View Full Version : Things to know about a "commission"
At a Arts and Crafts show, the owner of a local restaurant asked me about doing some photographs of his gardens (which are quite beautiful) and making prints to hang in the restaurant. If I take this on, I plan on charging an hourly fee for taking the photos with my Linhof 4x5 and providing proofs with additional charges if he orders prints. Is there somewhere that talks about legalities, contracts, things to watch out for, etc for commissioned work.
The primary legal areas that affect your arrangement are probably basic contract law and copyright law, I'd think (note that I'm NOT a lawyer, however). The main point is to make sure that you understand what he wants, and he understands that you still hold the copyright and what he can do with his prints is limited. Getting that mutual understanding in writing is important, of course.
Take a look at the copyright information on the business resources page on PhotoDistrict News Online at:
A couple of good books on the topic are "ASMP Professional Business Practices in Photography" and "Pricing Photography" by Heron and MacTavish, both published by Allworth Press. There are sample contracts in these books that you may be able to adapt to your situation.
I suggest you chage a project fee ( creative fee + expenses) for the project rather than an hourly fee. The creative fee should reflect your best realistic estimate of how long the project might take, but leaves you the option of going there and then deciding to come back one day when the light is better in different parts ofthe garden.
How about bartering for a certain number of sit down meals in his restaurant instead. Seriously. Also negotiate to have your business card in the framed photos. It sounds like a nice place. You could meet future clients in that place, say to them, "by the way, have a look around the restaurant at some of my photos", and I'm sure the owner will treat you respectfully gaining the attention of these future clients, and so on.
I think business should be about creating a mutually benefitial relationships, or win-win situations for all.
I am a lawyer, and I don't see that you need much legal advice here. Some of the business advice given by others is right on target, however.
I agree that an hourly fee doesn't make any sense. Charge him a fee for shooting the pictures, and whatever makes sense for the prints. Just make sure it's clear who owns what (ok, that's the legal advice). If he buys a print, he owns the print, you own the negative and the copyright on the picture? Or he pays the freight and the merchandise is all his? Chances are he hasn't thought about it, so you decide.
Think about what you want to get out of it. More business? Exposure? The idea of a trade is good advice. There's a popular restuarant in my neighborhood that displays photos for sale (they're not very good, btw). Maybe you can display some of your work in return for giving him some prints (in which case you might not even need to bring up ownership issues).
Like anything else, the starting point is figuring out what you want from the deal.
Thanks guys. THese are some great ideas and I'll have a think on them.
After forty years (plus) of commercial photography I can tell you that the major difficulty with paid work is not finding enough of it, but actually getting paid for it after completion and delivery. As many as a third of the businesses I did commissions for over the years either went out of business shortly after my work, complained about my fee or flat refused to pay. I didnít simply lose my profit. I also got stuck for thousands in film and color processing expenses, model agency fees and prop rentals.
My advice, therefore, is donít assume you will be paid for this work. It is a crap shoot at best. And the cost of litigation will probably exceed your profit. Lawyers make more than photographers. Contracts are therefore worthless.
Quote a final amount, not an hourly rate. Hourly fees add up and quickly exceed the customerís expectations and ability to pay. And insist upon an initial down payment to cover materials and expenses.
Last time I accepted a casual commission like this the corporation stuck me for sixty-five thousand dollars and I had to remortgage my home. Since retirement, my finances are better than they have ever been. I havenít lost a cent to deadbeats in years, and the monthly social security check is dependable, if small.
In twenty years of commercial work with a couple hundred clients, My clients range in size from individuals to Fortune (top) 50 size corporations.
I've only had about half a dozen accounts go bad -- either very slow pay or no pay at all. Since I began my career I have always used the standard paperwork: An estimate that spells out all of the details and the terms; some times the details of the estimate are negotiated as some times the nature of the work has changed, once the estimate is accepted , a confirmation letter is sent and signed by a representative of the other side, and finally when the work is delivered an invoice, also with all of the agreed to terms is restated, accompanies it.
Here are 4 examples of clients who have good bad. #2 , 3 & 4 required a lawyers services.
1.) A ballet dancers who lost his job shortly after he ordered prints.
