
Ask HN: Could developers use the licensing model professional photographers use? - rosege
I was recently surprised to learn how professional photographers charge for their work. They charge for their time and expenses such as equipment rental, food, etc but the client never actually owns the IP. The photographer then charges a usage fee separate to their day rate and expenses. For example if its going to be in a magazine thats having 100,000 copies printed they would negotiate a fee for this and any additional use by the client would have to be paid for.<p>I see software companies as having a similar model where its pay per install etc.<p>What if independent developers were to adopt a similar charging model? Say I build a website for a company - charge for my time in building the site but then also issue them a monthly bill based on the number of people that have accessed the site. In reality I can&#x27;t see anyone agreeing to it - but somehow professional photographers are able to charge this way.<p>In this article: https:&#x2F;&#x2F;fstoppers.com&#x2F;originals&#x2F;guide-pricing-commercial-photography-part-4-license-fees-8713  
The author gives the example of the woman who designed Nike&#x27;s logo and only earning $35 because she didn&#x27;t have a license in place and at the time didn&#x27;t expect Nike to become the company it has. It seems kinda incredulous to me that this person feels entitled to more money simply because they did a job for someone and was paid for it (presumably a fair amount at the time) and then because their business has done great they should be entitled to be paid more when they haven&#x27;t really done anything extra to make the company the success it has become.
======
logn
When I got married I annoyed many photographers by balking at their rates and
then negotiating for copyright ownership. If I'm paying someone $3500 per day,
I expect that to be a work-for-hire. If they want to show up for $100 then
fine I'll pay per picture.

Anyhow the SaaS model, per-cpu, or per-seat models are pretty much equivalent
to how photographers work. The clients own no IP and it's all usage based.
Independent contractors can just set up a SaaS that has a one-time fee for
customizations, in addition to the normal monthly price (this is usually the
last option in the menu, "Call us for pricing").

~~~
jxcl
How often were you successful in negotiating to work for hire?

~~~
logn
Eventually I found a photographer willing to do it. Such photographers are
definitely not common though and in talking to about 10 of them, only 2 would
assign copyright.

I carved out an exception to allow the photographer use for offline portfolio
examples, and for selling prints to invited wedding guests (but as the owner I
could print them or share them digitally for free).

~~~
jfoster
How did the other 8 attempt to justify retaining copyright to your wedding
photos? I've never hired a photographer before, but your expectations sound
the same as mine.

~~~
ics
What it comes down to is nobody who produces art (photography, painting, etc.)
wants to be in a situation where their work is being curated or published and
they have remove good work because they don't have the rights to their own
photos. It could be for anything from a gallery show (many photographers'
bread and butter) to one of their online sample books. What makes the issue
more complex here is that a photograph captures a moment in time (meaning it
can not necessarily be _recaptured_ ) and the perceived implications of that
will vary widely from person to person. But again, if you're a photographer
who gets _one great photo_ , some perfect moment from a job, you want to be
able to do more with it since you can't just tell the client "hey, this photo
is _so good_ you need to pay me 10x as much for it!"

(Hopefully that's coherent enough to make sense of, writing multiple things at
once now...)

~~~
logn
From my perspective, not being able to re-sell that one great photo is exactly
the deal you're making when hired to do a job. I wrote some pretty cool
software for some past employers, and they could sell one of my patents for a
few hundred grand, but they also paid me a fair wage so I signed away my
rights.

If photographers' bread and butter is gallery shows, then they should come to
my wedding for free, or maybe I should charge them admission to cover the
costs of the extraordinarily expensive set and costume.

~~~
ics
> From my perspective, not being able to re-sell that one great photo is
> exactly the deal you're making when hired to do a job.

Only as far as the contract says that is so, as at least in the US the
implicit agreement is the opposite.[1]

Don't conflate having a client with being employed (I don't think you are, but
the second sentence could be read that way). A more realistic understanding of
the freelance photographer's life is that their bread and butter is almost
never just one thing... even successful photographers who demand high fees are
constantly looking for new and steadier revenue streams. As time goes on and
technology improves, the number of photographers (at least: _people able to
take pleasing photos_ ) will only increase. Naively this means that the price
for services should be driven down, but what it really means is that pros will
have to charge more and amateurs will have to do more for less. Photographers
in the middle, the ones who do most of the business, will have some tough
decisions about how to proceed and many will stick with whatever disadvantages
them the least. Giving up your rights in a field where that's uncommon is a
pretty major disadvantage, especially when today's client comes from
_anywhere_. Giving up the rights to display visual work online will make any
creator gulp, because that's the new portfolio. And, unlike code or patents,
people can and do give a quick flick through _everything_ you show in order to
make a judgement about whether to hire you.

