Why Commercial Photographers Should Approach ‘Work-for-Hire’ and ‘Full Buyout’ Shoots With Extreme Caution

If you’ve been working in the industry for any length of time, you likely have come across the phrase ‘Full Buyout’, or ‘buyout’ in an email from a prospective client. You may have also received the (less common) request to do a Work For Hire shoot.

This post breaks down what that means, and why you should approach these shoots with caution (extreme caution in the case of Work For Hire shoots), and get clarification on what the client is really asking for.

First, it’s important to note that the term ‘Full Buyout’ means different things to different people.

In the case of small and mid-size companies, they often don’t even know exactly what it means, they were just told/heard/read they need it, and/or the last photographer they hired gave it to them.

They usually expect that the term Full Buyout means they automatically get to own the copyright.

This is not the case. More on this below.

In the case of global corporations and/or ad agencies, they know exactly what Full Buyout means, ask for it for a reason, and are usually (but not always) prepared to pay very handsomely for it.

Most global corps and ad agencies expect the term Full Buyout to simply mean that they have an unlimited, exclusive-use license to use the images in any media in perpetuity. Rarely do they ask for copyright relinquishment.

If a client specifically mentions they want release of copyright, then their use of the term ‘Full Buyout’ is actually incorrect. Releasing copyright on a commercial shoot technically and legally means ‘Work-for-Hire’, or Works Made for Hire. This ASMP article and this Photo Lawyer article go into depth on ‘Work-for-Hire’ assignments.

corporate full buyout and work for hire photography meeting
©Dylan Gillis

 

Although I regularly do Full Buyout shoots, since most of my clients are global brands with deep pockets, I personally won’t bid Work-for-Hire projects, and don’t advise other photographers to do it either. And here’s why.

When you do a Work-for-Hire shoot and you relinquish your copyright, you give up any and all rights to any of the images, including, most importantly, using them:

  • in your portfolio
  • on social media
  • and any and all marketing materials

You typically can’t put the client’s name on your client list either. It’s as if the shoot never happened.

Very occasionally the client will re-license a few images back to you for you to use in your portfolio, but typically these types of clients just want a photographer who will shoot-&-burn, and have no involvement in the project, nor any access to the images, after they are delivered.

So the only benefit to you with Work-for-Hire shoots is monetary. And to some extent- experience. Although you need to look carefully at the shot list and the shoot needs and determine if there’s enough value in the experience to justify doing it.

The bad news on the monetary front is this: typically when clients ask for Work-for-Hire, they expect to pay the photographer just above employee wages, and nothing more. They are technically and legally asking independent contractors to work as employees, yet they don’t pay any expenses related to having an employee, and they don’t payroll them. It’s actually not legal in most states. (You need to check the laws in your state regarding independent contractors vs. employees.)

States have been cracking down on this issue in recent years, and it can be a huge risk to the client to hire an independent contractor who should be an employee. The fines for this can be massive.

The copyright ask is a big one, whether the client realizes it or not.

Regardless of the risks, some smaller businesses still demand to own the copyright, sometimes due to ignorance, and often times due to being poorly educated by other photographers they’ve worked with in the past.

If the client does own the copyright to the images you create, along with you having no rights to use the images for anything, the client also has every right to use your images in any way they want, and sell your images to anyone they want, including:

  1. sell them to stores that sell their products
  2. sell them to white label partners
  3. sell them to other brands within their company
  4. license them to stock photography companies
  5. donate them to unsplash (free photos)
  6. give them to major magazines to run advertorials or editorials with
  7. give them to partners who will run major magazine ads using the photos
  8. use the photos to inspire a new logo for their brand and all sub-brands
  9. give them to any other company they want

They can do anything they want with your images, including generate more revenue from the sales of the images, for as long as they want. Because they own the content.

Sometimes clients understand this value, and are willing to pay a steep price for it (many tens of thousands of dollars up to a hundred thousand or even more), but that’s quite rare.

Because commercial photographers make the majority of their living off of licensing revenue/usage fees, if you are only charging a low ($75-$100) hourly fee, and not charging for licensing, and/or doing super low hourly rate Work for Hire jobs, you are a) leaving a tremendous amount of money on the table, b) are making it very hard for yourself to surpass the average $35k annual photographer salary, and most importantly- c) providing massive benefit to clients for a dirt cheap price. (Highly successful commercial photographers generate hundreds of thousands in revenue per year.)

Side note- it is my opinion that a copyright buyout should be calculated like this:

Calculate the licensing fees on total expected lifetime usage, let’s say this fee comes to $25k, and then double or triple it (depending on the size of the client, which determines the real value) when selling your copyright.

The sad news is that most clients who ask for copyright expect to pay maybe a few thousand all-in for the shoot (fees + all expenses), if even that.

I’ve heard stories of photographers being offered a few hundred for a shoot like this. Rates that literally wouldn’t even cover equipment rental or an assistant for the shoot.

