Business Resources

What are some key risk exposures you ought to be concerned about as a photographer or TV commercial producer or film maker?

Regardless of the type of work you do, you will face different risk exposures. The key is to manage these exposures in the most cost effective manner without taking on financial risks you cannot possibly afford to shoulder.

The most common risk exposures include:

1. Damage or Loss to Property

The property could be third party property, own property, or property you have accepted responsibility for and is in your control (for example, hired in equipment, props, sets and wardrobe). There is also the film stock or digital images – both completed and raw stock.

For equipment coverage, you should be aware that almost all forms of property insurance excludes coverage whilst the property is in the hands of the airlines.

A liability policy will take care of third party property. Your own property (equipment) should be insured, preferably, in an “All Risks” policy that allows worldwide transit including when the gear is checked in.

Insuring the film stock or digital images means having coverage for the cost of re- shooting the footage that is either lost or damaged.

2. Liability

This refers to your liability towards third parties in respect of injury to third parties or damage to third party property in the course of your work.

3. Extra Expenses

You could have a situation where your hired in equipment is damaged and you need another to continue with the production. The cost of hiring an additional unit will cost you extra money.

Or you could have your key crew or cast fall ill or suffer an accident during the production and you need to replace this person inorder to continue production.

These are known as extra expenses and can be insured.

4. Injury to Cast/Crew/Talent

This sometimes happens and you need to compensate them for the injury sustained as well as for medical expenses incurred to treat the injury. When working overseas, there is also the need for medical evacuation or repatriation of the person back home.
In this respect, you should note that not all off-the-shelf travel insurance will insure you for your work as most of these are designed for the holiday traveller – you should check before you buy.

There are also other special situations to consider – such as, when you’re doing aerial or underwater photography; when you have to perform work on an oil rig or oil installation or down in a mine shaft, etc., or when you have to enter a war zone or area where there is conflict. All these situations can be insured.

5. Risk of Cancellation, Postponement or Abandonment

There is a financial risk when the project you’ve undertaken has to be abandoned because a situation beyond your control has forced you to do so. For example, these situations could include natural catastrophes and acts of God, strikes, riots, travel delays, revoking of approved licences, injuries to cast and crew causing work stoppages, etc..

In such situations, you would want to recover as much of the expenses you’ve incurred as is possible. This, fortunately, can be insured.

6. Weather Insurance

This should be considered depending on the type of project you’re undertaking – this insurance operates just like item (5) above but is extended to include weather related situations.

What is Commercial Photography?

Commercial photography encompasses a wide range of categories, and a common question asked by new and aspiring professional photographers is whether their work qualifies as commercial photography.

In general, commercial images are sold or licensed by the photographer, to individuals or companies who will use it to sell products and services, or to convey a message. Commercial images carry economic value, i.e. they help to create economic returns by being part of the process of generating business, brand equity or economic goodwill for the image owner and/or licensee.

In a nutshell, if your image will be used by a paying client to promote a product, service or company/organisation, it qualifies as commercial work.

Some examples of commercial photography are listed as follows:

Industry Rates in Professional Photography – Year 2008/09 Survey Results

Note: The rates above are average values taken from a representative pool of professional photographers in 2008/09. 

Important: Rates typically differ according to technical/artistic difficulty, time and skill level required. As a rule, it is critical to give an accurate brief to the photographer. This helps the client avoid additional and unnecessary costs.

Loading Fees

The number people that will see the image you create for your clients can determine its commercial value. In advertising, the better the coverage (estimated number of people the ad will reach), the more likely the advertisement will create sales eventually. Of course, there are other major factors that contribute to effectiveness of an ad, however, for professional photographers, talents, writers and other creative professionals, advertising coverage is the usual basis on which to charge loading fees.

Loading fees are a standard billing component for most, if not all, commercial photography assignments. Loading fees serve to ensure fairness and equitability in payouts for the creative contributors of commercial works like print ads, TV commercials, bus ads, point-of-sale materials, direct mailers and even free gifts or premiums. These commercial works are broadly categorised as either Above the line (ATL) or Below the line (BTL). In a nutshell, loading fees are much higher for above the line works due to their wider and higher coverage. Besides coverage, loading fees also include the number of media, number of countries and usage timelines for the assigned images.

First Usage

If the photographer is quoting for new assignment, the photography charges should be calculated to reflect the types of media that the images will be used in. Charges would be higher for ATL usage compared to BTL due to higher coverage. Apart from ATL/BTL usage, charges should also reflect the number of different media, number of countries included and usage timeline. Charges for these items are usually included together with photography fees as a single sum in the quotation, but can also be placed as separate items, as some photographers prefer.

