speaker-0: Every time J or I says unlimited usage, take a shot.

speaker-1: It actually doesn't- that actually doesn't bother me.

speaker-0: This is Continuous Agitation with Jay Flam and Bill Sowalik. And today we're gonna talk about unlimited usage and the changes to the way usage is bid and client expectations and whether or not you can still get a job if you expect a client to pay for a limited usage license.

speaker-1: And we're gonna get there via a discussion about the post from Andrea Stern with ⁓ Stern Reps and that particular profile is Ask Stern Reps.

speaker-0: have a disclaimer, which is I think she means well.

speaker-1: Do you I do well yeah, I do think she means well. However, I have resolved ⁓ without telling you in in our frequent text discussions that I'm gonna talk more trash ⁓ on our podcast. That is that is my Yeah, because you're really nice and kind and I you know, I feel continuously agitated about stuff and I don't think people are always like I let's be honest. Like, yes ⁓

speaker-0: And that's that's the issue we both sort of have with this specific post is we feel like it's ⁓ as I believe the top commenter on the post said, I wish you were more honest. And I don't think she's being dishonest. I think she is coming from a perspective of A, she's a rep, B, she's working presumably at a higher end of the market, and C, she's probably somewhat shielded from the on the street realities of an increasing amount of work and requests today.

speaker-1: ⁓ if she's a if she's a ⁓ high high end rep, which I don't know if there are any ⁓ reps that aren't high end, ⁓ I mean she is definitely she's de facto working at a higher end of the market. I don't think that there are reps who are sort of like, ⁓ we're just doing little mom and pop stuff. That doesn't exist.

speaker-0: Right. By virtue of being a rep, she the the the work she is feeding to photographers ⁓ by default has the expectation of of usage, limited usage and one year terms, five year terms, ⁓ regionality and that sort of thing. But

speaker-1: Or a very large fee, or a very large fee for unlimited usage if they're doing an image library. I'm sure she has photographers who, you know, create create image libraries. Do you think that we should back up ⁓ and pretend as if we're speaking to an audience who has not seen that post and not and doesn't know who's involved? And just like let's let's, you know, pretend we're talking to ⁓ you know, my high school kid.

speaker-0: I think you should start by reading the post, which I can't get to.

speaker-1: I got it. I got it. 'Cause I'm a professional.

speaker-0: All right. Today's discussion is about Ask Stern Reps, who posts regularly on Instagram and social media, ⁓ answering questions, I think with ⁓ with no malicious intent. and and really ultimately we just sort of have a fundamental disagreement with her interpretation of how things are going in the market right now. And take it away, Jay.

speaker-1: Well, so she posts she you know, like every Wednesday she posts one of these QA's and she posts one panel ⁓ with a question and then she answers in the next panel, and it's not long, right? Because it can all go and all can fit in big type on the on the ⁓ in the main part of the post. But the question recently I've lost a few bids because I haven't given the client an unlimited license. Is this an industry trend? Are clients not paying for usage anymore and or are photographers not charging for usage? In my bid, I gave the client all the usage that they asked for, but lost the bid to another photographer who just gave them an unlimited license. Answer. The next panel. Giving away so Andrea says, giving away image usage licensing rights for free gives up the critical framework that supports a career in photography. Side note, I agree with that statement. The only way to win this battle is to be the best photographer you can be.

speaker-0: Hundred percent.

speaker-1: Agree with that a little less. Yeah. On the side note. The better you become, the more clients will be forced to stick with photographers who charge for licensing rights. Those who give it away are on a lower playing field, mostly used when a client does not have a high-end specific style and can use a more general, undefined look. The only way to not be undercut is to be the precise resource raising their business to that next level. Be the solution, making them look even better for using you. Exclamation point. And that's where she loses me a little with that sort of chirpy piece at the end.

speaker-0: I she's not wrong in theory and she's not wrong in the way the business used to be done pre-pandemic. And it's not that it's not done that way anymore. It's just that it ignores the fact that our business is upside down, thus this podcast, our business is upside down compared to how it was in twenty nineteen.

speaker-1: And we're gonna talk about how it used to be and where this came from.

