8 ms·

Ask HN: Could developers use the licensing model professional photographers use?

• jawns 12y ago
  In a sense, companies that offer developers a salary plus equity or stock options are doing something similar. You get a certain amount up front, which is not contingent on the company's success (i.e., you get to keep your paycheck even if the business eventually goes belly-up), plus the possibility of more if the company does very well. Other 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.
  • rosege 12y ago
    Yes you're right its like MS CALs. Pay x amount for the server then also the CALs for each user/device. 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)
• learnstats2 12y ago
  It's important that independent developers know that (by default) they retain the copyright to their code and to anything produced from their code. 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.
  • MatthewWilkes 12y ago
    Your understanding is wrong. If you don't put an explicit licence in place then the implied licence is a matter for the courts to decide based on what a reasonable person would expect, not just what was discussed (as that's explicit licencing). If you're contracting without an explicit licence then not only are you doing it very wrong, but any implied licence would certainly include the right to derivative works. If you sold a piece of off-the-shelf software as a whole I think you could argue it wasn't intended for derivative works to be allowed but you certainly don't have the right to restrict it if you are relying on an implicit licence. 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.
    • 12y ago
• MatthewWilkes 12y ago
  Many photographers also insist that you buy prints from them directly at a huge markup, which would be like insisting you are the only one able to resell hosting to your web clients. We don't need to copy their unethical behaviour.
  • pavlov 12y ago
    Your example is basically SaaS: the client doesn't get to decide where the application is hosted, you just sell them the right to use it on your server. 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".
    • pavlov 12y ago
      I don't understand the downvotes, can someone explain? To my mind there is no difference between SaaS and "being the only one who can sell hosting for web clients".
• SandB0x 12y ago
  > 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. 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.atlassian.com/software/jira/pricing * https://www.fogcreek.com/kiln/pricing/ https://www.fogcreek.com/kiln/pricing/ * https://slack.com/pricing https://slack.com/pricing You can definitely charge for a support plan for a website though.
  • rosege 12y ago
    It is a bit different. If SaaS was charging an upfront build cost is one. The other is with SaaS there are on going costs, e.g. data centre costs, usually further development, etc. With the photographer they have had zero costs to produce it originally and zero ongoing costs to license it further.
    • mdasen 12y ago
      I know of companies that will create a website for you that you pay them for and then charge a monthly fee to host it on their infrastructure. You can even charge based on traffic as well. That's a SaaS business model that both pays for the upfront and ongoing costs. 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.
• jonsen 12y ago
  Wouldn't that entail that the developers also took on responsibilities for future consquences of the use of their software?
  • sebastianconcpt 12y ago
    That's an interesting question but different issue. Aren't developers responsible already for what they code? Are photographers? Are gun factories?
• deleted 12y ago
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• w4tson 12y ago
  Its an interesting concept however I'd like to mention that people are the real asset. Sure the code is fundamental but the reason why companies like google and Facebook make acq~hires is not get the code or even the individual. Its teams that are the real gold.
• deleted 12y ago
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• hyperpallium 12y ago
  1. Someone will do it without requiring IP. Unless you have special expertise to offer, your negotiating position isn't strong enough. 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?
• brador 12y ago
  The photographer can see when the work is being used without permission, the programmer, usually, cannot.
• dorfsmay 12y ago
  The biggest difference is that the photographer sells a finished product, that nobody else can work on. 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?
  • rch 12y ago
    Client could buy a license for 1-5 developers to modify the source.
  • dorfsmay 12y ago
    The is another thing linked to the notion of "done": environment rot. 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?
    • janpieterz 12y ago
      A photographer usually doesn't have the duty to do this either. You can certainly ask them to do it but the pricing will be higher. The photographers I know delete their source files after a certain amount of time and only keep the end products in the state they are in. 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.
      • dorfsmay 12y ago
        On the other hand, some photographers will sell you the raw files of your images, I even know some who will give them to you a year after the event as part of the original pricing. 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.
