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The Photography Markets

Introduction

It is our concern that if appropriate legislation regulating digital copyright is to be drafted, it is first necessary to properly understand the varied markets for photography and their characteristic subcultures. Here is a contribution from photographers on this subject - one with which we are intimately familiar.

First, let us list the different genres (the subject matter or “content”) of photographs and the markets in which they are licensed.

Genres include:

• Portraits, Weddings & Social
• Landscape
• Wildlife & Nature
• Sports
• News, Documentary & Reportage
• Interiors
• Architecture
• Still Life
• Lifestyle
• Fashion
• Cars, Aviation & Transport

The difficulty and cost of creating images within and between genres varies widely. For example, anyone attending a public airshow can easily shoot pictures of aircraft from the ground for the price of the entry ticket. Photographing the same aircraft air-to-air from another is a far more demanding and costly affair.

Markets for photographs include:

Social and weddings (private commissions)
Fine Art
Editorial
Public Relations (PR)
Corporate
Advertising

"Stock photography" is not itself a market, but a means of supplying photography markets with pre-existing images. Similarly, photographic competitions are not a market, but are increasingly used by unscrupulous organisers imposing rights-grabbing entry terms to acquire libraries of stock photographs for commercial re-use at little cost to themselves.

Images with near-identical content are commissioned, created, valued, licensed and used very differently in different markets. With the exception of the Public Relations and Corporate markets, which overlap somewhat, it is highly misleading to assume that what prevails in one market is also true for others.

Few photographers are professionally active in all genres and markets. Most operate in multiple genres but only a few markets; others specialise in one or two genres but operate in multiple markets; the best-known photographers usually specialise in one or two genres and markets.

Each market for photography has its own distinct subculture based on its combination of the following factors:

• The Supplier/Client Ratio
• The Commissioning process
• The Creation and Production Process
• The Valuation Process
• The Licensing Process, including the prevalence of unfair contract terms and rights-grabs
• Usage, particularly usage restrictions, exclusivity, privacy, and whether the photograph will be subject to End Use or Further Use
• The proper functioning or failure of the market according to orthodox free-market theory.

SOCIAL & WEDDINGS

The Supplier/Client Ratio: all parts of the market are well-balanced with many suppliers servicing many clients. Both sides of the market overwhelmingly comprise individuals or microbusinesses.
The Commissioning process: private commissions. As such, images are private and no other use can legally be made of them without the consent of both the copyright holder (usually the photographer) and the commissioner. One of the great problem areas for any so-called “orphan works licensing” scheme.
The Creation and Production Process: varies from available-lightreportage” to full-blown lit location and studio work at the high end of the market.
The Valuation Process: fees negotiated directly between client and supplier. Many suppliers offer a tariff; the properly competitive nature of the market enables clients and suppliers easily to match quality, style, deliverables and fee to mutual satisfaction.
The Licensing Process: photographers automatically retain copyright. Images are licensed for private use.
Usage: images are used for private purposes. Deliverables tend to be photographic prints or wedding albums. These are traditionally End Uses. There is a recent trend towards the supply of accompanying digital media, which can result in unintended and unauthorised Further Use.
• This market functions well according to orthodox free-market theory.

FINE ART

The Supplier/Client Ratio: all parts of the market are well-balanced with many suppliers servicing many clients. Both sides of the market mostly comprise private individuals or microbusinesses; galleries sell prints to the public on behalf of photographers; some large cultural institutions collect photographs.
The Commissioning process: self-commissioned or, less frequently, private commissions. Images are private and no other use can legally be made of them without the consent of both the copyright holder (usually the photographer) and the commissioner. One of the great problem areas for any so-called “orphan works licensing” scheme.
The Creation and Production Process: the entire range of production methods and processes is represented. Prints are usually unique or produced in limited editions. Verifiable documented proof of provenance is of paramount importance.
The Valuation Process: fees negotiated directly between client and supplier. Valuations range from a few tens of pounds to tens of thousands - another of the great problem areas for any so-called “orphan works licensing” scheme.
The Licensing Process: photographers automatically retain copyright. Images are licensed for private use and public display.
Usage: images are collected and displayed for private, cultural and investment purposes. Deliverables tend to be photographic prints. These are traditionally End Uses. There is a recent trend towards the supply of accompanying digital media, which can result in unintended and unauthorised Further Use.
• This market functions well according to orthodox free-market theory.

