Range of Light Photography | Range of Light Photography™ | Techniques | Photo Biz
Photo Biz
This article discusses some of the salient issues regarding the display, commercialization, monetizing, and requisite protection of your art. I am neither the last word in photography nor an expert in the art business in general, but having made a fair amount of fine art photographs and having run a gallery, I do have some experience on both ends of this spectrum.
Probably nothing causes more consternation in photography than the question of whether to limit editions of your work. The fact is that the limiting of the number of "copies" produced is nothing more than an artificial marketing scheme designed to produce scarcity from an artistic process capable of unrestrained duplication. There are, of course, other ways to induce scarcity. One time–honored way is to die. Dying is, perversely enough, a strategy which often pays off handsomely in the art world (just ask Elvis, if you see him) while simultaneously and seriously limiting your workload. However many works that have been created by the time of that final sunset will totally and absolutely limit your work. The point is that eventually your editions will be limited.
The mere idea of limiting the number of prints from a best selling negative can become an anxious ordeal for many photographers. What if a "hit" is produced that one can potentially retire on? As an artiste, I would hope that you were more concerned with creating new works from fresh material, than beating a dead horse, however profitable. As one gallery owner put it, "Make new negatives – you're supposed to be an artist. After all, painters only paint one painting". Besides, the constant working and reworking of a negative can be mind–numbing, spirit–killing lab work.
Failing unexpected and early departure, it is unlikely that any legitimate gallery will wish to represent you if you maintain open (unlimited) editions. Editioning is perpetual drudgery requiring constant attention and assiduous record keeping. If you do not wish to be represented, or are uninterested in selling your work commercially as a "professional", limiting your finished work is neither necessary nor particularly meaningful.
The precise number at which you limit your editions, if you so choose, is another matter. It is objective, subjective, and personal. I began limiting editions to 40 prints from any single negative, but was advised (and later convinced) to raise the number to at least 100. I did this reservedly due to marketing concerns alone. Really though, given my natural inclination not to engage in contrived constraint by limiting editions at all, 100 is the rational, functional equivalent of an open edition, which makes compromise with representation palatable.
Portfolio copies, that is prints assembled into some kind of logical, geographic, or aesthetic grouping, are sometimes excluded from the total number of the limited edition. In my view, this practice is dishonest, as it increases the number of actual fine prints from any negative beyond the published limited edition number. The maximum number of prints from any source (negative) material must be sacrosanct, if it is to have any real importance, regardless of size or special groupings.
These days, much confusion arises from the number of copies produced from a single image source. Some 40 years ago, the much ignored Farr Act was enacted into California Law for the express purpose of protecting purchasers of fine art prints through disclosure of specific information in relation to the print. Art law has not kept pace with the changes digital techniques have ushered into to the marketplace, much less with traditional photography (see California Civil Codes 1740–1741, and 1742–1744.9). There are many designations of proofs, which in the past have been used to circumvent general edition numbers, and thereby render limited editions of fine art multiple media suspect. Most of these proofs were derived from fine art media other than photography, and parallels drawn between them and photographs are of a questionable nature. The only generally accepted photographic exception to the regular edition is the artist's proof.
Proofs are pulled from various stages in the normal course of the printing process. Imperfect prints "pulled" from the production stage are termed working proofs. Flawless proofs may also be pulled in addition to the limited edition fine art prints. These may be artist's proofs, presentation proofs, or printer's proofs. Any other proofs pulled with editioned prints are termed "overs" and should be destroyed. The following is a list of common proofs with photographic equivalents:
- Trial Proof (T/P) – An early working print with experimental changes, such as toning options.
- Bon à Tirer Proof (BAT) – "Good to Pull" (French), applies to a print that has met the aesthetic and technical demands of the artist. These make up the regular prints in a limited edition.
- Artist's Proof (A/P) – Fine art prints that are pulled with the edition, tough not part of the edition. 10% to 15% of the limited edition may be reserved for the artist, to be held or disposed of as they wish.
- Presentation Proof – A fine art print reserved as a gift to either an individual or an institution and ordinarily not sold. A dedication placed on the reverse of the print (mount) will assist in identifying it as outside the regular edition. Gift prints intended for sale by the recipient should originate from the regular edition.
- Printer's Proof – Presented to the printer after completion of the edition.
- Progressive Proof – This is a subset of the trial proof concerning mainly color separations of some classical color printers.