• logn 12y ago
  When I got married I annoyed many photographers by balking at their rates and then negotiating for copyright ownership. If I'm paying someone $3500 per day, I expect that to be a work-for-hire. If they want to show up for $100 then fine I'll pay per picture. 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").
  • vgabios 12y ago
    I, and I think most people, wouldn't want someone (nor the NSA) running around with license to do whatever they wish with my personal family photographs and then turn around and extort us either. Sure photographers have to make a living, but extortion and privacy violation is a bridge too far. 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.
    • kbutler 12y ago
      Model release requirements prevent that, not copyright.
  • jxcl 12y ago
    How often were you successful in negotiating to work for hire?
    • logn 12y ago
      Eventually I found a photographer willing to do it. Such photographers are definitely not common though and in talking to about 10 of them, only 2 would assign copyright. 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).
• pmontra 12y ago
  You can try and I'm sure you'll find someone that accepts it but I won't be your customer. As a customer I want ownership of the code, to be able to fix bugs and add functionality without having to go back to you. In a few years you might have changed field of business or be too busy or too expensive to work for me again. It's a risk I cannot accept. 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).
  • tomp 12y ago
    He/she didn't say that you can't have the source, just that you'll have to pay extra for it, separate from the payment for the time/effort/knowledge the initial development took.
• rch 12y ago
  How does a law firm manage rights to use and modify master service agreements (which may be drawn from to negotiate specific contracts by in-house counsel)?
  • vgabios 12y ago
    When you're an Orrick customer, most of their documents come from their standard internal library. If you need something custom or have to negotiate terms, that gets more expensive because legal drafting and review needs to happen with a human in the loop. 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?article=1680&context=ohlj http://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?a... [pdf] see "Copyright Owner's Consent" Also, the section on "Joint Productions" is especially worrisome.
• vinceguidry 12y ago
  If you want to raise your rates, the best way to go about it is to just do it. Companies have an insatiable need for talented development work. The bottleneck is literally how big a number can you say with a straight face.
• patio11 12y ago
  You can offer a client any terms you desire to and they can accept any terms that are profitable for their business, but offering terms which clients are used to with little fill-in-the-blanks for the consequential line items makes it much easier to get your proposal accepted. 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.
  • theunixbeard 12y ago
    Consulting rates are something that gets talked a lot about on Hacker News, but this is one of the first times I've seen a detailed retainer agreement laid out. Thanks Patrick! 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 https://news.ycombinator.com/user?id=tptacek (Note Cliff Note #2) - https://news.ycombinator.com/item?id=3420303 https://news.ycombinator.com/item?id=3420303 - https://news.ycombinator.com/item?id=3420203 https://news.ycombinator.com/item?id=3420203 (Main Thread) - https://news.ycombinator.com/item?id=4101355 https://news.ycombinator.com/item?id=4101355 (Top comment) - https://news.ycombinator.com/item?id=6103350 https://news.ycombinator.com/item?id=6103350 (Top comment) - https://news.ycombinator.com/item?id=6073015 https://news.ycombinator.com/item?id=6073015 (Top comment) - https://news.ycombinator.com/item?id=8704303 https://news.ycombinator.com/item?id=8704303 (Ctfl-F for tptacek or daily) - https://news.ycombinator.com/item?id=3914611 https://news.ycombinator.com/item?id=3914611 (Top Comment)
• Bluestrike2 12y ago
  Photographers are able to do so because the photography industry as a whole largely subscribes to such billing models and IP provisions. I've had a lot of experience with the professional photography world with my family, and for the most part, expectations about contract terms are largely the same. From studios shooting elementary school kids for their first yearbook photos all the way to large assignment shoots for multinationals, it's understood that the photographer retains IP rights as the norm. Clients will sometimes purchase IP rights outright, but they're going to pay to do so though it's pretty rare (most photos for marketing projects, for instance, will only be used for the duration of particular campaigns). 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.