just say... "NO"
by Don Brice

I think there is a song lyric somewhere that goes "Sorry, is the hardest word" or words to that effect. Although I am no poet, I beg to differ. For many photographers that big bogey word that catches in the back of the throat is. "no."

"No. I'm sorry but I'm pretty busy for the next few weeks and I'll only let you down if I try and take it on."

"No. Please don't take this personally but that budget wouldn't persuade a 10 year-old with an instamatic to take this shot for you."

"No. Please don't ask me to copy someone else's photograph."

And the big daddy.. "No. I'm sorry but I don't sell my copyright."

JUST SIGN ON THE DOTTED LINE
I was driving in the car when the mobile rang. Of course I usually use a "hands-free" wire for car conversations, but I think it was on the blink at the time. It was rush hour. Oh, and I was in the right hand lane. I debated with myself about the advisability of taking the call but by that time the phone was already to my ear. "Hello".

It was a picture editor from a magazine I had worked for on a number of occasions and as we talked above the blaring din of car horns behind me, the details of the job brief came through. With left hand firmly gripping the wheel and phone jacked upon my shoulder, my left forearm started to look like a tattooist's nightmare.

"Sure, that should be fine, I'll give them a call tomorrow and all being well you should have the pictures in Sydney by the end of the week. When I get back to the studio I'll fax you through the quote as a confirmation."

So far it was all going according to plan. I had even missed that stupid school-kid standing on the median strip. And then.. it happened.

She said to me "Thanks. Oh, We have a new address and I'll need to tell you where we are. The magazine has been sold and we are now at (insert new address and phone numbers here) Also I'll need to fax you a copy of the publisher's copyright agreement for you to sign." I need hardly tell you that I was expected to "sign my life away" in this so called agreement.

The big C word. Now she really had my attention. A red mist formed behind my eyes as I pondered all the injustices wreaked upon humble photographers by overweight, cigar smoking media moguls (further imperilling the innocent on Fullarton Rd that evening). What do I say? How do I say it? The under-utilised little "no" word stood up in my sub-conscious mind and dusted itself off, ready for work.

Probably only one thing saved the conversation at that point. You see, having declined the job in the strongest possible terms, it seems entirely appropriate to slam down the receiver with satisfying finality. But with a mobile, that just doesn't work. Instead you meekly push the "No" or "End" button which doesn't feel the same. In any case, instead of saying no, I politely gave her my fax number and said that I would take a look at it.

THE RIGHT WAY TO SAY NO
I'm really glad I did. It's not that the contract was anything other than what I expected. It bluntly said that all commissioned photography would become the property of the publisher, that I would have no further interest in the shots, that they could use them anywhere anytime for as long as they wanted, that they could re-sell the pictures to anybody if they later wanted to. Just your common garden variety magazine contract really.

No, the reason I'm glad, was that it gave me the opportunity to say "No" in writing. To say "No" in a constructive way that might in some small way contribute to a change in policy in the future.

I wrote back to the editor explaining my position. I said that I could not accept the job because I don't sell my copyright. Nor could I recommend any other photographer to do the job, for the same reason. I said that I realised this publisher's policy must make it difficult for her to do her job and that she must struggle to find good photographers to work for the magazine under those terms. I invited her to pass on the letter to management to help her argue the point that photographers (and the contributing journalists too, in this case) must be allowed to keep their rights.

I went on to say that the ACMP was a forum where publishing houses copyright policies were openly discussed and that should this publisher change their policy then I'm sure she would find a wealth of ACMP talent suddenly very receptive to working for their magazines. Reading between the lines she would also have understood that it is just as easy for every photographer in Australia to be warned NOT to work for certain publishers.

"Editors. are frequently very sympathetic to the rights of their suppliers"

DON'T TAKE IT PERSONALLY
I felt that it was important not to get personal about saying no. Editors, art directors and buyers are simply doing their job. They aren't the real enemy. They are given a limited budget with which to produce a magazine and a company policy to adhere to. Being creative people they are frequently very sympathetic to the rights of their suppliers and this can make them great allies in our cause. If you stay on-side with them, they can represent us in discussions at the level where these policies are decided.

Let them know that other highly successful and large publishing houses operate in a way that supports the rights of suppliers. "Time", for example, return all images after an agreed period.They ask permission to on-sell pictures to their affiliated publications and pay the photographer usage rates if the image is used again.

Publishers of magazines usually preside over a stable of many different magazine titles. With a little creative design and a re-write, the same article and photo's can be used again and again in different publications without incuring any further expense-if they own the copyright. They can also post their library of pictures on the web and sell them to other publishers throughout the world for a substantial net profit on the whole exercise. They won't willingly share these profits with you. News Limited buy out their photographers' rights for this very reason.

This job was not ever going to make my fortune. It was some simple shots of a little boy and his pet dog. Probably would have taken me a couple of hours and the final bill including all expenses would have been four to five hundred dollars. In other words it was the sort of shot that is the bread and butter of most magazine photographers. Much to my surprise the story didn't end there.

The morning after I sent the letter I received a phone call at about 8.00am. It was the picture editor thanking me for the fax and explaining that her situation was very much as I had described in the letter. She had repeatedly petitioned for changes to the copyright policy without success. In this case she was desperate to get the job done and so came..the deal.

THE DEAL
The idea was that she treat my work as if it were a "spec" contribution. The loophole for her was that the copyright contract only applied to commissioned work. Instead of commissioning me, she might somehow "let slip" who she wanted photographed and that I may just happen to meet this kid and take his photograph. When she opens my package she can then go "Oh me, oh my, how fortuitous. I was just looking for a picture of this little boy." Pay me the fee and I keep my rights.

The down side of this kind of deal is that as a "spec." photograph they are not obliged to pay for the shots unless they publish them. Magazines often have a stockpile of stories and photo's, both commissioned and unsolicited contributions, that may hang around the office for months before being used. Some never see the light of day and are scrapped when they are out of date. Result, you don't get paid. Obviously you would only agree to this kind of proposal if you have a good relationship of trust with your client. In this case the story was already slated for the next issue and I trusted the person I was dealing with.

I saw this as a way of still doing the job without compromising my rights. I also made my point about the need for change which was brought before the people who needed to hear that sort of thing. Did I do the right thing? Should I on principal refused to have anything to do with the company? You be the judge. The one certain thing is that having won the right to keep our rights, the battle is only just beginning.

Craig Kershaw, Collection 2

top>>

This website copyright 2005 ACMP - PO Box 779 North Sydney NSW 2060 Australia
Ph. +61 2 9025 3975    Fx. +61 2 9025 3990 Email: secretary@acmp.com.au
All individual photographs copyright the photographer concerned