speaker-0: Yes. Her her answer ignores the fact that ⁓ we live in a world where clients are regularly sending out work for hire contracts, which in case anyone doesn't know, that means instead of me keeping my intellectual property on the on the images I create for someone, it is the it is the immediate property of the of the client who hired me. They give ⁓ you give up your intellectual property, which is a problem, we should say, and the way it's always been done until now was you did a photo shoot, charge the client the cost of the production, the cost of making the photos. If you already had the photos on hand, you simply licensed them.

speaker-1: There's hundred comments, almost a hundred comments on this post, and there's very few that are just trash talkers. I have there's one guy in particular.

speaker-0: The the top comment I see whenever I look at it is this this person's post starts with, I wish you were more honest in your answers. Yes, it is absolutely a trend that clients are asking for unlimited usage for perpetuity. For the top five percent of photographers, they can still navigate a world with negotiated usage. But for the middle class, it's becoming obsolete. As someone who's shopped for fifteen years and a lot of national brands clears six hundred Klex and owns a rental house, but where's the rental house? That's the real question.

speaker-1: He's trying to establish credit value.

speaker-0: He's saying I'm serious about this. ⁓ owns a rental house. I see it more and more. I see it more and more too, Bill says. Jay, I know, also sees it more and more.

speaker-1: Well yeah, I mean it's almost more the it's I'm almost seeing it more as the rule instead of the exception. ⁓ architecture accepted. But anyway, I see it more and more. Continue.

speaker-0: ⁓ I see it more and more. A lot of work now comes from production companies who don't respect usage at all. They treat the role like a DP and want to own everything for their client. Production companies have been a slow poison to photographers, and he means production companies as in video production.

speaker-1: And also just fee based, simply fee based. Every creative or talent talent person on the set is a fee. And a D P or a director gets a day rate and that's it. That's all they get. And the director might get a quite high ⁓ day rate, but as far as I know, that's just what they get. Right. And and also then they don't like I think you know, there really is not a just a usage discussion with video and broadcast film. It's

speaker-0: Yeah, they are a crew member. That is my experience as well. In the in the way the system has always been set up for photographers, go back to look at a Richard Avidon Harper's bizarre model shoot from the sixties, and he owned those photos and he could print them in his books and he could make gallery prints of them. They were his. He licensed them to the magazine. That's been the way it's done until now.

speaker-1: Well, and that's still and it's still with major magazines of which there are only about ⁓ two and a half left, that's still the way it's generally done. The magazine doesn't own it. You still own it, but that's just like very few and far between.

speaker-0: My until now is and and I've and I've I won't get sidetracked, I promise. But my my recent epiphany. ⁓ really? Yeah, yeah, yeah. I have a new theory. ⁓ you know how magazines aren't much of a thing anymore? That's the problem. And it's the problem in that magazines and their ilk and print in general, that was the engine that powered the photo business. Whether you were an advertising photographer or an editorial photographer, print was a thing that powered the need for what we do. Now all of our photographs are n are used on social media or when they are for for proper traditional advertising. ⁓ They're viewed on phones. We don't live in a print centric world the way we did even pre-pandemic. It's it's there's half as much of it as there used to be.

speaker-1: And let me t and let me explain, high school senior, you might think that that just, you know, means that they're you know that ⁓ people aren't shooting magazine stories anymore, and that doesn't matter, but no, it's all the advertising that went into that magazine as well. So it was both the editorial content and the advertising, and that's where it all lived. And one supported the other. And when you when you had an audience seeing ⁓ an image that was created for that medium, you know, that impression that was surrounding that brand, whether the brand is the magazine or the ⁓ or the advertiser, you put a lot of resources and effort into making those images really, really good because they lasted and people were gonna look at them for a long time. ⁓

speaker-0: For four months on the back cover of of Vogue magazine.

speaker-1: And it was an aspirational kind of thing for that imagery to be there. See Exhibit A, Richard Avedon and the many other sort of like people like him. Or Annie Libowitz, that's even still current. Anyway, it was where photography lived, and now increasingly it's not. It's not gone completely, but it is very, very different now.

speaker-0: There was a reason, you know, the ASMP was the American Society of Magazine Photographers. Then it became media photographers because it broadened out. But the this is it's not that we're all doing magazine work, it's that the the sort of core of the business has been gutted by social media. Social media did this to us. Social media is the reason, Jay. We are cons continuously agitated. Yeah. ⁓ social media is the reason. We're in this predicament. And it's because the same number of ad dollars, instead of being divided up three ways between Avidon, Leibowitz, and somebody else, are divided up three hundred ways among content creators, user generated photography, user generated video, and displayed on a medium, our phones, a device that is better suited to video than print.

