it is designed “for purposes such as criticism, comment, news reporting, teaching, scholarship or research.” It’s called the Fair Use provision and is the most often cited defense by infringing parties when confronted by copyright holders. Te reason is simple; it’s widely misunderstood as a general, all-encompassing loophole for avoiding seeking permission and it can land unauthorized users in legal trouble. In my years of protecting my photographs against infringement, the Fair Use provision has been claimed by the vast majority of publishers I, or my attorneys, have contacted when an unauthorized use was discovered. Te problem with their claims that “we didn’t infringe because it’s Fair Use” is that Fair Use is a legal defense made in a copyright infringement lawsuit and supported by the defendant’s argument for why Fair Use is applicable. It’s not a blanket immunity that allows any publisher of copyrighted material to simply holler “Fair Use!” or, even more outlandish, to state on a website that all material is posted under the Fair Use provision.

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Large sections of books about copyright are devoted to the intricacies of Fair Use, but a sound understanding of the principal tenets is what most photographers need. Tere are four factors that comprise the Fair Use provision of the US Copyright Law that you should be familiar with. Again, it’s not necessary to hold a law degree to understand the fundamentals of copyright, but it is essential that you have a basic understanding of the chief components that you will confront as a freelancer.

Te Four Factors of Fair Use

1. Te purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes (this is not a free pass by nonprofits to use any work sans authorization). 2. Te nature of the copyrighted work. 3. Te amount and substantiality of the portion used in relation to the copyrighted work as a whole. 4. Te effect of the use upon the potential market for or value of the copyrighted work.

First, it’s vital that you understand that these factors do not amount to a checklist of sorts. In other words, a judge hearing a dispute where the defendant claims Fair Use will not go through these one by one and, if each is met, dismiss the case in favor of Fair Use. Te reality is that any, or several, of the factors can be cited but only one needs to be accepted in order for the defendant to prevail on a Fair Use claim. So, which one is most important? Lawyers, journals and intellectual property advocates will likely argue over the “most important” factor, but as copyright lawyer, author and expert Kenneth Norwick states in his book Te Legal Guide for Writers, Artists and Other Creative People, “Until fairly recently, the fourth factor – the financial impact of the use on the copyright owner – was considered the most important. But no longer. Today, the first factor is the most important.” Tis should not be interpreted to imply that the other factors are not sufficient for prevailing on Fair Use, but that precedent has set

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the stage for a dominant first factor. It should also be noted that rulings in Fair Use cases often vary according to where the case is being litigated. Tere are district courts that tend to rule more conservatively and district courts that tend to rule more liberally. Obviously, each case will have unique factors that could influence the outcome in an infringement lawsuit where Fair Use is the primary defense. Breaking down the factors will help you understand them, but I want to stress that there is no situation in which you should ever feel that the court, should you initiate an infringement case and the defendant claims Fair Use (again, the most common defense), will definitely rule in your favor. Te only definite is that there is definitely no definite in copyright infringement lawsuits. 1. “Te purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes” is the first factor. Basically, if a third party uses your image in a manner that does not transform the image to create a new meaning or offer a different purpose or understanding, then the Fair Use claim is likely to fail. For example, a politician used my copyrighted photograph of migrants scaling the US/Mexico border in its entirety during a campaign where immigration was a core issue. Te image was not transformed to create a new meaning or used for criticism or scholarly research. It was used in campaign material in the same context as it was originally created. Te judge ruled at the time against the defendant’s Fair Use claim based on transformation of the photo.

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2. Te nature of the copyrighted work is considered the second factor in Fair Use and it lends decisive consideration to whether the work is a factual interpretation or if it is a creative interpretation. Te law, it reasons, will lend a more liberal approach to Fair Use for work that has no creative input and restrict Fair Use if the copyright holder obviously employed creative input in creating the work. 3. Te amount and substantiality of the portion used in relation to the copyrighted work as a whole can also be an important determining factor in a Fair Use claim. Although it would be unfair to say that an infringement definitely occurred if an unauthorized user publishes 100% of your image, it is fair to argue that their Fair Use defense is diminished at the very least. In addition to the amount, you’ll also notice the word “substantiality” is referenced in the third factor. Tat means if an infringing party only publishes 75% of your image but it’s the most relevant, substantial portion of the image, their Fair Use defense is also likely diminished. 4. Te effect of the use upon the potential market for or value of the copyrighted work is the fourth and final factor to help determine if the image can be published without permission. It is also, as noted above, the factor that was considered the most important at one time and is still very relevant. In essence, if your work is used without authorization and you engage in licensing your images for revenue (either directly or through an agency), then you can argue that a determination of Fair Use will destroy the potential for your ability to license the image for revenue. Tere are two copyright infringement cases that highlight this factor. In a case brought against Fox News by the Bergen (NJ) Record involving the iconic photo by Tom Franklin of the “Raising the Flag at Ground Zero,” the judge ruled on February 10, 2015 against the Fair Use claim by Fox News. Te judge stated, “If other media companies are emboldened by Fox’s use of the image, it would likely destroy the Record’s robust market for licensing ‘Raising the Flag,’” as reported by Te Law360.com. On December 30, 2015, photographer Donald Graham sued appropriation artist Richard Prince and Gagosian Gallery

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for copyright infringement. Prince took an image of Graham’s from Instagram, rearranged the comments, added a comment and printed the image for display in an exhibition where images reportedly sold for up to $90,000. Te image itself was left largely untouched and used in its entirety. A key factor in Graham’s decision to sue is that the use and sale of the image impacts the potential market in which Graham also works. Graham has a noted history of selling images in galleries. As of this writing, the case, Donald Graham vs. Richard Prince, is still unresolved.

Combating Infringement in the 21st Century As the freelance photography world began its second decade of the 21st Century, a cottage industry of copyright protection services blossomed. Businesses such as PicRights, PicScout, Image Protect, IMATAG, CopyTrack, Image Rights, Pixsy, Permission Machine, Picture Protection Service, LAPIXA, Image Defenders and many more have sprung up to track infringement and help photographers recover lost licensing fees. Some are actual law firms and others are businesses that primarily offer tracking services (in addition to copyright registration services) and then contract with lawyers when, or if, necessary. But with so many companies emerging to take on infringers, it begs the question, “Why now?” Te easy answer is the transformation from print publishing to digital publishing, thanks to the growth of bandwidth, has resulted in the massive appetite for content, especially photographs, to fill all the blogs, websites and social media channels. Every corporation, non-profit, research institution, university, small business and global media company needs and distributes information in an endless cycle to stay connected and generate visits. Such a transformation was unthinkable a mere twentyfive years ago when publications were barely dipping their toes into web publishing in an era of dial-up modems and AOL. When print was the dominant, if not the only, means of publishing there was a serious cost factor and infrastructure requirement to put out a publication. As it was, distribution was done by transporting physical publications to the people who subscribed or purchased the publication at stores and newsstands. Because images were only appearing in print

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up until the mid 1990s, the likelihood of images being stolen and published elsewhere was minor compared to now. How could infringers get their hands on the images? Cut them from the publication and glue them into another? All joking aside, the print-only era provided a barrier to infringement that was all but eliminated when publishing went digital. As a photographer who began in the film era, let me give you some insight into how we distributed our work prior to the digital age. Obviously, there were no websites and no way to post our work for everyone to access. In order to get work from magazines like Sports Illustrated or Newsweek I boarded a plane and flew to New York where I would make cold calls in hopes of getting ten minutes of a photo editor’s time to show my work. Ten I would return to Los Angeles and hope that they would call with assignments. When they did, I would shoot the assignment and the film, usually undeveloped, would be shipped to the magazine. Te editors would choose what image(s) would be printed in the magazine and the slides would go back into a film sleeve. Te images would then be returned to me whereby I would re-edit and FedEx them to my photo agency in New York for archiving and licensing. Te agency would put the images in large file cabinets and log the pertinent information. When a publisher wanted to license a stock image from the archive, the agency would pull the appropriate images from the file cabinet, call a bike messenger, and deliver the physical slide (usually a duplicate or “dupe”) to the requesting publisher. Tat’s how images were distributed. As you can see, the images were hardly accessible to anyone. Tat’s not to say that infringement didn’t occur prior to the digital revolution. It did, but it was on a scale incomparable to today. As it stands now, images are posted, distributed, shared, downloaded and constantly accessible by everyone at any time. Te massive bandwidth expansion saw society go from waiting minutes through dial tones as a modem connected to a server to tapping our phones and downloading humungous files. Also, it should be no surprise that the financial barrier to publishing that was in place during the print-only era has been obliterated. Everyone and their mother publishes it seems. And with all that publishing comes a massive wildfire of unauthorized use as people look to fill their posts with photos.

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Te volume of infringement I’ve dealt with over the past decade is staggering. And the proliferation of companies now offering copyright protection services gives credence to the fact that infringement is a 21st Century photography plague capable of wiping out licensing fees for freelancers. Unless you do something to combat it, unless you seek to protect your work against unauthorized use, the plague will worsen. Nothing is more important to protecting your photographs than registering them with the USCO so you can effectively combat infringement. In an article on the PhotoShelter blog on July 18, 2017, titled “Now Tat You’re Outraged, Register Your Damn Copyright,” two copyright attorneys note the significance of using the law as a deterrent against future infringement. “One of the facts about suing and collecting through settlement or trial a large amount is that it greatly discourages future infringements. Suing is, for better or worse, a check-and-balance on corporate exploitation,” they explained. Taking a reverse perspective, if photographers choose to forego registering and protecting their work, it’s reasonable to infer they’re helping fuel the infringement pandemic.

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I have successfully recovered fees for unauthorized publication without the use of a lawyer as well as settled a number of infringement lawsuits with the help of lawyers. Te unauthorized publishers come in all shapes and sizes including large media companies, businesses, non-profits and individuals. Despite their difference, my intent is always the same; to protect my legal right to control how, when, where and by whom my photographs are used. Tis is especially true for photojournalists like myself who engage in documenting social issues such as immigration and racism. Images I’ve shot along the US/Mexico border dating to the 1990s (above), as well as images of white supremacists marching in cities (below), have been used by others without permission in manners I vehemently object to. Often, these images are used in a context that is the opposite of reality and espouse views that are inconsistent with my own experiences exploring the subject. Tis is why I am adamant about protecting my work and why I feel every photographer should take infringement as a serious affront to their work.

If someone wants to publish my work and their intention is legitimate, I will gather the appropriate information, write a license and collect

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a fee. Tose fees help offset the cost of doing business as a freelancer and are incredibly significant to sustaining a long, viable career. If those images are used without permission, it strips the photographer of income vital to funding their business, so freelancers have to take this seriously. Let’s look at a few things photographers can do to help protect against infringement.

How to Protect Against Infringement Te easiest way to make sure no one can access your work is to keep it on hard drives in your office. No website, no social media, no blogs, no publication. Obviously, that’s not going to work if you’re making your living as a freelancer! People need to be able to assess your work for potential assignments and you need to continually market yourself to others if you hope to create income. Yet, I’m always mildly surprised when I land on a photographer’s website that allows me to “RightClick and Save” an image, or their blog allows for an image to open large in a new tab when clicked on. Photographers have to understand how the platforms work so they can employ whatever means necessary to stop the unauthorized distribution of their work. Tere are some things you can do to make it more difficult for infringers to get your work. Remember, there is no perfect cure for infringement, but some things can help. • Do not release images to anyone unless images are licensed in writing. Do not just upload or send images to anyone. Instead, provide a link to galleries on your website for those who request images so they can view only. Do not provide download access or send images in an email. This is why you need a website with archival functions so you can easily provide links to galleries with “View Only” restrictions. If you do release images, do so by issuing a license with written details regarding use and distribution. Even if you do not charge a fee (like for an acquaintance), have them sign the license before releasing the image.

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• Watermark your images when possible. Adjust the translucency and placement when needed so your images remain aesthetically appealing. It’s well understood that watermarks can be removed, but it might cause an infringer to simply find another photo that is easier to use. Personally, I watermark every image on social media. • Know how your website and blog platforms work. I reference this above, but the point needs to be stressed. On PhotoShelter, the platform I use for my website and archive, they provide a simple box to check that effectively disables “Right Click & Save.” Anyone who performs that action from my website gets a blank file. Also, there are third party plug-ins that can be added to blogs and websites that also disable “Right Click & Save.” I employ one on my Wordpress blog. • Place licensing information in IPTC. Google now pulls copyright and licensing information and provides it with its search results if the proper information is embedded in the image. In effect, it serves as a “licensing badge” that can provide a direct link to the image in your archive while also displaying your name in search results as the copyright holder. Some people advise placing the link to licensing the image in the “Web Statement of Rights” section of the IPTC while others suggest placing it in the “Rights Usage Terms” section. I place it in both to make sure Google extracts the information, which it does. As I advise throughout this guide, you can set things up your own way, but what I’ve done is create a Licensing and Permissions page on my website and I place the link to that page in the two sections mentioned above. For the most efficient method, I include this link in the IPTC metadata template in PhotoMechanic and it’s automatically embedded upon “ingest,” the first step in downloading my images. However, older images already residing in my archive need to have the information added, so I enter each gallery on my PhotoShelter archive, select all the images and “append” the IPTC metadata with the link. Te image (below) of Henry Winkler shows the results and clicking the “Todd Bigelow Photography” link takes the viewer directly to the image.

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• Consider embedding fash slideshows instead of posting images. Flash is not as popular as it once was, and some even consider it outdated technology, but despite being scarcer than it once was, it is still a very secure manner by which to post images. By placing the images in a flash-based slideshow, the “Right Click & Save” function is rendered inoperable, which makes it more challenging for an infringer to download an image. By using flash you can link an image back to your website where the photograph can be licensed. Be aware that flash is not searchable by search engines so you will lose the benefits of SEO if your website is overreliant on it. Te manner of distribution has changed drastically since the print-only days and photographers must find the comfort zone between total protectionism

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and the haphazard, post-at-will approaches to distribution. It will likely be different for each photographer.

How to Combat Infringement In the previous section, I address a few things you can do to protect against unauthorized use. Protection is, in essence, the first step in fighting infringement but it’s by no means a cure-all. Tere will always be a way for others to gain access to your work without your permission, especially with technological advancements leading to screenshots with enough resolution to suffice posting online. In this section, though, I want to talk about how to fight back against infringement once it occurs. How to Search for Infringements of Your Work

Tere are several ways to begin the process of searching for infringements of your work.Te following are the three most common ways that I employ. 1. Reverse Image Search

Tis means you are going to use the actual binary data that is used to create the image to search the Internet. Te distinct advantage of this is that each image has mostly unique binary data that cannot be altered by the infringing party, so the image is more easily discovered by search engines. With popular browsers like Chrome, it’s even as simple as right clicking on a photograph in your archive and selecting “Search Google for this Image.” You can also select the image from your drive and upload it to Google by visiting images.google.com and clicking on the camera icon. Te thumbnail results pop open in a new tab for you to view. 2. Search Using Keywords Including Your Name

You would laugh if I told you how many times I actually discovered my images being used without permission by third parties who actually credit me by name, so I recommend using this approach as well. Keywords are equally vital to searching for infringements and will often turn up images that don’t always show in reverse image searches. I recommend starting by using very specific keywords to limit the results and then broaden your parameters until you are satisfied with the results. For example, my most often infringed image shows migrants scaling the US/Mexico border wall so I google keywords (after reverse image searches) using terms such

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as “immigrant climbing border fence San Diego.” I regularly search on Chrome, Safari, Internet Explorer and Mozilla browsers as well as using various engines such as Bing and Yahoo, in addition to Google. 3. Employ Tird Party Services

As mentioned above, there is a growing cadre of companies offering copyright protection and recovery services to freelance photographers. Some photographers choose this option to avoid the time and effort it takes to protect their photographs and to take advantage of proprietary software some companies use to search for images. Te choice is yours. One tip I want to pass your way regarding discovery of unauthorized use is to keep a list of images you either anticipate will be infringed or have discovered in the past that they were published sans authorization. My experience is that images related to political and social issues such as immigration, health care and racism would be infringed, as will images of famous people. Over time, I’ve determined a core set of images that are regularly infringed and I include those in my searches done several times per year. In addition, if I see on my site analytics that a particular image, or set of images, is receiving a large volume of visits yet there are no inquiries for licensing, I will add that image to a list for the next infringement search. If you think an infringement has occurred and want to address it with the unauthorized user, I recommend a specific approach that is based on a non-confrontational demeanor. I also recommend that you only do this if your image is registered with the US Copyright Office, as many will ask for proof that it’s copyrighted. Te purpose for me is to simply secure a license where one was not written. It is not to serve as a copyright attorney to secure a settlement. A settlement between two parties involved in a legal matter can result in higher fees being recovered, no doubt. But that is not necessarily the objective in all cases. Depending upon whom the infringing party is, I will decide whether to proceed directly or to pass along the information to an attorney for consideration on proceeding more formally. How to Address an Infringement of Your Work

1. Be sure the photo is your image. Many images look alike, so be 100% certain it’s yours.

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2. Take screenshots of all uses making sure to include URL in the image. Tis is vital as you must collect evidence that the infringement occurred before the image is removed from the website. You can enlarge the page so any date of posting is also clear to view. 3. Make sure to check the website’s social media feeds, as many will post the image on various platforms. Be sure to screenshot these as well. 4. Do some preliminary, simple research on the website, publisher and author of any story that is associated with the image. Google their names with relevant info such as “John Doe, publisher, XYZ Magazine” and use LinkedIn as well. For websites, use a domain database service such as godaddy.com/whois and search for to whom the domain belongs. Websites are often registered privately so that information will not always be available, but often enough the information is publicly registered. It’s worth the effort. You specifically are looking for email addresses. Te more the better. 5. If you wish to engage personally, you should now email the unauthorized user and ask if they can provide a license. Tis is a crucial step so proceed professionally, cautiously and unemotionally. If you have images being widely distributed from a photo agency, I would reconsider engaging in this manner as the image could have been licensed properly in a variety of ways including directly through the photo agency or through their subagents. a. Consider using a unique email address so emails are easily organized for reference. I use LicensingCompliance@ ToddBigelowPhotography.com. b. Consider corresponding in third person language and providing a general signature such as “Todd Bigelow Photography.” Te reason I do this is to provide a non-personal, business-only approach. I correspond only via email to create a paper trail. I will not respond to phone calls. c. Attach screenshots as well as a copy of the Copyright Registration. You can redact any personal address. d. If they respond, which they often will, you can lead them to ask for a retroactive licensing fee in order to seek a quick, fair, non-confrontational resolution.

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e. Do not issue a demand letter or reference this as an infringement settlement or that you are adding “penalties” of any sort. If they gave no indication of having legally licensed it or simply responded, as many do, “sorry, we’ll take it down,” then proceed to request additional information. f. Tank them for their response and ask them to list any and all uses of the image and any distribution to third parties. Ask them to remove all copies from computers, hard drives and servers in their control. g. At this point, you may mention that you often provide the opportunity for unauthorized users (avoid using “infringer” as it has a harsher tone) who have been kind enough to respond to purchase a retroactive license to cover the period of time the image was published. I typically phrase it this way: “Please advise if you are interested in receiving a quote for a retroactive license to cover the time during which you published the image.” Te way you ask is important. You should not demand anything or provide a fee without them first requesting a quote. If they respond and ask what the Retroactive License Fee would be, then provide them a professional quote. h. Te “Retroactive License Quote” you provide will be exactly like the quote you would have provided had they requested use before they published. Again, this is not a settlement nor is there a punitive fee attached. Tis is merely a way for you to recover lost licensing fees without engaging a legal service. Hence, the fee you quote must be supportable by previous licensing history or by the recommendation of stock licensing software such as FotoQuote. Tis is of extreme significance because you don’t want to be accused of trying to extort anyone (which is why you never demand anything) by quoting outrageous, unsupportable fees. If the situation is not resolved and you decide to pursue the infringer in court, their attorney will demand during the discovery process that all documents be provided, including your quote. Te quote supportable by licensing history and/or industry software would likely be seen by a judge as a legitimate, reasonable attempt to resolve the issue amicably as opposed to an unprofessional, extortion-

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like attempt. So, keep it real and use the professional invoicing templates provided by the software. 6. If you do not wish to engage personally, never receive a response, or the response is akin to telling you to drop-dead, then consider forwarding all of your information, including screenshots and contact info, to a copyright lawyer or service for review and consideration of a lawsuit. Photographers are too quick to discount the impact infringement has on their ability to earn licensing revenue. But the reality is that the fourth factor of Fair Use specifically addresses this issue, which is why I stress the need to protect against and combat infringement. Otherwise, photographers will see their licensing income deeply impacted. Common Excuses and Debunking the Myths of Infringement

Well, there’s no doubt we can all share similar stories of what infringers claim when confronted with unauthorized use. Let’s consider a few of the most commonly cited excuses and how those really hold up to what the law says. • “I didn’t post the photo. My website manager did.” Ignorance is not a legal excuse to publish copyrighted work. Infringers can be “vicariously” liable. Courts have ruled, “when a party has the right and ability to supervise or control the infringing activity and has a direct financial benefit, the party is vicariously liable.” However, the matter of “Willful Infringement” versus an “Innocent Infringement” can have a real impact on any settlement or ruling. • “I didn’t make any money from the infringement.” Profit is irrelevant to determining infringement but is relevant when determining damages. • “I didn’t know it was copyrighted.” Tis is like telling an officer that you’re sorry but you didn’t know the speed limit, therefore I don’t deserve to suffer any repercus-

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sions. Tat doesn’t fly. Te onus is on those who publish to know the law. All photos are copyrighted upon creation and those that are also registered receive additional benefits. • “Te infringement was a mistake.” Tis is also irrelevant. Infringement does not have to be “willful” or even have “specific intent” in order for it to be an infringement. • “It’s public domain because I found it on the web.” A myth. Unless a notice accompanies a photo that has literally been placed in the public domain for free use, assume otherwise. Needless to say, the public domain is not Google and Google is not a free marketplace. • “I hired the photographer, therefore I own the photos.” Not true. Te photographer owns the copyright unless they specifically signed away the copyright in a Work for Hire agreement or is an employee. • “What’s the big deal, I gave the photographer credit.” Tis is wholly irrelevant and has no basis in law. Credit does not excuse the infringement. • “I found it on Google so it’s their fault.” False. Google specifically cite in their terms: “Te images displayed in a Google Image Search may be protected by copyright, so we can’t grant you the right to use them for any purpose other than viewing them on the web. If you’d like to use images from our image search, we suggest contacting the site’s Webmaster to obtain permission.” As you go forward with your photography it’s of paramount importance that you take advantage of the US Copyright Law to protect your work, your business and assure yourself of all opportunities to generate revenue from your creative talent. Failing to do so will only serve to weaken the law at a time when infringement is rampant.