EDITORIAL

The Supplier/Client Ratio: most parts of the market are oligopolistic, characterised by high concentration and grossly unbalanced with a great many suppliers competing to supply relatively few clients. The supply side of the market overwhelmingly comprises amateur, semi-professional and professional individuals or microbusinesses; clients mostly consist of large corporate media combines.
The Commissioning process: members of the public freely supply images for no fee, sometimes in return for a “byline” or credit; freelance professionals and microbusinesses supply “on spec”, sometimes at their own rates but usually at rates dictated by the client; clients also directly commission work from photographers or their agents. Clients usually use their market dominance to dictate terms. Picture Agencies and Stock Libraries also supply clients, often via commodity “subscription deals” in which the client is licensed to use a fixed number of images per day, week or month for an inclusive fixed fee.
The Creation and Production Process: the entire range of production methods and processes is represented.
The Valuation Process: clients usually use their market dominance to dictate fee levels, which are usually imposed on suppliers (“day rates”, “shift rates” and newspaper “space rates” are prime examples) although direct negotiation between supplier and client can occur, depending on an image’s perceived exclusivity and commercial value to the client. The Base Usage Rate method is sometimes used at the top of the market. Valuations range from free use to tens of thousands of pounds - another of the great problem areas for any so-called “orphan works licensing” scheme.
The Licensing Process: photographers automatically retain copyright but there is an increasing trend by clients towards rights-grabbing, usually for little or no extra fee beyond that for traditional limited editorial use. Book and magazine publishers are notorious for imposing onerous rights-grabbing contracts on suppliers, often also demanding that the supplier indemnify the publisher against the costs of potential unknown and unpredictable legal action as a result of publication over which the supplier has no control. Clients often insist that Internet use be included for no extra fee, or for a nominal fee increase. Newspaper and magazine publishers routinely publish images without offering payment to their owners, marking the use as “await invoice”, in the clear expectation that many such uses will go unnoticed and unchallenged, and thereby reduce licensing costs. Few other industries systematically defraud their suppliers in this way.
Usage: images are used in a non-advertising editorial context to illustrate books, magazines and newspapers, on commercial websites, in other media, and in an “educational” context. Licences are usually valid for a limited timespan, although the trend towards clients “wholly-owning” the work (as a consequence of their imposition of rights-grabbing contracts) is rapidly changing this custom. Deliverables are usually digital media and represent Further Use in that publishers will then use the digital media commercially in a multitude of ways to generate revenue for themselves. Along with social media websites, publishers and broadcasters are the main generators of so-called “orphan” photographs, usually by failing to credit the photographer and employing website systems that strip identifying IPTC metadata from the digital image files as they are uploaded. As an example, the BBC alone daily “orphans” hundreds of images in this way. Their behaviour is quite usual.
• Because of this market’s externalities, distortions and gross imbalance of power and competition between suppliers and clients, this is mostly a failed market according to orthodox free-market theory and can only be made to operate satisfactorily for suppliers by rectification of the deficiencies in current UK copyright law, inalienable Moral Rights for photographers and the extension of Fair Contract law to include Intellectual Property.

PUBLIC RELATIONS

The Supplier/Client Ratio: many suppliers service fewer clients, but the market is not grossly unbalanced. Suppliers overwhelmingly comprise freelance professionals or microbusinesses; clients range from small PR agencies through to large corporations, charities and public bodies.
The Commissioning process: PR agencies or corporate PR departments make direct contact with photographers or their agents to commission pictures.
The Creation and Production Process: the entire range of production methods and processes is represented, but many news photographers and photojournalists also undertake PR work, sometimes using lights and assistants, often unassisted and using available light or on-camera flash. PR work is often viewed as commodity photography, with little opportunity for the photographer to offer personal style and with it, scarcity value and higher rates.
The Valuation Process: fees negotiated directly between client and supplier. “Market” hourly, half-daily and day-rates predominate. In the extreme upper end of the market fees are based on the commercial value of the image to the client and the Base Usage Rate system is occasionally used.
The Licensing Process: most clients tend to have little grasp of copyright. Photographers automatically retain copyright but there is an increasing trend by clients towards rights-grabbing, usually for little or no extra fee beyond that for traditional limited PR use. Clients often insist that Internet use be included for no extra fee, or for a nominal fee increase. High-end clients tend to have a reasonable grasp of copyright and limited use.
Usage: Images are licensed for further free supply to publishers and others to illustrate articles favourable to the end-user client. Events illustrated range from “grip and grin” to corporate hospitality events and product launches. The PR market tends to confine itself to specific events and PR campaigns. Images are not licensed for advertising use. Licences are usually valid for a limited timespan, although the trend towards clients “wholly-owning” the work (as a consequence of their imposition of rights-grabbing contracts) is rapidly changing this custom. Deliverables are usually digital media and represent Further Use.
• This market is not “failed” according to orthodox free-market theory, but photographers do not regard it as functioning well, especially at the lower end. Much of this is due to ignorance of copyright. Inalienable Moral Rights for photographers and Fair Contract law extended to include Intellectual Property are required to make it function properly.

