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Ask HN: Could developers use the licensing model professional photographers use?
59 points by rosege on Apr 18, 2015 | hide | past | web | favorite | 59 comments
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.

I see software companies as having a similar model where its pay per install etc.

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't see anyone agreeing to it - but somehow professional photographers are able to charge this way.

In this article: https://fstoppers.com/originals/guide-pricing-commercial-photography-part-4-license-fees-8713 The author gives the example of the woman who designed Nike's logo and only earning $35 because she didn't have a license in place and at the time didn'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't really done anything extra to make the company the success it has become.




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").


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


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).


You say "assign copyright" here, but earlier you said "work for hire". These are not the same.

Copyright assignment is the one you want. It's very unlikely that a contract purporting to create a work for hire situation would succeed.


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.


One literally told me I offended her by attempting to negotiate. Most replied saying they'd give me a DVD of the digital photos, so I shouldn't worry about it.

I tried explaining to them that I work as a freelancer/contractor too and am very familiar with IP issues unlike probably most of their clients.

They mostly justified it by saying they're artists and that the work is theirs. I know these days they also put a lot of time in post-production and color correction. They like the idea they can showcase their work in magazines and on their websites (which I don't like). They also like selling prints to your friends/family (which is ok with me, as long I can do the same for free).

Historically photographers have generally owned their work. But I doubt they've historically made as much as they do from weddings (which is an insane industry, pricing-wise).


Artist arrogance must be cousin of designer ego: folks that overrate themselves with hubris believing that others will see that as a signal of quality.

The only reason for a photographer to retain copyright is to screw unsuspecting people and others that will bend to the manipulate nonsense. If it's your private event and they're any good, they don't need unlimited rights to your memories. That's offensive.


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...)


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.


> 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.]


The photography I went gave me the copyright to the photos with an exception that they can show them as sample to future clients and that only they are allowed to enter them into contests. It seemed more than fair to me.


I wouldn't let them have any copies, period. They can just resell them to stock photo sites or do whatever else they like and it's nearly impossible to police them.


If the subject of the photograph is an identifiable person, that type of publishing without a model release opens the publisher up to civil liability...


This was what I worked out, without much effort. A perpetual license for prints, but I couldn't sell the works.


I, and I think most people, wouldn't want someone (nor the NSA) running around with license to do whatever they wish with my personal family photographs and then turn around and extort us either. Sure photographers have to make a living, but extortion and privacy violation is a bridge too far.

Might be cheaper to either have TaskRabbits with copyright assignment waivers or have family / friends do it at the expense of amateurishness for the peace-of-mind that you or your entourage doesn't end up on some stock photo site or kitsch choskey.


Model release requirements prevent that, not copyright.


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.


For safety always have a contract that also states who the copyright owner is.

In New Zealand's copyright act there's a terrible bit of law called a "commissioning clause" that says if person A commissions person B to produce some work and there's some assumption about A paying B, then A owns all the rights to it even if they neither paid for it nor explicitly agreed to pay. There was a case of a company producing a free sample of engineering work and then trying to reuse that elsewhere. The court decided the recipient of the work was the copyright owner and the company that produced it could not reuse it. Where was the payment? They hoped the recipient would layer become a paying client for future work. Most other developed countries have removed similar clauses but NZ's government recently voted to retain theirs.

IAAL


I'm no copyright lawyer, but it looks like to me that you are wrong in the U.S.:

http://www.copyright.gov/title17/92chap2.html

> 201. (b) Works Made for Hire. — In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.

> 203. (a) Conditions for Termination. — In the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright, executed by the author on or after January 1, 1978, otherwise than by will, is subject to termination under the following conditions:


Work made for hire is a legal term which implies an employer-employee relationship (see also https://en.wikipedia.org/wiki/Work_made_for_hire)

Commissioned work is usually not work made for hire in the US, and so your quote wouldn't apply, unless it has been very explicitly agreed:

"there must be a written agreement between the parties specifying that the work is a work made for hire by use of the phrase "work for hire" or "work made for hire.""

Note: Wikipedia suggests it is highly unfavourable to the creator to agree to this term, in comparison to a simpler copyright transfer.


Work for hire means that the artist transfers ownership, they can't even use it in their portfolio's unless the work for hire contract states otherwise. They can also modify,deface,butcher it without needing the artists consent.


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.


> 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 "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."


> 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?


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

"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.


Without a precise, concise, exhaustive contract, it risks conflict and litigation that can get real, real fast.


Obviously, I agree in principle with this, but I would write a cautionary counter-argument:

If you are making agreements and signing contracts without understanding the legal default position, you are doing so from an exceptionally poor negotiating position.

People who do sign contracts should equally be prepared for possible conflict and litigation, and act to mitigate this with good communication skills and an honest commitment to the agreement (and by knowing basic IP principles). Nothing is ever 100% clear upfront; no contract can account for every contingency: no contract can be exhaustive.


You provide no sources for your claims. My consultations with my own IP attorney and this article disagree with you:

http://www.nolo.com/legal-encyclopedia/how-protect-intellect...