7 Licensing for Life Leveraging Your Images for Income

Licensing is the granting of use of your copyrighted, intellectual property for other parties to use, publish and display in a specifed manner and is a key source of freelance income. Much has been written about the demise of licensing images. Some of it is accurate and some of it is wholly inaccurate. Many claim that Getty Images and Shutterstock, the Walmarts of photo archives, have destroyed licensing for photographers to the point that it’s just not worth pursuing anymore. As I’ve said from the beginning of this guide, to each their own. If you are convinced it is too much trouble to license images, or there is no money in it, then skip this chapter because I’d hate to ruin your perception. For the rest of you on the fence or uncertain on how to create revenue from your images, I’m here to say that licensing is alive and, depending on your commitment and understanding of the process, well. First, I want to make sure you have a clear understanding of two crucial terms. 1. Licensing: Te granting of use of your copyrighted, intellectual property for other parties to use, publish and display in a specified manner. Te purpose is to control where and how the images are published while creating passive income. 118

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2. Royalties: Te payments received for the right to use intellectual property that does not include payments for the actual services rendered to create the intellectual property. Here are a few figures from 2018 about Shutterstock, as reported by PR Presswire on February 26, 2019, that indicate clearly there is a vociferous appetite for the licensing of images: • Tey reported nearly 180 million paid downloads, an increase of 4.4% year-over-year. • Revenue increased nearly 12% to $623.3 million. • Net income increased 625% to $14.9 million. Now before you start screaming that Shutterstock is a massive, corporate archive with millions of photos and worldwide distribution and you’re just a one-person band, I can assure you I get it. In no way, shape or form am I suggesting that you will ever approach even a fraction of those numbers, but that’s missing the overall point; the point is that the secondary market for images is robust and serves the digital world of mass content consumption. Your images can, and should, vie for a piece of that passive revenue, even if it’s just a small piece. Why? Because over time those small pieces of pie add up to a lot more than you can imagine.

Short Term vs. Long Term Play Licensing is too often viewed through a short-term loupe (look it up, it’s a tool from the film era) instead of long-term, which often leads photographers to conclude there’s no money in it. Tat’s just flat-out wrong. In fact, let’s flip the perspective from photographs to equities and view this from an investment perspective. When you invest, is it wise for you to only have a short-term strategy like a day trader? In other words, are you as an investor only worried about the next day, week, month or even year? Or do you think a long-term strategy built around creating revenue over decades is beneficial? Now return to thinking about your photography career and how to strategize for long-term success. Would you benefit from a strategy built upon creating multiple revenue streams (assignments, licensing, teaching) that will help sustain you over decades,

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or one that only takes into account the immediate future? Te reason this is so important is because just like investing, freelancers must build a foundation of diverse income streams to generate enough revenue to stay in business and provide for themselves and family long-term. Building those streams is like building a portfolio of equities. It takes time, foresight and patience. Te investor, or photographer, will see mostly small, incremental changes that appear miniscule in the short-term but over time prove that the investment was well worth the effort. In other words, “incremental” licensing fees of $150 for a single image might not seem like much, but viewed over a decade provides a different perspective when you realize it earned you thousands.

Te photograph above serves as a good example of how to view licensing. In the short-term, this rather mediocre image of mine was licensed for no more than a few hundred dollars each time. But over the course of several years, my agency successfully licensed the image for a total of $3256. No one is going to get rich from making $3256 over several years, but combine that image with many others and over time you will begin to generate passive income to help run your business. Te amount of money and

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volume of licensing will depend on a number of factors, some of which you can control and some of which are influenced by the market, but the fact remains that even small, individual, short-term fees can amount to larger long-term income, just like equities.

Building Blocks for Creating Licensing Revenue Te first requirement for creating licensing revenue is acknowledging the legitimate need for more money. I don’t say that lightly, either. Talking about financial realities in the freelance world, such as the need for income beyond what comes from assignments, is mostly avoided at photo conferences, exhibitions and banquets where panels are hyper-focused on photographers winning awards. Yet the vast, vast majority of freelancers need multiple revenue streams to eke out a living. Acknowledging this fact could only help the profession overall. I’ve been invited to speak at NPPA conferences, at ASMP chapters nationwide, and addressed peers, professionals and students at workshops in Los Angeles and elsewhere, so I’m qualified to state that most photographers must rely on far more than photo assignment income to pay the bills. Many also earn income completely outside the profession to get by as well. Te problem is not that photographers can no longer rely solely on shooting assignments; the problem is that people don’t talk openly about the real struggle to produce enough sustainable income. It’s the open little secret and the proverbial elephant-in-the-room combined into one. As a profession, everyone loves to talk about the award-winning photography and what photographers did to create great photos. I do as well, but they represent the 2% of the profession who are swept up to talk on a conference circuit. However, the reality is the 98% of the profession who quietly shoot headshots, take on public relations clients or drive for Uber to supplement their assignment income. Te profession rarely wants to talk about them despite the fact there’s nothing to be ashamed of. At a recent talk in San Francisco, one well-known freelancer who previously earned reliable income for major newspapers quietly confided that he was taking a gig manning a corporate photo booth at an event the next day. I told him I have nothing but respect for that, just like I told the longtime staff photographer who had been laid off and was driving for Uber while shooting freelance newspaper jobs in LA. Both are excellent,

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experienced photographers, but the profession has changed and freelancers must adapt to those changes. Acknowledging the need for additional income will hopefully influence photographers to see the value in licensing. Te income won’t show up overnight, but it will appear if the effort is made to make it happen. Ask yourself the following questions to start the process of creating licensing income. 1. Do you maintain an online, searchable, marketable archive of your images? Or are your photos sitting on an inaccessible desktop hard drive or in a fling cabinet?

Obviously, your images are not going to be licensed if they’re sitting in your home office on hard drives because the entire premise of earning licensing fees begins with making them easy to find and accessible. If your photos are not online yet, then you have to start by researching if your website has real archival functionality as detailed in the Client Development section. If not, consider PhotoShelter or do additional research to find a solution that works best for you. An archive, as previously defined, is a collection of images that, for your purpose, is readily available for others to access. Tink of it as your storefront that is comprised of the showroom, which are your images publicly displayed, and the stock room, which has all the rest of your images ready for retrieval but stored “in back.” Keeping that in mind, the platform you use to host your images should have the following “nuts and bolts” built into it. Te Images

What makes an archive work can be put into two words: Te images. Without images, you have little more than an empty digital stock room with zero value placed on it. And you must get rid of the idea that all the images in the archive have to represent your best images! No, that’s a portfolio and serves a different function. Your archive needs to be the digital equivalent of a retail warehouse where a lot of products are stored but not necessarily placed out in the publicly viewable showroom. Maybe the images are old or you simply don’t want every, single image in a public gallery for browsing. All that means is putting the majority of them in the

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“Unlisted” section of an archive. For some photographers, the process is simplified by uploading everything to their archive as raw, unadjusted files with only the significant metadata attached to aid searches. Te images themselves are unadjusted, large raw files, which reside in the “Unlisted” section (the storage room!) of the archive and are available for licensing. Te more desirable images can be adjusted appropriately and placed out front in the “Listed” part of your archive. Te advantage to this approach is obvious; it’s a huge timesaver not having to adjust every file you shoot and an image with metadata placed in the “Unlisted” section of an archive receives the same consideration by search engines than an image that is in a “Listed” gallery. So it makes sense, especially with an archive that has unlimited storage capabilities as many do, to upload vast volumes of raw files and make them searchable but “Unlisted.” Tere is a multitude of ways to make the images searchable on my archive. It will depend on the platform you choose, but mine is simple. I can either select the box “Make Tese Images Searchable” when uploading the entire take, or I can click on individual images and select the search icon. I can also select all the images after uploading them into a gallery and perform a batch action to make them all searchable. Below, you can see the icon indicating the image is indeed searchable.

Now, if you’re old enough to have shot in the film era, don’t assume those images are not valuable. If anything, they could be more valuable, so I advise digitizing those photos with a high-end film scanner and adding them to your archive (yes, it’s time consuming). Imagine being a tour

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photographer for a famous band like Led Zeppelin through their heyday of the 70s and 80s. Wouldn’t you want to make those tens of thousands of images easily accessible and licensable for the countless publications, blogs and music venues to view and potentially license? Point is, the main cog that turns the archival wheel is and always will be the images. Search Engine Optimization and Accessibility

SEO, technically known as Search Engine Optimization, is key to earning licensing revenue and allowing people to find you and your services. If you build your own website, or have someone build it for you, you will need to make sure you understand how SEO works and how to embed metadata and tags into your site. However, that’s not something I ever wanted to spend time on in an era when ready-made platforms are available and being used by tens of thousands of freelancers, myself included. I use an archive that already has strong SEO built into their platform and they even supply SEO icons to indicate the important fields that need to be filled out. See the example below.

So how does SEO help you? Well, first you have to understand that the principal reason for concerning yourself with how search engines operate is to elevate your digital presence. Strong SEO equals a stronger chance that a new client will find your website and hire you, or license your photography. So you have to take it seriously! Te good news, though, is that

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you don’t have to engineer it yourself, you only need to understand it and employ the resources offered in customizable templates. As you can see with the illustration (above), the SEO icons are available to me as clear indicators for where to place important information that search engines will trawl. For my PhotoShelter-based archive, I know to pay very particular attention to the Headline portion of the metadata field because that is what appears as the hyperlink text provided by Google at the top of a search engine result. It’s referred to on Google as the “Page Title” and the words chosen for the Headline section should be considered carefully since they are essentially viewed as keywords. In the example above, the Headline field says, “Several hundred people gathered for a peaceful protest in support of Black Lives Matter.” By keeping it short, I am able to assure that the search results will contain all of the information that’s relevant in one, short description for the viewer. I also made sure to include the most relevant information such as “peaceful protest” and “Black Lives Matter.” To be sure, the Headline is but one IPTC field and others such as Keywords and Caption will also aid in improving SEO, but it is an important one. Another factor that aids SEO is page-loading speed, so choose your site wisely and test how fast your pages load.Te principle behind Google weighing page-loading speed as an important factor is the same principle consumers apply to most retail transactions; speed means an efficient and quick transaction that tends to leave people happy. It shouldn’t be a surprise then that Google ranks higher pages that load faster since they want to deliver a quick, efficient “transaction” to those who use their service. Keep this in mind when you decide where to place your website or when you choose to have one built. You should also strive to upload fresh content to your site on a regular basis because search engines legitimize and reward sites that are consistently updated while ranking lower those that are perceived as stagnant. Gallery Creation and Distribution

Te basic concept of an archive is to have a home for all of your images that is easily accessible to others and easily provides for you the ability to manage your images. Tat must include the ability to create public and private galleries of images that automatically generate links, as this

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will streamline the delivery of images to clients. For example, if I shoot a protest and upload to my archive, I do it by simply selecting “Create New Gallery” and then drag the images onto the window. Once the images upload, a gallery is created that allows me to set viewing and downloading restrictions. I choose whether to make the gallery “Listed” for everyone to see on the website or “Unlisted” which means no one can see the gallery but me. An important note: Even unlisted galleries and their images generate SEO and are still completely accessible, just not by browsing the website. Tey’re only accessible via a link. However, both “Listed” and “Unlisted” galleries still provide an automatically generated link. I can place that link into an email and send it to a creative director to view and/or download images. Tese links are essential for you to maintain control of the promotion and distribution of your images directly from your archive. Below is what my archive looks like with each gallery having had its own link automatically created.

Lightbox

Taken from a term used often in the era of film, a lightbox in the digital era is a visitor’s own, self-curated gallery. Te functionality of a lightbox is that it allows for a visitor to select images that he or she is interested in licensing and “add” them to their own selection, or gallery, of images. Ten, they can share that link with another user to view the selection. So, how is this relevant? It’s simple; photo researchers as well as photo editors are tasked often with finding photographs to license

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for stories, marketing and advertising campaigns and more, but they often don’t make the final choice on how many or even whether to use the images. Tat choice is often left to a senior editor, marketing specialist or creative director, so when the researcher creates a lightbox of preferred images, they send the link over to the person who makes the final choice. Te lightbox creator and recipients can rate the images, comment on the images and otherwise indicate their preference and only they can see the photographs. Again, the ease in which this can be done facilitates the licensing of your images, which, of course, makes this a very useful tool for your archive to have. Below is an example of a lightbox on PhotoShelter.

Ability to License Directly Trough the Archive

It’s hardly a surprise that making your products available for online purchasing is a key to survival for any business. Te same is true for your archive just as it is for Getty Images, Shutterstock, Alamy and any other mega agency. Many image buyers are looking for easy, online access to images so it’s imperative that your archive offers online licensing. As I mentioned with SEO, if you choose to build your own archive platform you will need to know how to build into it the licensing software, but since I have more important things to do (and definitely many things I would rather do) than build an archive from scratch, I am once

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again going to use what’s already out there. My archive comes with the industry standard software built in so all I have to do is make my images available for licensing. 1. Create a pricing profle that refects fair fees and that will require a little research. I suggest purchasing a stand-alone copy of Cradoc’s FotoQuote software for that purpose, as it will allow you to see the recommended fees for particular usage. I basically have a few profiles that I apply to different sets of images. For example, one is for generic stock photos of landscapes and beach sunsets, whereas I have another profile for hard-to-find, unique images. Tose profiles will obviously have different fee structures. Once I upload new images into a gallery in my archive, I have the choice to assign them a pricing profile. If I think they’re somewhat generic, I select all the images that are generic and apply the generic pricing profile. If some of the images are unique, I can select the hardto-find profile to apply and so on. Applying the profile now activates the software so if anyone visits the gallery, likes the image and adds it to their card they will have drop-down menu options to help them create their license. Upon completion, they’re directed to pay for the license via a link to PayPal. Once the payment is made, the archive automatically sends the licensee a link to download, I receive a notification and a record of the license is recorded. Te important aspect to remember is to create a seamless opportunity for people to find and license images from your archive. Some will prefer to do it online and some will choose to contact you directly to inquire about a license (if contacted directly, then you will use the stand-alone licensing software to create the license, hence why it’s a good reason to have the software built in as well as separately on your computer). Below is an example of the various pricing profiles I have in place. Keep in mind that it is a choice to make images available for direct licensing via the archive. I do not make a lot of my work pertaining to social issues available via the website and note on the galleries an email for interested licensees to contact me. I do this so I can ask a few more questions to gauge the integrity of the request for what I feel are more sensitive photographs.

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2. Do you contract with a photo agency for distribution appropriate for your type and style of work?

Agency distribution will come with its own set of concerns, advantages and disadvantages. Without going into details on those at this point in time, it’s noteworthy that a photo agency can lead to wider distribution of your work and a higher volume of licensing deals. 3. Do you understand Search Engine Optimization, the importance of metadata, keywording and otherwise generating trafc for your photos to be licensed?

You don’t have to become an expert on the complicated way search engines rank your website and, ultimately, deliver visitors to your archive. However, you do need to know enough to generate the necessary traffic. Or, you can hire a company to do it for you, but that’s going to cost you. Among the information embedded in your images, keywords are king and are of paramount importance in not just the keyword section, but also with regard to image title, caption information and headline. A keyword is a descriptive word embedded into the image’s metadata that helps search engines find, identify and retrieve a photo for viewing when someone enters the term. Let’s take a quick look at keywording basics:

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• Place your photographer perspective aside and think in terms of a photo researcher, graphic designer, photo editor or even just a consumer. In other words, anyone who would search for images online. Tat means to not overlook the obvious in the photograph and to place those obvious terms in the proper keyword section of each image using your processing software. I recommend using either Camera Bits’ PhotoMechanic or Adobe’s Lightroom for keywording. • Try to keep your keywords around 20–30 with a maximum limit of 40. You don’t want to over keyword your photos and have people landing on the images if they don’t really meet the definition of the keyword. If you can’t do it in 20–30 words, you’re probably overthinking the photo. Use commas to separate the words and phrases from one another. Further, separate your phrases into separate keywords when appropriate. For example, a photo of a thunderstorm at sunset should include keywords such as “stormy sunset” as well as “storm” and “sunset.” • Do not apply the same keywords to all of your images from one shoot. Tat means laying off of the copy/paste function. Tere will always be irrelevant information applied to the photos if you batch apply keywords and that can be detrimental to those searching. • Your keywords should be editable online so that you may update them as needed in your online archive. For example, if you have a photo of an athlete, you would want to add the new team’s name if the athlete changed teams. • Choose your keywords carefully and place the most relevant keywords at the beginning because hierarchy counts. Now is the time to think like a researcher who is looking for photographs and be sure to include those keywords! Also, and this is often overlooked, a designer or photo editor whose design mandates a certain orientation for the photograph is almost always going to include that in the keyword search. In other words, if it’s a horizontal image, make sure “horizontal” is included in the keyword section. See the keyword box in the example below for an idea.

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• Te caption and especially the headline you choose are vitally significant so give proper attention to these sections. Te headline plays an oversized role in the keywording process and should be relatively concise. Tink about taking your top keywords and formulating a sentence out of them. In a perfect world, the words will form a coherent, appropriately descriptive sentence, but don’t worry if they don’t. Just keep your headline as descriptive and logical as possible while utilizing top keywords. Here’s another example below from the photograph of Venice’s Grand Canal. Te headline reads, “Venice, Italy’s Grand Canal is lit up at night in this long exposure.”

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• Again, when you decide on your caption information, do not overlook the obvious and tell the viewer what they’re looking at. For example, the photograph above has the following caption: “Venice, Italy and the Grand Canal is one of the world’s top travel destinations and lights up at night amid Italy’s beautiful architecture. Gondolas, water taxis and buses navigate the canal at night leaving a trail of lights.” It’s descriptive, has keywords embedded and provides context for the photograph. • When the image has people in it, be sure to describe the people using terms such as “woman,” “teen,” “senior” and “mother” as well as ethnicity, relationships and other descriptions. As an example, “An elderly Latino man and his wife stroll through the Zocalo on a warm, sunny afternoon in Mexico City with their grandchildren.” With that sort of description, search engines would likely direct someone to your image who is using keywords “Latino,” “Zocalo” and “grandchildren.” • Te location information embedded in the metadata and used in keywords will help your photographs rise in search results. All of my images contain the city, state and country, but I also try to include what’s called the “sublocation.” In the example of the Venice image above the sublocation is Grand Canal and the city, state and country is listed as Venice, Veneto, Italy, respectively. To state the obvious, these are important search terms for researchers looking for specific locations from specific places. After all, there are canals in Venice, California as well as canals in Venice, Italy, and there are many Saint Mark’s cathedrals, but only one Saint Mark’s in Venice, Italy. Suffice it to say that someone looking for those specific locations are certainly going to include “Italy” in their search. If your images don’t contain the country, they will fall behind in the search results to those that do. • Place keywords and descriptions on website pages and not just the images. Tankfully, there are platforms that have built the placement into the website and all you have to do is add the proper information where indicated. Te platform I use works seamlessly with Lightroom, PhotoMechanic and other processing/editing software to automatically populate the proper fields when the

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images are uploaded, so there’s really not much more that needs to be done. Below is an image taken from my online archive displaying an SEO icon where search engines will search for keywords.

In summary, the following IPTC fields should be filled out on all of your images in order to maximize opportunities for third parties to discover your work: • • • • • • • • •

Caption Headline Keywords Credit/Creator/Photographer/Author Copyright (place your © name since even unregistered images are copyrighted) Web Statement of Rights City, State and Country Location (Example: City is “Anaheim” and location is “Disneyland”) Date and Time (this is often pulled from your camera automatically)

4. Do you understand the various licensing models that are standard for the profession?

Licensing is as much about the terms of the transaction as it is the actual fee. Tat’s why I advise photographers to never answer a question about the licensing fee until you know the terms of the deal.

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Tere are basically two different models for licensing images and they both draw on the terms to set the fee.

Rights Managed License Te most popular model for freelancers licensing directly to clients is the Rights Managed (RM) license. Tis model provides the client with the rights specifically as requested and the fee reflects the terms requested. Te easiest way to explain Rights Managed licensing is to draw the comparison to dining at a restaurant. When you order food from the restaurant’s menu options, the meal price is calculated based upon what you ordered, right? Tat’s Rights Managed licensing. What you order is what you get, nothing more and nothing less. Te client comes to you and requests the use of an image and you deliver a quote calculated by adding together the various items requested. For example, if they want an image to use on the cover of a hardcover textbook plus the use in a downloadable PDF, plus use for a softcover, plus one revision to use in the same textbook but second edition, then you tally those up and deliver a quote. Often enough the client states they don’t have the budget sufficient to pay for the use. No problem. Just negotiate the fee lower to meet their budget by removing requested items. Tey can always come back again to request additional use when they have additional funds. Again, it’s the same as ordering food; if the customer only has $40, then they can’t afford to order an appetizer, entrée, dessert and drinks. Tey need to prioritize so their $40 budget will cover the bill. Factors Directly Infuencing the Fee of a Rights Managed License

• License duration (one month, two months, six months, perpetual, etc.). • Size of the image (½ page, ¾ page, full page, two pages, etc.). • Press Run (this is a term from the print era that refers to circulation. It can be adapted to websites by considering the Alexa ranking, or in the case of actual print publications, you can still reference circulation figures). • Uniqueness of the image (one-of-a-kind images are valued differently than run-of-the mill images such as beach sunsets).

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• Placement of the image (book cover, home page, inside pages of magazine, etc.). • Type of use (editorial, commercial, corporate, advertising, etc.). • How many platforms or publications receive the rights (one website, one magazine, social media channels, one film, PDF, print, web, etc.). • Revisions (are revisions, such as for textbooks, included? If so, how many?). • How many languages? • Distribution region (world, national, regional, etc.). Tose are some of the basic factors that will create a Rights Managed license governing the use of your image by a third party. Tere are others as well, but those are the main ones. Again, use the resources available to make your life easy. Te industry leading software is, as mentioned previously, FotoBiz and FotoQuote by Cradoc, Inc. When the various categories are selected, the software will provide a recommended fee range with the default being the middle figure. Of course, you can edit that number higher or lower as you see fit to adjust for the various other factors. Te image below is what the software looks like based on Print Run, Placement and Duration for a five-year textbook license. As an example, if the requested image is more unique and not easily found elsewhere, I would quote at the higher end instead of the default middle number. Further, I would increase the fee for additional uses such as printing in multiple languages, for incorporating the image into a PDF version or for wide distribution across affiliate websites. Te RM license not only provides specifics for how the image may be used, but also restricts additional use without prior, written consent from the copyright holder. I advise including boiler plate language in every license that specifically addresses that all uses are in writing and no other use is implied or granted without the prior, written consent of the copyright holder. Tat opens the door to clients having to return for additional rights when the original rights have been exhausted and more are needed. For example, I’ve licensed the same photographs to Pearson Education and other textbook companies, multiple times because I wrote detailed, specific licenses based exactly on what the companies requested.