There are plenty of photographers who will do your job for free (a wedding is
a bad example here though) and try to make money some other way but they will
either be: students, friends with prosumer gear, or people who have another
guaranteed income (gallery/publishing contracts perhaps). That last group will
be _tiny_ and probably pick what events they do themselves.

I'm sorry for rambling a little bit on the subject because I do agree that
there are probably better compromises to be made in the future. I think
there's a great potential market for photographers especially to market
themselves in the way you want them to actually operate, i.e. not as producers
of intellectual property but as technicians providing a service.
Unfortunately, until it becomes normal it will really be just another way to
charge more. What would help is if these sorts of contracts could be developed
by interested parties and released free to potentially gain mindshare.
Everyone is in a much better position to negotiate a price ("fair wage", which
is obviously dependent on many externals) if the implications of a contract
have already been worked out.

Summary: You have a good argument, but it's just one good argument in a sea of
tradition and status quo. There are good arguments on the other side as well I
think. When photography becomes more of a "need" and less of a luxury (or
maybe when it doesn't necessarily need to be done by people) then those
compromises may work themselves out anyway. Some ideas for what could be done
before then.

All in all, it sounds like you found someone good to work with on fair terms
and probably both learned something about how photography is valued by the
other side. By you as a private memory, by them as rendered services.

[1] I actually work mostly in a visual field producing work which I retain
full rights to. The client is given a perpetual license to use in any way they
see fit which usually means public display and publishing (in monographs or
online). Though I am not contractually obliged to, I refrain from publishing
any work myself at least until the client has done so themselves. It's a
courtesy that no doubt would work become part of the contract if I were to
stop doing it, but it's agreeable even if it requires checking in every so
often to ask if _the thing_ is public yet. Clients understand that I (and
others who do the same thing) would be at a severe disadvantage if I was
prevented from displaying my work for the sake of _getting more work_ even if
I can find a way to make marginal profit from it. Sometimes it actually helps
both myself and the client to put a tagline of "Commissioned by [Client Name]"
(free advertising for them). In short, I'm sympathetic to the less cutthroat
ways of dealing with intellectual property while at the same time being very
protective of my legal right to do what I need to do based on my own moral
compass I guess.

[I'm just going to apologize again in case you actually read all this. Heh.]

------
learnstats2
It's important that independent developers know that (by default) they retain
the copyright to their code and to anything produced from their code.

Unless agreed otherwise, a company contracting you does not have the right to
build off your code without your permission - they have an implicit license to
use your code for the reasons they expressed to you, and no more.

This is an important part of contract negotiation.

If a company wants the right to use what I built for them, they pay one price.
I find it helpful to make it explicitly clear exactly what we are agreeing.

If they want the right to my code, there are several disadvantages for me: I
could lose potential future work from them, and I lose some competitive
advantage gained from my past work and skill that's gone into that, and I
might lose the right to reuse my own code.

They will normally pay a much higher price to cover that disadvantage,
depending on how thoughtfully this is negotiated and the nature of the work.

This is different from employed developers, who give up their copyright to the
employer (again, by default).

In my experience, freelancers in creative fields tend to be very aware of this
situation and apply it skilfully.

If Nike started using the swoosh in a way which they hadn't agreed upfront,
the designer has a definite copyright claim there, and both parties ought to
have known this when she first agreed to do the work. Indeed, the article
reads like they later paid her off with shares.

This is my understanding from the UK; I am not a lawyer.

~~~
MatthewWilkes
Your understanding is wrong. If you don't put an explicit licence in place
then the implied licence is a matter for the courts to decide based on what a
reasonable person would expect, not just what was discussed (as that's
explicit licencing). If you're contracting without an explicit licence then
not only are you doing it very wrong, but any implied licence would certainly
include the right to derivative works. If you sold a piece of off-the-shelf
software as a whole I think you could argue it wasn't intended for derivative
works to be allowed but you certainly don't have the right to restrict it if
you are relying on an implicit licence.

If you're not handing over IP rights because you're wanting to lock your
clients in to using you in future rather than trying to retain clients with
quality work then you're doing them a disservice.