speaker-1: Yes, but even when it is imagery, because there is still a lot of imagery being made, and I I even when it is photography rather, it is so temporary and such a constant churn and there's so much of it that it just isn't worth putting the resources into that it used to be. Why does that matter for any photographer who let's say let's let's call it the fifty percent of photographers in the middle who weren't shooting high end editorial or high end editorial advertising. Why did it matter For them and both then and now. I want to see what you say.

speaker-0: Why did usage matter or why does the death of print matter?

speaker-1: Why does the usage and the death of print matter both as they affect each other matter for the photographers in the middle who aren't doing high end editorial work? Why did that matter? Why is it relevant?

speaker-0: Because whether you look at it as the cause or the symptom, the reality is the need now is not what the need was seven years ago, literally seven years ago. Social media social media, let's say, began 15 years ago. It currently accounts for more than 80% of advertising spend in the United States. ⁓ Social media is eighty percent of advertising. Advertising Is at the core of our business, even if we are not advertising photographers. If advertisers can get away, if Nike can get away, if Louis Vuitton can get away with social media content, user-generated content, experiential marketing, all of these new things that appeal to an audience of young people through us, Gen Xers and boomers even. Who are jaded by advertising and don't want traditional advertising. Now we can reach those people with experiential marketing, with authentic quote unquote social media marketing. The core of our business has been gutted because the need no longer exists at the scale it existed before. Social media is 80% of the ad spent today. That's that tells you, I think. Everything you need to know when you understand that what is needed for social media is quantity, not quality. It ignores the fact that their need is different. What is the value of an image with a lifespan of hours? That's where we get to how and why does usage matter? And I and there's another comment.

speaker-1: I have a favorite I have a favorite comment in here that I'll get to. Yeah.

speaker-0: Go ahead. I like the first half of this comment, so I'll only read that. It's by Embodied Production. I gather.

speaker-1: I have thoughts on her. I think she is a consultant, ⁓ who w she d I've followed her recently and she talks a lot about the new way that photographers need to be talking to clients and et cetera, et cetera. She has some good things to say.

speaker-0: Such as the traditional licensing model is not congruent with the needs of brands and agencies today and tomorrow. I couldn't agree with that more. To be clear, Jay and I are not endorsing this. We're not saying, woo-hoo, it's evolving. Our business is evolving. No, this sucks. This is making it harder for us to charge the fees we always charged. But ignoring it and pretending it's not the case is not helping anyone. And that's why we're hot and bothered about rep's answer is that it's our fault. It's not our fault.

speaker-1: You're blaming the photographers or saying that like what you what you just need what you need to do is just be really, really good. A lot of people are really like really really good at making images, really high-end, like very specific, very clear vision. Yes, that's great. You should be that, but that's not going to solve on its own the the issue of clients needing to have ⁓ unlimited usage on ⁓ photographs or or wanting that, whether they need it or not.

speaker-0: Commenter Adam Lerner says, quote, telling photographers to do better is an outdated answer to a structural shift in the industry. Amen. Telling photographers to do better is an outdated answer to a structural shift in the industry. That's it. That's it. Yes, ten years ago, if if an agency called you and said, Hey, I want you to bid this and you didn't talk about usage, you were undercutting the market. Today, the expectation with a million more photographers Who maybe don't think of themselves as photographers. They think of themselves as content creators or or what have you. That's the nature of the business today. With so many more of those people, it's no longer the the protection we had when we were a rarer breed was you called Jade for Jay for a bid and he gave you a price and it included usage. You called me for a bid and I gave you a price and it included usage. But now when they're equally likely to be calling a content creator for a bid or a production company and it's not including usage, y you have no choice but to react to that market. And then if you're gym

speaker-1: choose you can choose not to do it but that's sort of leaving a lot of leaving a lot of jobs undone turning down turning down a fair amount of clients depending on what your market is and especially for you know third tier sec the second or third tier cities metros like you and I are both in I think that it you know that becomes even more of a reality it's true but yeah no he goes on to say ⁓ he says he's he starts out telling photographers to do better is an outdated answer and a structural shift