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I also specified the restrictions. As a result, when the textbooks went to softcover and were revised for new editions, Pearson had to request another license for the use. In other words, a well-written RM license can generate multiple licensing fees from the same client over time.

Royalty Free License Te second type of license, Royalty Free (RF), is far more common when licensing through a photo agency’s archive such as Getty, Alamy, Shutterstock and the like. To draw on the Rights Managed analogy of ordering food at a restaurant, the Royalty Free license is tantamount to visiting a buffet instead of ordering individual items off the menu. In other words, you pay one fee and get unlimited trips to the salad bar. You don’t request individual items and receive an itemized bill. Instead, you get to eat as much as you want for one, single fee. That’s a Royalty Free license. RF licenses are extremely popular because licensees love images with unrestricted terms. For example, if a small, outdoor brand company wants an image to use in various brochures and websites to advertise their services, they’re more likely to gravitate to an RF image that has no restrictions than one that has to be carefully managed with each use subject to a fee. Agencies love the RF licensing model because it generates massive volume for them. Now, keep in mind this incredibly important fact:

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Mega agencies like Getty and Shutterstock are built on the mass volume for low fee model employed and perfected by Walmart. Te approach is for these agencies to license the images at very low fees that generate massive sales volume equating to eye-popping revenue. Further, and this is really important for photographers to understand, nearly all agencies offer monthly subscriptions to their clients whereby the client pays a monthly fee, which gives them access to a certain number of images each month. So, let’s say for the sake of explanation only that a subscription cost $200 per month and the client receives 50 images a month to use, each image is essentially valued at $4 per image. Te agency then takes a majority percentage of every license they write, often in the 60–65% range. So it goes to reason that mass volume equals mass revenue for them. However, that’s hardly the case for photographers because they do not receive a percentage of every license, they only receive a percentage of their images that are licensed via the RF model. With the RF fee low, only volume can make up the difference for photographers and that is not overly common because thousands of individual photographers create the overall volume. Hence, the agency, with their percentage of every license, benefits from the volume whereas individual photographers do not. Te Features of a Royalty Free License

• Usage length and terms are not an issue. • Image buyer receives all inclusive, perpetual license to use wherever, and whenever they choose for one fee. • Fees are largely dependent on image size licensed. • RF has evolved into various “subcategories” such as Editorial RF, Social RF, Commercial RF, etc. • No logos or trademarks are permitted in RF licenses unless accompanied by a release (very rare for this to occur). • Model releases required for all identifiable subjects. • Usually priced around $50–100 for small, low-resolution file size (web use) and $500 for full size, high-resolution file. Within the Royalty Free licensing model is microstock, or micropayment stock photography. Microstock is based primarily on the model

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employed by the behemoths of licensing, mentioned elsewhere in this guide, including Shutterstock, Getty Images and Alamy. Te business for microstock is based entirely on licensing massive volumes of royalty free images at incredibly low fees, ranging from one dollar or less to usually no more than ten dollars. Consumers love this option because most will only use the images in a digital format where the size and resolution of an image are far less important than they are for print (microstock images are typically offered in limited size and resolution to prevent use in print and other formats). Hence, the explosive shift from print to digital publishing led mega-agencies to move strongly into microstock where they leverage their enormous archives to create the volume needed for microstock to make financial sense. Approaching microstock as a freelance photographer supplying images to an agency should provide for a different perspective than one taken from the agency’s viewpoint. As I mention directly in the next section about choosing between Rights Managed and Royalty Free licensing, freelancers must have realistic expectations of licensing volume to make an informed decision on engaging in microstock photography. In other words, based on the type of photography you are supplying to an agency, do you think the volume of licenses will compensate you adequately for the extremely low licensing fees? It’s imperative that you understand how this model will, in all but rare cases, work in favor of the agency over the photographer. Te agency takes a significant percentage of every image licensed to a third party, so the volume is all but guaranteed to be high for the agency. With the high volume, those low fees will produce reasonable revenue. However, as the freelancer submitting images to the agency, you will only be compensated a percentage of your images that are licensed to a third party, not all images licensed. Tat’s a big difference. Tere’s no way for me to reasonably estimate how often your images may be licensed from a microstock photo library, but I can assure you it will be a small, but hopefully not miniscule, portion of an agency’s total licenses. As a hypothetical example, if your images in a microstock archive license 500 times for $1 each, that’s $500 total in licensing that the agency generated. You would likely receive about $175 total, or 35%

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of the overall licensing fee. Now, not to put a damper on expectations, but 500 licenses in a year would be viewed by most photographers as exceptional, so I would not expect that sort of volume and certainly not in the early stages of your career. Even if that volume is met, is $175 a year for 500 licenses a justifiable amount? You’ll have to decide the answer to that. Each photographer should take time to consider whether RF licensing in general will yield the financial results desired and if their images will meet the requirements stated above.

Choosing Between RM and RF Licensing Te key factor for determining which licensing model is best for your images is not black and white. All one can do is form a reasonable assessment on the potential for high volume licensing of the image. But, in the end, that’s merely an assessment and the reality will only be determined after a period of time when the image is available. Remember, an agency will likely push you to engage in RF licensing due to the income it will generate for them. Which means you need to consider the best manner for distributing your images. Are you going to rely solely on an agency’s archive for licensing revenue or are you going to license directly via your own archive? If the answer is reliance solely on an agency archive, you may not have a choice, as the agency will demand images that only can be licensed via their preferred RF model. But you will receive much wider exposure to image licensees. But, if you choose to license directly through your own archive, you decide how the images are licensed and for what fee while limiting yourself to a smaller pool of potential licensees. Te debate really boils down to a simple equation that I’ve used for years; lower volume with higher fees versus higher volume at lower fees. Which will yield the highest licensing revenue? Let’s look at a hypothetical situation below of how the same image can be licensed via both models. I’ve chosen an image from my archive that could be licensed either RF or RM. Remember, Royalty Free images should be logo free, trademark free and have model releases for any identifiable subjects because the images can be used in any manner, including commercial use.

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Royalty Free License via Agency

• Te image is licensed via a large agency’s archive fifty times during the year. • Te client can use it perpetually with no further fee required. • Te license is part of a subscription so it’s valued at $5 each time, or $250 for the year. • Te photographer receives 35% of the $250 commission. • Te photographer receives a total of $87.50 for the year for an image that is licensed 50 times. Rights Managed License via Photographer’s Archive

• • • •

Te image is licensed via your archive once during the year. Te license is not part of any subscription program. FotoQuote values the photo for use at $400. Te client is restricted to use as stated on license and any other use will generate additional licensing fees be paid to the photographer. • Te photographer receives 100% of the commission. • Te photographer receives a total of $400 for the year for an image that licensed once.

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Te hypothetical license should put into perspective the reality of licensing via a large photo agency archive. Yes, the volume potential is greater but your fee will, in the majority of cases, be exponentially lower, thus requiring a very high volume to bridge the fee difference achieved from Rights Managed licensing. Te situation is not meant to discourage you from licensing via an agency archive, but it should give you enough information to create an informed opinion. It should also drive home two very important points; the need to retain image rights so you can license, and the need to build your own online archive to create revenue.

Releases: When You Need Tem and When You Don’t For sake of ease and argument, a model release is basically a written consent from the subject(s) of the photograph that the image may be published or otherwise used in some capacity. Te prevailing misconception about making photographs available to others for publication is that signed model releases are always required. Tat is far from the truth. In fact, I’ve licensed images to others since the early 1990s and the overwhelming majority of my photographs are not model released. Why? Most of my photographs are being used in an editorial manner, not in a commercial manner, so no release is required. To put it succinctly, the prevailing factor for determining if a release is required is how the image is used or published, not who the subject of the photograph is. If your image will be used editorially, none is needed. If your image is to be used commercially, a release is usually required, though not if the subjects are clearly unidentifiable. Before we progress to determining what constitutes editorial use and what defines commercial use, it’s prudent to talk about the role of photography in America as it will help shed light on the debate over the need for consent from subjects. Taking photographs of newsworthy events and exercising one’s right to document important social or civil rights movements, or to just capture the essence of a country in turmoil, much as Robert Frank did in his iconic Te Americans project, is a right granted in the United States Constitution under the first amendment. In fact, it’s generally referred to as photojournalism. Te images are meant to inform the public and create a narrative to help enlighten viewers so they can serve as active participants in a democracy. Many of the most important photographs to sway public opinion have been taken during turbulent,

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troubling times; the civil unrest of the 1960s that spurred meaningful change, the protests during the Vietnam War and, more recently, massive protests against institutionalized racism and police brutality in 2020. When people turn out in public to exercise their own civil rights to gather in protest, or basically when a private citizen leaves the confines of their private residence and enters public space such as a street or park, they waive any reasonable expectations to privacy. Tis is especially true in the era where surveillance cameras mounted in public spaces are a constant reminder that you’re being recorded in public. Having no reasonable expectations of privacy while in public means that consent to photograph in public spaces in the United States is not required and, therefore, no model release is needed if the images are used in an editorial manner. To be sure, other countries have their own laws governing photography in public and many, like France, are quite restrictive, comparatively speaking. But in the United States photographers are not required by law to receive consent if the photographs are made in public and published to inform others in a narrative fashion, also known as in an editorial manner. Te debate over whether a photographer should obtain consent from those in public is one that is drawn on moral grounds and not legal grounds. Te argument goes that those in the streets protesting might not want their images distributed in magazines, on social media or in newspapers and they have the right to deny the use. No, they don’t. Teir expectations of privacy were, by-and-large, gone when they chose to enter public space. Further, the right to tell the important story of civil unrest via photographs used in an editorial manner is grounded in the first amendment. Seeking consent, or in any way altering the photographs to obscure identities, would serve as a restriction on photographers seeking to inform the public of newsworthy events or even just exercising their right to free expression. From a moral perspective, a photographer, especially a freelancer, should seek to maintain control of their image rights so they could say no to publication of their photographs in ways that are illegal, inaccurate or morally repugnant. Now, if a photographer wants to use photographs of people in public in a commercial manner, then consent of all those clearly identifiable is absolutely required. Te breakdown below will keep you on course for when you should obtain a model release from your subject (or from a property owner.)

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However, seek legal advice if you’re unsure or think the use falls into a gray area. As the old adage goes, it’s better to be safe than sorry. Commercial Use of the Photo: Model Release is Required

• Photo usage is basically determined to be “commercial” when it portrays the person in a manner where others will perceive that person to be sponsoring/endorsing a product, service or idea. An advertisement where a subject is seen as selling the viewer on a product is an obvious example of commercial use. • Identifiable properties or copyrighted artwork in public (such as the Korean Memorial in Washington, D.C.), require a property release for the image to be used commercially. • Release necessary for clearly identifiable subject. Unidentifiable subjects do not need releases. You will have to make the determination, but it’s safe to say that a person who is completely silhouetted or whose back is completely turned to the camera is usually considered unidentifiable. • If there is any doubt, get a release. Editorial Use of the Photo: Model Release not Required

• Photo usage is basically determined to be “editorial” when there is an obvious connection between a subject and a story, or there is a narrative connecting the image to a subject. • Typically, these are photographs dealing with social issues, themes, events and portraits and are most often published in newspapers, magazines, blogs, websites and textbooks. • Te image is not being published or displayed in any way that can be seen as part of an effort to “sell” or “endorse” any product, service or idea. Photography for Artistic Purposes: Model Release not Required

• Although a bit less common, this exception allows for artists, such as street photographers and documentary photographers, to shoot in public spaces and sell or exhibit limited quantities of work. • Tis right falls under First Amendment “freedom of speech” protection.

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Property Release Requirements

Now let’s take a moment to address property releases and when they are typically required. First, a property release is similar to model releases in that they are not required (though some clients still might ask for one) for editorial use of an image. Again, when considering if you must have a release before licensing a photograph, you need to think in the same context of model releases and ask yourself how is the image going to be used? For editorial use, a property release is not generally required. However, here are examples of when a property release is required when published in a commercial manner: • Landmarks or famous buildings that are identifiable and are key elements of the photo. • Private residences or buildings that appear and are easily identifiable through distinguishable architecture. Tere are famous architects such as Frank Lloyd Wright who copyright their designs and if there are images where these buildings appear in commercial application, a release is mandated. • When publishing photos where artwork or copyrighted books or other intellectual property are easily identifiable in a photograph. • As stipulated in the contracts section of this guide, be sure to know the photo policy mandated by any venue such as a concert hall, stadium or club. Te fine print nearly always includes a prohibition against using the image in any commercial manner, therefore a property release would be required. • Basically, anytime you are on private property it is advised that you obtain a property release for commercial use of the photos. However, if the interior or exterior are so generic as to be unidentifiable with the exact property, a release is not necessary.

Determining If a Release is Necessary: Real Licensing Scenarios With this information now in hand, let’s look at a real example for determining if a model release is required when licensing an image. I photographed Sir Ken Robinson, an author and renowned expert on education who traveled the world speaking about the need for transforming educational institutions. Te original assignment called for a portrait to run on the cover of Costco Connection, the magazine distributed to

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millions of Costco’s members. I retained the rights to the images, put them through my workflow, copyrighted them and uploaded them to my archive, which also serves as my website. Another magazine, Simple@Work, requested and published one of the portraits of Sir Ken. I received a licensing fee for the use and did not need a model release. Why? As detailed above, the question regarding a release revolves around “how” the photo will be used. In this case, it was to be

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used as part of a profile story on Sir Ken in advance of a speaking appearance. In other words, there was a connection, a relationship, between a story on Ken and the photograph. Terefore, it was an editorial use of the image and an editorial use requires no model release. Let’s now turn this real example into a hypothetical and assume that an insurance company contacted me to license the same image for use in a national advertising campaign selling life insurance to retirees. Tat would clearly be a commercial use of the photograph since the company would publish the photograph to promote “a product, service or idea,” and there was no connection between the subject of the photo and a story. In this case, a signed model release from Sir Ken would be required to license the photograph. Now let’s consider a different request that recently landed in my inbox as it will drive home the difference between editorial and commercial use. Te potential licensee is a company that requested the use of the image (below) taken during my self-generated photo project documenting my neighborhood during the Covid-19 lockdown. Te image shows a young girl and her friend taking advantage of the empty streets to ride their bikes, something that prior to the state mandated stay-at-home order would have been a death-defying act! Both of the kids lived on my street and their parents knew me, so I was able to capture a nice moment that reflected the fun they were having.

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Te lockdown project was licensed and published by NBC News with this image serving as the lead photograph. NBC neither requested nor required a model release because my images were telling a story about the coronavirus pandemic. At the time, I did not have a model release for any of the images because I knew the images would be licensed editorially, hence none would be required. However, several months later I received the following email requesting commercial use of the same image.

As you can see, the request is clearly made for a commercial use of the photograph and the potential licensee specifically asks if the image is model released. In this situation the person making the request has almost assuredly licensed images before and knows the difference between an editorial use and a commercial use. However, that is not always the case, which is why it’s vitally important for you to understand the difference between commercial and editorial use. Te company asking to license the photograph is not going to write a story about Covid-19 or adjoin the image with any other narrative. Instead, it’s going to use the image to help promote and sell the company’s services to potential clients. Tat is the key difference between how NBC used the image (editorially with a narrative about Covid-19) and how this company will use the image (to sell its services). In other words, it’s how the image is used that will determine in which cases releases are necessary. Since I did not have a release at the time the image was taken, I merely contacted the mother of the young girl whose face is easily identifiable

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and explained that the company wished to use the image and would she be willing to sign a release. She was thrilled by the idea and quickly filled out a written release. In return, I gave her a large file of the image to have printed and to use personally in any way. Although the second girl is unidentifiable in the photograph and therefore a release is not required for commercial use, I knew the mother well and she also agreed to provide a signed release. Had I not been able to get releases when the company contacted me, I would not have been able to enter into a licensing agreement for the commercial use and the image would only be available for editorial licensing. As you move forward with your licensing, simply keep in mind that editorial use of an image does not require a model or property release while a commercial use of a license does. If you’re concerned it’s a gray area, I suggest erring on the side of caution by not licensing the image commercially or acquiring a release.

Licensing for Revenue Starts with an Archive It may seem obvious to some of you but I’ve presented this material enough to know that it’s best to never assume everyone understands what an archive actually is, how to create one and, ultimately, how to leverage it for income. So let’s just start with a clear definition of a photo archive. A photo archive is a collection of photographs. Tere, that was simple! Tere are photo archives dedicated to institutions such as the Smithsonian Archive, the New York Times Archive or the legendary Time/Life Archive, all of which contain historic images. An archive can also be dedicated to specific subjects, such as an archive on civil rights or an archive on emancipation. An archive can also be all encompassing and include subjects of all kinds, from everyday life with the family to images from far corners of the world. It is the all-encompassing archive that relates directly to freelance photographers. To be sure, an archive does not magically appear overnight, nor will it serve any purpose beyond a static repository without your concerted effort. But those who understand the importance of an archive and dedicate time to creating and maintaining one will open a stream of potential income that would otherwise go untapped. But your archive must be accessible to others if you wish to leverage it for licensing revenue.

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I’m often asked if my website with my portfolio is different from my photo archive.Te answer is no, my website and my archive are both located at www.ToddBigelowPhotography.com. Which then leads photographers to ask if all of my images are on my website to which I usually answer, “no, only tens of thousands of them, but not every image I’ve ever taken.”Teir eyes usually pop out and a few will look at me as if they just realized I’m nuts. No, I’m not crazy by putting twenty-five thousand images on my website. I’m just interested in earning licensing fees. Tat’s all. Here’s the deal, my friends; if you think of setting up your website in a way that is standard for brick-and-mortar retail stores, you’ll get how an archive works. Let’s say you walk into a shoe store and begin looking around. What do you see? You see shoes in various colors, styles and sizes, right? Great. You browse around and find a shoe you like but it’s a vibrant green color that isn’t exactly your style. What do you do at this point? Do you just walk out of the store, or do you ask a store employee,“do you have this shoe in any other color in size 10?” My guess is you would ask the employee who then tells you,“Sure, let me go in back and grab one for you.” Wait, you mean there are shoes “in back” where you don’t see them but you can still buy them? Friends,“the back” is the archive! All the shoes don’t have to be out front to be available. It’s the same for freelancers with an archive. When someone lands on your website, it should be like walking into a retail store. Te visitor sees your portfolio; also known as the work you want them to see when they first arrive on your landing page. Tis is just like the shopper who sees the shoes out front when entering the shoe store. However, your site, just like the shoe store, also has a “back,” or an archive, that allows for visitors to view more images. Tey can also view the images in your archive by landing on the portfolio homepage and utilizing a Search option on your site that is akin to asking a sales associate to “search” in back for a specific item. Or, perhaps you have a Galleries menu link that lists individualized curated galleries such as Lifestyle, Outdoor, Travel and Sports for visitors to browse. Finally, and of vital importance, if you performed a professional workflow with keywords as recommended before uploading to your archive, search engines can find your images and visitors will be taken directly into your archive when the search engine link is clicked. In fact, the majority of visits will originate with Google and visitors will land on images that are not “out front” on your portfolio homepage.

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Hopefully you now understand that having tens of thousands of searchable, licensable images in your archive does not mean they are all out front for people to browse. Instead, they are completely accessible when requested, just not in plain sight. Tis allows for you to control the look of your website so it’s not overly cluttered with images while also maintaining a licensable, accessible archive of photos. Te reality is that most images are found via searches so it’s imperative that you make images available for people to find. Of course, the key to creating an archive is images, and there are basically two ways a freelancer can build one.

Ways for Freelancers to Build an Archive of Licensable Images Spend Your Own Personal Time Photographing with Your Own Equipment

Te most wonderful aspect of photography is actually getting into the field and shooting, and freelancers can do this any day of the week, any month of the year and every year of their life. Tere is no requirement for you to be on assignment to create an archive. In fact, the photo world has a term just for this type of shooting; stock photography. Just get out and shoot. Create images of everyday life including your family and friends at work, play, on vacation and at school. Whether hiking with friends, sitting in a café or commuting to work, by bringing your camera and shooting images of normal life you are building an archive of licensable images. So many of my most licensed images come from this first category including a family vacation, a day trip to an air show, my son playing baseball when he was young and much more. Here is just one example:

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In 2006 my wife and I decided we would take a vacation to Hawaii with our son. As I have always done, I brought my camera and photographed as we hiked the famed Waimea Canyon on Kauai. I continued to photograph the nearly two-week trip and when I returned home I put the images through my workflow and uploaded them to my archive. A little less than a year later National Geographic Adventure magazine emailed to ask about licensing the image. It turns out they were putting together a story on family vacations and thought the image would fit nicely as the opener for the story. I licensed the image for one-time use for $750.

I’m the first to recognize that the image is not an image worthy of praise, exhibition or award, which is precisely why the image was never out front on my website. It’s always been in the archive and discoverable by search engines or from someone searching my site specifically. Plenty of images that might not excite a photographer fit the need of designers, publishers and others who are willing to pay for the use. Te main purpose of having an archive is to appeal to a wide range of people and generate income for your freelance business. Before we move on to the second way to build an archive, it’s worth noting that spending your own personal time photographing goes beyond

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just shooting everyday life, vacations and friends on excursions. For photojournalists especially, it can also mean pursuing personal project work and ultimately making those images part of your archive. Tere are various reasons to pursue projects but chief among them is the desire to document something of interest without the outside control or interference associated with an assignment.Tis provides you with full autonomy to spend as much time and resources as you feel the project deserves but it also denies you assignment fees that would otherwise come from a client. However, with due diligence and an understanding of how to license, ingesting your personal project images into your archive can lead to licensing income that, over time, even surpasses the waived assignment fees. My long-term essay exploring immigration dates back to the 1990s and began as a personal project. It eventually turned into assignment work as publications delved into the issue and hired me to shoot their stories, but to this day many of my most published images were created on personal time and licensed to third parties. Te image of the father and son peering through the US/Mexico border fence is a prime example. Te image was shot in the early 1990s when I was venturing to the border on my own time, yet it’s been licensed many times over, including most recently by Newsweek, for over twenty years.

