No, You May Not Use My Image for Commercial Purposes Without Compensating Me

So an interesting thing happened to me when I went into work yesterday at my new job tending bar at Monsoon.

I came in, put away my bag, chatted a bit with the manager, and started doing the things you do to open a bar. I decided a cup of coffee sounded like a good idea, as it often does at the beginning of a shift, so I went over to the dining room, where the coffee is. I saw one of the daytime servers behind the counter, with a weirded-out look on her face, folding napkins and taking direction from a photographer set up in the middle of the dining room. I thought “Hm. Must be some new promo thing for the restaurant,” and I waited respectfully while the photog snapped away (the coffee was at the far end of the counter). When a free moment popped up, I crossed behind the girl folding napkins to get coffee.

“What’s this all about?” I asked.

“I don’t know,” she replied.

“It’s for Discover,” said the man directing the photo shoot, a fifty-something fellow with unruly hair and glasses and, for lack of a better term, kind of a seedy air about him (I hate to judge people on instinct, but it’s a skill I’ve had to develop to survive almost twenty years behind the bar).

“So, are you paying her?” I asked as I passed him by on my way back out to the bar with my coffee.

“Oh yeah,” he said. “You can’t even count the zeroes. There’s a bag full of money outside.” Then he went back to telling the day server, who looked decidedly uncomfortable, what to do, how to hold her head and whatever, and I went back over to the bar.

About five minutes later one of the photographers, a youngish, smiling girl with what looked like a very expensive camera, came in and asked me, with genuine enthusiasm in her voice, if I could make a cocktail or pretend I was making a cocktail or, you know, pour something into a glass so she could get some shots of it.

“Is this for commercial purposes?” I asked her.

“Yes,” she answered, a small crack appearing in her enthusiastic facade.

“Are you offering me compensation?” A confused look crossed her face. Behind her, the older guy who was clearly in charge came into the bar to supervise part two of his photo shoot.

“No,” the girl answered, after a beat.

“Then you may not take my picture,” I said. “If you’re going to make money from using my image, then I think it’s only fair for you to compensate me.”

The girl with the camera was frankly dumbstruck, as if what I had said hadn’t ever occurred to her. But the old guy in charge knew what he was doing, and tried to intervene. His frustration was as palpable as his subordinate’s confusion.

“It’s for Discover, for promotional literature, no one’s making any money. Everyone else just…” He had the grace, at least, not to finish the sentence, which I think would have insulted the both of us.

They got what they came for, of course. The manager and one of the other servers posed for them while I went upstairs to fill out my stock list, and I was only obliged to stand around not doing my job for maybe ten minutes while the two of them took direction and smiled and the photographers obtained their deliverables. Once it was done there was paperwork to fill out, the two of them signing away whatever rights the photographers were asking for, along with, I suspect, any avenues of legal redress should the images be used later in some way they weren’t comfortable with.

“Just so we know who to say it is in case you get famous,” said the younger girl, her enthusiasm restored.

After, the server came up to me while I was getting caught up on my sidework.

“You don’t think I should have done it,” she said, as much statement as question.

“I think that was your decision to make, and it’s not for me to say how you decided. Maybe it’s because I’m a writer, and I work in a field where there are lots of people who want to pay folks in ‘exposure.’ But I think that if they’re going to make money using my image then they ought to compensate me as a model. Discover has plenty of money. But that’s a decision that each person should make for themselves.”

*  *  *

It’s a good thing I’m so cussed about things like that, because at the time I really felt like the one of these kids who’s not like the others. Even the manager, who’s my age or close enough, was perfectly content to stop what he was doing and pose for pictures for these folks. The two servers, being younger, just got swept along, I think. After all, if you speak to people in a voice that expects to be obeyed, most people will obey, and a camera can be a powerful totem (as any amateur porn site makes abundantly clear). And while I don’t think the young woman with the camera thought much about the power dynamics of the situation, the older fellow running the show knew exactly what he was doing.

Turns out, so did I. I started telling the story this morning to my girlfriend, who’s actually done some modeling, and whose expression turned outraged before I even got to the part of saying why I wouldn’t do it. She told me horror stories of friends who’d had their (uncompensated) picture taken, and the image used for everything from marriage counseling to advertisements for herpes medication. She was, if anything, even more disgusted with the situation than I was, and told me over and over how glad she was that I hadn’t agreed to surrender my image to these folks without negotiating both the rights I was ceding and the compensation I would receive for them.

I don’t hold it against the photography crew, necessarily. I mean, ethically what they were doing is shady at best. But it’s a dog-eat-dog world in our capitalist society, and when it comes down to business, the default assumption is and should be that everybody’s always trying to get over. From their perspective, it makes perfect sense not to compensate their models, because that means they get to keep more of the money (much as lots of markets and websites under- or don’t pay their writers, because that means they get to keep more of the money). It makes just as much sense to act like the potential exposure they might give someone (you might get famous!) is compensation enough (again, see any amateur porn site).

And who knows? For some folks, it might be. For my own part, the reaction when my admittedly adversarial approach to negotiating popped that particular bubble told me all I needed to know about the situation, even before my girl, who knows that world better, reassured me I was right. If there’s a takeaway here, I guess it’s that you should demand fair compensation when someone’s going to make money from your image or your work (which can include exposure; I’ve let a couple of websites use my work for free as a resume-builder, so I never have to do it again), and that you shouldn’t be afraid to negotiate and say no.

Fame isn’t worth much if it don’t pay the rent.

One thought on “No, You May Not Use My Image for Commercial Purposes Without Compensating Me

  1. I’ve done this often. When photogs for different events –weddings, parties, etc– thought they’d snap a few “test shots” of me, or wanted to photograph “everybody,” came up to me automatically assuming I’d have no problem with them taking my picture. I’d tell them “I’m the bartender; I’m not at the party .” If that didn’t work, and they persisted, I’d continue by telling them “I don’t like being photographed by strangers.” Of course that’s when they hand me the card for their official website or company or whatever. In the end, I always look like the bitch for not wanting to take a measly photo. However I always tell them “I don’t know where the picture is gonna end up. ”

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