- Hors de Commerce (H/C) – "Outside of Commerce" (French), are prints not intended for sale. They may be overs, presentation prints, or even printer's proofs. The integrity of the edition is compromised when art dealers attempt to sell these.
- Cancellation Proof – A print that is re–struck from a purposely defaced plate. This restarts an edition, possibly after the death of the artist. It has no practical significance for the photographer. As an adjunct, the notion of destroying negatives upon completion of an edition is held over from the destruction of plates used in the making of other fine art multiple media (i.e., lithographs). I don't condone the destruction of negatives, but then the inviolability of a true limited edition is highly correlated with the rectitude and integrity of the individual artist. Besides, destroying negatives leaves little option for replacement of damaged prints, if one offers warranty, as part of a regular edition.
If the idea of making the last print from a favorite negative frightens or saddens you, despite the fact that you may have raised its final tier price to a pretty penny, remember that up to 15% of the limited edition number may be held as artist's proofs, in excess of the total number of prints within the regular edition. Artist's Proofs (signified as A/P1, A/P2, A/P3, etc.) may, but not necessarily always, be declared along with the number of prints in the limited edition by the artist.
Silver enlargements (this site's raison d'etre) and prints made by alternative techniques are uniquely derived, hand–made works, which by their very nature may neither accurately, nor truthfully be called copies. They are each, in fact, unique interpretations of their base negative. The difficulty and defined nature of classical photographic optical printing precludes the completion of the entire edition at one session, unless the edition is very small. 100 seems more than a satisfactory number in which to limit their editions. Astoundingly, I have seen easily machine reproducible digital prints range from 250 to over 1000 total copies, and yet the present market tolerates (encourages?) photographers referring to their editions as limited! Digital printing of computer files assures the non-uniqueness of the individual finished works, no matter the number. It is incongruous that the general edition number of machine–manufactured, digital "prints" can acceptably be so much greater than that of unique, hand-made enlargements and contact prints. As of this writing it would seem that digital processes are driving all things photographic, including the art markets, save for vintage prints. It is yet to be seen whether the emperor will, in fact, be seen without his clothes.
This is at least the third time I've addressed the concept and application of provenance on this site. Why? Work of any meaning must be identifiable if it is to be considered, at all. I use the term considered in the sense that the work has some meaning by which it may be judged yesterday, today, and tomorrow. And by judged, I mean identifiable, and comparable to other works of a particular artistic milieu. Even if you do not consider your work to be of particular merit, others may, and for reasons you may not have anticipated – perhaps long after you've passed (see this, or google "Uncle Earl Ansel Adams"). More to the immediate point, this is where you will number and identify your work. In some sense, proper provenance may be more important than a signature alone. Investors in works of art will have an abiding interest in the work's process and heritage, and will require specific knowledge regarding the edition, negative, process, and date of manufacture. A properly provenanced print will form the basis of the art dealer's Certificate of Authenticity, a document which must legally accompany the sale, exchange or consignment of any fine art multiple in California and other states.
A rubber (ink) stamp incorporating blank spaces for the requisite specifics to be filled in may be applied either directly to the print (if archival issues are not paramount), or alternatively, to the back of its mount. I dry mount pre-printed archival linen paper labels to the back of mounted gelatin silver prints (GSP), coincidentally during the dry mounting of the print itself. I print up adhesive labels from the identical computer image and apply directly to the backs of non-archival prints (i.e., color) in order to identify them separately from their otherwise loose hinge–mounts. Although not my preference, some photographers number editions on the print's mount as well, either near to the signature or on its opposite corner.
Before pricing your prints, it would be a good idea to survey the prices quoted by both established and not–so–established artists producing prints of the same media. Then aim for the middle. Sure, you can aim higher or lower, but that really depends on how badly you need to make actual sales. Only you can make those decisions. I can say that if your work is compelling and technically excellent, underpricing it can be worse than overpricing, in the long run. Sad to say, but in the good ole U.S. of A. money begets money – and "respect". Pricing work cheaply simply suggests that your work is cheap. If it is perceived as expensive, it will attract well–heeled buyers, eventually. If you are seeking representation with an actual brick–and–mortar gallery, underpricing can have other ramifications. The gallery's commission on your sales must, at the very least, cover their expenses of operation for the period of time you are being shown. If you are lucky enough to acquire established representation, listen to their counsel, as they know best the markets in which they do commerce. Eventually, the market will price your work for you.
Tier pricing is a common scheme photographers use to establish inflated prices as the (limited) edition sells out. Typically, the first 50% of the edition is priced at a base "introductory" rate. The subsequent print prices are then raised in stages (i.e., tiers), until the edition is closed out.