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Photograph on Assignment for Clients While Retaining Rights to Your Work

It goes without saying that your goal is to not just create an archive, but to create a client base that will feed you paid assignment work so you have a steady stream of work. Tat leads us to the second way you can build an archive; photograph on assignment for your clients while retaining the copyright to your images. However, you must be reminded that US Copyright Law is crystal clear in that a freelancer owns the copyright to their work unless they transfer it in a written instrument, typically a Work for Hire contract. WARNING: If you sign a Work for Hire contract issued by a client (many make assignment work contingent on agreeing to the contract), you do not own the images. If you do not own the images, you cannot place them in your archive. If you do not own the images and cannot place them in your archive, and cannot ever license them. In fact, licensing images after signing away your copyright would expose you to claims of copyright infringement of the photographs you actually created. Tus, a Work for Hire agreement transferring ownership of your images for a one-time assignment fee means you forego future income from those images. Remember how I mentioned earlier that so many of the issues addressed in this book are intermingled? It’s never truer than it is when talking about contracts, copyright and licensing! Tat’s because a client can take your copyright via a contract, which will prohibit you from licensing images from an archive. Please keep this at the front of your mind when developing clients. If you work with clients who treat you fairly and supply contracts, as examined in the Contract section, that allow for “unlimited use in original context,” then you benefit by being able to build your archive with all the images generated over time on assignment. If you choose to sign away your copyright to work with clients, the likelihood of developing a comprehensive archive that will generate future income for you is greatly diminished, if not eliminated. As I did above in regard to the first way to build an archive, let me give you just one, real example of how you can build an archive via commissioned assignment work and license those images for additional income. I was assigned to photograph the migrant crisis in November 2018 along the US/Mexico border by a non-profit client. As they normally do, they issued an assignment-specific contract, which clearly detailed the fee, payment schedule and, of course, the rights to the photographs. Te client

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received “unlimited web use in original context” and I retained all other rights, including copyright. I readily agreed and headed to the border. Upon completion of the assignment, I delivered the images to my client and uploaded them to my archive. My client promptly displayed one of the images on their website (below, top image). Months later my client requested the same image for a different use in a special report they were issuing. However, since the original context was the original web display by the client, the request for use of the same image in a different special report meant an additional fee was required. In summary, I received a licensing fee, in addition to the original assignment fee, for an image in my archive that I shot on assignment but was used by my client a second time in a different context (below, bottom image).

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Another example will help drive home the necessity for having the images in your archive for third parties to discover and license at a later date. Whereas the above example revolved around my client using the same image twice that generated a licensing fee, the following example is just as common but revolves around a third-party request to use an image, not my client. I was assigned to spend several days shooting an assignment for Sports Illustrated on a program for underprivileged kids, many the children of migrant farmworkers, to get involved in golf. As most feature stories go, the story had a principal subject who was a young boy named Jose. Te story was published in Sports Illustrated magazine in 2011. Te photo contract issued by the magazine at the time (which has substantially changed since) stated that I owned the copyright and licensing rights to the photographs produced on assignment. Te images were delivered to Sports Illustrated and uploaded to my archive after completing my workflow. Once the magazine ran the story, I made the images searchable and available for licensing. Seven years later I received a request from ESPN to use the two images below in a feature the channel was producing on Jose who was now about to enter college as a top-notch golfer. In summary, a third party, ESPN, agreed to license the two images for $1000 that I created on assignment for Sports Illustrated, after the images were found in my archive.

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Te relationship between assignment work and licensing income is a key one when it comes to building an archive. Tird parties who see the client’s work and simply Google the photographer’s name discover the images created on assignment for a client. With the images online, keyworded and discoverable via search engines, it doesn’t matter if the photos are “out front” on your website for everyone to browse or in “the back” where people find them by searches. What matters is that they’re discoverable.

Never Assume which Photos Hold Licensing Value Now that you understand how to build an archive, keep in mind that you don’t want to assume you know what images are valuable. Te common explanation from freelancers seemingly unconcerned about giving away their copyright or providing extensive licensing rights when signing contracts is that “the photos aren’t worth anything anyway.” I’ve heard this too many times to count and it is beyond bewildering to me. Exactly how can a freelancer determine if the portrait of a high school athlete they’re assigned to shoot will hold licensing value in ten or twenty years? Tey can’t. You need look no further than the example above where I photographed a child involved in a golf program who, seven years later, was the

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subject of a thirty-minute profile on the nation’s top-rated sports channel. I had no idea at the time that Jose would go on to earn early acclaim. How could I? But that’s precisely why I don’t hand over rights to my images in contracts. As it turned out, I was the only photographer with images of the young man learning the game years earlier, so the images turned-out to have licensing value. Tis situation has repeated itself time and again throughout my career as well as my friends and colleagues’ careers. Te other misnomer freelancers too often harbor is that famous people hold more licensing value than others. I’d argue that in most cases it’s the opposite. Certainly, a very strong portrait of an A-List celebrity, politician, royal figure or athlete will generate licensing fees over time, but the more common photos of the same people (such as red carpet celebrity shots, athletes performing in games, politicians at work) will hold relatively less value because new images are constantly flooding the market. Tose who publish these images in volume on a daily basis are not looking for a red carpet shot from five years ago, preferring instead to license whatever is the most recent and decent image. Conversely, images of the not-so-famous can often hold more value precisely because the market is not saturated with photographs of them. If the time comes for a publisher of any kind to publish photos you’ve created and placed in your archive, chances are that you can obtain a pretty fair licensing fee or, at the very least, have a stronger negotiating position. Let’s look at another example of why it’s important to not assume you know what will hold value over time. In 2004 I was assigned by Sports Illustrated to photograph a 14-yearold kid playing on a club basketball team. I didn’t receive much information regarding the actual story but was asked to essentially get images of Demetrius Walker during a game at a high-school gym. Unsurprisingly, the gym was old and had lights that were dim and pulsated, creating light fractions if I shot at a shutter speed higher than 125th/second. Great, right? Further, the kid didn’t play that much, but I managed to get a few shots that were worthy of publication, and I use “worthy” loosely here. Te truth is, the images pretty much sucked. I delivered the images to the magazine for publication. As I advise and explained previously, all of my images go through my workflow where metadata is applied and the images uploaded to

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my archive and made searchable. Trust me, these images would never go “out front” on my website for visitors to view as they were marginal at best and quite bad at worst. But, I also know that assuming the images are not valuable to someone is a very bad assumption for freelancers to make, so I uploaded them, forgot about them and moved on to other work. Six years later I received an inquiry from Random House for use of several images of young Demetrius Walker found on my website. As it turned out, the reporter for the Sports Illustrated article, George Dohrmann, continued following Demetrius and his teammates for years after the article first appeared and wrote a book about it called Play Teir Hearts Out. Guess who, for all intents and purposes, was the only one with photos of a young Demetrius Walker, now the main subject of the book? Yes, me.

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As uninspiring as the photos were, multiple images were licensed for the front cover, spine and inside placements for both the hardcover and, eventually, the softcover versions of the book. Why did Random House reach out to me? I had the images in my archive and retained the rights to them through the contract governing assignments for Sports Illustrated. In the end, I made $500 to shoot the assignment, but I made thousands on the license of mediocre images of an unknown 14-year-old kid. Tat’s why you should never assume you know what is or is not valuable. Instead, you should run all images through your workflow with particular attention paid to metadata, upload them to your archive and make them searchable for third parties to find. Tere are many examples of images I’ve licensed from my archive that were made while on assignment. Tere’s the young man I photographed for USA Today in Texas who I met as he walked out of prison for the first time in ten years of solitary confinement. Te images were delivered to USA Today, put through my workflow and ingested into my archive. On multiple occasions over the years, textbook publisher Pearson Education licensed the image for use in two textbooks. Te licensing fees combined were ten times the original assignment rate. Ten there’s the assignment I shot in 1999 for Te Washington Post. Te story revolved around President Clinton’s impeachment and was a portrait of Allan MacDonell, the Executive Editor of Hustler magazine. Again, the image was shot on assignment and ingested into my archive after completing my workflow. Fifteen years later a film production company interested in using the photo in their documentary film contacted me after finding the image in my archive.Te licensing fee was four times the original assignment rate. Lest you think this is something that only happens to freelancers who shoot assignments for well-known publications before placing images in their archive, I present to you a case that blows that theory to shreds, and then some. Somewhere around 2017 a photographer contacted me for advice. He was the school photographer for a private, all-girl high school in Southern California and, somewhat surprisingly, had managed to retain the rights to his work. Although the images were not in a personal archive, he wanted to know how to proceed since one of the girls from a few years ago recently became famous. Who was she? Her name

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is Meghan Markle and she had just agreed to marry Prince Harry and become the Duchess of Sussex. Te photographer was now sitting on years of portraits and event images of who, at the time, was just another high school girl, but would soon become a member of the British royal family. How’s that for an example of never assuming you know the value of an image? And it has nothing to do with whom you photographed on assignment for. Ultimately, I connected the photographer with Contact Press Images, a highly regarded photo agency, to handle archiving, protection and licensing of the images.

Tips to Remember About Licensing Photos I would like to emphasize some of the key points about licensing photos for income: • Licensing is a way for you to develop new clients who may hire you after they publish your stock images. One of my longest running assignment clients first came to me for a license to publish an immigration photo. • Hold onto the rights to your work! Tis point cannot possibly be overstressed, as it’s the backbone of the ability to create secondary income. You must pay attention to the terms stated in contracts provided to you by clients so you can retain the rights to license your images. Publishers understand the value or they would not try to grab the image rights that belong to you. Retain rights to your work and you can earn income throughout your career from licensing. • Have a strong image workflow with an emphasis on metadata including properly keywording and titling your images. Te most relevant keywords should appear first and you should think like a researcher, not a photographer, when applying them. In other words, include words like “horizontal” and “vertical,” or “low angle” and “close-up.” • Te income you generate from licensing can be set aside to invest in your business. From camera gear to computers and insurance, you should exhaust every opportunity to derive income from your photos to cover business expenses.

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• To facilitate licensing, alter your perception of your images to align with a more traditional business model; the images as products and not photographs. I advise this approach merely to emphasize the need to think of your freelance business as, indeed, a business. As a photojournalist, I remain concerned with how my images portray my subjects, and I strive to stay morally and ethically sound in my approach to licensing, yet I still structure my business to perform like a real business. As an example, my social-issue-oriented images such as immigration and racism are not available for licensing except by directly contacting me. Tey cannot be licensed directly through my website. I want to know who, how, where and why the images are being used because I don’t want to accept a fee from someone who will use the image in ways I do not condone. Other images, such as my outdoor adventure work, are available for licensing directly through my website as there is not the same concern for the images to be misused.

Real Licensing Inquiries In this brief section I would like to provide real emails that I’ve received requesting use of my photographs. By monitoring my website on Google Analytics I can usually see when visitors are engaging with a particular set of images and are likely to inquire about them. Typically, there will be a spike in views on certain images from one city, and then a lightbox is created and ultimately shared with others. For those who don’t know what a lightbox is, it’s essentially a way for visitors to create their own mini gallery of images they’re interested in. Only they can see the contents of their lightbox, but they can share it with whomever they wish. I control the lightbox permissions on my website, so no one is capable of ever downloading an image. It’s a very functional tool especially for designers, photo researchers and editors tasked with finding a number of images and then sharing those others before a decision is made on which to license. I will often receive an email inquiry regarding a license after seeing this type of activity on my website. I think it’s advantageous to share these emails from third parties asking for permission so you can see what to expect and what to avoid. I’ve

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included my responses as well. Each example below is real and, where necessary, redacted. Scenario 1: Email Licensing Request from the Subject of an Assignment

I photographed a subject for a client and made it clear to him and his personal assistant to reach out if they ever needed anything. Tis should be standard for every assignment you shoot. Bring your business cards and promotional cards highlighting your work and leave them with your subject. As you can see below, the subject did indeed contact me with a request for an image I had previously produced on assignment for a magazine. Before proceeding, read the email and think about what it’s asking, what it’s not addressing and how you would respond.

Teir interest is clear, but the email lacks the specifics necessary to create a license as well as any reference to the cost. Also, I never release images until a licensing contract is signed and, in most cases, the payment issued.

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My response makes it simple for them to understand what information is needed for me to provide them a quote. Since they only asked if they could “use it,” I wanted to make clear that their “use,” which is a vague term that must be defined, would depend on the terms and their acceptance of a quote.

An associate clearly involved in the publishing of the book provided the necessary information in their response above. Tis is important to note because it’s very common for subjects to ask for “use” of an image, which they will then pass along to their publisher, agent or marketing firm, without understanding that the fee is determined by the terms of use. Of paramount importance in the reply was the final bullet point; they would like “marketing/publicity” rights included. In other words, their original request to “use” the image, had I simply replied without asking for specifics, would have provided overly broad rights including marketing and publicity. However, that is a substantial increase in use and fees beyond just a cover photo and needed to be addressed in a line item on the quote.

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My reply above with the attached quote makes specific reference to the two main uses requested: book cover and marketing/promotional use. I included a discount because the subject was kind, professional and I believe in his work. Te instructions on how to proceed, specifically that the high-resolution image will only be released upon receipt of payment were included as well. My decision to release the image only upon payment is based on many experiences chasing payments after the recipient downloaded the image. I strongly advise to license this way except when dealing with long-term clients. As you can see below, the payment was made immediately and the image was released.

Scenario 2: Random Email Licensing Request

Inquiries for image licensing are mostly random third-party requests by those who have discovered my photos on my website. In the Client Development section of this guidebook I discussed how to leverage an archive for licensing, and how licensing can lead to clients discovering your work and commissioning you for assignments. I now want to share the email exchange as it reflects a typical request from a random licensee. Te initial inquiry was delivered via my website’s Contact page after the images were discovered in my archive. One of the first things to note when receiving an inquiry of this sort is any indication that the sender is knowledgeable about publishing others’ photographs. In this case, the sender specifically references seeking permission for the images and invites me to request additional information. From my experiences, this clearly indicates a serious inquiry from a person who knows how the process works and will likely result in a successful negotiation.

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I reply promptly to all licensing inquiries in a concerted effort to show the potential licensee that they are dealing with a professional who is responsive, courteous and helpful. Even if I can’t provide the information right then, I respond that I am currently away from my office but will respond to their inquiry as soon as I return. From talking to other photographers I’ve concluded that these small details are sometimes overlooked, but I’m convinced they can prove influential in turning the inquiry into a license.

Two main things I want you to keep in mind regarding my reply above. First, I requested additional information that impacts the fee and is necessary for creating the terms in the license. Remember, this is a Rights Managed license that is like ordering food at a restaurant; they tell me what they want and then I provide it along with an itemized bill. Second, the images were already in my archive with a gallery link so I simply

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provided that link to him for convenience. I set the permissions on the gallery for “Viewable Only,” not “Download.”

I received the answers I needed to more or less create the license, but there were still a few items that I needed to address. First, he references uncertainty regarding the final placement of the photos. When this occurs, you want to quote for a typical placement such as in the interior of the book while specifically restricting any use beyond such as covers or chapter openers as those are more expensive. Second, he also references uncertainty about the size of the image, another key factor for pricing the license, so I advise in these situations to quote a standard, ½ page usage. Again, restricting use to ½ page or less is key so if he decides to use it larger, the fee is required to be adjusted. Te fee and terms of the license were agreed upon, payment was received and the images delivered for use.

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Maximize Your Chances to Successfully License Your Photos Before moving forward into the next section, keep in mind the following if you hope to create income from licensing. • Work consistently and diligently to create your archive by creating images on your own time and by shooting assignments while retaining rights to your work. • Have a quality workflow in place that assures your images contain relevant keywords, titles and metadata and meet size and quality standards consistent with the industry. • Have an easy-to-use, functional archive to facilitate a seamless licensing process. • Work hard to develop contacts so that publishers look to you for stock images. • With your images already online and ready for distribution, respond quickly to requests. • Respond professionally via email to maintain a record of all licensing discussions. Create a folder in your email application dedicated to licensing. • Never send images to anyone without first agreeing to terms and fees. Let those who are interested view them on your website, but do not deliver images until the deal is done. • Be prepared to create a license in an efficient and professional manner. • Deliver the high-resolution images quickly and easily through your website.

8 Rates and Terms

Take into consideration your own Cost of Doing Business when quoting fees, but relative standards associated with the profession can help guide you through negotiations. “Why don’t photographers ever talk about the rates they charge” is one of the most common questions I am asked. I can’t speak for individual photographers but I can argue that it’s all about one word: Perception. Freelancers want their colleagues and peers to perceive them as successful so they mostly avoid talking about the low rates or egregious terms they accept for a job. Social media’s outsized role in the way freelancers build their reputation makes this especially true today and is evident in posts where photographers use the hashtag “#onassignment” or the go-to “#myofficetoday” in order to publicly share the fact they’re working. Make no mistake; I think it’s a good idea to bring attention to the work being done. However, what gets left out of posts and conversations overall is any mention of rates or terms accepted when agreeing to the assignment. It’s fair to say that freelancers are not likely to share the hash tag “#WorkForHire” or “#ShootingOnSpec” even though many sign Work for Hire contracts and agree to shoot an assignment on speculation with no assignment rate included.

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Several years ago, I was on an email list with many respected colleagues and peers who shot assignments for National Geographic, Time, Sports Illustrated and countless other major international publications. In one email exchange, a well-known photographer mentioned having accepted a flat-fee rate of $400 from a major international news magazine. As a reminder, a flat fee means the total fee for the shoot and includes all expenses. Te magazine had always paid a $400 assignment rate plus expenses and agreeing to eliminate reimbursement of expenses was, in my opinion, a desperate move by the photographer to land an assignment. Further, accepting the new terms, which amounted to a reduction in the overall rate, could set a dangerous precedent for the publication to start demanding the same from other freelancers. Whereas the photographer could have used their strong reputation to inform the industry about the perils of agreeing to the new terms, they accepted the terms and never, to my knowledge, addressed the significant rate/term change publicly. I’ve spoken to hundreds of freelance photographers in cities across America about rates, contracts and terms. In one southern city in 2015 I spoke with a photographer whose byline was frequently seen in the NY Times and who, after hearing me talk about the Times’ Work for Hire contract being a cause for concern to freelancers, stated that he never agreed to those terms. Well, let me just say that the photographer never shared the agreement with me and the Times has never been known for writing individual agreements to freelancers. In addition, several other well-known freelancers have shared the contract with me and it is the same each time; a Work for Hire. Yes, it is a joint Work for Hire but it is, nonetheless, a Work for Hire agreement that strips photographers of their right to control their work. In both of these examples, as well as countless others, the point is the same; freelancers want to raise their profile by talking about their assignments while choosing not to speak about the rates and/ or terms they’re accepting for those assignments. Tat’s partially why freelancers have little understanding of what rates or terms are offered by clients. Basically, no one wants to talk about it despite the fact it would serve to strengthen the profession overall. After all, knowledge is power.

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Assignment Rates Have Mostly Remained Flat Over Time While Terms Regarding Image Rights Have Changed Significantly It’s difficult to talk about where rates are without addressing where they’ve been. Similar to the beginning of the guidebook where we addressed the future of freelancing in comparison to the history of staff positions, it’s necessary to address the present rates by considering recent history. Let’s look at some assignment rates offered to me in 2000 and compare those to where rates should be in 2019 according to the most recent data available (I’m writing this in 2020) from the Bureau of Labor Statistics. As you can see below, many clients are paying rates that are actually less than they were in 2000 when inflation and cost of living is accounted for. Tat would explain the prevailing feeling among experienced freelancers that they struggle financially more today than they did twenty years ago. Even for those clients whose assignment rates keep pace or exceed inflation-adjusted projections, it often comes as a result of contracts stripping rights and future licensing income.

Terefore, looking only at rates fails to acknowledge the impact assignment terms have on freelancers’ ability to generate additional revenue from assignments. For example, Te Washington Post paid me a typical

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$200 assignment rate in 2000. Te terms were that I retained copyright and licensing rights and any further use, including by third parties, allowed for me to directly bill a licensing fee. What normally occurred was for other publications to contact Te Post and request to use an image. Te Post, in turn, would simply contact me and ask that I respond directly to the request. Although the license fees I charged were usually a couple hundred, the frequency served as a welcomed boost to the $200 assignment fee. In other words, the terms of the contract meant I often earned $400–$500 total even though the assignment fee from Te Post was only $200. Today things are different. Assignment terms, as detailed previously in the Contracts section, now often require photographers to give up the rights to earn secondary income from their images. As a result, a $200 assignment fee will, for the most part, only result in a total of $200 for the freelancer and that’s a huge problem considering inflation mandates a $303 fee to retain the same spending power. In other words, if a newspaper paid $200 for an assignment in 2000 and is now paying less than $303, the freelancer is actually earning less now than 20 years ago. Tat’s not how business is supposed to work.

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Viewing the graph immediately above would seem to indicate that most newspaper rates failed to keep pace with inflation until around 2014 and then rose steadily to outpace inflation. Tat’s not entirely accurate, however, due to two main reasons; the limited nature not only of the data set (mostly large newspapers like LA Times, NY Times, Washington Post, USA Today, Wall Street Journal comprise the data for fees), but also the increase in assignment rates coming at the expense of a decrease in freelancers keeping their licensing rights. Let’s return to the first graph detailing inflation-adjusted rates according the Bureau of Labor Statistics. We’ll use USA Today as an example. • USA Today assignment rate in 2000 was $250. • Inflation adjusted assignment rate in 2019 should be $303. • USA Today assignment rate in 2019 was $450. USA Today obviously exceeded the inflation-adjusted rate. Tat means freelancers shooting for them not only earned higher fees in 2019 than in 2000, but those fees, when adjusted for inflation, provided them more spending power. Tat’s good! Or, is it? USA Today is one of the newspapers that not only increased their assignment rates, but also changed their assignment terms significantly between 2000 and 2019. USA Today in 2019 mandates that freelancers sign Work for Hire contracts in order to shoot assignments for the nation’s largest chain. By doing so, freelancers relinquish all rights and title, including copyright, to the images and cannot license them for additional income in the future.Tat means the $450 is the total the freelancer will receive from an assignment. However, I shot an assignment in Huntsville, Texas for USA Today under the previous assignment terms of $250 and retention of all rights that resulted in licensing fees of $2207, or nearly ten times the assignment rate. If I had shot the same assignment under the Work for Hire terms, I would have earned the $450 and nothing more. When viewed with the extensive rights demanded by the change in terms, the increase in rate is put in a more realistic perspective. Put another way, would you prefer the potential to earn a total of $2457 ($250 assignment rate + $2207 licensing fees) or a guaranteed $450 maximum?