~~~
learnstats2
> any implied licence would certainly include the right to derivative works

I'm fairly confident that you are wrong, on this particular point, but I'm
happy to be corrected.

Copyright remains with the author/coder unless it is explicitly transferred
(or is work-for-hire, as in an employer-employee relationship). Copyright
cannot normally be implicitly transferred.

Derivative works remain the property of the copyright holder.

As I said, I do make this explicit and discuss it with potential clients in
advance, and I recommend that to everyone.

The quality of my work is excellent and I'm not concerned about that.

I don't hand over IP rights for the same reasons that Disney don't hand me
over IP rights when I buy a Mickey Mouse sweater. If you create, you have
rights to that creation and those rights should be respected. This is a fair
business practice in that it applies to everyone equally - it applies when I
commission creative work from other people too.

 _Edited to add:_
[http://en.wikipedia.org/wiki/Implied_license](http://en.wikipedia.org/wiki/Implied_license)
"Unauthorised use of the work would therefore infringe the creator's
copyright. Nevertheless, the commissioner may have an implied license to use
the commissioned work, although only for the particular purpose under which
the commission was originally agreed."

~~~
tomp
> Copyright remains with the author/coder unless it is explicitly transferred
> (or is work-for-hire, as in an employer-employee relationship).

But isn't company-contractor also a work-for-hire relationship?

~~~
learnstats2
Work-for-hire is a legal term (and maybe a US-specific term?) in this context
so I'm not sure.

Here is the official advice: [https://www.gov.uk/ownership-of-copyright-
works](https://www.gov.uk/ownership-of-copyright-works)

"in settling disputes the courts have typically had to decide whether the
employee was working under a ‘contract of service’ (eg as an employee) or a
‘contract for services’ (eg as a freelancer or independent contractor)."

So, it seems to depend if the contractor is seen as an employee in legal terms
- in that case, the contractor should expect employment rights and benefits as
well.

------
patio11
You can offer a client any terms you desire to and they can accept any terms
that are profitable for their business, but offering terms which clients are
used to with little fill-in-the-blanks for the consequential line items makes
it much easier to get your proposal accepted.

What gets better about your life under this proposal? Presumably it isn't
"tell my photographer friends that I now have their billing model" since
you're substantially wealthier than them, or at least you should be. (If not,
charge more. Actually, just charge more, no matter what your rates are
relative to photographers.)

Is it that you get recurring revenue from one-off consulting engagements?
Great news: you can get this. Start putting the following two terms into your
proposals: an acceptance period (after which, by default, you don't owe the
client ongoing work) and a retainer for maintenance/improvements. The retainer
is simply use-it-or-lose-it committed availability at a modest (10~20%)
discount to your normal rates.

Example: If you do a 3 week project at $8k per week, you bill $24k for the
upfront work. You also, simultaneously with the original proposal, pitch the
client on a maintenance-and-improvements retainer: two days a month of
guaranteed availability, $3k a month. You will find that most clients don't
ask you to do any work in most months. They'll still often be quite happy to
pay, since it's an insurance policy against external events (e.g. Heartbleed /
a vulnerability in Rails / "our sysadmin broke things and can't get it working
again") or, more commonly, changes to the system being required to support new
business requirements.

One does not typically have mechanisms which make the retainer more expensive
over time, because these are hard to negotiate, but one can certainly have the
retainer sunset after a while (6 months or 12 months, say) and renegotiate it
then. "This project ended up being really key to the business!" is a good
thing to have when negotiating the new rate. No client anywhere will enjoy a
hefty increase but, well, client relations are client relations.

P.S. Stop building websites and start fixing business problems. You're a
_very_ short walk from "build a website" to "build a system which provides
leads to the business" and some businesses will _absolutely_ pay for leads on
a per-lead basis if you really, really want to try your hand at variable
compensation.

~~~
japhyr
> two days a month of guaranteed availability, $3k a month

How do you manage this wih multiply clients? Heartbleed comes out, and all of
your clients want two days of exclusive work fixing their issues. Is it first
contact, first served?

~~~
tptacek
Typically, the terms of a retainer include committed response times and notice
requirements from customers. The shorter, truer, but less useful answer is
that by the time you have so many retainers that collisions occur, you've also
begun hiring other consultants to work for your practice on a W2 basis.

------
hyperpallium
1\. Someone will do it without requiring IP. Unless you have special expertise
to offer, your negotiating position isn't strong enough.