speaker-0: I think that's

speaker-1: In the industry. Since social media became the primary destination for most imagery, clients stopped thinking in terms of traditional licensing cycles. So this is exactly what you were talking about. They want they want content they can use indefinitely across platforms they control indefinitely. And I'd say that's definitely true. The reality is that most clients aren't interested in monitoring expiration dates across years of posts, websites, and digital assets. I mean, particularly corporate type clients. This is me now speaking. Corporate S especially small businesses. You know, and a small business is defined by the way as any anyone with a hundred employees or less. So a small business is still, you know, can be a fairly large client in terms of the amount of work they send you, right? So they're not interested in tracking all of that stuff, parti particularly when you're talking about time limits on the imagery.

speaker-0: Not only are they not limited in tr ⁓ interested in tracking it, in my experience, most clients, any clients of of all levels, agency to mom and pop, they're not interested in discussing the details with hey, here's the information I'm gonna provide you. What's your quote? And they damn sure aren't gonna come back and r work on that quote with you unless you are their number one choice from the get-go and they are desperate to work with you.

speaker-1: That's right.

speaker-0: Which is very valuable. And I think what ⁓ Stern Reps means when she says get better. Yeah. That's it. Be be indisposable. That's good advice. But it's it's impractical advice ⁓ for an entire industry. The whole industry can't be better than the rest of the industry.

speaker-1: That's right. I I think of it in terms of dials. As your talent and value to that client goes up, as they are more and more interested in the particular work, well, I'll put it to myself, as they are more and more interested in me and think highly of me, that dial's going up. My ability to command a higher rate, be more specific about usage, get more of what I think is is sort of the correct way to do it, that dial also goes up. And as the value or as a as the dial of me being like every other photographer that they're looking at or just another number, if that slides down, the other slides down. You have less and less and less control. And you're either the right price and the ⁓ hassle of working with you is easy or it's not. And they'll just move on. He goes on, ⁓ even highly respected photographers rarely have the leverage to dictate terms the way people did decades ago. In many cases clients expect perpetual usage as the baseline Not the negotiation, pretending otherwise ignores the economic reality most f working photographers face today. That just really resonates with me. I don't think it's always, again, this is not always the case. This doesn't mean that everyone should go out and just give unlimited usage and do everything and certainly not work for hire. And we can talk about that difference. But I really, I really like what he has to say about that. I mean, you you can't just be like, well, your work has to be really good so you can charge appropriately.

speaker-0: Even if your work is really good. I've I've heard ⁓ I've heard this sort of thing from high end people that I've profiled in magazine stories and th like th these are names. You go for these people because

speaker-1: Because of who they are. And you know who they are.

speaker-0: And and one of them told me ⁓ within the last 12 months, I checked in, I was like, hey, how's your business doing? And he was like, dude, this is the worst year I've seen in 20 years. It's a perfect storm. It's partly the economy, it's partly uncertainty, it's partly AI, presumably starting to creep in for those folks. It is mostly, in my estimation, we are currently experiencing the consequence of social media and the need for content over the need for art. Clients love to say a phrase. You when you're trying to feel them out, how much budget do they have? How serious are they about this? ⁓ what kind of work do they want me pr to produce for them? Which I find to be actually the hardest part of the job right now is trying to figure out what is this client expecting a $2,000 quote, a $25,000 quote, or a $75,000 quote? You legitimately just don't know. Like you I feel like 10 years ago you knew. They should be expecting between seven and ten thousand dollars on this or whatever whatever it was. And now you're like, somebody You know, is a solopreneur thinks of themselves as a content content creator, is going to shoot photos and video, gonna edit the video themselves, gonna bring an assistant maybe, and they're gonna do a whole project over the course of a week and they're gonna make $8,000 for it and they're gonna be thrilled, right? I think that's the future of the business. Again, not super happy about that, but I think that's the reality. I think that's what people who used to want to be commercial photographers are now going to be. Content creators, multimedia specialists. They're gonna do photo and video. They're gonna work in-house at a brand. They're gonna work at some megacorp, they're gonna work at a law firm, they're gonna work at a shoe manufacturer, they're gonna work in-house and they're gonna shoot content, and that's gonna meet the need of, I don't know, 80% of what that that company needs ⁓ in terms of photo and video, and then they're gonna hire out the remaining 20%. And If nothing else had changed, that just means there's simply 20% the opportunity that there used to be for us to earn a buck. So there's more of us competing over fewer dollars. That's naturally supply and demand. It's gonna push rates down. Clients seem to have less time than ever. They they seem to me to be less interested in collaborating, in in frankly learning. You know, you you hear people talk about, well, you need to educate the quant the client about usage. I I think a lot of times these clients know about usage and they they are not interested in it. Yeah, some of them. Yeah, and that's that's the ⁓ my take on the most important part of any of this in the question of is usage relevant, is understanding the client and whether they can be educated on usage or whether they expect usage or whether they are gonna balk. If you even try to separate out two fees, you can still charge usage, as I think someone in one of these comments ⁓ implied, is you can say, all right, I'm gonna charge a higher day rate, and I'm gonna consider this a five-year usage, and I'm gonna calculate that math, and I'm just gonna call it un ⁓ unlimited usage because I know the image doesn't have any value after five years.