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Remember, there is no way on earth to determine with undeniable certainty what images you shoot on assignment will prove licensable, so it’s advised you retain the rights to your work so the assignment fee can be supplemented by licensing fees. Obviously, freelancers should seek clients who offer assignment rates that outpace inflation, but take the blinders off the rate and cast a critical eye on the terms before deciding whether to engage with the client. Rates for magazines, corporations and non-profits have also mostly failed to keep pace with inflation since 2000 leaving freelancers with less spending power and feeling like they’re struggling more now than before. Below are graphs using the standard rates I’ve been paid over the years from a number of well-known magazines, corporations and non-profits. Te figures also correspond with the rates many of my colleagues report earning as well. Te chasm between inflation and rates grew throughout the last twenty years as rates mostly failed to keep pace with the cost of living. It should be noted, although it’s likely understood, that cost of living is a variable in and of itself depending on where you live as well as how you live, but the fact remains that consumer goods and basic living expenses have gotten more expensive while freelancers’ fees have mostly remained flat.

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What can freelancers do to bridge the gap? Tere is no one solution, but there are a number of things that can be done to lessen the impact. One, you should give serious consideration to whether or not you are effectively leveraging your photographs to earn additional income. If you’re giving

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them away in contracts, you’re foregoing a much-needed income stream from licensing. Reconsider that decision. Two, spend time developing clients that might be less known than major publications or corporations but who provide fair contract terms and assignment fees. My experience is that there are clients willing to pay fairly but may not be household names like the NY Times or Sports Illustrated. Find them.Tird, attempt to negotiate when clients offer substandard rates and/or terms. Remember, you’ll have to give something up in order to get something, but compromise is part of doing business so you should embrace it. Some clients are open to negotiating and some subscribe to the “take it or leave it” approach, but the worst a client can say is “no,” so give it a shot.

Assignment Rates from Editorial, Corporate and Non-Profits Please keep in mind that the rates and terms listed here are those that I have personal knowledge of by either having shot assignments for the client, having received information from an editor, or from a professional colleague. Attempts at confirmation for some with whom I have not directly worked have gone unanswered. Historically, all publications have been reticent about openly discussing or sharing their fees because it would limit their ability to offer different rates to different people, and for different assignments. Tat being said, the rates and terms may have changed by the time you read this, so please do your own research by speaking to colleagues and researching online. If you freelance for a client not listed here, use these rates as a ballpark figure to guide you moving forward. Newspapers

• USA Today (owned by Gatehouse Media) • $450 and a Work for Hire contract. •

Te Washington Post • $350 with perpetual rights and Getty Images distribution. • $250 without Getty Images distribution agreement.

• Wall Street Journal • $400 and the photographer retain rights to the photos.

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• Los Angeles Times • $350 with perpetual use of the photographs. • Southern California News Group (11 Dailies owned by Digital First Media) • LA Daily News, Orange County Register, Riverside Press Enterprise, Long Beach Press Telegram, San Bernardino Sun and more. • $125 or $65 for Breaking News and a Work for Hire contract. •

Te New York Times • $450 or $300 for “shorter” assignments. Work For Hire contract with joint copyright.

•

San Francisco Chronicle • $250 for half day, $350 full day flat rate (expenses not covered). • Perpetual use by Hearst newspaper chain. 90-day embargo meaning you cannot do anything with the images for 90 days after publication.

Magazines, Print and Online

• Sports Illustrated • $650 with perpetual, free “brand rights” as discussed in the Contract section. Te brand rights mean free use by any publication, product or service that displays the name, trademark or logo of Sports Illustrated. • Time • $650 with perpetual, free “brand rights” as discussed in the Contract section. Te brand rights mean free use by any publication, product or service that displays the name, trademark or logo of Time. • People • $650 with perpetual, free “brand rights” as discussed in the Contract section. Te brand rights mean free use by any

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publication, product or service that displays the name, trademark or logo of People. • ESPN • $600 with brand rights requested in contract. Photographer retains copyright. • Negotiable contract. • VICE • $750 assignment fee. • “Kill Fees” of either 25% or 50% of the assignment fee are possible for unpublished assignments. • Work for Hire contract. • Fortune • $650 with perpetual, free “brand rights” as discussed in the Contract section. Te brand rights mean free use by any publication, product or service that displays the name, trademark or logo of Fortune. • Bloomberg Businessweek • $850 with a 90-day embargo. If the image is used again, Bloomberg will relicense the photo from the photographer. • Smithsonian • $500 and photographer retains rights to their photographs. • Vanity Fair • Up to $2000. Work for Hire contract. All rights including copyright transferred to Conde Nast. • Mashable • $450 and photographer retains rights to their photographs. •

Politico • $500 and photographer retains rights to their photographs.

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• National Geographic • $500 Work for Hire with Nat. Geo. licensing the rights back to the photographer. • Te Athletic • $200 Work for Hire. All rights and copyright transferred to Te Athletic. • A growing powerhouse in sports media. Wire Services and Agencies

• Associated Press • • • •

$250 for “shorter” assignments that some refer to also as half-days. $375 for longer assignments. Flat rate. Work for Hire contract. All rights including copyright transferred to AP. • Dependent upon city. Larger metros tend to pay in the range above. • Tomson Reuters • $300 and Work for Hire. All rights including copyright transferred to Reuters. • USA Today Sports • $150 and Work for Hire. All rights including copyright transferred to USAT Sports. • Flat rate. • Getty Images • $250–$500 and Work for Hire. Copyright transferred to Getty. • Fee can vary according to which “service” the contract is assigned to such as News, Sports, Entertainment or “Paid Assignment.” • “Spec Assignments” are also common, which means no assignment fee is paid but a percentage of fees are paid if images are licensed.

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Foundations and Non-Profts: National organizations have a range around $650–$2500

• Te majority of work in this category comes with a Work for Hire contract. • Most non-profits and foundations don’t typically have an infrastructure to track usage and they require extensive use for fundraising and marketing. • Negotiating for perpetual use as opposed to a Work for Hire contract is an option so it’s recommended you try. • NGOs like Mercy Corps and others pay from $600–$850 on average. • National non-profits vary as well, but $1000–$1500 is standard but can go to $2000. Corporations

• $1500 on the low end and $3000 on the average to higher end. • $2500–$3500 for multimedia as a one-person crew shooting B roll, recording interviews and delivery to client. Fee does not include post-production work. • Tis is a broad category and includes corporate publications, marketing, annual reports, events, executive headshots and more. • Similar to non-profits and foundations, corporations like to have unrestricted, perpetual rights to the images. • Try to retain the copyright and licensing rights. Executives in the corporate world can be newsworthy figures likely to generate third-party licensing fees. My point in sharing this rate information is not to criticize or promote any one client but to provide knowledge to others where it is mostly lacking throughout the profession. Rates and terms are not openly addressed as often as they should be, so my intention is to provide a bit of transparency. Whereas the rate and general terms give you a glimpse at what an assignment should pay, you must abide by all contract terms provided to you by the client. Don’t simply accept an assignment based on the rate alone. Read the full contract!

9 The 1099 Life

All responsibilities for running a business, paying local, state and federal taxes, maintaining records, paying assistants and providing for retirement are yours. Take them seriously. In this chapter you will discover that being a freelancer requires far more than the ability to create images, operate an efficient workflow, maintain an archive and develop clients. It takes a strong understanding and adherence to state and federal tax law governing independent contractors as well as a keen awareness of a myriad of accounting practices. At the heart of all that is the 1099 Internal Revenue Service form. But before we even get there, let’s make sure you understand that being issued a 1099 depends on first filling out a W9 form. A client nearly always requires a W9 when you shoot for them and it can be downloaded from the IRS website (www.irs.gov/forms-pubs/ about-form-w-9). Once you fill it out and sign it, keep it on file and simply change the date when a new client requires you to submit it. Basically, the W9 contains your Taxpayer Identification Number (TIN), which is your unique, nine-digit number that identifies you to the Internal Revenue Service. Your Social Security Number (SSN) is most often used as your Taxpayer Identification Number, so don’t fret that you need a special number. Now, if you’re beginning to think that I’m describing the same 181

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form you’ve filled out as an employee, known as the W4, you’d be mistaken. I forgive you, of course, because the general purpose of both forms is the same, but there is one key difference; the W9 is used primarily for independent contractors, or freelancers, because no taxes are withheld on payments to freelancers. Don’t misunderstand what I just said to mean you don’t owe taxes on the income! As you’ll see below, it’s merely your responsibility to withhold the taxes from your payment, not your client’s. As a result, the W9 does not contain the same boxes where the client would place the withholding amounts. Here’s what a W9 looks like:

Te first line is your name as it appears for tax purposes, so if you file under your normal name, that’s what you place on the first line. If you have a business name, you will place it on the second line, but keep in mind that you don’t have to have a business name if you’re doing business

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as a Sole Proprietor. If you do, place it on line two. Te third section is where you’ll check the box for the type of business structure you have in place. I discuss your options a bit further into this chapter; so suffice it to say now that you’ll simply make that selection accordingly. You probably don’t have any exemptions to select in the fourth section, so proceed to providing your address on the following lines. Line seven is for providing a bank account number but it’s advised that you don’t provide banking information on this form. If your client wants to issue you direct deposits, they’ll provide you separate instructions. Make sure to place your Social Security Number, or Taxpayer Identification Number if you have one, in the second section before signing and dating the form. Tat’s it, you’re ready to receive payments from your client. Once your client has your W9, they’ll keep it on file for future reference and issue you a 1099 form every tax season. A 1099 is literally the tax form for “Miscellaneous Income”, or “Non Employee Compensation,” and is provided annually to freelancers by clients for work done throughout the calendar year.Tink of it as the freelancer’s version of the better-known W2 tax form provided by employers to their employees. Despite its name, there is nothing miscellaneous about the 1099 form. It’s the single most important financial document in a freelancer’s life. However, it’s hardly a comprehensive form with numbers in various places. In fact, it typically contains just one

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number in one box; the Nonemployee Compensation paid that year, which is listed in Box 7. Te boxes for state and federal tax withholdings, Medicare and Social Security are left blank. Why? As a freelancer, the responsibility is on you to withhold your own taxes and send them to the proper agencies by the required deadline.Tink of being a part-time accountant as just another of the many hats you’ll wear as a freelance photographer. In addition to empty boxes for tax withholdings, Box 2, which is for royalties, is left empty the overwhelming majority of time. Tat is unfortunate and significant because royalties, which are the payments received for licensing photographs, are not only a vital part of a freelancer’s income, but are often taxed differently. Royalties do not involve you providing a service, such as shooting an assignment, and are payments received by you for granting the use of your intellectual property; therefore, they are generally seen as not being subject to the “normal” income tax withholdings. I advise that you always check with your Certified Public Accountant, but this is the information I’ve received for nearly three decades from my CPA.

Taxes for Employees vs. Freelancers Basically, the manners in which taxes are paid to the government depend on whether you are an employee or a freelancer. As Table 9.1 shows, if you are an employee of a business (such as a staff photographer at a newspaper), your employer is responsible for paying one-half of your Social Security Tax and one-half of your Medicare Tax, the total of which typically hovers between 12–15% annually. As the employee, you are responsible only for the other half. Te IRS, on the other hand, sees a freelancer as both the employee and the employer, therefore you are responsible for paying the full amount of Social Security and Medicare taxes, although half may be claimed as a tax deduction. Te burden of paying the additional 50% Social Security Table 9.1 Employer and freelancer tax obligations Employer Tax Obligation

Freelancer Tax Obligation

Pays 50% of the Medicare Tax Pays 50% of the Social Security Tax

Pays 100% of the Medicare Tax Pays 100% of the Social Security Tax

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and Medicare tax is referred to commonly as the Self Employment Tax. Understanding the key difference in tax responsibilities between freelancers and employees is important for several reasons, one being that royalty income is often not subject to the Self Employment Tax. Terefore, it’s imperative that royalty income and assignment income be clearly defined to your accountant so necessary adjustments can be made to avoid paying taxes when it’s not required. After all, the Self Employment tax is equivalent to about 7.5%, so the tax savings can be visible noticeable. Let’s break this down as simply as possible by looking at a hypothetical situation. Let’s say you photographed an assignment in 2010 for a $600 assignment fee and put the images into your archive. For the 2010 tax year you should have paid the full 15%, or about $90, toward your Social Security and Medicare tax responsibility because the income was subject to the Self Employment Tax. Fast forward to 2019 and a documentary film producer licenses two of the images from the 2010 assignment for $3000. Te production company then provided you a 1099 form for 2019 listing the $3000 in the “Nonemployee Compensation” box. However, no services were involved in 2019 since the film producer was merely granted rights to use your images, therefore the $3000 is actually royalty income and is likely not subject to the Self Employment Tax. Te potential tax savings is $225, or about 7½% (the Self Employment Tax) of the $3000 royalty. In any event, the responsibility falls wholly on the freelancer to maintain excellent financial records in order to accurately account for the income generated from assignment work as well as the income generated from licensing. Most clients, in my experience, fail to differentiate between the two incomes and send an inaccurate 1099 mostly due to laziness. Te client knows it is far easier to just list the entire annual amount paid to a freelancer as “Nonemployee Compensation” than it is to keep separate records of service income and royalty income. Tat’s why working with a good accountant with knowledge of the freelance photography world will help you avoid paying unnecessary taxes while also aid you in navigating the complexities of tax law. One common misconception is that if you don’t receive a 1099 the income is not taxable. Tat is categorically inaccurate. Te threshold for a client to deliver a 1099 to a freelancer is payments of $600 or more for the year. If you did work for less than $600 and did not receive a 1099, my advice is to claim it on

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your taxes regardless. Remember, the point is not to avoid paying taxes and raise the risk of audits, but to pay taxes as required while assuring the various types of income are properly categorized. Accountants are trained to guide freelancers through the various reporting requirements and the significant role they play in a freelancer’s business cannot be overstated. An experienced accountant who has worked with photographers will know how and where to report income, so find one you can trust who has the necessary experience and follow their guidance. For example, several years ago I began to assert my copyright more emphatically by seeking to recover licensing fees lost to infringement. Te result was a surge in financial settlements that amounted to tens of thousands of dollars that had to be reported as income on my taxes. I reached out to my accountant to alert him to the new income and discussed how it would be reported. Was it subject to the Self Employment Tax or would it be considered similar to royalties? We agreed that since the settlements were stolen licensing fees recovered through legal means, the income is justly reported on the portion of my tax return devoted to royalties and thus not subject to the Self Employment Tax. Obviously, the matter of service income versus royalty income is not the only tax issue of concern to freelancers. Proper attention should be given to maintaining accurate records for tracking and deducting expenses, how best to forecast your quarterly tax payments, how to calculate your own withholding and when to pay those taxes.

Te Basics for Freelancers to File Teir Taxes Once you’ve received all those 1099s from clients and any other tax forms from financial institutions and mortgage lenders, you’ll need to gather all the information related to expenses incurred to run your freelance business before you begin filling out your tax returns. Again, it’s highly advisable to use an accountant who has experience working with independent contractors. • Your income is untaxed so you are responsible for withholding money for taxes. • Your income is reported through the standard tax return, Form 1040.

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• You will also fill out a Schedule C, which lists the income and expenses for your business. • Be advised that royalties included in “Non-Employee Compensation” should be moved to a Schedule E. Check with your accountant and make sure you have records to support the income as royalties and not service income. • Tere may be additional forms for state and local taxes required as well. • Freelancers may need to file quarterly payments to avoid underpayment penalties. Basically, every taxpayer has to have a percentage of his or her income withheld throughout the year to avoid this penalty. Your accountant, who will also provide you with the details on how to submit the quarterly payments, can determine the calculated amount.

Ten Questions Every Freelancer Should Ask Temselves During Tax Season Te easy approach to analyzing how your business is performing is to just look at the gross number you arrive at by adding together your 1099s at tax time. Unfortunately, that’s also about as wrong an approach as you could possibly take. It fails to account for so many factors. Here are ten easy questions that will help you arrive at a valid financial assessment of your freelance business each year. 1. Is your net income growing or shrinking?

Tis should be very easy to decipher by comparing the net income (gross minus expenses) from previous years to the current year. Fluctuations are normal but you obviously want to show growth over time. 2. How much did you invest in your business?

Tracking your expenses is as important as tracking your income. Investing in your business shows that you’re managing your money properly and have long-term goals in mind. However, that investment should be accounted for when evaluating your income. 3. Do your 1099s indicate a diversifed client base?

Oh, man does this get overlooked most of the time! If the majority of your income is coming from one or two clients and they’re both in the

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editorial world, take note and increase your efforts at diversification. On the other hand, if your stack of 1099s shows income from editorial, nonprofit, corporate, commercial and other clients, then further analyze that to see if and where growth has occurred. 4. Did your overall client base grow or shrink?

Looking at it from a volume perspective, did you gain clients or lose clients compared to the previous year? Again, fluctuations should be expected but you should pay attention to where the growth and shrinkage is occurring and then adjust accordingly while seeking new clients. 5. Did you earn royalty income from licensing?

I hope the answer to this question is yes! If not, give attention to rectifying the situation by following the information provided in earlier chapters on how to retain rights to your work, create an archive and leverage the images for licensing income. 6. Did your royalty income increase or decrease and why?

Tis might demand a little more work on your part to determine if your royalties increased or decreased. Using the FotoBiz software to create and track invoices will allow you to easily select the calendar year, choose “Stock Invoices” and tally them for comparison to the previous year. Doing this is a necessary way to assess your efforts to create licensing income and then adjust if needed. 7. How much did you invest to earn royalty income?

Just as with assignment income, you need to consider if you made any investments to facilitate growth or decline in royalties. Did you buy software to help keyword images or pay to boost social media posts that drove traffic to your images? Did you incur travel expenses to expand parts of your archive dedicated to destinations? 8. How do your overall expenses compare to last year?

A good accountant will provide a worksheet for you to track your businessrelated expenses. Similarly, there are countless programs that help you track payments and categorize your business expenses. However, since your freelance business is intricately woven into your life, you need to look at where

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your money overall is going. One of the best tools I can recommend is to assign one credit card for use with your business, download the annual summary and take a critical eye to the numbers. 9. Are you on pace to earn more this year?

Where are you at right now and how does that compare to the previous year? Tax season for freelancers usually starts, informally speaking, by March after all of the 1099s have arrived. Tis is a good time to assess the beginning of the year and compare that to the previous year and then adjust your withholdings if necessary. Again, using software to track your invoices should make this a simple task to complete. As a rule of thumb, setting aside between 10–15% for federal and 5–7% for state taxes should keep you in the ballpark. 10. What’s your projected revenue for the year?

Projections are a useful tool for estimating how much in taxes you expect to pay for the year.Te key to this is getting close! As a freelancer, your income will come in waves so it’s nearly impossible to be spot-on in your projection, but you want to avoid being significantly underpaid as it could trigger a penalty by the IRS on top of any owed taxes. Taking time at this juncture to discuss with your accountant your income projection is important so you can avoid penalties and surprise tax payments the following year.

Common Business Deductions for Freelancers Te sooner you firmly grasp the idea that you are in business as a freelancer and not just someone waiting for the phone to ring with an assignment, you’ll begin to understand that tax law permits a wide range of deductions for expenses incurred to run your business. Some of those expenses are relatively obvious while others are less so. In either event, here are some of the most common deductions taken by freelance photographers with brief notes where necessary. Again, as I’ve mentioned multiple times prior, always consult with your tax accountant and follow their guidance. • Home Office (see below for more detailed analysis). • Business Related Travel (see below for more detailed analysis). • Office Supplies (ink, paper, furniture storage, lighting, etc.).

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• Car (mileage, maintenance, repairs and registration fees) • Be sure to maintain a log dedicated to the use of your vehicle for business. If you have just one vehicle for business and personal use, accurate records are essential. Do not try to deduct 100% of all mileage, as it will be hard to justify. • Equipment (cameras, lenses, lighting, audio, video, computers) • Your accountant will advise on whether you should take the deductions all in one year or depreciate them over a scheduled time. • Software (subscriptions to Adobe, among others, and purchases of stand-alone applications). • Phone (monthly service fees and purchases for cells plus any fax or landline phone service). • Website Hosting Fees (annual fees to platforms like PhotoShelter, Squarespace, Wordpress) • Domain Name Fees (registration for your domains such as GoDaddy). • Assistant Fees and Expenses • Maintain a log of all assistants used on assignment. If you use any one assistant for more than $600 for the year, you are required to issue them a 1099 form. • Interest Paid on Business–Related Loans. • Legal and Professional Fees (lawyers, accountants, incorporation costs). • Subscriptions and Memberships (professional organizations related to business). • Advertising and Marketing (promotional cards, business cards, social media ad spending). • Business Insurance. • Various federal, state, local and even foreign taxes “directly attributable to your trade or business,” according to the IRS. • Medical Care Expenses • You can only deduct this if there’s no option for coverage from your spouse. Ten you can deduct premiums for health, dental and long-term care.