If an independent contractor develops software for a client for a fee and doesn't have an agreement that states otherwise then the independent contractor retains the ownership of the software. The client has an implicit license to use the software in binary form. That's it.


This is correct. US copyright law explicitly says copyright can not be transferred verbally. Lacking any agreement copyright stays with the creator.


First off, we were talking about UK law, not US law. Secondly, I think you're talking about what I described as off-the-shelf software, that is software that you've developed and offer for sale to people in general. The original post was about contracted work and that's the context I was responding from. I have never heard of anyone being paid to write software specific to a business and only delivering binaries to lock the client into continuing the relationship or starting afresh.


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.


> 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?


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.


Consulting rates are something that gets talked a lot about on Hacker News, but this is one of the first times I've seen a detailed retainer agreement laid out. Thanks Patrick!

I recently had the opportunity to pitch a retainer agreement to a client after a successful project, I'd be curious to hear what you think of it:

"I also offer a retainer service --- pay 2/3 of my rate upfront to prebook a certain number of hours per week/month, thereby guaranteeing my availability over that period. For each hour actually redeemed, the remaining 1/3 is then paid." - From a 'Next Steps Email' to the Client

Spoiler --- the client opted to turn down this retainer agreement and instead sign an additional contract for more ongoing work.

As an aspiring consultant, one disconnect I've noticed between the advice patio11, tptacek gives and my reality is that they are charging 8K per week for specialized conversion optimization/security work while I am only charging 100 per hour* for garden variety Rails development. At the rate I am charging, clients can afford to hire me long-term vs. the short, specialized agreements that the advice-givers previously took on in their consulting days...

* In the process of moving to a daily rate! I have heeded the advice. As a bonus, here are some of my favorite comments from these two about consulting:

- https://news.ycombinator.com/user?id=tptacek (Note Cliff Note #2)

- https://news.ycombinator.com/item?id=3420303

- https://news.ycombinator.com/item?id=3420203 (Main Thread)

- https://news.ycombinator.com/item?id=4101355 (Top comment)

- https://news.ycombinator.com/item?id=6103350 (Top comment)

- https://news.ycombinator.com/item?id=6073015 (Top comment)

- https://news.ycombinator.com/item?id=8704303 (Ctfl-F for tptacek or daily)

- https://news.ycombinator.com/item?id=3914611 (Top Comment)


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?


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.


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)


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.


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.


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".


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".


> 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.fogcreek.com/kiln/pricing/

* https://slack.com/pricing

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


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.


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.


I know of companies that will create a website for you that you pay them for and then charge a monthly fee to host it on their infrastructure. You can even charge based on traffic as well. That's a SaaS business model that both pays for the upfront and ongoing costs.

In terms of the photographer no ongoing costs, the photographer is likely to have no ongoing revenue either. If I get wedding photos, most likely I buy the number of prints I want upfront and never contact the photographer ever again. While the photographer might own the IP for making additional copies, if I don't want additional copies they don't get ongoing revenue. With SaaS, if I stop paying the monthly bill, I lose the service. If I don't pay the photographer monthly, I still have my photos. So the likelihood of ongoing revenue for the photographer is very low.

Also, the photographer does have ongoing costs. If I want additional copies of my photos, the photographer needs to store the negatives or digital files to create those copies. A RAW image from a nice camera can be around 25MB. Storing 40 of them properly would probably cost at least $0.01/mo (on Amazon Glacier) plus fees to retrieve them. Most weddings would have a lot more than 40 photos and so the annual storage cost for a wedding would probably be more than $1. If they don't have them stored, the only copies that exist are the prints delivered to me that I paid for and I'm likely to "pirate" copies based on those prints. In fact, regardless of IP, I think most people aren't going to end up paying for further copies. So the ongoing costs aren't a lot ($1.20/year/wedding for 400 photos), but the ongoing revenue is near non-existent.

So, there are business models where the customer covers the upfront cost in SaaS and there are ongoing costs to the photographer as well, but unlike SaaS the photographer is unlikely to see any ongoing revenue.

I think the difference between SaaS like Slack or JIRA and work like the photographer's is that the photographer's work is only really wanted by a few people. Similarly, a company creating and hosting custom websites for small businesses wouldn't be creating works that were widely desired. Pizza Hut isn't going to want a website for a local plumber just as I have no interest in your wedding photos. Whether you can get someone to pay for your work upfront can depend on whether it's something custom for them or more widely applicable.

Finally, there are SaaS businesses that charge signup fees. It's becoming less common, but in niches that are more widely applicable than a custom website while not having the general appeal of something like Slack, it can be a way to get customers to shoulder some of the build costs while still providing for an ongoing revenue stream.


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).


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.


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.


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.


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?


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?


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.


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.


Client could buy a license for 1-5 developers to modify the source.


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)?


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... [pdf] see "Copyright Owner's Consent" Also, the section on "Joint Productions" is especially worrisome.


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


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


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




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