CORPORATE

The Supplier/Client Ratio: many suppliers service fewer clients, but the market is not grossly unbalanced. Suppliers overwhelmingly comprise freelance professionals or microbusinesses; clients range from small businesses through to large corporations, charities and public bodies.
The Commissioning process: SME’s, corporate press and marketing departments or design agencies working on their behalf make direct contact with photographers or their agents to commission pictures.
The Creation and Production Process: the entire range of production methods and processes is represented, but many news photographers and photojournalists also undertake corporate work, often using lights and assistants, occasionally unassisted and using available light or on-camera flash.
The Valuation Process: fees negotiated directly between client and supplier. “Market” day-rates predominate, but in the upper end of the market fees are based on the commercial value of the image to the client and the Base Usage Rate system is well-established. This is one of the great problem areas for any so-called “orphan works licensing” scheme.
The Licensing Process: at the lower end of the market, clients tend to have little grasp of copyright. Photographers automatically retain copyright but there is an increasing trend by clients towards rights-grabbing, usually for little or no extra fee beyond that for traditional limited corporate use. Clients often insist that Internet use be included for no extra fee, or for a nominal fee increase. Clients often assume that they “own” the pictures and are free to use them for any “corporate” purpose. High-end clients tend to have a good grasp of copyright and limited use.
Usage: Images are licensed for specified uses to illustrate Annual Reports, in-house magazines, corporate and marketing brochures and flyers, point-of-sale and below-the-line advertising materials, etc. The NUJ defines much of this work as “extended PR”. The corporate market can be considered an extension of the PR market, with the work not limited to specific events or campaigns, but not including above-the-line advertising. Images are not licensed for such advertising use. Licences are usually valid for a limited timespan, although the trend towards clients “wholly-owning” the work (as a consequence of their imposition of rights-grabbing contracts) is rapidly changing this custom. Deliverables are usually digital media and represent Further Use.
• This market is not “failed” according to orthodox free-market theory, but photographers do not regard it as functioning well, especially at the lower end. Much of this is due to ignorance of copyright. Inalienable Moral Rights for photographers and Fair Contract law extended to include Intellectual Property are required to make it function properly.

ADVERTISING

The Supplier/Client Ratio: many suppliers service fewer clients, but the market is not badly unbalanced. At the high end, few clients (usually advertising agencies working on behalf of the end client) commission work from relatively few highly-skilled specialists, usually via their agents. Suppliers overwhelmingly comprise well-established freelance professionals, microbusinesses or small businesses; clients range from SME’s through to multinational corporations, charities and public bodies.
The Commissioning process: advertising agencies and corporate marketing departments make direct contact with photographers (or more usually their agents) to commission pictures.
The Creation and Production Process: the entire range of production methods and processes is represented, but usually a pictorial concept will have been developed by creative staff at the advertising agency. The shoot will be directed by the advertising agency’s Art Director and usually feature professional models, stylists, property managers and others, all of whom work under contract, usually to the photographer or his producer. Model- and property-releases are essential and used as standard. The production process tends to have high production values and as a consequence be costly. The imagery will be for the exclusive use of the end client.
The Valuation Process: fees negotiated directly between client and supplier. Fees are based on the commercial value of the image to the end client. “Market” day-rates are often used, but in the upper end of the market the Base Usage Rate system is prevalent and well-understood.
The Licensing Process: most clients have a good grasp of copyright. Photographers automatically retain copyright. Images are licensed for specific uses, in specific geographic territories, for a specific length of time. Extra uses are costed as additional percentages or multiples of the agreed Base Usage Rate for that image. This is one of the great problem areas for any so-called “orphan works licensing” scheme.
Usage: Images are exclusively used to illustrate above-the-line advertising in newspapers and magazines, on posters, billboards, hoardings and in other media. Deliverables are usually digital media and represent Further Use.
• This market functions reasonably well according to orthodox free-market theory.