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• Education • Only deduct if you can prove the education adds value to your business or improves your skills. Workshops, courses, books and consultations are examples that would qualify. • IRA Contributions (currently limited to $6000 per year or $7000 if you’re 50 or older). Home Ofce Deduction

Due to the fact that home office deductions often amount to one of the largest deductions taken, I’m going to address this more in depth.Te chief concern I hear from photographers about taking the home office deduction is that it’s a red flag for the IRS and increases the likelihood of an audit. For years, my accountant said taking the deduction was not worth the risk, but that changed after congress reformed the requirements in the Taxpayer Relief Act of 1997. I’ve been taking it ever since without any issue. Te Supreme Court ruled in Commissioner vs. Soliman (1993), a landmark case involving a doctor who took a home office deduction based on it being where he managed his business, against the doctor because the importance of the duties performed in the office, and the amount of time spent in the office, did not warrant the deduction under the IRS code. In essence, the Supreme Court said the doctor performed surgery and spent too much time away from his home office and claimed that the management of his business from home was not enough to warrant the deduction. However, Congress passed the Taxpayer Relief Act of 1997 that effectively muted the Supreme Court decision by altering the requirements as set forth in the decision. As a result, the IRS has issued guidance via IRS Form 8829 for meeting the home office deduction and it boils down to two requirements: 1. You use your home office exclusively and regularly for administrative or management activities of your trade or business. 2. You have no other fixed location where you conduct substantial administrative or management activities of your trade or business. Freelancers obviously need to assess their individual situations, but most will meet those mandates, especially in California where Assembly Bill 5

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has resulted in clear direction from clients that freelancers maintain their own place of business, which is usually their home. Tat brings us to how the deduction is actually taken. Basically, there are two methods for computing the deduction and I encourage you to leave that to your accountant who should be more than familiar with them. One is the “simplified method” whereby you receive a standardized deduction of $5 (as of this writing in 2020) per square foot for your dedicated office space up to 300 square feet. Te other is a deduction based upon the percentage of your home set aside and “exclusively used on a regular basis” for business. Te latter typically results in a more substantial deduction. My accountant employs the percentage calculation for me. For example, I live in a small 1250 square foot home and the bedroom I set aside for my office is 120 square feet, or about 10% of the home.Terefore, I deduct 10% of my home for business use. Deductions include 10% of maintenance, repairs, utilities and insurance. I do want to stress that my home office does not contain a bed or is used for any other purpose beyond the management of my business. In other words, it’s definitely used “exclusively and regularly” for running my business. If you try to claim portions of your home not dedicated for exclusive use, such as a living room, kitchen or patio, you may have difficulties defending the deduction if audited. My advice is to be very clear with your accountant about how and where your home office is set up and let them advise you how to proceed.Tat is what I did years ago and, given the fact that my office is dedicated 100% to the management of my business, I’ve never had an issue taking the deduction. Travel Deduction

Photographers, especially photojournalists, travel for business and arguably more so than many other professions. Terefore, this deduction is one that warrants a little deeper discussion since it can result in a large number on your return, and large numbers can draw scrutiny. Te key to any deduction, with particular note to those that result in large numbers, is to have supportive documentation in the event the IRS audits you. If you adhere to this standard and work closely with an accountant, then you can sleep easily. It’s only when freelancers take liberties beyond the scope of what the law allows or fail to adequately document their business expenses does trouble arise. Simply put, any travel that is directly related to your business can be deducted as a business expense on your Schedule C, the Profit or Loss

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from Business statement that accompanies your personal income tax return. Keep a few things in mind though: • Obviously, if you are asked by a client to travel to a location to shoot an assignment, keep all emails and other documentation from the client as proof you were assigned the job. • Use a credit card dedicated to your business for purchasing airfare, paying for hotel rooms, rental cars, gas, rental gear and meals to name just a few of the normal travel expenses. Having the credit card documentation is key because an audit often comes years after your tax filing when your memory and physical receipts may have literally faded. • You do not have to literally be assigned a job by a client to deduct travel expenses. For example, if you traveled to a professional photography conference to take part in portfolio reviews and take workshops to advance your knowledge, your expenses would qualify. • If you are traveling for work but members of your family have accompanied you, do not deduct your family members’ expenses. Deducting your travel expenses should also be viewed in context with the earlier section in the Licensing chapter on creating an archive. In that section you will recall that I emphasized one of the main ways to build an archive of photographs is to “create images of everyday life including your family and friends at work, play, on vacation and at school.” Now, if that includes taking family vacations in wonderful locations around the world, all the better because if you do things correctly you should be able to deduct, at the very least, your expenses as legitimate travel expenses. Let’s return to thinking about building and maintaining an archive. With the chief purpose being to develop licensing revenue from your images, it’s critical that you follow certain steps, which begin with shooting images before proceeding through workflow, including copyright registration, and culminating in making them searchable and licensable through your archive. Any time that you engage in the image creation to archive process means you are working to create income from your business therefore any expenses incurred are legitimate, deductible expenses. Tat includes shooting images on vacation!

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Vacation Shoot? It’s a Travel Expense if You Treat it Like Work

It should come as no surprise that there are gray areas in the tax law and some tax experts view combining a vacation with work as one of them. However, that doesn’t mean traveling and enjoying the time results in an illegitimate deduction. How you approach your travel, how you track your expenses and what you do with the images is absolutely key to qualifying for travel-related deductions while on vacation. My wife and I decided to take a much-needed vacation to Europe in 2019. My wife works with a large company and does not have anything to do with my freelancing beyond serving as an unwitting subject in many images, and as I have always done throughout my freelance career, I chose to make this a working vacation by creating interesting images for my archive from Venice, Florence and Rome. I also shot images while traveling through train stations and in the hotels, cafes and restaurants we frequented. When I returned, I put my images through the same, exact professional workflow that I adhere to whether or not I’m on a commissioned assignment; I downloaded, edited, performed adjustments, added metadata, registered the photos with the US Copyright Office, uploaded the images to various galleries in my archive, made them searchable and available for licensing and promoted them on social media.

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Within a couple of months, images were purchased as prints and drew consistent traffic to my website while also generating interest from travel publications who I had contacted directly. In other words, there’s no disputing the fact that I was working while on vacation and the work is wholly consistent with what I do for a living. Fortunately, there’s no provision in the tax code that says you cannot have fun while working and taking deductions, right? My wife and I had an incredible time seeing the sites, roaming back streets, eating incredible food and drinking a lot of wine. And I shot every moment of it. In fact, my wife knows not to wait for me once the camera is raised to my eye because she knows I might be awhile as I wait for elements to come together. She would often stroll away and I would catch up, but that’s the reality of shooting images while on vacation.

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When it came time to do my taxes, I worked through the various travel expenses incurred while traveling to Europe and creating the nearly fifteen hundred images now in my archive from Italy. However, I took care to exclude all of my wife’s expenses from the trip so I could defend against any questions from the IRS should they arise. My flight and all other expenses I incurred, including rail and public transit passes and museum entrance fees, were added up and my accountant notified so the deductions could be placed properly within my Schedule C. Since hotels do not charge by the person, those accommodations were also included in the expenses I was permitted to deduct. I’ve done the same in countless excursions to Hawaii and throughout the country with images having been licensed directly and via my agencies to National Geographic Traveler, National Geographic Adventure and on billboards and in travel-related marketing materials. In fact, a small portion of my archive is devoted solely to the Eastern Sierras due to the fact that I’ve spent over forty years traveling to the mountains to hike, snowboard, fish and, yes, take photos while hiking, snowboarding and fishing! Hence, having a portion of my archive dedicated to licensing those photos only makes sense while also serving to legitimize the deductions I take to travel to the region. As long as the images are available for licensing, or I use them to promote my business or sell limited edition prints, the expenses I incur are deductible against the royalty income I claim. Te key component is adhering to a workflow that allows third parties to find and license your images so you can prove an attempt to earn a profit. Conversely, if all you did was shoot images on vacation and download the photos to hard drives located in your office, I would advise you to not take the travel-related deductions since the images were not being used as part of your business.

What You Need to Know About California’s AB5 Law Even If You Don’t Live in CA California-based freelancers were jolted awake in 2019 when Assemblywoman Lorena Gonzalez (D-San Diego) authored and steered Assembly Bill 5 through the state legislature and ushered in a new benchmark for determining a worker’s employment status.

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Te bill, known simply as CA AB5, was signed into law by Governor Gavin Newsom in September 2019 and is designed to put stricter controls on the way companies designate workers in a wide range of professions including photojournalism. Te law was opposed by several photographer advocacy organizations including the National Press Photographers Association who saw the restriction on the number of “submissions” a freelancer could provide to any one company or publication as potentially devastating financially for their members. A concerted lobbying effort was subsequently successful and freelance photojournalists and photographers were added to the list of professionals receiving an exception to the submission rule. However, the law quickly spurred talk of similar legislation in New York, New Jersey and Illinois as states consider ways to protect workers in the expanding gig economy. A litmus test is now on the books in California and freelancers would do themselves a favor by understanding requirements for maintaining their independent status. Financial Security for Freelancers in the Gig Economy

A basic test is provided by the state to help freelancers determine their employment status. Known as the ABC test, it really is nothing earth shattering to those who have been running their freelance business as, you know, an actual business. For freelancers who never gave any consideration to maintaining a diverse set of clients, the new law caused a large amount of anxiety because it placed a cap on the number of submissions, or “assignments,” they could receive from any one client. If the client hired the freelancer more than 35 times in the year, the client would have to reclassify them as an employee and start paying benefits and taxes accordingly. Publications immediately indicated that they would respond to the CA AB5 mandate by limiting the number of times they’d hire the freelancer. Freelancers envisioned a devastating reduction in assignments. Now that the state has granted an exemption to the limit of 35 submissions to any one client annually, freelancers are breathing a little easier, though they must still adhere to the other state-mandated requirements to be seen as an independent worker in the state. Before we delve into the requirements set forth by CA AB5, it’s essential to stress a very important fact that experienced freelancers

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like myself have discovered; clients will come and go and photographers have no bearing on how or when it happens. But know that it will happen. What does that have to do with the new law? Everything. It’s safe to assume that every freelancer wants financial security but that security does not, and I repeat, does not come by being overreliant on one or two clients. In other words, receiving more than 35 assignments from one client may seem like financial security for a freelancer, but it is more likely a false sense of security. As much as the freelancer would like to think that the client would always hire them, there is no guarantee whatsoever. Most publications have photo editors who prefer certain freelancers after having developed a strong trust with them and the editor is likely to turn to them time and again. But what happens if that photo editor is terminated, or moves to another publication or the publication suddenly slashes the freelance budget? I can tell you what happens; the freelancer is swiftly faced with the loss of a significant income source. Whereas CA AB5 caused an understandable level of stress among freelancers fearful of a loss of assignment work they can accept, I wonder how many freelancers realize that the loss of assignment work is always prevalent. Te exception for photographers in CA AB5 doesn’t change that. Financial security for a freelance photographer is just like financial security for investors. Wise investors don’t over invest their money in one or two stocks; they diversify their income so they are not overexposed if one stock takes a nosedive. Te same applies to freelance photographers. Financial security comes from diversifying your clients and creating a number of income streams. Tat way when you lose one or two of those clients, you can still survive while seeking replacements. Over reliance on clients who have no contractual obligation to continue working with you will only set you up for the inevitable time when the client has shifted direction and is either hiring others or simply not hiring. Don’t put yourself in that boat. Te ABC Test

Here are the questions that California’s AB5 asks freelancers to consider in order to determine their employment status, but they are also

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the general guidelines used by other states as well as an informal standard among freelancers. Personally, I’m determined to maintain my independent status for professional, financial and tax purposes so I’ve adhered to this litmus test long before it was solidified in CA AB5. All three of these factors must be met for categorization by the state as a freelancer: 1. Are you “free from control” over how the work is performed, set your own hours and set up your assignments? Basically, the state wants to know if you truly work “independently” or if your client controls the work you are doing. When your client calls you, are you mostly free to arrange the time and place for the shoot, or does the client tell you where and when to complete the assignment? Further, are you being told how to shoot it or is anyone directing you how they want the photos to look? During the early 1990s when I was under contract with the Los Angeles Times, I was scheduled to work between 32–40 hours per week and arrived each day at the Times to begin my shift. I did not set up the assignments or set my own hours, yet by terms of the contract I was a freelancer. If this arrangement were in place today under CA AB5, it would fail the ABC test under this provision alone. 2. Is the work you’re hired to do “outside the usual course of the hiring entity’s business”? Tis provision is a key component because it helps determine if the submission limit is applicable. Tink of it this way; a newspaper or magazine is in the journalism business and a freelance photojournalist is also in the journalism business. Terefore, the work you do is not outside the usual course of the hiring entity’s business.” You’re in the same business as far as the state is concerned and you would not meet the standard set by this provision. Now you understand why photographers and photojournalists were relieved to be included, albeit subsequently, in the exception to the submission limit. Had the exception not come

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through, freelancers would have failed this part of the test and seen their independent status under scrutiny. Looking at it from another perspective will provide even more clarity. I do a fair amount of work with non-profits and foundations whose missions range from helping underprivileged communities in California to combating racism. Te usual course of business for these non-profits is to find solutions to poverty and racism. Teir core mission is not journalism or photography, whereas my business is clearly journalism and photography. Terefore, I am in compliance with this provision because my work is outside the “usual course of the hiring entity’s business,” thus I would be able to exceed any limits on submissions if they were in place. 3. Are you engaged in an independently established business of the same nature as the work performed? Tis is an easy provision to meet. First, many cities including Los Angeles require freelancers doing business to register their companies annually. By that metric alone a freelancer could claim they’re an “established business” offering similar services to others. Te key is to establish that you’re not restricted from offering services to others by maintaining a variety of clients. On the other hand, if you claim to be a freelancer while being restricted by a client from offering services to others, you’ll likely face scrutiny over your independent status. Regardless of where you live, these are all important factors to keep in mind for running a healthy, independent business and not just for adhering to state requirements. However, the three provisions of the ABC test are not the only factors you need to familiarize yourself with to assure you meet the state’s definition of a freelancer. Below are additional criteria that all freelancers should consider. • Do you maintain a business address separate from the company hiring you? Tis is a no-brainer. Maintaining a formal place of business is not only a state-mandated requirement for independent contractors;

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it’s the proper way to run a business. If you regularly go to your client’s office to perform the work for which you were hired, you are likely to be viewed by the state as an employee. • Do you contract with other businesses without restrictions from the company hiring you? I touched upon this briefly before but it bears repeating that freelancers must have the freedom to offer their services unconditionally to others. Restrictions placed on you by clients can severely impact your ability to earn income while also endangering your freelance status. It was fairly common in the 1990s and prior for major news magazines to place freelancers under contract and guarantee a set number of assignment days each year. In return the freelancer agreed not to shoot for the competition. Tis occurred at US News and World Report as well as Time and Newsweek magazines. However, those days are, for the most part, non-existent now so there is no upside for a freelancer to accept client restrictions. • Do you provide your own tools, vehicle and equipment to perform the job? Some freelancers I’ve spoken with overlook the importance of this provision but it is significant enough to warrant your attention. During my days as a freelance, contract photographer with the LA Times I had access and regularly checked out lighting, cameras and lenses for assignments from the staff equipment room. If freelancers do the same today, they would jeopardize their status as a freelancer and possibly be considered an employee of the company. Further, many staff photographers have side businesses and accept freelance assignments but use company-owned equipment to shoot the jobs. I would advise against this practice as it raises the question of whether you are properly engaged in a side business if you do not have your own “tools, vehicle and equipment to perform the job.”

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• Can you negotiate your own rates? As I’ve spoken of in previous sections of this guidebook and as I have done throughout my career, I recommend negotiating your own rates and terms when the client’s offer is not a reasonable one. However, the reality of freelancing for editorial publications such as magazines, newspapers, wire services and agencies is that the rates are, for the most part, dictated by the publication. Technically, freelancers have always had the ability to negotiate, but the majority of the time the publication will simply move to hire another photographer when a freelancer tries to negotiate their own rate. In other words, even if freelancers can negotiate, in theory at least, the publications are under no obligation to accept the negotiated rate. It’s common to receive a response akin to “let me check and get back to you” that, unsurprisingly, results in no further communication. I have found that rates are much more negotiable when working with non-profits and corporations as well as in the commercial world. It took the California legislature to enact a law before some freelancers decided to take a deeper look at how they run their business. As they say, better late than never, but it should be obvious now that many of CA AB5’s provisions actually align with good business practices for freelancers. Terefore, even after the California legislature passed the exception for freelancers to the limit on submissions, photographers were well advised to abide by the general guidelines of CA AB5 if for no other reason than to run a sound, independent business. Having your own gear, setting your rates and completing the assignment without oversight are all sound business practices consistent with any independent contractor. Setting a rate should take into account the other two factors as well. As an example, if you’re expected to shoot with specialized gear such as a 400, f/2.8 lens or underwater cameras, you can justify quoting a higher fee. Tink of it this way; if a plumber does a job that requires an old-fashioned, hand-cranked auger to unclog a drain, they’ll charge one fee. But if the same plumber sends a tiny camera connected to a cable down the drain and receives pictures back to show where the problem is, a higher fee

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would be justified. Long lenses for sports cost upwards of five figures and that cost should be reflected in a freelancer’s fee and be acceptable by clients. Te rate can also be adjusted according to how complicated or involved the assignment is. A naturally lit portrait in one location takes less time and effort than a three-location, artificially lit portrait. In both cases involving specialized equipment or complicated shoots, having your own gear and setting your own rates means remaining compliant with CA AB5 provisions while, just as importantly, running a fundamentally sound business.

Te 2018 Tax Law Implications for Freelance Photographers President Trump and the GOP-led congress passed a sweeping reform of the tax code that took effect in 2018. Formally known as the Tax Cuts and Jobs Act (TCJA), it changes how income is taxed as well as standard deductions and mortgage interest, including interest from Home Equity Lines of Credit that are popular among freelancers. Please work with your accountant to assure your income is being computed and taxed in a manner consistent with the changes and in your best interest. Arguably the most important change for freelancers is the fact that all businesses set up as “pass-through” entities can deduct 20% of their Net Income right off the top, thus reducing the amount of income subject to taxes. A “pass-through” entity means you are a business that passes through your business income to your personal income tax return. Te income, reported on a Schedule C for most freelancers and attached to their personal 1040 return, is taxed at personal rates as opposed to corporate rates. Tis is how a freelancer with a pass-through entity would determine their taxable income under the TCJA using a hypothetical $60,000 as gross income:

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Most businesses in the US, especially those created by photographers, are considered pass-through businesses and include the following: 1. Sole Proprietor. 2. Limited Liability Company. 3. S Corporation.

Setting Up Your Freelance Business Before you actually debate the pros and cons of being a Sole Proprietor, LLC, or S Corporation, you should first consider if you are actually in business because, believe it or not, there is a legal definition. As reported in a November 30, 2013 article on Te Tax Advisor’s website, “according to the United States Supreme Court (Flint v. Stone Tracy Co. in 1911), a business occupies the time, attention, and labor of a person for the purpose of livelihood or profit. An isolated or occasional activity is not a business.”Taking that a step further, if you are not engaged in a business, then it must be a hobby. As I’ve stated numerous times, I’m sharing what I’ve learned over three decades of freelancing and having worked with the same accountant the entire time. I’ve done my own research and learned what is necessary to navigate the requirements as set forth by state and federal regulatory agencies. You should do the same when trying to determine whether you are running a business or a glorified hobby. Having said that, basically if you have not turned a profit in three of the previous five years, the IRS may view your freelance business as a hobby and ask for further proof you’re a business. What kind of proof? To begin with, can you show the clear intent to earn a profit? Tat is clearly an important factor since many businesses struggle to turn profits, especially in the early years. But if you can prove that your intent is to be profitable, you’ll likely be just fine. Te level of continuity and regularity to your business are important determining factors, so working regularly over many years will also serve to solidify your business status. If you were audited, would you be able to prove that you are developing your portfolio, archive or clients on a “regular” basis with the intent to profit from those efforts? If you follow the suggestions mentioned in the Client Development and Archive sections, you should have no issues.

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Now that you have determined that you’re actually a business, it’s time to consider the differences between the three options functioning as passthrough entities. Here are the basics so you can have a general understanding of the differences as well as the requirements. Before you make your decision you should consult your accountant, lawyer or, at the very least, colleagues for their perspective as well. Sole Proprietor

Tis is the simplest and most common form under which one can operate a business. It is an unincorporated business owned and run by one individual with no distinction between the business and you, the owner. It is not a “legal entity” like a corporation that requires a separate tax return. Instead, because it is a pass-through business structure, it allows for the simplicity of attaching your Schedule C (Profit and Loss Statement) from your business to your personal income tax return. It is also inexpensive to set up with name registration and local (city) licenses usually all that is required. Te name can be your name such as “Todd Bigelow” or can be a Doing Business As (DBA) such as “Impact Visuals.” Te choice is entirely yours. You may also comingle your finances when you set your business up as a Sole Proprietor. Tis means that you are not required by law to maintain separate business and personal financial accounts, thus income and expenses may be handled through your personal bank accounts. However, I do advise maintaining accurate records that would be quickly accessible in the event an audit occurs. For that reason alone some freelancers opt to open a second account and route all of their income and expenses through that account. Again, the law does not mandate it, but I do recommend it. Te reason most often cited by photographers I’ve spoken with for avoiding opening your business as a Sole Proprietor is that you are personally liable for all debts incurred as a business. What this means is, for all intents and purposes, there is no legal protection derived from being a Sole Proprietor that prohibits someone from going after your personal assets in a legal case. However, if it’s mainly lawsuits you’re concerned about, a good liability insurance policy will likely be sufficient. As always, speak to your accountant and/or lawyer for more detailed, personalized advice.

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Limited Liability Company

According to the Internal Revenue Service, a Limited Liability Company (LLC) is a business structure governed by state statute and, therefore, the regulations can vary according to where the LLC is formed. Each state may use different regulations and charge varying fees for the incorporation. Before you decide to set up an LLC, check with your accountant or state for requirements, fees and regulations. Te owners of an LLC are referred to as “members” and there can be any number of members. Tis is a common business structure for freelancers. Bear in mind, though, that most are single person LLCs, also known as a “Disregarded Entity” by the IRS. Tis is important to note so that your taxes are filed properly. Te Disregarded Entity, or single person LLC, is subject to the same tax on income as someone filing as a Sole Proprietor and the LLC’s tax filing is typically filed by attaching the Schedule C (Profit and Loss Statement) to the freelancer’s personal tax return. Te exception to the single person LLC is when two or more colleagues choose to pool their resources and talent to form a partnership such as a photo agency or event photography company. In that case, more stringent requirements fall into place for reporting and distributing income in accordance with their share of the partnership. Please consult your tax advisor for details. A Limited Liability Company is more complex to set up than Sole Proprietor and annual fees are determined by the state. If you live in Idaho or Minnesota, the fee is, as of this writing in 2020, zero but an “information report” is required, whereas in Colorado you would owe $10 and in California the fee is $800. Setting up the LLC is often something that freelancers hire others to do and that can run several hundred to several thousand dollars for the one-time setup. It goes without saying that you should do your homework before deciding if or where to form your LLC. It is also advised that LLC members keep their records and assets separate from personal accounts or registrations to ensure the “corporate veil” of protections stays in place. I’m referring to proper record keeping to assure that you are not personally liable for debts, losses and liabilities of the business. Basically, personal assets cannot be attached in legal

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actions against LLCs and that is why many choose to go this option if it’s financially feasible to do so. S Corporation

Shareholders of S Corporations (S Corps), or subchapter corporations, report the flow-through of income and losses on their personal tax returns and are assessed tax at individual income tax rates. In this manner they serve as pass-through entities similar to Sole Proprietor and LLC structures. However, there are differences as well. Like an LLC, S Corps are taxed as a partnership with the benefits of incorporation. Tey shield you from being personally liable for debts, losses and liabilities of the business. With personal assets shielded from legal actions related to the business, it’s important to register the copyright to your images as individual, not as the company. If you register them under the company’s name, they essentially become company assets and, thus, are attachable in legal actions brought against the business. Additional requirements for forming an S Corp include having to be a citizen or permanent resident of the United States and separate bank accounts for personal and business are mandated. It is typically more costly to form and comes with more stringent reporting standards than those for LLCs and Sole Proprietorships.