A word about giving prints away (other than to your Aunt Sally). Before I ever sold a print, I was approached multiple times regarding giving prints to various non–profit organizations, because other established photographers had purportedly done so. These organizations paid their employees and charged money for their services, and yet expected me, as an artist, to give them prints – mounted and framed to boot! The subtle message was inescapable. Their time and talents are valued, those of the artist are not. Art is not well supported in this country. It is, in fact, only supported by rare patrons and the whims of the free market. Giving your hard work away, while laudable in some circumstances, sets the price of your work at nothing – exactly what it is worth. This lowers the bar for, and negatively affects, other artists struggling to make a living from their artistic endeavors.
Photographers fought long and hard during the first half of the 20th century for the acceptance of photography as a fine art, worthy of the same museum and gallery space as paintings, drawings, and sculpture. It is not widely recognized that the well–known landscape photographer, Ansel Adams, was foremost as a tireless champion of photography as a fine art, during that time. Offering explicit warranty on fine art dislodges it from the art milieu and places it squarely in the category of a commodity. While offering replacement of photographs may be considered by some as forthright, it is at best, entirely unorthodox within the rest of art world and at most, disrespectful of the tortured history of photography as fine art. No other "artist" working in any other media, with the possible exception of that which consists of multiple moving parts and commissioned work, would be expected to provide warranty on their work. The normal, fixative silver printing process itself, is a proven method of expression, a de facto assurance as well as an implied guarantee of the material quality of the piece.
Much of the concern over warranty replacement concerns recent mechanical digital photographic printing methods (i.e., ink–jet, Giclée, etc.), and their accelerated longevity laboratory testing procedures. This is entirely unwarranted for proven methods of classical hand-made photographic print production (i.e., gelatin silver prints, platinum contact prints, etc.). If one is either insecure, or unsure of the reliability of their print making methods, or consider such endeavors to be "commodities" and not "art", then perhaps they are justified in providing warranty on the quality of their work.
I include an information sheet, also useful in the establishment of the Certificate of Authenticity, with every print that includes details of process, sizes, limited edition, and care:
| "A signed, limited edition Range of Light photograph is a one-of-a-kind irreplaceable work of art. It must be protected from possible injury and the elements (and is best presented) by placing it in a suitable frame under appropriate glazing, away from direct sunlight. Matted and unframed prints come in a minimally protective, non-archival, polyethylene bag which should not be used for long term storage. Use cotton gloves when handling prints, and always only by the edges to avoid fingerprint damage to both print and mat. Fine prints may have minor imperfections and variances characteristic of any handmade artistic endeavor. Prints are permanently attached to the mounts in a dry-mounting process - and should remain so indefinitely. In the unlikely event that the print becomes detached from the mounting board do not attempt to reattach with adhesive or by any other means. Take the mounted print to a qualified art restorer or photo technician for reattachment. A properly cared for and displayed Range of Light GSP should last for generations." |
The "Care" section of this document, a disclaimer, is also an implied warranty, by my standard. It describes the approximate conditions under which any otherwise properly cared for failed fine art print, may be replaced.
Public or privately commissioned art may require warranty against defects in materials and workmanship by the artist. The contractual agreement between the artist and the commissioner should restrict any warranty to commonly accepted production processes (i.e, gelatin silver printing and archival treatments), and to a limited period of time.
Sellers of art (i.e., galleries, dealers, auction houses, etc.) are governed by contract and tort law, the most important statute being the Uniform Commercial Code (UCC). They do offer warranty – on their sales, in compliance with statute. This is, in fact, the purpose of the Certificate of Authenticity, which by law must accompany the sale of art in most states. Again, the provenance information supplied by the artist will provide the basis for that document. Warranty by art dealers is in effect a guarantee of authenticity, not workmanship.
All works within the United States are copyrighted by the original author, whether or not the copyright notice is explicitly given. Case closed. Well, not quite.
Some years ago, I attended a business workshop geared for artists sponsored by the local community college at which a copyright attorney began by asking how many of us photographers were professional, followed by how many of us had registered copyrights on our photographs with the United States Copyright Office (USCO). Almost no hands were still raised. She then exclaimed, "And you call yourselves professional?!?" The atmosphere of righteous indignation was palpable.