If you are a new commercial photographer who doesn’t have much of a client list, and/or solid experience as a commercial photographer, the client typically wouldn’t expect to pay you what a copyright buyout really deserves, and expect rates more along the lines of what an employee photographer would be paid (e.g. $250-$300 per day, which is a paltry sum of money considering most portrait photographers charge that much per hour of shooting.)

Yet the same company has no intention of paying you for any employee benefits or perks, nor will they provide you with all the equipment required to do the job (cameras, lenses, laptops, grip, software, etc.), which they are legally required to do in a Work-For-Hire engagement, where you are

Asking for copyright and offering low prices for it is taking advantage of a photographer in the most absolute terms.

Q) So what do you do when a client asks for a ‘Full Buyout’.

A) You ask them questions. Lots of questions. Including:

  1. What is the intended usage?
  2. What are their immediate plans for the images?
  3. How long do they envision using the images?
  4. Are they asking for copyright release?

If they answer ‘no’ to question 4, then you simply move forward, determining licensing fees for exclusive use. Determine your photography fees, and all shoot expenses.

(If you are new to licensing fees, see our article ‘What is a Commercial Photography Licensing / Usage Fee?‘.)

I recommend that you inflate whatever answers the client gives you, since they are likely to under-report their expected usage.

For example, if they say “oh we’ll probably only use the images for six months”, double or triple that time.

If they say “we’ll probably only use them in the U.K”, expand the territory to all of Europe.

You get the idea.

If the client answers YES to #4- that they are asking for copyright, first you need to clarify that what they are asking for is technically and legally called Work-for-Hire, and then you have two options:

OPTION 1) decide that you want to do the shoot under the client’s terms, and give up copyright.

You need to make sure they have the legal right to hire you in that role. Please read through this United States Copyright Office document on Works Made for Hire and ask the client any questions that pop up for you after reading it. (If you are a company asking a photographer to Work For Hire, you really need to read through that document.) Ask if the company plans to payroll you, whose insurance you’ll be covered under, and who is paying for your workmans’s comp. Ask what kind of covid-19 protections will be in place for you and the crew. Ask what kind of equipment they will be providing for your shoot. (Nikon? Canon? Sony? DSLR or mirrorless? Will they be expecting video and provide you with a video camera?)

If it all fleshes out, then need to work out your own photography fees. No licensing fees of course since there wouldn’t be any.

If it were me, I’d place my photography fee on one line of the estimate, and then have the second line be ‘Copyright buyout’, with the price.

I’d also send them a second estimate with a broad exclusive-use license so they can see the difference in price.

It’s our duty as commercial photographers to educate our clients, and one way I like to do this is by sending the client multiple estimates.

E.g. estimate #1- ‘This is what you are asking for’.

Estimate #2- ‘This is what you really need’.

OPTION 2) tell the client that you don’t do work-for-hire jobs, but that you’d be happy to extend an unrestricted exclusive-use license in perpetuity, with you retaining the right to use the images for promotional purposes only. This is estimate #2 that I just referenced.

For all practical purposes, the client receiving an exclusive-use unrestricted use in perpetuity provides them the same benefits of purchasing the copyright, with the sole exception of if they want to sell the images to third parties (a rare case).

The rub of option 2 is this: if they are set on getting copyright, if you put your foot down about not relinquishing it, it’s highly likely that they’ll just find another photographer who will. Most of these clients care far more about cheap prices than they do about quality.

There are many inexperienced commercial photographers who think little of selling their copyright, and do it because the client expresses concern about the images being used by other companies. (If that’s truly the case, it means the client doesn’t trust you, and you’ll never have a healthy relationship if the client doesn’t trust you. If the client continues to insist on copyright, concerned about ‘who can use the images’, it means you have failed to establish trust, and/or you are using weak/self-serving agreements.)

The rub of option 1 is this: if you charge a fair price for this as I outlined above, you could also risk pushing them away, if they expect to not pay much for the copyright.

Option 2 is all the vast majority of clients ever need. It’s just a matter of educating them as to why.

Every client wants to protect their brand, and they can do this by purchasing an exclusive-use license that means that they are the only company who ever has the right to use the content you create.

They definitely don’t need copyright for this. The inexperienced/smaller clients may think they do, and they may ask for it, but they really don’t need it.

Exclusive-use licenses accomplish the same goal, for a significantly smaller price, and your contracts protect both you and the client.

As a professional- it’s your responsibility to both educate and guide your client to what’s best for them, while also making sure you are generating enough revenue to keep yourself and your business alive, and ideally- thriving.

I’d also argue that it’s your duty to uphold the commercial photography industry, and not make things harder for other photographers who need to make a living at their craft.

How you educate clients and prospective clients impacts all other photographers. Educate them well, and it will not only help your own business, but those of your colleagues as well. And we thank you for that!

Are you a photographer who found this article helpful? 

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