Ask HN: Could developers use the licensing model professional photographers use?
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.
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[ 3.5 ms ] story [ 131 ms ] threadOther 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.
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)
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.
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.
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."
But isn't company-contractor also a work-for-hire relationship?
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.
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.
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.
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
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:
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.
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".
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.
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'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.
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?
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?
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?
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.
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.
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").
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).
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).
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.
(Hopefully that's coherent enough to make sense of, writing multiple things at once now...)
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.
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...
Copyright assignment is the one you want. It's very unlikely that a contract purporting to create a work for hire situation would succeed.
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.
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).
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.
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.
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)
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?
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.