Advice
03.05.2019
03.05.2019
On Contracts
A bit on contracts. I recently did a shoot for an editorial client. Completed the shoot, sent off final images, sent invoice with a Net 30 w/ monthly interest. A couple weeks later, I received a contract out of the blue that I needed sign for the shoot, but the work had already been completed.
I got out my little brass monocle and started to parse through the contract. In it, the goalposts had moved quite a bit. By my understanding, like most every editorial assignment I do, I was commissioned by a single magazine title to make photographic work for an upcoming issue, and I was licensing that publication the rights to run the photos in that month’s magazine, on web, tablet app, etc. The images remained mine and I own them. With few exceptions, that’s how it’s been for decades in magazine/editorial photography.
This contract, speaking in generalities, was a rights grab, attempting to grant the parent publishing company of this magazine the rights to use my photos across all of their titles (not just the one I shot for) in perpetuity without licensing fees. Which meant the photos I shot could be used in any of number their other titles, for free, forever. Furthermore, the contract was trying to grant the right for the parent company to re-license my images to any third party in any medium with no royalties. Which is borderline work for hire, i.e. relinquishing most of your rights and the ownership of your work to a commissioning client, which is as close to stranger danger as you can find in a contract.
Lastly, their contract was trying to pay me on a Net 60. I really, really despise Net 60s purely on the basis of principle. My rental house, my assistants, techs, all of my contractors work on Net 30s. In fact I have to pay most equipment rental houses on the spot. I pay my assistants the day their invoice lands in my inbox, out of wanting to be nice. A Net 60 from a publishing company puts a financial burden on photographers, especially those who are emerging and/or don’t have much cash flow. I deeply believe that editorial photographers—especially those who are financially tenuous—should not be asked to float shoot expenses for two months. It’s just kind of a unity issue.
OK, where to start:
First, contracts need to get sent, mutally agreed upon, and signed before any work happens. Not after. Always. I know photography/creative freelance things are in their own little realm of freakonomics, but this would be like any client <> business performing work, then one party getting sent a contract way after the date of completion, with totally imbalanced terms that were never discussed.
I politely but firmly wrote back to the contract manager, and speaking in generalities, said a.) I really needed to see this prior to the shoot, not after b.) I did not agree to the terms outlines in the contract c.) sent back specific strikethroughs on clauses with amendments (basically saying that I was fine to grant a license to the specific title for usage, but not all titles under the parent company, and that I absolutely was not granting the right for them to re-license my work to third parties) d.) that my company was on a Net 30, not a Net 60. This is how most editorial contracts used to be until the past couple years, and it was a desire to get back to that.
I stipulated that these above points were non-negotiable and that I take usage and payment very seriously, and that I would be happy to sign the contact in an amended form, but not in its current state. A couple days later, the manager very graciously sent over an amended contract with all of these adjustments, I signed it, and now we have come to a binding agreement on the usage and licensing terms of this set of images as well as payment terms. To be frank, usually there is a lot more of a tug-of-war than this, and I must say this title and their contract manager were absolutely polite and professional and lovely to communicate with.
I’m writing all this to share because I’m a big huge believer in being open source about the business side of photography and I think this is a valuable experience to share. Photographers, no matter your figurative stature in this industry, know you have rights. Those rights will get challenged, often. You might feel tiny ‘going up against’ a large title, or parsing through a dense and looming contract, but know that a contract is not written in stone, and you are not under the obligation to sign away your rights to your images. If you have not received a contract prior to a shoot, ask for one, several days beforehand. Or provide one of your own. In short, you *always* need to have a written agreement between you and a client about how your work gets used, who owns it, how it is licensed, and the terms of payment. Always.
I’m cringing a little at the photo editors who might be reading this, and I hope y’all don’t hate me or consider me some type of pariah now. I’d like to think we are in this together. This is an attempt to help photographers learn some business acument that is seldom taught and usually learned the hard way. I deeply love magazines, I love editorial commissions, it’s how I cut my teeth and they still provide unfettered joy. I understand that few magazine titles are thriving, but it’s also disenfranchising to get these dense and often intimidating contracts where the huge publishing companies are low-key trying to relinquish or minimize the rights to photographers work, and hand over some of that ownership and earning potential to magazines.
Photographers: to be quite honest this story is a best-case scenario. You’re going to be going head to head with a lot of contracts that will not be ‘relinquishing’ so many terms, and part of the above scenario was that I was able to leverage my advantage in the fact that the shoot had already happened, and the work turned in. It’s hard to illuminate what to look for a contract, and this post is by no means offering legal advice or is a call to rebel against magazines. It’s an attempt to have two parties be respectful of one another. My own personal lesson here is to be more proactive about the contracts as well, but, again, know that you do have some power and a voice. Ultimately it’s up to you to decide the terms you’re comfortable working on.