While it is true that all original works are copyrighted by the author upon first publication whether or not registered with the USCO (as of 1989), recovery of damages is nearly impossible without U.S. copyright registry, simply because finding an attorney to represent you will be impossible. Why? Because U.S. copyright laws are so clear in their assessment of statutory (monetary) damages, given prima facie evidence (i.e., accepted as correct until proved otherwise) substantiated by certificates of copyright, that copyright infringement cases are considered legal "slam–dunks". The fact is, in the eyes of the legal profession you are not considered to be professional and therefore indefensible unless you have registered your copyrights. Crassly, the registered work of a "professional" is a virtual prerequisite for the recovery of monetary and punitive damages in any civil action. Perhaps it is this distinction alone that distinguishes the professional photographer from the amateur, if only legally.
- Art + Infringement =
- Art + Infringement + Copyright Registry = Attorney = $$$ =
Armed with certificated copyrights, finding an attorney to represent your grievance will be trivial, but without filed copyrights defense and damage recovery will be nearly impossible.
Fortunately, copyrighting your photographs (or images, these days) with the United States Copyright Office, couldn't be easier in the age of the internet. Form VA (Visual Arts) and Form GR/PPh/CON(Group Registration of Published Photographs) can be used for a virtually unlimited number photographic works. The fees as of 2011 were an inexpensive $35 per filing. Copyright protection is conferred upon receipt of submissions. The last time I did an electronic group submission, I received certificates of registration in less than 2 weeks. They even answered their phones promptly. In the "old" days of snail mail, it could take up to 18 months to receive certification.
Here is a summary of copyright basics:
- Notice of copyright on publicly distributed works after March 1, 1989 is permissive, rather than mandatory.
- Copyrights are filed with the Library of Congress.
- Copyright protection applies to original works fixed in a tangible medium.
- Copyright protection lasts for the life of the author plus 70 years; or for works made for hire, 95 years from year of first publication or 120 years from year of creation, whichever comes first.
- Notice of Copyright. Though not strictly necessary, the placing of copyright notices on original works is highly recommended, as it will foreclose defendant's claim of "innocent infringement" (i.e., that the defendant was unaware the work was copyrighted). Copyright notice may take the following form, © Year Copyright Owner, all rights reserved (i.e., © 2005 Range of Light Photography, all rights reserved), where:
- "Copyright", "Copr.", or "©".
- Year of first publication (this can be an internet posting) – note that the date of first publication is not necessarily the same as the date the photograph was taken or printed.
- Name (or recognizable abbreviation) of Copyright Owner.
- "All rights reserved" (advisable).
- Certificate of Copyright Registration serves as prima facie evidence that the holder of the copyright is valid.
- Copyright owner may bring infringement into Federal Court.
- Copyright owner may receive statutory damages of up to $30,000, with possible additional damages of up to $150,000, per infringement.
- Copyright owner may recover attorney's fees from the infringer.
Alas, the internet's world wide reach being what it is, copyright protection is really only good within the U.S and countries which share copyright relationships.
Under the Copyright Act of 1976, copyright vests the creator of original works with the following rights:
- The right to reproduce.
- The right to adapt.
- The right to distribute.
- The right to display.
- The right to perform – literary, musical, dramatic, etc. (does not apply to pictorial, graphic, or sculptural works).
Potential infringement of any of the first four enumerated rights is the chief reason for appending the phrase, "All rights reserved", to the copyright notice. Licensing agreements are contracts between the licensor (i.e., creator) and the licensee which define exclusivity, specific rights, royalties, and scope of the uses of the art work. Licenses may be either exclusive, granting rights to only one licensee, or non–exclusive, allowing licensees to to use the work in well defined, separate markets and/or purposes. Remuneration may take many forms, from flat fees to royalties, or both.
Scope is perhaps the most important as its consequences can be far reaching. Stipulated conditions of limited use will define the scope of the licensing contract, including duration, geographic extent, and type of use. The duration of the contract will likely be for 2 to 3 years. The artist should consider carefully which of the rights are necessary to retain for their own uses within the contract's duration. For instance, in the stereotypical case of notecards, exclusivity will also deny the artist of the right to create their own using any licensed image. However, these restrictions are mitigated somewhat as it is usual for the artist to receive a number of product cards from the publisher to use as they wish.
Representation can assist and shield the artist from business negotiations concerning their work. Besides getting your work seen, these can be very advantageous and lucrative relationships, if conducted with integrity. Galleries, art dealers, art agents and managers, and licensing agents each represent the artist in different arenas of the art business world. A savvy gallery owner may serve all these functions. And remember, within the wacky whimsical wonderful world of fine art, buyers buy artists, not art.