Insurance: Essential for Freelancers Despite the years I’ve spent among photographers and teaching at various universities I’m still completely blown away every time I learn how many photographers think insurance is optional. Technically speaking, sure it’s optional. Tere’s no law mandating that you carry business insurance, but it’s akin to driving without car insurance and photographers always have car insurance (I know, car insurance is required by law, but you get the point). As my father told me one time, insurance is something you think you will never need until it’s too late. I can say he was absolutely correct. If you wait until you need it, you can’t get it. And if you think you don’t need it, you’re wrong. Tere are different types of insurance with the two main types basically being one that covers your property (equipment) and one that protects you and your business. You need both.

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As I have done throughout this book, I am happy to recommend to you the insurance company that I’ve worked with for many years. However, I encourage you to do your own research and ask for quotes from different companies. When you look at them side-by-side, make sure to compare apples to apples and not apples to oranges! In other words, you want to be certain that you’re comparing comparable coverage to see which company provides the best coverage for the lowest premium. I did that years ago and found that Package Choice by Hill & Usher, a broker who deals with a large swath of the professional photography community, provided the most comprehensive coverage at the lowest fee. I went so far as to compare the policies with those offered by Lockton Affinity, another insurance company favored by some professional organizations, and found that Package Choice was infinitely better. Further, my personal experience with Hill & Usher is that they are very responsive and can quickly generate Proof of Insurance certificates when needed.To be perfectly clear, I receive absolutely nothing from Hill & Usher. I just use them and think highly of their products and services, but you should still do your own research. Breaking down the basic things you should know about insurance is important. Speak with your business advisor, accountant or lawyer if you wish to gain more insight. Commercial Business Policy

For all intents and purposes, think of this policy as the one that protects all of your equipment. Te amount of money required by freelancers to run a photography business is nothing to laugh at. A professional camera body and one lens can easily cost $6,000–$7,000.Trow in multiple camera bodies, lenses, speed lights, portable studio lights, microphones, video monitors, tripods, monopods and a plethora of bags, stands, cords and lighting accessories and it’s easy to own in excess of $40,000 in equipment. An insurance policy is needed to guard against theft and destruction. Te first thing every freelancer should do is to create a spreadsheet listing your equipment, serial numbers, value and even date of purchase. Your insurance carrier will require the serial numbers and the value be listed specifically in the policy. A as a further benefit, print this out and keep it with you. I was once asked to provide serial numbers of all equipment when entering Mattel Corporation for a shoot.

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Next, when considering a policy, I highly advise that you seek one that offers “replacement cost” coverage. Te reason being that cameras will depreciate over time, so if a two-year-old camera is stolen you want to be assured you can buy a new camera with the insurance money. Tat is possible when your policy provides for replacement cost. Otherwise, you will receive a mere fraction of what you will pay to replace the stolen camera with a new one. You definitely want to avoid that. It should be noted that some carriers try to keep their quoted premiums low by offering depreciation cost coverage, not replacement cost coverage, so be on the look-out for that. As you continue to accumulate new equipment and sell-off older gear be sure to update your list with your carrier. Te added bonus of carrying insurance to cover equipment is the ease in which you can rent gear. If you’re unfamiliar with the rental process or you’ve only rented a small item or two, you should know that rental houses require deposits in line with the cost to replace the equipment. Te reason is obvious; if you break the equipment, they take your deposit and replace it with new equipment. If you don’t have insurance the rental house will require you to provide a credit card with sufficient available balance to cover the cost of the rental. Needless to say, that can amount to a lot of money. For example, if you’re assigned to cover a sporting event and want to rent a long lens and a fast camera body, the rental could easily require that $10,000 be “held” on your card (they don’t actually charge it, they place a hold on the amount). However, your business insurance policy that covers the gear you own also covers the gear you rent (up to a certain amount, which varies according to policies). All that is required is for your insurance provider to issue a certificate of coverage directly to the rental house naming them as a Loss/Payee on the policy. Should anything happen to the rental equipment while it’s in your possession; the insurance company covers the loss and you’re on the hook only for the deductible. For additional convenience, I have Hill & Usher deliver a certificate to the rental houses at the beginning of each year so I never have to worry about it. If you have a homeowners’ or renters’ policy you should check to see if coverage of your equipment applies. Some policies, like mine, specifically exclude professional equipment. Finally, keep in mind that some credit cards offer additional protection on new purchases. One never knows

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when a theft will occur and it could happen right after purchasing the gear but before adding it to your policy. In that case some credit cards like American Express will cover the loss if your insurance company doesn’t provide similar coverage. Check your credit cards for details. General Liability Policy

Whereas I advised above thinking of the business policy portion of your insurance as protection for your equipment, think of the liability portion as protection for you and your business. Both policies are important and should be given proper consideration. Among the coverage that is standard for most policies, including the Package Choice plan that I’ve long carried, is $1 million in insurance for injury to a person or location while at work. Tis can protect you from a variety of unlikely yet possible occurrences such as your lighting equipment overpowering a circuit in an old building and causing electrical damage or, worse yet, a fire. It will also cover you in the event someone you’re photographing is injured by, for example, a light stand that falls over and hits them on the head. It would also provide coverage to your assistant if they are injured while working for you. Proof of liability coverage is often demanded by locations before you are permitted on the premises to photograph. General liability policies also offer as standard coverage an additional $1 million for personal and advertising injury. Tis insures you against claims such as libel, slander, invasion of privacy, copyright infringement, and other similar offenses. In other words, the policy covers you if injury occurs as a result of your advertising or marketing in connection with your business. Combined with the $1 million personal injury coverage, the personal and advertising injury coverage serves as the second piece to a $2 million aggregate limit.Tat means the carrier will pay no more than $1 million for a single claim and no more than $2 million in total for the life of the term (usually one year). A good general liability policy will also offer additional coverage such as $10,000 in medical expenses for any one person, computers and other media, personal property of others, business personal property, identity recovery, business income coverage and more. As I’ve stated before, it’s imperative that you take a moment to research and review the options

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provided by different carriers and the associated cost, but make sure you are comparing similar coverage since not all coverage is created equally!

Taking the Information and Going Forward Now that you’ve reached the end of the guidebook you have the option on how to proceed forward. I was extremely serious when I said at the beginning that this information is presented not as “the” answer to how freelancers need to run their business, but as solutions and methods that have proven effective for my business. Each person needs to assess what has been presented and decide what will work for them and what won’t and then proceed to put those methods in place. As you move forward in this freelance-dominated profession, I urge you to always remember that you are responsible for building and maintaining a viable business so it’s absolutely imperative that you make decisions based not only on short-term goals, but long-term ones as well. You are encouraged to develop a variety of revenue streams from different clients and to develop a licensable archive of images, all with the goal of diversifying your income as a defense against the ups-and-downs of the gig economy. Continue your education, evolve with the profession and share your experiences with others so that the profession as a whole can survive. Best of luck to you!

Glossary of Terms and Phrases

Te terms and phrases that follow are found throughout the book and are presented here for your quick reference. Te definitions are sometimes in sync with a dictionary definition but may also be defined in ways that are specific to freelance photography. Te glossary is meant to give you the most accurate use of the term as it pertains to the freelance photography profession. Actual Damages: A phrase in the US Copyright Law that references the actual value of a photograph that has been infringed. Te actual value is usually calculated by citing previous licensing fees for the image or market value in general. Afliate: To have a close association or connection. Tis often-used contractual term is found frequently in photo contracts and used to assign your photo rights to third parties, in this case it’s a client’s close connections. Archive: A collection or repository. A photo or stock archive is a collection of photographs that can be licensed, shared and distributed to third parties. Assignee: A person to whom a right is legally transferred. Similar to affiliate, this term is also found in photo contracts and designates rights to use your photos to third parties. 212

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Brand Use: A clever way for large publishers, media corporations and commercial brands to acquire extensive rights to a freelancer’s photographs for use by their entire brand including assignees, affiliates, partners and subsidiaries. Essentially, the freelancer is not working for the one magazine, website, newspaper or corporation that is hiring them, they’re working for the entire brand. Copyright: Te exclusive legal rights to reproduce, publish, sell, license or otherwise distribute intellectual property including, but not limited to, photographs. Te US Copyright Law, as it stands in 2020, provides copyright protection for the author’s life plus an additional 70 years. After that, copyright protection is terminated and the photographs enter the Public Domain. Cost of Doing Business (CODB): Cost of Doing Business is a computational equation that provides an idea of what you need to earn in order to maintain a viable, profitable business. For example, to determine if a daily fee for an assignment is within reason, you can determine a daily CODB by calculating your annual expenses, adding that to an annual salary you’d like to earn and dividing by the number of days you hope to work. Digital Asset Management (DAM): If you think of your photos as your assets, then you can think of this as a way to manage your digital photos. Tus, it is the means and methods you employ to run your images through processing, metadata application and distribution as well as how you manage and maintain your photo archive. Diversify: Typically associated with investing, this term means to increase the variety of something. Relating to freelance photography, to diversify means to seek a variety of clients and categories (editorial, corporate, non-profits) as protection against the dangers of being overly invested in one client or category. Efective Date of Registration: Tis is considered the day the copyright to your photographs was registered. Te Supreme Court of the United States ruled in March 2019, in the case of “Fourth Estate vs. WallStreet.com,” that the registration date listed on the registration certificate must reflect the day that the photographs completed a successful review and were deemed by the USCO as to have correctly met all registration requirements. Previously, the registration date

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was interpreted as the day the US Copyright Office acknowledged the photographs had been received. Expenses: Money paid, or expended, to build, maintain or grow your business. Expenses are often deducted from revenue to determine if the business is making or losing money. Exposure Compensation: A play on words, the phrase in its literal interpretation is a method of setting your camera to compensate for over or under exposure. However, the other, more sinister meaning is to accept “exposure,” such as publication on a website or in a magazine, for compensation. Fair Use: A provision in the US Copyright Law that lists four factors for consideration of third party use of copyrighted material, including photographs, without the authorization of the copyright holder. Flat Fee: Tis is the total fee for any given assignment, expenses included. Depending on client preference, some will offer one fee designed to cover your creative fee plus all assignment-related expenses. Be sure to calculate the projected expenses before accepting the fee since you will not be itemizing on your invoice. Foundation: A non-profit normally established by an endowment, a foundation differs from other non-profits in that they are typically larger with much greater fundraising capabilities. Tey distribute funding to other non-profits in line with the foundation’s mission objectives. Freelancer: A person who works and acts independently of any one company, client or employer and who does not receive benefits or guarantees otherwise afforded employees. If Accepted: A phrase that easily slips into a menagerie of contractual language, this phrase permits the client to not accept the photographs for which you were hired to shoot and, subject to additional clauses, usually allows for either reduced or no payments for the work you performed. Income: Te money earned from your services or your inventory. Gross income is total money earned and net income is the profit after deducting expenses incurred to earn the money. Indemnifcation: A very common legal term found in the vast majority of photo contracts, it means to hold someone (person, corporation,

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non-profit, etc.) harmless in the event of legal action. If you indemnify a client, then you are accepting responsibility for the actions taken by the client with regard to your photographs and, should legal action commence as a result, the client will direct the plaintiff to you. Independent Contractor: See Freelancer Infringement: A violation of the US Copyright Law and occurs when a photograph is published, displayed or distributed without the copyright holder’s permission. IPTC: A metadata standard used by photographers, publishers, distributors, archivists and others that sets the fields and properties for filling-out when adding information to your images using popular software from Adobe and others. Fields include Caption, Headline, Keywords, Location, Contact Info, etc. Keyword: A descriptive word embedded into an image’s metadata that helps search engines find, identify and retrieve a photo for viewing when someone enters the term. Licensing: Te granting of use of your copyrighted, intellectual property for other parties to use, publish, display in a specified manner and typically done to generate passive income. Lightbox: A term originating from the film era, a lightbox is where a photographer places developed film so the frames can be viewed, edited and individual images selected. Te digital version of a lightbox is a function that allows website visitors to browse images, make selections and place those selections together in a separate location. Te digital lightbox has its own URL that can then be shared with others. Tis is a popular tool with photo researchers and editors searching for photographs to license. Limited Liability Company: A business structure governed by state statute and, therefore, the regulations can vary according to where the LLC is formed. Each state may use different regulations and charge varying fees for the incorporation. Micropayments: Te tiny fees paid to photographers for images licensed by a microstock photo archive. Microstock: Refers to a type of image licensing whereby a photo agency charges extremely low fees in exchange for extremely high volume of licensing.

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Model Release: A legal document whereby the identifiable subject(s) in a photograph grant the rights to license and otherwise use their likeness to the photographer. Tis permits the photographer to provide the images for commercial use. Model releases are not required for editorial use. Non-Governmental Organizations (NGOs): Also a non-profit, these are not affiliated with any governmental organization and are usually designed to address some political or social issue. Examples are Mercy Corps, Amnesty International and Doctors Without Borders, all of which hire freelance photographers to help spread word of their mission. Non-Proft: Te textbook definition is a business not conducted for the purpose of making a profit. However, this simple definition implies that non-profits do not make money or have budgets and that is anything but true. Being a non-profit also means adhering to the limitations and IRS reporting requirements. Keep in mind that non-profits can, and often do, allocate significant funds for board member and director salaries. Freelancers should always perform an IRS Form 990 search to obtain the publicly accessible tax filing for a non-profit before accepting their self-stated budgets.Te vast majority of non-profits are required to make their tax filing accessible for free. Original Context: Refers to the manner in which your photograph is first used by the client and, therefore, limits its use to just that context. As an example, if you’re hired to shoot a story on strawberry pickers and the contract says “perpetual rights in original context,” then the images can be used forever but only in the first (original) story or publication of the photos. Tis is viewed as fair to both parties. Other use of the photographs beyond the “original context” is permitted but only with permission and additional compensation to you in the form of licensing fees. Passive Income: Te type of income that does not involve actual services such as shooting an assignment. Passive income to freelancers is derived through licensing photographs from an archive. Perpetual Use: Perpetual means forever and with regards to freelance photography, perpetual use is a phrase that extends rights to use your photographs forever. Although perpetual use in “original context” is

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considered fair and acceptable, perpetual use without further definition will result in the loss of control of those images even when maintaining copyright ownership. Portfolio: A selection of photographs typically used to showcase your talent and ability. Property Release: A legal document whereby the owners or copyright holders of identifiable property in a photograph grant the rights to license and otherwise publish images where the property is included. Tis permits the photographer to provide the images for commercial use. Property releases are generally not required for editorial use. Public Domain: Te creative materials, such as photographs, that are not protected by intellectual property laws such as copyright. Photographs in the Public Domain are free to use by all, though privacy issues related to identifiable subjects may prevent commercial use. Images prior to 1923 are in the Public Domain as are images where the copyright was not renewed as well as images created by federal government employees. Registered Photographs: Photographs that have been delivered to the US Copyright Office (almost always via electronic upload) and having been reviewed and certified as meeting all the requirements for registration. Revenue: Te total, or gross, income derived from your business that does not account for expenses or deductions. Rights Managed: A licensing model that provides the client with the rights specifically as requested and the fee reflects the terms requested. It’s akin to ordering food at a restaurant. What you ask for is what you get, and it’s what you pay for. Royalties: Te payments received for the right to use intellectual property that does not include payments for the actual services rendered to create the intellectual property. Royalty Free: Royalty Free can, and often does mean rights to use your images are free from payment of any kind. However, Royalty Free is also a very common licensing model that means rights are granted for one initial payment and are then free to use perpetually with no additional payments due to you. Schedule C: Te “Profit or Loss from Business” IRS tax form. Tis is

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where you will list your income, expenses and any additional deductions such as for vehicles and home office. It will be attached to your personal income tax return. Schedule E: IRS tax form used primarily for photographers to report income or loss from royalties. Search Engine Optimization (SEO): Utilizing methods and practices to increase the amount of organic traffic to your website. Te basic premise is that stronger SEO equates to more eyes on your photography. Sole Proprietor: Te simplest and most common form under which one can operate a business. It is an unincorporated business owned and run by one individual. Stafer: A person who works as an employee of one particular organization and who receives benefits and guarantees in accordance with state and federal laws. Statutory Damages: Statutory damages are damages awarded by a judge or jury in an infringement lawsuit and are set by a statute in the law, in this case Section 504 of the US Copyright Law. Tese awards are typically at higher levels than actual damages awards. Te range is $750– $30,000 but can be awarded at up to $150,000 if the infringement is proven to have been “willful.” Stock or “Stock Photography”: “Stock” is the inventory or supplies of a business or other establishment used to generate income. Stock photography, therefore, is the licensing or selling of your inventory of photographs to others for income. Subchapter Corporation: Also known as S Corp, these corporations pass corporate income, losses, deductions and credits through to their shareholders for federal tax purposes. Te shareholders, in turn, report the income and losses on their personal tax returns and are assessed tax at their individual income tax rates, not corporate rates. Subsidiary: Relating to an ally, this is another common photo contract term used to obtain rights to your photographs and legally assign them to a third party. Unregistered Photographs: Photographs that receive the basic protection of the US Copyright Law but are not registered with the US Copyright Office and, therefore, not awarded the additional protections

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afforded registered work (such as the ability to file a lawsuit or pursue Statutory Damages for an infringement.) W9: A form required by clients and issued to freelancers for the purpose of confirming a taxpayer’s identification number. Te form is available on the Internal Revenue Service website and is filled out and returned to your clients before the client can initiate payments for services. Withholding: An amount of an employee’s pay that is withheld from the employee and sent to the government as part of the employees tax obligations. Freelancers do not have money withheld from their checks and are solely responsible for tax withholding and payments. Work For Hire: One of the most important phrases any photographer will encounter, this contractual term must be in writing and it will result in you relinquishing the copyright to the images you create while working for the client. Tis is the most common way a client will obtain outright ownership of your work without having to treat you as an employee who’s entitled to benefits. Very common contract issued by many large, editorial publications. 1099: Te official federal income tax form supplied to freelancers at the end of each year. Technically labeled as “Miscellaneous” Income, these are the forms companies report any “non-employee” compensation.

Resources and Suggestions

Here is a small selection of helpful resources that I’ve consulted throughout my freelance career. In no way do I intend this list as a complete selection, or as specific endorsements, but merely as insight into what I use and where I seek information. Te goal is to give you a starting point, if you don’t already have one, and to encourage you to seek information and products that will help you run an efficient, professional freelance photography business. Many of the products and services offer affiliation and student discounts, so remember to ask when you sign up.

Software for Freelancers to Live By • FotoQuote and FotoBiz by Cradoc Software www.cradocfoto software.com This software is the go-to software for so many in the profession including individual freelancers, photo agencies large and small, and even photo-based websites with licensing functions built into the platform. All of my licensing and contracts are handled by this software that integrates with other accounting software for easy tax preparation, among other things. Several professional photography organizations, such as the American Society of Media Photographers, contribute terms to the

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software that simplifies adding the proper legalese to your contracts. Founded by photographer Cradoc Bagshaw. I can vouch for how it simplifies my licensing and other contracts after years of use. I am part of their affiliate program, so please feel free to use the following code that provides a 10% discount: BPB0714 (Full transparency: Cradoc supports my workshop with a small percentage donated back to me from those who purchase using the code). • Photo Mechanic https://home.camerabits.com/ Tis workflow software is indispensable for digital asset management. I use it as the first step of the editing process as well as for metadata application, renaming images and often for uploading directly to my archive. It has a built-in FTP option and automation for quick delivery of images to clients, which is a huge bonus for those working for wire services and newspapers. • Adobe Lightroom and Photoshop www.adobe.com Everyone is familiar with Lightroom and Photoshop and I know many also enjoy working with Bridge. You can set up your own workflow, but mine is heavily concentrated on Lightroom as the main processing software. • File Transfer Protocol (FTP) https://cyberduck.io/ or https:// panic.com/transmit/ The truth is that I often export from my workflow programs either directly to my archive or to an external hard drive and rarely use an F TP program anymore, but freelancers need to tailor their image delivery options according to what best suits the needs of their client. When I export images to a hard drive (about 90% of the time), I then drag and drop the images into a gallery on my archive that auto-generates a link. I copy that link and send it to my client with download privileges. All that my client does is click on the link, enter a password and download all of the images. This is the method the vast majority of my clients prefer after leaving F TP behind,

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but it’s imperative you have F TP software for when, or if, the need arises. • Mobile Apps: Check the app store associated with your operating system. Tere are hundreds of mobile apps related to photography, including processing apps, watermarking apps and, of course, filters galore, but an app that provides seamless integration on the go with my website is the most important for me. I want access to my images from anywhere at any time so I can send gallery or image links to clients, change access and download permissions and otherwise manage requests or distribution while not tied to a computer. Check to see if your website platform has an app to serve those functions.

Companies Providing Portfolio and Archival Websites to Photographers Here are ten popular websites for photographers that offer a variety of customizable templates, SEO and more. Some offer archival capabilities whereby you can make use of the extensive advantages having an online archive offers (as detailed in the archive section of the book). Do your own research, but be sure to compare functionality with cost since some of those that are less expensive might offer less functionality. If you prefer, you can also build your own site or hire someone to build one for you. • • • • • • • • • • •

Adobe Portfolio Format PhotoBiz PhotoFolio PhotoShelter Pixpa SmugMug Squarespace Wix Wordpress Zenfolio

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Business and Liability Insurance Check with organizations that you belong to as many offer discounts. However, as with any insurance, there is going to be wide variations in coverage. I did a side-by-side analysis of two major carriers for photographers and found significant differences. Factors such as the amount of equipment and the extent of your liability policy will influence the premium. Along with many of my friends and colleagues, I have long used Package Choice by broker Hill & Usher. It’s very simple to get certificates proving coverage when needed or requested by locations and the coverage is fairly extensive, my research showed. Other organizations recommend Lockton Affinity. Both Lockton Affinity and Hill & Usher leverage insurance buying power by offering policies to large groups, however, major commercial carriers such as Progressive, Allstate, Nationwide, Te Hartford, Travelers and more offer policies directly to photographers as well.