speaker-1: Most images don't. Walla. Most images don't think beyond that.

speaker-0: They don't. They don't. Which is why I think somewhat I think s I think some of the clutching of pearls is a little overblown.

speaker-1: Well, I'm gonna I'm gonna argue I'm gonna argue the other I'm gonna argue the other side in a minute, ⁓ to to come to push back. But I also w this this you're what you're saying ⁓ directly is related to w my favorite comment on this. So when you come to a point I I wanna read

speaker-0: It's it's all it's all of these things together add up to what I think the general consensus in the comments on this post are, which is you are ⁓ you, Ms. Stern, are providing ⁓ an an incomplete, sort of offensively incomplete picture of what the what the market reality is.

speaker-1: just feels blasé. It just feels blase and it feels like it dismisses the frustration that I feel on a regular basis. And I just think that most I I I think that most of the look if there's any norm to commercial photographers, I I don't think that most of them are in that top what someone called five percent and another person said, I think it's more than five percent, which might be true. ⁓ but it's still the bulk is in the middle. you know, or even the middle and bottom. And I think that's fair to say like, hey, you're speaking to all these people too. Now she's trying to fit it into, you know, twenty five words.

speaker-0: And her audience is re she's a rep. Her audience theoretically is rep photography. Bringing up the value of photography.

speaker-1: But it's like she's g ⁓ all her audience is aspirational. Her audience is people who want to think of themselves as being in that pool at some point. And most of them will never be.

speaker-0: I think it would serve them and her better to acknowledge the reality, which is yes, this is a disconcerting trend we're seeing, and here's how I suggest you deal with it. But blaming photographers who give three bids that include limited usage and get none of those jobs and go, gosh, I used to get jobs at this rate all the time. What's changed? What's changed is ⁓ the market no longer expects usage, will bear usage, we'll negotiate with you. There's Ten times the photographers out there, it's so easy now to what whatever your budget and whatever your expectations, you're gonna find somebody to do the job for that. That's fair. We used to have a level of empowerment to say like, you you give somebody a quote and they go, ⁓ that's way too expensive. And you think to yourself, Well, good luck. I know you're not gonna find

speaker-1: What talking about is the friction, the resistance of the medium, that it was just harder to make this stuff. And that friction has gone down and down and down and down and down and down until it's very

speaker-0: So we don't need it as good. It's not as hard to make it as good.

speaker-1: It's not as hard to find you guys. It's not as hard, you know, we used to have to there was a time before websites that you you know, w if you wanted to find someone, like you couldn't just go easily see their work, right? You like had to look at a portfolio if you cared anything about it.

speaker-0: More of us doing The idea that somehow this is ph photographers are to blame for this or newbies who don't know what they're doing or causing this problem right now would be the first time in history that supply and demand did not have an effect on economics, right? That's the situation we're in. Pretending it's not is not gonna help any of us figure out how to navigate this business.