2\. per-seat licensing is common in Enterprise software. Though usually that's
for product sales, not for work you did for them. It's not unusual to
negotiate to retain IP; then you can sell it to the next client, with only
minor modifications. You could negotiate for royalties and charge less
upfront, but it's unusual, and they'd insist you fix the rates so the client
isn't priced out of the software they commissioned.

Royalties (including tiers like "up to 10,000") are a pain to track and audit.
Photography is easier to track than embedded software because it is
intrinsically visible. (of course, webapps make royalty tracking trivial - for
the whole app, not for embedded components.... unless "rented microservices"
become popular.)

Photography is more artistic; code is more engineering, giving photographers a
stronger negotiating position.

Maybe photographers have something closer to a union?

------
jawns
In a sense, companies that offer developers a salary plus equity or stock
options are doing something similar. You get a certain amount up front, which
is not contingent on the company's success (i.e., you get to keep your
paycheck even if the business eventually goes belly-up), plus the possibility
of more if the company does very well.

Other industries do this, too. When I was offered a book deal, I was given an
advance, which was not contingent on sales. But, if I my book sells past a
certain threshold, I'll start earning more royalties. (So please, buy a couple
dozen copies.)

In fact, any business that offers a base salary plus some sort of additional
compensation if certain targets are met (e.g. bonuses) are following this sort
of model.

Edit: Now that I think about it, all the photogs are doing by charging based
on circulation is a version of per-user licensing. Only unlike in software,
the "users" are the people who see the advertisement.

~~~
rosege
Yes you're right its like MS CALs. Pay x amount for the server then also the
CALs for each user/device.

It really makes it apparent that work that produces IP is a special category
of work.

I keep imagining if other non-IP producing professionals tried to do charge in
a similar manner how it would appear ridiculous (In some cases)

------
vinceguidry
If you want to raise your rates, the best way to go about it is to just do it.
Companies have an insatiable need for talented development work. The
bottleneck is literally how big a number can you say with a straight face.

------
MatthewWilkes
Many photographers also insist that you buy prints from them directly at a
huge markup, which would be like insisting you are the only one able to resell
hosting to your web clients. We don't need to copy their unethical behaviour.

~~~
pavlov
Your example is basically SaaS: the client doesn't get to decide where the
application is hosted, you just sell them the right to use it on your server.

I'm not sure what's unethical about that... Unless you believe the only
morally valid software license is AGPL, which is designed to prevent exactly
this kind of server-side "lock-in".

~~~
pavlov
I don't understand the downvotes, can someone explain? To my mind there is no
difference between SaaS and "being the only one who can sell hosting for web
clients".

------
SandB0x
> Say I build a website for a company - charge for my time in building the
> site but then also issue them a monthly bill based on the number of people
> that have accessed the site.

This how it works with SaaS, apart from the "charge for my time in building
the site" part

* [https://www.atlassian.com/software/jira/pricing](https://www.atlassian.com/software/jira/pricing)

* [https://www.fogcreek.com/kiln/pricing/](https://www.fogcreek.com/kiln/pricing/)

* [https://slack.com/pricing](https://slack.com/pricing)

You can definitely charge for a support plan for a website though.

~~~
rosege
It is a bit different. If SaaS was charging an upfront build cost is one. The
other is with SaaS there are on going costs, e.g. data centre costs, usually
further development, etc. With the photographer they have had zero costs to
produce it originally and zero ongoing costs to license it further.

~~~
joshvm
Zero production costs? So your time is free?

You're paying for shooting time (per hour), processing time (per hour),
insurance, equipment amortisation, data storage and backup which could run
into tens of GB per client. Don't underestimate backup costs, if you lose
someone's wedding photos you can't just shoot it again. Often for weddings the
photographer is expected to be there all day, everywhere. Processing several
thousand photos can take a day or more.

I agree that you have mostly zero ongoing costs once the photo is 'gold
mastered', if you will, but to suggest that the photo was produced for free is
disingenuous.

------
pmontra
You can try and I'm sure you'll find someone that accepts it but I won't be
your customer. As a customer I want ownership of the code, to be able to fix
bugs and add functionality without having to go back to you. In a few years
you might have changed field of business or be too busy or too expensive to
work for me again. It's a risk I cannot accept.

That said, for small trow away projects I could accept that you keep the IP
but I'll want a discount (to remark that I don't think this is the normal way
to do this business: photos != software).