Repeat Usage

If the client chooses to use the images again after the first assignment is delivered, a new quotation should be created to reflect the extended the usage timeline, increased the number of media and/or usage of the images in more countries. These items can be billed under the heading of Loading Fees or Re-usage Fees. Photography Fees no longer apply.

This guide is of special importance to foreign photographers and companies wishing to engage foreign photographers to shoot in Singapore. Since the IRAS levies a tax of 15% on the gross fees paid to non-resident professionals working in Singapore, it is important to include the tax amount as a chargeable item when you do your billing. Please refer to the following excerpts from the IRAS website for details:

Source: http://www.iras.gov.sg/irasHome/page04.aspx?id=562

Do I have to withhold tax?

The payer is required to:

• Withhold tax at 15% of the gross income payable to the non-resident professional; OR
• the non-resident rate of 20% if the non-resident professional elects to be taxed on net income;
• File Form IR37C; and
• pay the withholding tax by the 15th of the month following the month in which the payment is made to the professional

Only income/fee attributable to the non-resident professional’s services perform in Singapore is subject to withholding tax.

Confirmation of payment

You will receive the confirmation of payment letter within 14 days from the receipt of your Form IR37 and tax payment. Confirmation of Payment letter will not be issued if the Form IR37 is incomplete or the payment is less than $10.

• Further information on Tax issues
• Article Reference

Some knowledge of copyright law is important for professional photographers. These laws may impact not only the composition of your works, but also form the main framework within which you derive financial benefits from your works, whether through the grant of assignments or licences of these rights.

In an effort to enhance your understanding of copyright laws, PPAS conducts regular outreach talks and seminars and has also developed this brief outline with the help of Samuel Seow Law Corporation. Given its obvious brevity, this outline cannot replace legal counsel and advice. However, it is hoped that it provides you with a fundamental understanding of the subject of copyright and how it applies in your profession.

COPYRIGHT BASICS

Copyright is a set of temporary rights conferred by the Copyright Act and granted to the owner of certain classes of works. In the realm of photography, these rights allow owners of photographic works to control the reproduction, publication and communication to the public (for example over the internet) of these works, and to sue for unauthorized use (also called “infringement”) of the same. These rights begin from the moment original photographic expressions are reduced into some material form. Copyright subsisting in a photograph continues to subsist until the expiration of 70 years after the expiration of the calendar year in which the photographic work is first published.

It must be brought to your attention that although most photographic works are capable of being protected under copyright, some are not.

To be capable of being protected under copyright, photographic works must firstly be original. Originality is essential to copyright protection. If your photograph is an exact reproduction of a previous work, no copyright may subsist in your photograph since it has no originality. In fact, if copyright still subsists in the previous work, you would even need to obtain the consent of the original photographer to reproduce it.

Secondly, copyright can only subsist in a work if the work is reduced into some material form. One of the most vital principles of copyright law is that copyright does not protect ideas, but protects the form by which the ideas are expressed. Therefore, an idea for a great photograph is not protected by copyright until the photograph is made. Having an idea also does not entitle a person to a share of the copyright in the photograph. The copyright belongs to the person who makes the tangible expression of the concept or idea.

Once copyright subsists in a work, any unauthorized use by a third party of a copyright work gives rise on the part of the owner civil causes of action for damages; and in certain circumstances may even attract criminal sanctions especially where the infringement is for commercial purposes and is significant in terms of volume.

There are also special laws for recovery of statutory or aggravated damages where a fixed compensatory sum is prescribed once the copyright owner can prove his ownership and breach of his copyright. In such circumstances, the copyright owner is not required to prove how much revenue or earnings he has lost as a result of the infringement which would usually be a difficult undertaking.

COPYRIGHT REGISTRATION FORMALITIES?

There is no need for photographers in Singapore to take any further steps to ensure that their completed works are protected under copyright laws. As stated above, the moment an original photographic work is reduced into material form, copyright subsists. However the convenience of a non-registration system often also results in situations where copyright infringements are difficult to prove. These occasions typically arise where it is difficult in any one case to ascertain exactly at which point of time a particular work was completed by a photographer; and whether another photographer who claims also to have written the work may have copied the first work.

In response to these problems, the Screenwriters Association (Singapore) (the ‘SWA’), in cooperation with Samuel Seow Law Corporation, established the Asian Script Repository (‘ASR’). The aims of the ASR are

(1) to assist copyright owners to assert their proprietorship over their works; and
(2) to assist copyright owners in establishing the completion dates of their works.
(3) Registration with the ASR provides a dated record of the creator’s claim to authorship of a particular work and helps to circumvent the problems in proving priority of ownership. Where necessary, Samuel Seow Law Corporation may produce deposited material as evidence of the material having been deposited with it as of a certain date by a certain person if legal action is required to be initiated. In this way third party independent evidence exists to help establish a creator’s claim to proprietorship and priority over any piece of work.