speaker-1: Now let me jump in and read that comment because it's applies directly to that, can I? ⁓ I'm just gonna say who he is. It's Matt Seidel, who I've am connected to somehow on LinkedIn. I don't remember how. I think he may have a St. Louis connection. But so he says, and I think this is the one that was my favorite comment. Reps and producers spent years reinforcing a pricing structure built for a different era. One where media distribution was limited, advertising channels were centralized, in other words, not like social media and everywhere. ⁓ and they were gate kept. You couldn't just do anything to reach all of your people and your all of your audience, I mean. And commercial imagery carried measurable scarcity and reach. That's the friction that I'm talking about. He goes on. Usage licensing made sense in high barrier. That's the friction. Mostly analog media ecosystems. It is 2026 now. Digital saturation, social media, and AI have flattened the perceived value of imagery. Have flattened the perceived value of imagery. I'll say that again because that's something I think about all the time, while dramatically lowering the barrier to entry. I that sentence right there for me is like it says a lot about what I'm thinking about day to day. Clients are not obligated to preserve f photographers' incomes, especially when cheaper and faster alternatives can fulfill most commercial needs well enough. Yeah, you can't just like complain about the clients all the time. Well, they should do this and they should do that. Well They're not. Should we educate them better and get better at educating the ones who could be brought into the tent and and and made to see a way of valuing the work that aligns with how we want to value it, yes. But ⁓ you c you can't sort of get mad at and mad at them for not doing it. I mean you can choose to work with those clients or not. He goes on, what we are watching is not the death of photography, but the collapse of its middle class. Commodity image making is being compressed into a race to the bottom. I wouldn't say race to the bottom just because it's such that's such a loaded phrase, but it's supply and demand. While a much smaller tier of photographers continue capturing the majority of high value work. Yeah, I would agree with that. A small handful of jobs will justify serious licensing fees, and a small handful of photographers will earn them. Everything else will become increasingly volume driven, disposable, and price competitive, which is I think what you, Bill, are talking about with content. If your work is interchangeable, here he goes, and now he goes on to blame the photographers. If your work is interchangeable, you are competing against speed, scale, and affordability. That is a fight most photographers will lose. Yeah, because most photographers are as good as, you know, the and it's not even the talent. It's there's so much other I mean, talent is the baseline of just being able to do this at all for a living. So I'm just gonna assume that most photographers are talented enough to be able to get a certain number of clients to Hired them.

speaker-0: Think about the barrier to entry that used to you you hired a photographer and paid them a premium because there's there was this magic little box that had film in it, and you had to do the math and know the chemicals to make it all work out beautifully, right? The light and ⁓ all this stuff. Absolutely. The bar barrier for entry lowered. And let's just objectively think about the average quality of work ⁓ absolutely mind-blowing compared to what was done on film. back in the day, right? Like the level, the bar has been raised across the board.

speaker-1: Just an ounce, and I would just say with an ounce of aesthetic ⁓ taste. You know, I mean you have to have good taste, but once you sort of get that

speaker-0: The bar has been so raised. The quality of work across the board is up, up, up, up, up. And those photographers aren't yeah I know photographers younger than me that former students and and assistants and just people I don't even know, but I know are are 25 and they're making amazing work. And they're not landing hundred thousand dollar advertising jobs. They're they're signing ⁓ you know, Washington Post work for hire contracts.

speaker-1: Or is it Wall Street?

speaker-0: Suffering it was one of them. One of the double the point is unlimited usage to my way of thinking is the stop gap between the real enemy, which is work for hire contracts, which is copyright transfer, which is do you want to work? Do you want to pay your rent and feed your family? Sign this contract. We both know people who a bulk of their work has become that sort of thing.

speaker-1: The one of the WAs, yeah.

speaker-0: At the photojournalism level, at the at a lot of large institutions, either Washington Post or Wall Street Journal included, they've figured out, hey, we can save a lot of money and own this asset that we can then figure out how to monetize without having to pay these pesky photographers. And there are plenty of them out there to do it. Copyright transfer and work for hire is the real enemy. And if if When I get those requests, I go to those people and I say, Hey, ⁓ I can do a copyright transfer for you. The rate is just so much higher. It's three times the rate, or it's four times the rate. Usually I do three. And I tell them, I'm happy to do it if that's what you want. But what I would suggest is you do something like an unlimited usage license. And here's what that means. And what it mostly means for me is that I get to maintain my intellectual property, my copyright. And I could

speaker-1: You can use the images you y you don't you can't necessarily license the images to other clients, probably.

