Sales and Use Tax for Photography and Video Production

This post is inspired by a question that came up on the Architectural ASMP user forum that many photographers both new and old face. 

Do I need to charge/collect sales tax for Photography and Video Services.

First off, sales tax differs from state to state. In my home state of Minnesota, we have a great fact sheet for sales/use tax. Your local Department of Revenue may have something similar. 

 

Today I'm only going to address the two of my most common use cases that come up as Exempt Sales:

Electronic delivery.

When the final photography is transferred electronically to the client, with no physical transfer of prints, negatives, discs, or other tangible items, the entire charge for the photography is exempt. The invoice must clearly state that the photography is transferred electronically. No exemption certificate is necessary.

 

Delivered outside Minnesota.

Photography sent or de- livered to a customer outside Minnesota is exempt. No exemption certificate is required; however, records must indicate that the items were shipped to a customer out- side Minnesota. Tax may be due in the state of destination depending on the other state’s tax laws.

Just to be clear, I sent the Sales and Use tax team a few clarifying situations:

In all instances, everything is transferred electronically via online storage.

1. The client is an Architectural Firm to produce Architectural Photography
2. The client is an Architectural Firm to produce Architectural Cinematography and Documentary.
3. The client is a Magazine publication producing short form documentaries about architectural projects.
4. My client is an advertising firm which is producing content for their client (an architectural firm)

The response from the MN Dept. of Revenue confirmed the following

If the photography is delivered electronically it is exempt from sales tax with no physical transfer of prints, negatives, discs, or other tangible items, the entire charge for the photography is exempt.  The invoice must clearly state that the photography is transferred electronically. No exemption certificate is necessary.  The service provider must pay sales or use tax on all inputs used to in the production of the photography that is delivered electronically to the customer.  If the photography is delivered in a tangible form, then it is taxable.

So that leaves one other popular scenario. When you have a client IN STATE, there are cases when delivering large volumes becomes untenable for delivery over FTP or website. Such may result in the question of how a Thumb-drive or other external hard drive may be considered "electronic transfer". I called the MN department of Revenue Sales and Tax Use line last year at 651-296-6181 or 800-657-3777. The woman I spoke with said that the only way I could deliver it on either type of medium, is if I physically go to my client's location, sit down at the computer, and transfer/copy, the electronic files my self, then take the media device back with me. 

 

The great thing, is that this is saving my clients in MN considerable amounts that then can be invested in more production value or future projects. 

 

PLEASE NOTE: This is the case as of the date of this blog post but may have changed by the time you read this.

Do you want Cash or Credit?

I caught a great documentary recently about Charles and Ray Eames (see below). At one point in the film, they discuss how there was a lack of credit shared among the various collaborators of the Eames’ line of furniture.

A trailer from Eames: The Architect and The Painter. Watch now on PBS OR  Currently available to watch instantly on Netflix

The conflict was succinctly expressed by Designers Jeannine Oppewall and Tina Beebe (about 19 minutes in)

“When a product comes out, it’s a river. It starts at one point and it ends at another point. Many people jump into it along the way.” “Everybody contributes a small piece. But only if they go on after that to produce a stunning amount of work, I think are they capable of saying ‘I did this and this in the Eames office, with no credit’.”

This got me thinking about my own design experiences in a firm and where I am today as an independent creative. I realized that even today “Credit” is a common source of contention in architectural, photographic, and other creative communities.

So here I am, expressing my own understanding of this paradigm between employment relationships and “credit”.

The production of intellectual property (IP) as a service or physical good can fall under two categories.

Work For Hire      or       Licensed Work

What is Work For Hire?

An employment relationship which transfers all ideas and creations (intellectual property) from employee to employer.

A common practice for almost any employer and is often (if not always) the case at universities.
It is essentially, the working relationship that has built our economy. I give you money for your good or service and you get to buy something else with that money.

When it comes to architecture firms, news papers, advertising firms, manufacturers, etc., your contract will state that the work or ideas that you develop while working for said employer becomes the property of that company.

I’m honestly not sure when this “contractual” relationship developed over time but I think Don Draper and Peggy Olson from Mad Men illustrate the Work for Hire relationship perfectly in this "Come to Jesus" moment in "The Suitcase" Episode.

