While in Columbus, Ohio recently to present my program entitled HOW TO GET WORK FROM AD AGENCIES, the subject of click-through user agreements entered the conversation as I was discussing websites and copyright protection. For the record, I am very much in favor of these agreements.
At the end of the program during the Q & A, a woman (who I learned is an art buyer) commented that she felt I was promoting an “us vs. them” mentality. Without explaining the basis for that opinion, she claimed that in her role as an art buyer she acted as an advocate for photographers, fought hard for them and had wonderful relationships with them. I think that’s wonderful. However, in reality, the agency signs her paycheck — not the photographer. Her job is to work in the best interests of the agency and its clients. That’s the way it should be, just as it is the responsibility of photographers to work in their own best interests. It is unfortunate that certain people view this basic business principle as an “us vs. them” scenario.
Upon returning to LA, I read a blog post written by Leslie Burns entitled ‘Us Against Them…Not!’ Leslie Burns, who refers to herself as a consultant and is now studying law, hails from Columbus, Ohio where the “us vs. them” comment was made. Coincidence? I don’t believe in them. But what Leslie has written worries me. Experienced, knowledgeable photographers would simply ignore the advice given, however, my concern is that younger, inexperienced, impressionable photographers (of which there are many) may take her advice as gospel and get burned. Following are excerpts from her post:
“If you hear someone say that photographers and their clients are in opposition, run. That kind of old thinking will ruin your business today.”
There really is not a lot of rocket science involved when it comes to the Photographer/Agency relationship. The Agency, working in the interests of their clients, wants as much as they can get from the photographer, while paying as little as possible. Photographers should want to get as much as they possibly can while granting rights truly commensurate with the fee received. Sometimes, the photographer and the client find common ground and both parties feel they have achieved their goal. Sometimes they don’t. But it is all about negotiation. That’s what business has always been about. Here’s what will ruin your business: failing to run your business as a business.
“For example, click-through copyright notices on your website might give you a teeny bit of additional legal protection (I think of it as just one piece of paper in a file folder full), but buyers hate them.”
A photographer’s ability to avoid claims of innocent infringement can make the difference between a statutory damages award of $200.00 and an award of $150,000.00. Hardly a “teeny bit of additional legal protection”. Perhaps Ms. Burns should study the legal definition of “teeny”. As to art buyers hating click through agreements, it simply is not true. My panel in Columbus, consisting of two art buyers and a creative director agreed, as have other panelists in the multitude of cities where I have presented this program.
“Also, those who are going to steal from you are going to steal from you–they won’t even read the notice.”
Failure to read the notice does nothing to diminish its effectiveness in court or in settlement negotiations should the photographer’s work be infringed.
Photographers must remember that they are as important to the client as the client is to them. One cannot succeed without the other. The issue of click- through agreements is a non-issue. The real issue is that a person who makes her living off of photographers is advising them to do something that may very well result in the loss of their ability to defend their intellectual property rights.
Photography is an industry driven by fear. Perpetuating that fear is antithetical to what a consultant’s role should be.