speaker-0: Well I could in theory, I mean depending on the nature of the contract, but that's the ultimate core of the of the IP is you have this asset that you could then resell, right? And work for hire doesn't even give you that. Work for hire means you can't even show it in your portfolio.

speaker-1: No, yeah. You you're not you are not the author of it once the once.

speaker-0: You do And they will generously say, ⁓ well you can still show it in your profile. ⁓ thank you so much. I can still show the work I made.

speaker-1: I find that so offensive.

speaker-0: It's offensive. It's offensive. And so, in my way of thinking, an unlimited usage license is considerably better than work for hire contracts, which I think all of which work for hire, copyright sale, ⁓ and increasing ⁓ requests for unlimited usage, I think some of it, this is not victim blaming, but I think it's true. I think we did it to ourselves ⁓ when the ASMP led I don't know when it would have been, in the nineties, maybe? W while while usage licensing has been a thing for for years and for decades, there was a time when the bulk of ph photography was day rates. Your day rate was a thousand bucks and you shot it and and you know, y you gave ⁓ the cost of film and expenses and whatever, but you got a day rate and and sort of the same thing that goes on in the crew world in in video production now, film production now. Yeah. ⁓ I think that was pretty standard before places like ASMP said, Hey, regular working Joe photographers, the way this is done for high-end advertising is there's licensing involved. You should all do licensing too.

speaker-1: Yes, I do remember I remember this, yeah. And I assumed at the time and I was young, I assumed that this was the right way to do it. And I still think somewhat that it is, but it's ⁓ it's it's it's tricky. Go on.

speaker-0: But plenty of the our clients didn't quite understand what we were doing. And then when we called them up in a year or three years or five years and said, hey, your license is run out. You're gonna need to pay me another four thousand dollars to keep using those pictures.

speaker-1: We already paid you for that. The we what are you talking about? We hired you to do those photos and they're done. What we

speaker-0: We licensed technically what we had was a three-year usage license, Jay, and so what you're gonna need to do is pay me another four thousand dollars to keep using these images. So now the client's pissed off. They either pay it or they don't. They're never hiring you again, and they're making damn sure that the next time they hire a photographer, they put in a line there that says, We get unlimited usage. Or if their legal team gets involved, even better, they just say, Well, let's just make it work for hire.

speaker-1: Yeah, definitely if the l y yep. I mean I've negotiated so many of those.

speaker-0: It this is all a consequence of how we handled it. I don't know, t twenty years ago, thirty years ago, ha that change. ⁓ i I just see more and more requests like that now. And it's it's become take it or leave it because there are so many people, as one of the commenters said, who come from that production world, who are used to doing both, who are content creators, who don't have the history of understanding how commercial licensing works. And the reality is clients are are Taking advantage of that, and you either want the job or you don't, and you hope it's reasonably fair, ⁓ and unlimited usage license to ⁓ licensing to my way of thinking is at least some sort of middle ground between, okay, they want an unlimited license, I'll price it accordingly. I'll price it for five years.

speaker-1: Especially if you price it effectively so that there is so that that there is a a higher but that is a way of char you you price it effectively to charge a fee that's appropriate for unlimited usage. That is pricing for usage. That is charging for the license. And I just wanted to kind of say that like it makes sense to, from a copyright standpoint, the Copyright Act 1976, it's not like this is brand new. It makes sense that intellectual property the value of that and the and the ⁓ the fees around that would have would be based on how that intellectual property was used and what value it had to the client. Like that made sense to me beyond just charging a day rate, which is like, ⁓ I'm showing up to shoot the pictures and you're gonna pay me $2,000 to show up and shoot the pictures. Sure. But if you're using that in like the alt weekly in the local city ⁓ that has one value. If you're using it in like a national advertiser is going into a national magazine, the same picture would be worth more. And that made sense to me. But it became ⁓ a difficult argument to have for a lot of clients. And I I I guess I'm tempted to say smaller clients, but ⁓ at least direct clients, clients who are outside of that advertising agency model.

speaker-0: Yeah, we solved it. Glad we solved it, everybody.

speaker-1: I think ⁓ I d I do I do think I don't know what I think. Did we I hope we discussed we hit all the points.