This type or “relationship” makes sense to a great degree for any business to succeed. A company or firm often invests thousands or millions to give you, the employee, an opportunity to develop your idea. They take all the risk if your idea doesn't work. They also need to protect that investment from simply going to the competition.

What if Johnny Ive came up with the design of the NEXT iRevolutionary product, then ran to another company and sold them the same design? Sure that cloned product might actually be horrible under the hood, but it could confuse consumers and hurt product sales.

In an architecture firm, it’s the principal(s) who is/are truly invested in the life or death of the firm and it’s work. They may have the most to gain but they also have the most to loose if a project fails to bring in more work. They also shoulder the liabilities if the project faces any legal issues from residents, contractors, or clients.

The continued success of that firm also relies on brand identity. Which is directly tied to completed work associated with the frim.

So what are the trade offs for a designer:

-The ability to use their talent to develop ideas.
-Receive a steady paycheck.
-Mobility of employment. As interests evolve or abilities outgrow current opportunities.
-Limited Liability associated with the completed project. That is unless they have stamped the drawings (in that case, ideally, there’s a higher level of pay for the associated risk).

Does that mean that workers don’t have the right to claim work as their own?

-Yes, if it damages either the reputation or sales of the current/former employer.
-No, if it is presented in agreement with the employer and in the context of the role played in it’s development. This is a common practice for designer in the form of a portfolio.

The difficult thing to realize however is that unless you are a principal or owner of a firm, you are likely in a Work for Hire relationship.

While every employer looks at this differently, as an employee it’s vital to your own development as a designer/creative to negotiate the right to represent your work in an agreed upon manner. 

So what is Licensed work?

It is an agreement between a Creative and a Client where intellectual property is provided for specified use and duration, while the creative maintains the ownership.

In a less than esoteric example. It's like renting a pasture for cattle to graze on. In the end the cattle are fed by the grass but the land’s owner has the right to rent it to other herds. The better the pasture, the more it can be rented. However overuse the land and it won’t bare enough grass to support even one heard.

In photography, film, architecture, design and other forms of IP, the quality of an idea will have a certain value based on its market appeal and life span.

So why do independent creatives license their IP instead of transferring ownership?

Their cost of doing business is much higher than a direct employee. An independent creative must play the role of an employer for all business investments. Continued education, research, equipment, office space, etc. They also flip the bill for their insurances, taxes, and face liabilities on their own. 

In order for a creative to maintain independence and therefore be able to offer their services/goods to a client, they must maximize the return on their investment.

However most commissioned clients have a limited use and benefit from their desired product.
A photographer for instance, will be able to find several markets for a single image. Take this image for instance of Reflections Condominium Towers in Bloomington, MN.

It could be used by the direct creators of the project. The designer, architect, builder, glass manufacturer, etc. all stand to gain new projects by marketing this project.

It could also be used by a realtor, a chamber of commerce, a landscaper, a magazine for an editorial about sustainable practices. You get the idea.

Each of those additional parties all have limited markets the image will appeal to and appear in front of. So their potential benefit for its use is limited to that market. If I however licensed it to all those parties at once, the market may either be saturated and the images power may become reduced.

A photographer, will therefore charge an initial “creative fee” based partially on the potential markets for additional relicensing opportunities.  They may or may not realize those returns, but the ability to have that option extends their ability to lower the initial cost to their commissioning client.

The more restrictions and/or uses a client wants for an image, the more opportunities are removed from a photographer. Which means their creative fee or licensing fee will be modified to reflect that.

Speaking of market saturation.

Creatives of all types are now experiencing the effects of “Social marketing”. A primary client may intend to only license the image for a single online use, and it will be picked up by personal blogs, friends, pinterest, twitter, facebook, Google+ and any variety of other “fair-use” forms of distribution. This type of saturation allows commercial entities an easy albeit unethical form of copyright infringement known as “link-backing”. This affects the ability to re-license work, however correct attribution MAY drive future commissions.

Where do I stand on Social Marketing and Fair-Use?

My advice to my clients is this. Always watermark your images. It doesn’t have to be MY watermark, but there should be SOME company watermark.

It needs to be tasteful and subtle, but it needs to be there. Why? Because the image that you licensed from me will have no tangible return if your potential clients don’t know who created the project to begin with.

If it brings YOU more work, then I hope that it brings ME more work.