Certified Public Accountants When selecting an accountant to prepare your taxes, I advise working with those who have experience with not only freelancers in general, but photographers as well. Tax laws obviously vary by state, so make sure to also select someone with intimate knowledge of state tax law. I’ve used the same accountant for my entire career, so I’m quite comfortable trusting his guidance and that’s the ultimate goal for any freelancer. Tere are a number of websites offering verification on CPAs with the most comprehensive being the American Institute of CPAs.

Copyright and Infringement Educational Resources Te digital age simplified many aspects of a photographer’s business such as eliminating film labs, streamlining distribution and the creation of personal, digital archives accessible to all. But it also blew the doors wide open on infringement and ushered in a need for copyright education, enforcement and advocacy. It’s imperative that freelancers take copyright seriously if they wish to protect and license their photography. • US Copyright Office, Frequently Asked Questions www.copy right.gov/eco/faq.html#eCO_1.6 • US Copyright Office Circulars www.copyright.gov/circs/

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• Center For Te Protection of Intellectual Property at George Washington University https://cpip.gmu.edu/ • Te Copyright Zone, “A Survival Blog For Photographers” http:// thecopyrightzone.com/ • Te PhotoShelter Blog: “Five Common Copyright Misconceptions Held By Photographers” https://blog.photoshelter.com/2018/06/5common-copyright-misconceptions-held-by-photographers/ • Te Copyright Alliance https://copyrightalliance.org/ • Photo Attorney, Legal Information For Photographers www. photoattorney.com/

Copyright and Infringement Litigation Services Tere are a litany of lawyers and firms available to aid you with copyright matters or in the event an infringement occurs, so I strongly advise that you do your own vetting. Speak to colleagues, seek referrals from professional advocacy groups and otherwise perform your due diligence to assure your expectations and understanding of legal representation are well grounded. Here are just a handful of companies and law firms who I am familiar with and some of whom I’ve worked with, but they are offered as reference only, in alphabetical order, and no endorsement is given nor implied. • • • • • • • • • • • • • •

Bryan D. Hoben Copy Track Doniger/Burroughs Law Firm Image Defenders Image Protect Image Rights IMATAG LAPIXA Leibowitz Law Firm Leslie Burns McCulloch Law Firm Permission Machine Pic Rights Picture Protection Service

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• Pixel IP Law • Pixsy

Professional Photographer Advocacy Te professional organizations with whom I’ve been associated over the years advocate for intellectual property protections, including providing input to the US Copyright Office and lobbying legislators, as well as provide various educational resources to members. Terefore, it’s important for photographers to join, volunteer, financially support or in some manner contribute to their efforts. Tere have been substantial changes to copyright registration just in the past few years and freelancers have to take the initiative to help the profession maintain copyright protections. Again, the organizations listed below are not by any means a comprehensive list, are not listed with any implied endorsements or in any particular order. However, they are all recognized within the professional photography community as legitimate groups. Please do your own research to see which will serve you and your interests best. • • • • • • • • • • • • • • •

Alexia Foundation www.alexiafoundation.org/ American Photographic Artists (APA) https://apanational.org/ American Society of Media Professionals (ASMP) www.asmp.org/ Aperture Foundation https://aperture.org/ Asian American Journalists Association www.aaja.org/ Center For Photographers of Color www.photographersofcolor.org/ Diversify Photo https://diversify.photo/ National Press Photographers Association (NPPA) https://nppa.org/ National Association of Black Journalists (NABJ) www.nabj.org/ National Association of Hispanic Journalists (NAHJ) https:// nahj.org/ Native American Journalists Association (NAJA) https://najanews room.com/ North American Nature Photography Association (NANPA) www.nanpa.org/ Professional Photographers of America (PPA) www.ppa.com/ Society For Photographic Education www.spenational.org/ Society of Professional Journalists (SPJ) www.spj.org/

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• Te Photographic Society of America https://psa-photo.org/ • Trailblazers of Light, Pioneering Women of Photojournalism https://trailblazersoflight.com/ • Women Photograph www.womenphotograph.com/

Additional Resources Not to Be Overlooked Given the wide array of interests among freelancers it’s likely that you already have bookmarked a number of photography websites catering to your niche. Here are a few sites and companies I find useful in helping me to run my freelance business. • Search Metrics: SEO guides and information www.searchmetrics.com/knowledge-base/seo-guide-beginner/ • Google Analytics: Tools to analyze visits to your website https://analytics.google.com/ • Moo: Business cards and promotional material www.moo.com/us/ • Mail Chimp: Free email for marketing & promotion https://mailchimp.com/ • Agency Access: Full service marketing and promotion for photographers www.agencyaccess.com/ • PhotoShelter Blog: Podcasts, webinars, guides and articles https://blog.photoshelter.com/ • PetaPixel: Tutorials, equipment reviews, photography news https://petapixel.com/ • Small Business Administration: Government agency dedicated to small businesses www.sba.gov/

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• Columbia Journalism Review: Insights into evolving journalism profession www.cjr.org/ • Nieman Lab: Insights into evolving journalism profession www.niemanlab.org/ • News Media Alliance: Insights into the evolving journalism profession www.newsmediaalliance.org/

Where You Can Find Me • Todd Bigelow Photography: www.ToddBigelowPhotography. com • Business of Photography Workshop: www.BusinessOfPhoto graphyWorkshop.com • Te Big Photo Blog @ www.thebigphotoblog.com • Facebook: Business of Photography Workshop: www.facebook. com/Business-Of-Photography-Workshop-274663464667 • Twitter: Business of Photography Workshop: https://twitter.com/ BusinessOfPhot1 • Twitter: Todd Bigelow Photography: https://twitter.com/Todd BigPhoto • “Two Minutes With Todd”: My series of very short videos where I discuss one business topic that freelance photographers regularly face • On YouTube: Two Minutes With Todd • On Te Big Photo Blog: http://thebigphotoblog.com/thebusiness-of-photography-workshop/two-minutes-with-todd/

Index

Note: Locators in italic indicate figures, in bold tables and in bold-italic boxes. 1099 Tax Forms 181, 183–184, 183, 187–188, 189; example scenario 185–186; see also Taxes Accountant 9, 184, 185, 186–187, 188, 189, 190, 191, 192, 223 Actual Damages 89, 90, 91 Advocacy, Professional Photographer 225–226 Alamy 127, 136, 138 American Photographic Artists (APA) 24, 25 American Society of Media Professionals (ASMP) 24, 25, 67, 82, 225 Archive see Photo Agencies; Website Functions Assembly Bill 5, California see CA AB5 Assigning Brand Use see Brand Use Assignment Rates and Terms 169–180; Examples: Editorial, Corporate, Nonprofit Publishers 176–180; Trends: Licensing Right Loss 173 / Rate

Stagnation, Real-term Drop 171–172, 171–172, 174–175; see also Flat Fee/ Flat Rate; Photo Contracts, Terms and Image-right Consequences; Work for Hire (WFH) Associated Press 34, 179 Aurora Photos 6, 50–51, 51, 62 Being in Business, Legal Definition and Proof 204–205 Bergen (NJ) Record 104 Bergman, David 27 Black Star Photo Agency 6 Bloomberg Businessweek 178 Brand Use, Contract Clause: ESPN 56; Image-right Consequences 56, 78–80; Time Inc./Sports Illustrated (2016) 60–62, 78–79, 79 Bureau of Labor Statistics 4, 5, 171, 173 CA AB5 196–203 California State University (CSU) 31, 32

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INDEX Client Development: Initial Contact/ Follow-up 28–29; In-person Contacts, Offline-media 23, 29–30; PhotoShelter 21–22; Promo Cards 29; Research/ Contact Clients 27–28; Seamless Image Distribution 21–22, 22–23, 22–23; Search Metrics 226; Self-assigned Projects 32–49 (see also Self-assigned Projects); Social Media Strategy 25–27; Website (see Website Functions); Workshops/Conferences 24–25 Commissioner vs. Soliman (1993) 191 Contact Press Images 39, 47, 49, 161 Contracts see Photo Contracts Copyright Infringement: Addressing 113–116; Combating 107, 107, 108, 112–117; Common Excuses/Myths 116–117; Damage Claims (Actual, Statuary) 89, 90, 91; Educational Sources 223–224; Exponential Growth, Digital Age 105–106; Injunctions 89; Litigation Services 105, 224–225; Lost Profit Claim 89–90; Protecting against 109–112, 111; Tracking 112–113 Copyright Protection 91; Download Prevention 110; Educational Sources 223–224; Fair Use Provision 88, 101–105, 102, 103, 116; Image Release by Written License 109; IPTC Photo Metadata, Licensing Information 110–111, 111; Services 105, 224–225; Social Media Platforms 26, 77; Top Ten “Must Know” Facts, 88; Unregistered vs. Registered Photographs 89–91; Watermarking 26, 109; Work for Hire, Copyright Loss 7, 71–72, 88, 92, 97, 117, 153, 169, 170, 173, 176–180; see also US Copyright Law Copyright Protection, USCO Photo Registration 88; Conditions 92–93; Effective Date of Registration 100–101; Online Registration, Step-by-Step

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95–100, 95–100; Preparing Photos for Uploading 93–95, 94; Published/ Unpublished Work 88, 92 Cost of Doing Business (CODB) 11, 169 Costco Connection 144–145 Covid-19 Pandemic: Freelance Market Influence 5, 60–62; Portrait of a Neighborhood under Lockdown, Selfassigned Project 34, 38–39, 39, 45, 47–49, 48, 146, 147 Creating Revenue 13–18; Direct Client Contact 14–15, 17; Earning vs. Creating Revenue 14; Exposure, Multichannel Digital Platforms 15–16, 17; Market Trend, Research 17; Photo Agencies 18, 49–50, 51; Self-assigned Projects (see Self-assigned Projects); Stock Photos 17–18; see also Website Functions Damages 89, 90–91 Digital/Social-Media Platforms, Image Rights 15, 26, 77 Dohrmann, George 158 Earning Revenue 13–18 ESPN 56–59, 69–70, 70, 155, 155–156, 178 Fair Use Provision 88, 101–105, 102, 103, 116 Fifteen years later 160 Flat Fee/Flat Rate 80–81, 170, 176 Flint v. Stone Tracy Co. (1911) 204 Focus 33 Fortune 178 Fox News 104 Frank, Robert 141–142 Franklin, Tom 104 freelance 101, basics 7–12; Budgets, Re-investments 10; Client Base Diversity 7–8; Cost of Doing Business (CODB) 11; Credit/Capital Access 9; Expenses, Covering 9; Financial

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Means 9; Record Keeping 10; Tax Duties 9–10 (see also Taxes); Value Work, Experience 10–11; Workflow 11–12 (see also Workflow) Freelancing: Growth: Reasons, Statistics, Trends 1–2, 4–6; Motivation 1, 2–3, 4; vs. Staff, Comparison 3, t3 Gagosian Gallery 104–105 Getty Images 5, 62, 118, 127, 136, 137, 138, 176, 179 Gig Economy 1–2, 3, 197–198, 211 Glossary 212–219 Gonzalez, Lorena 196 Google: Client/Contact Research 44; Google Analytics 226; IPTC Photo Metadata, Licensing Information 110; Search Support, SEO 21–22, 23, 125, 156 (see also Search Engine Optimization (SEO)); Tracing Copyright Infringement 112–113, 114, 117 Graham, Donald 104–105 Hill & Usher 208, 209, 223 Income Sources: Assignments 120; Licensing (see Licensing); Teaching 30–32; see also Client Development Indemnification 53, 54, 67, 68, 82 Instagram 26, 105 Insurance 207–211, 223; Commercial Business Policy 208–210; General Liability Policy 210–211 Internal Revenue Service (IRS) 9–10, 181, 184–185, 189, 191, 204, 206 IPTC Photo Metadata, Licensing Information 110–111, 111 Luther King, Dr. Martin 86 Luther King, Jr., Martin 86 Licensing 118–119; Examples: Licensing Requests 163–165, 163–165, 165–167,

166–167; Images with Licensing Value 156–161, 158–159; Maximizing Licensing Chances 168; Short vs. Long Term Play 119–120, 120; Types: Rights Managed (RM) License 134–136, 136 / RM vs. RF Licensing 139–141, 140 / Royalty Free (RF) License 136–139 (see also Royalties) Licensing Revenue, Creating 121–134; Direct Licensing Trough Archive 127–129, 129, 145, 150–156, 154–156; Gallery Creation/Distribution (Public/ Private) 125–126, 126; Lightbox 126–127, 127; Photo Agencies 129; Pricing Profile 128–129, 129; Search Engine Optimization (Image Metadata, Websites) 22–23, 22, 23, 124–125, 124, 129–133, 131, 133; Searchable Online Archive (Listed/Unlisted) 122–123, 123 Lightroom, Adobe 93, 94, 130, 132–133, 221 Limited Liability Company (LLC) 204, 206–207 Lloyd Wright, Frank 144 Lockton Affinity 208, 223 MacDonell, Allan 160 Magazine Publishers Association 52 Markle, Meghan 160–161 Martin Luther King, Jr. 86 Mashable 178 Model Release see Release, Model Release Murabayashi, Allen 52 National Geographic 151, 151, 170, 179, 196 National Press Photographers Association (NPPA) 24, 121, 225 NBC 45, 49, 146, 147, 147 News Today NY 81–82 Newsom, Gavin 197 Newsweek 5, 33, 152, 201

INDEX Norwick, Kenneth 102–103 NPR 45 Original Context, Contract Term 57, 73–76, 74, 75, 76, 153, 154, 154 Outlook for Photography 2018–2028 (US Department of Labor) 5 Package Choice 208, 210, 213, 223 Pass-through Businesses 203–204, 203; Limited Liability Company (LLC) 204, 206–207; S Corporation (S Corp) 204, 207; Sole Proprietor 204, 205; see also Taxes, CA Assembly Bill 5 Payment, Ensuring 84–85 Pearson Education 135–136, 136, 160 People 78, 177 Perpetual Use, Contract Term 72–73 Photo Agencies 49–50, 51 Photo Contracts, Client-issued 52–65; Case Study: Time Inc./Sports Illustrated 2016 Photo Contract 52; Curriculum, Needs to Cover 53, 54; Image Right Grabs 52–53; Layer Involvement 54–55; Negotiating Contract Terms 55–56; Negotiating Contract Terms, ESPN 56–59; Southern California News Group Photo Contract 64–65; Trend to Image Right Grabs, Case Study: Time Inc./ Sports Illustrated 2016 Photo Contract 59–63; Weighing Short-/Long-term Goals 54 Photo Contracts, Invoice as Contract 69–70 Photo Contracts, Issuing Own Contracts 65–68 PhotoMechanic 93, 110, 130, 132, 221 PhotoShelter 16, 21–22, 24, 38, 66, 110, 122, 127, 190 Pitching, Self-assigned Projects 40–45; Email as Pitch-media 46, 48, 48; Example: Covid-19 Pandemic 45, 47–49; Preparation: Blog Entry

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(Access-limited) 46, 48; Preparation: Short-story Summary 46; Preparation: Unlisted Web-galleries 37–38, 39, 47; When: During Execution 41 / Postexecution 41–42 / Pre-execution 40–41; Where: Existing Clients 42 / New Clients (Research, Approach) 41, 43–44 Play Teir Hearts Out 158, 158–159 Politico 43, 178 Portfolio: Building, Self-assigned Work 15; Offline/In-person Contact 23; Online, Website Archive 19–23, 20; Online-offline Integration 24; Review, Professional Critique 24–25; see also Website Functions Portfolio/Archival Websites Provider 222 Portrait of a Neighborhood Under Lockdown 35; see also Self-assigned Projects: Covid-19 Pandemic Prince, Richard 104–105 Professional Critique, as Development Support 24 Professional Photographer Advocacy 225–226 Raising the Flag 104 Random House 158, 160 Rates see Assignment Rates Release, Model/Property 141–148; Artistic Use 143; Editorial vs. Commercial Use 141–143; Model: Expectations of Privacy, Restrictions 142; Property 144; Real Licensing Scenarios 144–147, 145, 146, 147 Reuters 179 Robinson, Ken, Sir 144–146, 145 Rolling Stone 43, 45 Royalties 119; Rights Managed (RM) vs. Royalty Free (RF) License 139–141, 140; Royalty Free (RF), Contract Clauses 76–78, 77; Royalty Free (RF) License 136–139; Taxing 184, 185, 186, 187, 188

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S Corporation (S Corp) 204, 207 San Francisco Chronicle 177 Search Engine Optimization (SEO) 20–21, 20, 22, 22–23, 124–125, 126, 129–132; Google Analytics 226; Search Metrics 226 Self-assigned Projects 32–49; Avoiding Social-media Updates before Publication 37; Client Development through 33–34; Creating Revenue through 15; as Creativity Training 32; Discovery vs. Pre-defined Shot-list 36–37; Example: Covid-19 Pandemic 34, 38–39, 39, 45, 47–49, 48; Example: US/Mexico Border series 33, 152, 152; Maintaining Project Control 40–42; Need for Narrative Quality, Unique Look/Perspective 34, 36, 38; Stage 1: Idea, Research, Organization 34–36; Stage 2: Execution 36–39; Stage 3: Pitch 40–45 (see also Pitching, Selfassigned Projects); Stage 4: Licensing for Publication 45–49 Shutterstock 5, 118, 119, 127, 136, 137, 138 Simple@Work 145–146, 145 Smith, Brad 43 Smithsonian 178 Social Media Strategy 25–27, 26–27; Building Engagement 26–27; Separate Professional from Personal Content 25–26; Smart Hashtags 27; Temed Postings (Blog, Video) 27; see also Website Functions Social Security Number (SSN) 181 Software 220–222; Adobe Lightroom/ Photoshop 93, 94, 130, 132–133, 221; File Transfer Protocol (FTP) 21, 221–222; Mobile Apps 222; PhotoMechanic 93, 110, 130, 132, 221; PhotoShelter 16, 21–22, 38, 66, 110, 122, 127, 190 Sole Proprietor 204, 205

Southern California News Group 64–65, 177 Spiegel, Der 5 Sports Illustrated 59–64, 78–79, 84, 155, 155, 157–160, 158–159, 170, 176, 177 Statutory Damages 90, 91 Stern 5 Stock Photos 17–18, 150, 218 Tax Deductions 189–196; Home Office 191–192; Travel 192–193; Vacation Shoots 194–196, 194–195 Taxable Income 10; see also Pass-through Businesses Taxes: 1099 Miscellaneous Income, Tax Forms/Example Scenario 181, 183–184, 183, 185–186, 187–188, 189; 2018 Tax Law Implications/Tax Cuts and Jobs Act (TCJA) 203–204, 203; Basis for Tax Returns 9–10, 186–187; Client Base Diversity 187–188; Client Base Volume 188; Determine Income Growth/Shrinkage 187, 189; Employees vs. Freelancers 184–186, 184; Expenses Comparison 188–189; Investment and 187; “Pass-through” Businesses, Taxable Income Reduction 203–204, 203; Revenue Projection 189; Royalty, Development and Investment 188; W9 form 181–183, 182 Taxes, CA Assembly Bill 5: ABC Test 197, 198–203; Client Diversification 198; Employment Status Determination 196–203; Financial Security in Gig Economy 197–198 Taxes, Certified Public Accountant (CPA) 9, 184, 185, 186–187, 188, 189, 190, 191, 192, 223 Taxpayer Identification Number (TIN) 181, 183 Taxpayer Relief Act of 1997 191 Teaching, Adjunct Professor 30–32 Te Americans 141–142

INDEX Te Athletic 77, 77, 179 Te Atlantic 5, 43[xxx], 45, 48–49, 48 Te Legal Guide for Writers, Artists and Other Creative People, 102–103 Te Los Angeles Times 5, 13, 30, 173, 177, 199, 201 Te New York Time, NYT Magazine 3–4, 33, 45, 61, 148, 170, 176, 177 Te Washington Post 2, 5, 25, 45, 160, 171–172, 173, 176 Tird-party Rights/Use 26 Time Inc. 7, 52, 56, 59–64, 78–79 University of California, Los Angeles (UCLA)/UCLA Extension 30, 31 US Copyright Law 71, 87, 88, 89–91, 92, 101–102, 117, 153 US Copyright Office (USCO) 86, 88, 89, 90–91, 100–101, 107, 113, 194; Photo Registration (see Copyright Protection, USCO Photo Registration) US Department of Labor, Bureau of Labor Statistics 4, 5 US News & World Report 5, 201 USA Today 160, 173, 176 USA Today Sports 179 Vanity Fair 178 VICE 178 W9 form 181–183, 182 Walker, Demetrius 157, 158, 158–159 Wall Street Journal 173, 176

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Watermarking 26, 109 Website Functions 19–24; Archive (unlisted, search-engine accessible, SEO) 12, 14, 19–23, 20, 25, 47, 122–123, 123, 127, 148–150; Copyright Registration/protection, IPTC Metadata Application 110; Gallery Creation (Public/Private, Access Control) 15, 21–22, 37–38, 39, 47–48, 48, 109, 125–126, 126, 166–167; Licensing Directly through Archive 127–129, 129, 145, 150–156, 154–156, 165–167, 166–167, 168, 193; PhotoShelter, Professional Features 16, 21–22, 38, 66, 110, 122, 127, 190; Portfolio Showcase 19–21; Revenue Creation, Client Development 14–16, 20, 20–23, 25–26, 27–28; Seamless Image Distribution (Email, Tumbnail, Gallery, Link Creation) 16, 17, 21–22; Search Engine Optimization (SEO), Google Image Search Support 20, 22–23, 22, 23, 123, 124–125, 126, 129–132 Winkler, Henry 110, 111 Workflow 38, 47–48, 155; Aim and Efficiency 11–12, 196; Client Diversity, Accounting for 12; Copyright Registration 12, 92, 95, 193; Licensing Readiness 160, 168, 194; Metadata, SEO 149, 157, 161; Workflow Software 93, 110, 130, 132–133, 221