I got out my little brass monocle and started to parse through the contract. In it, the goalposts had moved quite a bit. By my understanding, like most every editorial assignment I do, I was commissioned by a single magazine title to make photographic work for an upcoming issue, and I was licensing that publication the rights to run the photos in that month’s magazine, on web, tablet app, etc. The images remained mine and I own them. With few exceptions, that’s how it’s been for decades in magazine/editorial photography.
This contract, speaking in generalities, was a rights grab, attempting to grant the parent publishing company of this magazine the rights to use my photos across all of their titles (not just the one I shot for) in perpetuity without licensing fees. Which meant the photos I shot could be used in any of number their other titles, for free, forever. Furthermore, the contract was trying to grant the right for the parent company to re-license my images to any third party in any medium with no royalties. Which is borderline work for hire, i.e. relinquishing most of your rights and the ownership of your work to a commissioning client, which is as close to stranger danger as you can find in a contract.
Lastly, their contract was trying to pay me on a Net 60. I really, really despise Net 60s purely on the basis of principle. My rental house, my assistants, techs, all of my contractors work on Net 30s. In fact I have to pay most equipment rental houses on the spot. I pay my assistants the day their invoice lands in my inbox, out of wanting to be nice. A Net 60 from a publishing company puts a financial burden on photographers, especially those who are emerging and/or don’t have much cash flow. I deeply believe that editorial photographers—especially those who are financially tenuous—should not be asked to float shoot expenses for two months. It’s just kind of a unity issue.
OK, where to start:
First, contracts need to get sent, mutally agreed upon, and signed before any work happens. Not after. Always. I know photography/creative freelance things are in their own little realm of freakonomics, but this would be like any client <> business performing work, then one party getting sent a contract way after the date of completion, with totally imbalanced terms that were never discussed.
I politely but firmly wrote back to the contract manager, and speaking in generalities, said a.) I really needed to see this prior to the shoot, not after b.) I did not agree to the terms outlines in the contract c.) sent back specific strikethroughs on clauses with amendments (basically saying that I was fine to grant a license to the specific title for usage, but not all titles under the parent company, and that I absolutely was not granting the right for them to re-license my work to third parties) d.) that my company was on a Net 30, not a Net 60. This is how most editorial contracts used to be until the past couple years, and it was a desire to get back to that.
I stipulated that these above points were non-negotiable and that I take usage and payment very seriously, and that I would be happy to sign the contact in an amended form, but not in its current state. A couple days later, the manager very graciously sent over an amended contract with all of these adjustments, I signed it, and now we have come to a binding agreement on the usage and licensing terms of this set of images as well as payment terms. To be frank, usually there is a lot more of a tug-of-war than this, and I must say this title and their contract manager were absolutely polite and professional and lovely to communicate with.
I’m writing all this to share because I’m a big huge believer in being open source about the business side of photography and I think this is a valuable experience to share. Photographers, no matter your figurative stature in this industry, know you have rights. Those rights will get challenged, often. You might feel tiny ‘going up against’ a large title, or parsing through a dense and looming contract, but know that a contract is not written in stone, and you are not under the obligation to sign away your rights to your images. If you have not received a contract prior to a shoot, ask for one, several days beforehand. Or provide one of your own. In short, you *always* need to have a written agreement between you and a client about how your work gets used, who owns it, how it is licensed, and the terms of payment. Always.
I’m cringing a little at the photo editors who might be reading this, and I hope y’all don’t hate me or consider me some type of pariah now. I’d like to think we are in this together. This is an attempt to help photographers learn some business acument that is seldom taught and usually learned the hard way. I deeply love magazines, I love editorial commissions, it’s how I cut my teeth and they still provide unfettered joy. I understand that few magazine titles are thriving, but it’s also disenfranchising to get these dense and often intimidating contracts where the huge publishing companies are low-key trying to relinquish or minimize the rights to photographers work, and hand over some of that ownership and earning potential to magazines.
Photographers: to be quite honest this story is a best-case scenario. You’re going to be going head to head with a lot of contracts that will not be ‘relinquishing’ so many terms, and part of the above scenario was that I was able to leverage my advantage in the fact that the shoot had already happened, and the work turned in. It’s hard to illuminate what to look for a contract, and this post is by no means offering legal advice or is a call to rebel against magazines. It’s an attempt to have two parties be respectful of one another. My own personal lesson here is to be more proactive about the contracts as well, but, again, know that you do have some power and a voice. Ultimately it’s up to you to decide the terms you’re comfortable working on.