2.) A small PR firm who first told me my photos were great, then they were terrible and caused her to lose the client. A call to the client turned up the following facts: the only thing she ever delivered for the brochure she charged him a $10,000 deposit for were my photos -- which were sitting in his desk, and that she wouldn't return his phone calls either. Further investigation turned up that she had a long history of not paying people ranging from suppliers and printers to the phone company , to landlords, etc. The story has a happy ending: my attorney saw her engagement announcement in the Houston Chronicle , and that the guy was an oil man in Louisiana. My attorney contacted his attorney, suggested that it might be a good idea if she paid her bill to me before they were married, and also to take a look in the public records in Houston. A cashier's check was hand delivered two days later --from the groom's account. I don't know if he went through with the marriage. But I suspect not.
3.) A quasi governmental tourism group in Houston licensed for a very small fee a photo to be used on the cover of a local distribution only newspaper insert touting Houston as a tourist destination. Six months later I found they also used it on the cover of an internationally distributed mass mailing, The Ad agency who produced the first insert had no idea it was then used (resized for this massive advertising campaign (they had already given up the account because of other problems). My attorney negotiated a reasonable fee for the usage. This took about four months I could have gone after the tourism group for copyright infringement but chose not to.
4.) Viacom. Viacom is a huge media company. Among other things, they own MTV networks they commissioned advertising photos of the making of a movie. Usually I get 33 to 50% of the total estimate before I start shooting a large project like this. And usually there is no problem. But this time I did not get the advance. And then they then tried not to pay at all, despite the fact that they were already using the photos to promote the movie...I got long run arounds for months... long story short An attorney I hired saved my bacon for me. My favorite line from the process went something like this. The Viacom attorney, on a conference call, kept shouting at my attorney and calling her names. My attorney kept her cool and at the end of the rant just said. "Honey, you can keep yelling at me but I got to tell you, it is only costing your client more money." We got a check the next day.
Why am I telling you all of this? There are a couples of simple morals:
--Do your paperwork, do it right with all of the details covered (what is expected from both parties and who will do what when and for what), and you'll solve 99.9% of your problems before they happen. This is part of the professional package -- it shows that you understand how to communicate.
--In business a good attorney is just as important as your favorite camera or lens is to your photography, so even if you don't use that camera or lens for every picture, you like to know it is there. If worse comes to worse, it helps to know a good attorney or two. Clients who try to cheat you are like school yard bullies -- you just don't let them get away with it.
Ellis is proof positive that nice guys don't have to be suckers. ( I hope he cut guy #1 above a lot of slack - one day we're all fated for a walk in his 'shoes')
i cut him complete slack; no charge.
Ellis is absolutely correct that if you are a big dog, doing heroic photography for multinational corporations, you need a sharp lawyer on permanent retainer. Furthermore, you must absolutely wallpaper the client with forms and binding written agreements. Big dogs routinely sell to MBAís who purchase photography for a living, know all the dirty tricks and need to be watched very carefully.
But the major point of my answer to you is focused on my read that you are an amateur contemplating his first commission for a small client. Which is more like the situation I was in: a two-man commercial studio in the New England Rust Belt servicing corporations with about one hundred employees.
The point is that the general public has absolutely no idea what LF photography costs to produce. Just add up the price of a box of 4x5 film, a gallon each of developer, stop and fixer. Add your cost for a box of 16x20 paper with all the chemicals. Then tack on your total time, from loading holders and mixing chemicals, through shooting, processing, mounting, spotting, framing, to final delivery of the prints. Even billed at what McDonalds pays the french-fry maker, the combined total has got to reach a thousand dollars.
Present that kind of bill to a business owner and he will go into cardiac arrest. I guarantee you he was thinking more like 1/36th the cost of a roll of 35mm film and processing at Wal-Mart. And it doesnít make sense to hire a five-thousand-dollar-a day law firm to chase him for the money. He doesnít have it. And you canít afford the lawyer.
Andre had the best idea. Trade him a dinner for two for each print. And collect as you go. Donít let the bill pile up.
you need a sharp lawyer on
No you don't and i don't know how you drew that conclusion from what I wrote. In twenty years of being in business, I've only needed to hire a lawyer three times. You do need to apply common sense. Otherwise you find yourself in the situation John found himself in.
John, you're correct in that I am an "amateur" as far as commissions go which is why I asked for the advice. It's all helpful in letting me make an informed decision as to how to proceed. Thanks to everyone who shared their wisdom and experience.
" . . . that nice guys don't have to be suckers."
Why do I feel a reaction to that statement?
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