speaker-0: But like this is a topic we were never gonna cover this whole topic in a

speaker-1: No, no, no. I was w I just wanted to cover the post. I just wanted to cover the social media post.

speaker-0: She's she's not that's the thing. Like it's so ⁓ you know, nuance wrong, right? But like she's not wrong. But she's wrong in the sense that she's only talking to a smaller percentage of the market, irrespective of the reality that photographers in the trenches are dealing with.

speaker-1: I mean she thinks she's talking to who she thinks she's talking to, but she's talking to a lot broader than that.

speaker-0: She's got a lot of followers, so people are clearly aspirational, which maybe is the is part of the reason for our agitation. Is if some young photographer doesn't know any better and is like, I guess I gotta tell this guy, yeah, here's the cost for the chute irrigation company, and here's the charge for a year of usage, and they're gonna go, well, why can't I use it for five years? Yeah, that'll cost four times as much. Yeah. They're just they're just not gonna get that job. They're just not gonna get that job. Yeah. Nine times out of ten.

speaker-1: And but she and the people who are on her roster, let's say, they don't want that job. That's that's the that's that's guiding what what they are that's guiding what she talks about.

speaker-0: Yeah, and when I'm doing a forty thousand dollar bid, I'm definitely pulling out and including line items for various limited usages. But when I'm doing a $3,000 job or a $7,000 job, it's not necessary. Necessary in the sense that it's not a mandate that 100% of the time it has to have it. Sometimes it does, sometimes it should. This is becoming, this has become more standard. And it just feels

speaker-1: Disingenuous to pretend like it's not.

speaker-0: I think I don't even know disingenuous implies deliberately misleading and I don't think that's the case but I

speaker-1: She knows. Yeah, man. She works in this business. She knows what's going on. She knows, she knows from small clients and large clients. She knows it. She's trying to and she's trying to be encouraging to creatives and to photographers. She's trying not to be negative all the time. That's, you know, that's kind of her brand. But yeah, she knows what, she knows what's up.

speaker-0: Well, and the reality is right now it's kind of a negative time because we're dealing with all these consequences, all these perfect storm things. It's it's it's a tough it's tough. Yeah. Hur it's tough. And and pretending it's not is not helping anybody.

speaker-1: Well, but it's that's her brand. And and that also is many people. I mean, the embodied production ⁓ person on there. I mean, that's also that's also their thing, you know. ⁓ and you know, maybe that's great. Maybe that's probably great. Like that's ⁓ but but you know, and I'm coming down on the other side being like, this sucks. ⁓ and maybe I'm not very fun to listen to, but I'm also not selling anything yet to photographers.

speaker-0: J Fram t-shirts available at jfram dot com.

speaker-1: Whereas both of these people are. The people that I just mentioned, they are they are, you know, they can take on photographers as clients. So it's they're much more about cultivating an audience of photographers. And if they tell all if they tell the photographers, yeah, this sucks. It's not going anywhere, you know, that doesn't really serve their needs to say that like a lot of people just are not going into photography anymore does not really serve their needs. But you cer you certainly see that in the comments.

speaker-0: Yeah.

speaker-1: Why is there so much, do you think, agitation about this particular post? I mean it got more comments than any of her other posts she said. What w is it is it people pushing back against her saying, Well, you just have to be better and and and and hold the line on on limited l on limited rights. Is that why there's such a conversation?

speaker-0: I think she's not getting the calls f presumably from the people who are making those requests with the frequency with the frequency that we are. And so she's a little bit it's a you know what it is? The comment sounds a little bit let the meat cake, right? She's a little she's just a little out of touch with the reality. And I think that's why people got up in arms. I appreciate where you're coming from. You are not wrong in the sense that that's all good advice, but it's

speaker-1: I don't know if that's

speaker-0: impractical given the realities of our business today.

speaker-1: Continuous Agitation is produced by Jay Fram and Bill Swalik. Write a review and rate the show on Apple Podcasts. Follow Jay on Instagram at J Fram. That's J-A-Y-F-R-A-M. Follow Bill on Instagram and threads at Swalik. That's S-A-W-A-L-I-C-H. Read Bill's newsletter about photography at artandmath.substack.com. Write to us with questions, comments, and effusive praise at jay at jfram.com or bill at sewalik.com. Thanks for listening.