The art gallery business is a tough game. Very tough. The old adage applies in spades: How do you make a small fortune in the art gallery business? Answer: Start out with a large fortune. Many neophyte "artists" incorrectly (quite incorrectly) conclude that the "gallery system" is closed to them. Guess what? There is no gallery system! There are only relationships built upon trust and compatibility. Galleries tend to be owned and staffed by people who love art, and artists, enough, and quite possibly more than you, to stake their livelihoods and economic well–being on art. Art is more than a hobby or spiritually enriching pastime to them, it is a high risk game on which they have staked their economic lives. Here is a brief consideration of representation by galleries and agent/managers.
Imagine trying to run a business with product controlled by free-thinking artsy types. Imagine, particularly in the case of photography, a limited amount of wall space devoted to flat art pieces. Imagine, if you will, snotty (snooty?) trust-funders coming into your gallery, showing you their dubious efforts, and muttering curses as they slink out the door for not understanding their art and investing your limited resources in them. There is an equation of profitability for any gallery which basically comes down to the amount of commissioned sales exceeding expenses per square foot for any period of time. It is unlikely that even a well established gallery will have the luxury to take on a unknown artist and shepherd poor sales through an uncertain period of unprofitability, in the vein hope that the work will come into its own and become profitable down the road.
Sure, there are plenty of miscreants in the art gallery business. They will withhold payments of sold art, lie, cheat, steal, and otherwise use, abuse and lose you. In some cases they may not even be conscious they are doing it. A contract with the gallery which protects both your art and their sales is a necessity – and remember that, no matter how well intentioned, an oral agreement isn't worth the paper it's printed on. Smaller galleries will not have insurance to cover your art in the event it is "lost" or damaged, even though they may claim otherwise. In the matter of insurance, it will be your pro–active responsibility to provide coverage anywhere it is shown or stored. Assuming otherwise is to court disaster, plain and simple.
A somewhat recent innovation in art commerce is the appearance of the agent or manager. Their primary function is to represent the artist to galleries, to museums, for image licensing – any commercial opportunity and showing available to the artist. Their value is based almost entirely upon the strength of their relationships with buyers of art. Relationships are at the core of getting your work out there, and their value should not casually be dismissed. Art agent/managers usually require a lengthy service period, and not without justification. It can take a long time to nurture talent to the point at which it may flower. However, your relationship with the agent/manager should be carefully spelled out and its scope limited by written contract. These contracts (usually, General Service Agreements or GSA's) may include upfront monthly fees as well as large sales commissions, in addition to gallery commissions, and this is important, quite possibly on any art you produce during the period of time covered by the contract. Write a book on an entirely different subject? Your manager will get a cut of that too. Many Hollywood actors have found out the hard way that they signed away their professional lives to "marriages" with managers and that "divorce" can be very expensive.
Licensing agents act to facilitate negotiations of works of art between licensees and copyright holders (i.e., licensors). They are frequently attorneys who specialize in licensing contracts. They may be extremely helpful in both increasing visibility of the artist's work in media not original to the artist and providing the artist with additional income past the life of the original work.
In a way, everyone (with the likely exception of art auction houses) loses in the commerce of art. The artist loses upwards of half the initial retail recompense, the buyer pays twice as much as they would if they were to buy directly from the artist, and representation takes a huge risk hoping to successfully market anything other than the established sure thing. My advice: Unless courted by a gallery of your liking or an agent/manager in which you can place absolute trust, be your own gallery – your own agent, become your own marketer and promoter–in–chief. Then you won't have to give away upwards of 50% of your earnings to what is by any measure a lousy business model, fraught with pitfalls and peril. So, ya gotta ask yourself one question. Why bother with representation, unless it will get you to the next higher realm of art valhalla. Do you feel lucky, well do ya punk?
Here's a happy thought. Wouldn't it be wonderful if some percentage of appreciated art work's resale was returned to the original artist upon auction or sale? Alas, this is only possible in the fabled, golden state of California. Unbelievable? A fairy tale you say? Well, actually yes. The California Art Resale Law (California Civil Code 986) applies only to specifically defined works of fine art, which is not now inclusive of photographs. It is for this very reason that art is almost never (legally) resold, in that misty, mysterious, mythical land (check your local listings).
But back to reality. You're an artist. The world respects and applauds your devotion to your craft. You live upon good wishes, puppy dog kisses, and unicorn rainbows. What possible need have you of crass lucre?
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