COPYRIGHT NOTICES

It is recommended that all photographic works carry a copyright notice, even though it is not required by law and even though the notices do not bestow any additional protection per se under the Copyright Act.

Copyright notices may serve to assist a photographer establish his claim of proprietorship in his works, but over and above that, they alert potential users of the work to whom they need to go to to obtain a licence to use the work. Copyright notices traditionally consist of 3 elements: the “©” copyright symbol, followed by the date of first publication of the photographic work, and the name of the owner of the work.

For example,

“© Professional Photographers Association (Singapore) 2009”

OWNERSHIP OF COPYRIGHT IN PHOTOGRAPHS

Generally, the person who creates a photographic work owns the copyright in the work. However, there are exceptions to this rule. Some of the exceptions are:

(1) Employment: If the work is created by an employee (not a freelancer) pursuant to the terms of his employment under a contract of employment or apprenticeship, the employer owns the copyright in the work;

(2) Special situation for newspaper/magazine/periodical employees: Where an employee of a newspaper, magazine or periodical creates a literary, dramatic or artistic work pursuant to the terms of his employment for the purpose of publication in a newspaper, magazine or periodical, the proprietor of the newspaper, magazine or periodical owns the copyright in respect of publication in or reproduction for the purpose of publication in any newspaper, magazine or periodical. The employee owns the remaining rights that make up the copyright bundle of exclusive rights; and

(3) Commissioning: If a portrait/photograph/engraving is commissioned by another party, the commissioner owns the copyright in the work. If the portrait/photograph/engraving is required for a particular purpose, this purpose must be communicated to the commissioned party. While the commissioner is the copyright owner, the commissioned party has the right to stop others from doing any act comprised in the copyright, unless such act is done for the particular purpose for which the portrait/photograph/engraving is created. For other types of commissioned works, ownership belongs to the commissioned party, unless the commissioner and commissioned party otherwise agree.

However, in addition to the exceptions stated above, as mentioned in the introduction to this outline, an owner of a photographic work may at any time elect to transfer his rights to another party or entity either partially or wholly so as to derive financial benefits from his creations.

If you are the owner of the copyrights in certain photographic works, you may be entitled to sell those works for cash by way of a full assignment; or you may license someone to use your works for payment by way of royalties. Under the law, a “licence”, although to a layperson conjurs imagery of governmental consents and approvals, merely refers to a permission to use the works with certain limitations.

Licences do not have to be granted in writing although we do advise that all photographers grant licences in written form so as to avoid subsequent disagreements and disputes. Licences may be granted in relation to works for particular usages. When negotiating licences, special attention should be paid to the following considerations:

• Whether the licence is exclusive to the licensee or non-exclusive;
• Whether the licensee has the right to grant sub-licences;
• Whether the licence granted to the licensee is transferable by the licensee to a third party;
• Geographical limitations of the licence;
• Duration of the licence;
• Restrictions on use: whether the licence is to allow for copying, transferring, modifying, etc; and
• Restrictions as to media and platforms: eg, no online distribution rights

In all commercial negotiations, much depends on the respective bargaining powers of the negotiating parties. Do remember however that there is no cardinal rule which dictates that a photographer has to transfer all copyrights to a client. Remember also, that even though the client might be the originator of the concept or idea this does not entitle them to the copyright of the photograph which you, the photographer, originate.

COPYRIGHT AND PAYMENTS BY CLIENTS

In recent years, we have encouraged the trend to invoice clients of members of PPAS upon terms stating that any grants of rights to usage or ownership over photographic works to the client shall be contingent upon full payment by the client of the photographer’s invoice. Where grants of rights are stated to be so premised and contingent upon full payment, non-payment by a client may constitute both a breach of the client’s contractual obligations and infringement of copyright in and to the photographic works. The addition of these rights in your arsenal may prove powerful against errant clients.

COPYRIGHT IN PUBLIC BUILDINGS

It has been reported to us by photographers that it has become quite commonplace that photographers are prohibited by building owners from taking pictures of public buildings on the grounds that the photographers have “no rights” to take such photographs. For the avoidance of doubt, the Copyright Act is clear on this point. Under Section 64, the copyright in a building or a model of a building is not infringed by the making of a painting, drawing, engraving or photograph of the building or model or by the inclusion of the building or model in a cinematograph film or in a television broadcast.