~~~
tomp
He/she didn't say that you _can 't_ have the source, just that you'll have to
pay extra for it, separate from the payment for the time/effort/knowledge the
initial development took.

------
Bluestrike2
Photographers are able to do so because the photography industry as a whole
largely subscribes to such billing models and IP provisions. I've had a lot of
experience with the professional photography world with my family, and for the
most part, expectations about contract terms are largely the same. From
studios shooting elementary school kids for their first yearbook photos all
the way to large assignment shoots for multinationals, it's understood that
the photographer retains IP rights as the norm. Clients will sometimes
purchase IP rights outright, but they're going to pay to do so though it's
pretty rare (most photos for marketing projects, for instance, will only be
used for the duration of particular campaigns).

I can't really see the same model ever being used for development work. Off
the top of my head, I can't recall a single model contract for design or
development I've read online that doesn't include terms for the transfer of IP
rights. When you're designing an identity for a company, that identity will
eventually become that company's public face. No company on earth is going to
play games there by letting a third-party have any form of control over it
(and that's exactly what licensing terms would be). Their legal department
would kill any project before it began, solely out of concern for what you
might do in the future.

Let's say you decide to raise your licensing terms in the future based on the
company's growth as a brand. Or better yet, let's say you're dead and now your
estate controls things. How will that pan out? The same goes for code. If you
wrote a major component for FedEx's logistics management, the sort of thing
where other major components subsequently rely on it, what would happen if you
decided to play games? You'd have effective control over their entire
logistics systems, and that's something that would terrify any corporate
lawyer.

While I can appreciate the desire to look at alternative contract terms,
licensing ala what professional photographers and artists use is something I
think is DOA.

------
w4tson
Its an interesting concept however I'd like to mention that people are the
real asset. Sure the code is fundamental but the reason why companies like
google and Facebook make acq~hires is not get the code or even the individual.
Its teams that are the real gold.

------
dorfsmay
The biggest difference is that the photographer sells a finished product, that
nobody else can work on.

How would this work when teams of independant free lancer work on a piece of
software? What about when they get someone else to modify the code you wrote?

~~~
dorfsmay
The is another thing linked to the notion of "done": environment rot.

Professionnal photographers know to print on archival paper, and give you
advice on how to store your pictures to potentially keep them for ever.

What happens in two years when they upgrade their OS and your software no
longer works? What if you went out of business? What if you are still in
business but now charge ridiculous price?

Do you have a duty to update your licensed software for ever for free? Or at
the maximum at the price you agreed to work for originally?

~~~
janpieterz
A photographer usually doesn't have the duty to do this either. You can
certainly ask them to do it but the pricing will be higher. The photographers
I know delete their source files after a certain amount of time and only keep
the end products in the state they are in.

This is quite equivalent to the software that you build, you get it in the
state it is in but if certain things change you need to pay more or agree for
something else. A good developer/company will talk to you about it, how to
manage the lifetime of the application, for how long their support goes and
what it implies afterwards.

~~~
dorfsmay
On the other hand, some photographers will sell you the raw files of your
images, I even know some who will give them to you a year after the event as
part of the original pricing.

Similarly, a lot of companies will insist on keeping a copy and the rights to
the source of software they pay people by the hour to write.

------
rch
How does a law firm manage rights to use and modify master service agreements
(which may be drawn from to negotiate specific contracts by in-house counsel)?

~~~
vgabios
When you're an Orrick customer, most of their documents come from their
standard internal library. If you need something custom or have to negotiate
terms, that gets more expensive because legal drafting and review needs to
happen with a human in the loop.

It is likely there is a master agreement with them that outlines use rights
beyond customary client-attorney rights and responsibilities so custom and
standard deliverables such that customers don't warez them to BitTorrent or
sell them to friends. (The lawyer or law firm always retains copyright unless
otherwise ageed.)

[http://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?a...](http://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1680&context=ohlj)
[pdf] see "Copyright Owner's Consent" Also, the section on "Joint Productions"
is especially worrisome.

------
jonsen
Wouldn't that entail that the developers also took on responsibilities for
future consquences of the use of their software?

~~~
sebastianconcpt
That's an interesting question but different issue. Aren't developers
responsible already for what they code? Are photographers? Are gun factories?

------
brador
The photographer can see when the work is being used without permission, the
programmer, usually, cannot.

