November 2010

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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.

I will be presenting  © KNOW IT OR BLOW IT! as part of FOTOWEEK DC

Where:  The Phillips Collection…1600 21st Street NW, Washington DC

When:   Wednesday, November 10, 2010 from 1pm-4pm


Knowledge is power. With image theft rampant, it is vitally important that you know the facts regarding copyright protection and how to effectively exercise your rights. Too many times due to lack of information, mis-information or just plain carelessness, a photographer has been left defenseless unable to take action against infringers. Don’t let this happen to you. Join Moderator Debra Weiss and an esteemed panel that includes Attorney Jamie Silverberg, Photographer John Harrington and Senior Art Producer Cindy Hicks of The Martin Agency for what promises to be an informative and entertaining program that will inspire and empower.

The following topics will be discussed:

Registration: How To Do It And Why

What To Do When Your Image Has Been Infringed

How and When To Choose An Attorney

Appropriation – Is It Ever Justified?

Fair Use: When Is It Really Fair?

The Anti-Copyright Forces – Who and Why?

Putting Copyright To Work For You

When I wrote this article in 2001 we lived in what now seems to have been in many ways a much different world. While photographers now face what appear to be a never-ending parade of new challenges, the belief in the value of their work must remain constant. With all that has happened in the past decade, I believe the following to be just as relevant today as it was then. That’s why I’ve chosen to start my blog specifically with the following piece…

OK – so you probably don’t want your kids to grow up to be cowboys but according to a New York Magazine article on salaries, you might want them to consider photography. “As soon as my kid is big enough, I’m putting a camera in her hands,” a former photographer’s agent says. “That’s where the money is.”

Well – I’m glad that’s settled, although I personally know a couple of thousand working photographers who might take issue with the above statement.

According to the article, Bruce Weber, David LaChapelle and Mario Testino make up to one hundred grand a day. Even though the aforementioned are primarily fashion photographers (who also shoot ads) and even if there is only a modicum of truth to those numbers, why is it that they feel entitled to demand those fees and so few advertising photographers do? Have they unleashed a deep dark secret of the universe that up until now has only been revealed to a select few? The answer is really simple – so simple that it will probably cause one to smack his or her forehead and experience a realization equal to “Gee – I could have had a V-8!”

They understand both the real and the perceived value of their work. How’s that for anti-climactic? They have figured out that the client can potentially generate millions of dollars from the use of their images. They are able to recognize the importance of positioning so it is not only the image, but the photographer himself that has value.

Right now there are art directors all over who are just chomping at the bit to work with the above mentioned in addition to Annie Leibovitz, Albert Watson, Matthew Rolston, Peggy Sirota and Greg Gorman. And sometimes, one of those photographers might not even be the best choice, or, the art director can hire someone whose work might be similar and would cost a lot less – but they don’t. They hire those photographers because they have positioned themselves so well, that to the art director, there is no other choice.

What determines the value of a photograph?

The price of an image should be commensurate with how and where the image is used. When the agency tells you they have no money for photography but the media buy is in the millions of dollars, this is a pretty good indication that someone is being taken advantage of. I have always been in favor of foregoing the creative fee and taking a percentage of the media buy – in certain cases this could make sense and be truly beneficial to the photographer. As of today though, it is more a concept than practical application, so for now, basing value on usage is the most equitable solution. Besides, I’ve yet to find an agency that would go along with that idea.

How unique is the image?

Most of the time an image that is considered unique will be of greater value. However, (a) to a very large degree uniqueness is subjective, and (b) we’ve all seen what appear to be very simple photographs used in long running national and sometimes international ad campaigns and that brings us to…

Who’s the photographer and how is he/she perceived?

The ones on top can demand huge fees because the buyers believe in their worth and so do the photographers.

How does that positioning thing work? Here are some tips:

1. Learn to say no. It is key in any negotiation. People want what they can’t have.

2. Believe in the value of your work. If you don’t, no one else will either.

3. The level you go into an agency situation at is the level at which you will stay. If you do a job for a small amount of money and think you will be rewarded with a bigger job the next time around, guess again. When there’s a big job to hand out, a big guy gets it.

4. Market yourself and always use a good designer.

5. Hire a consultant. They really can make a difference. But do your research – there are pretenders among us.

6. If you are stuck in a poverty mentality get unstuck. I know that is easier said than done but this will only keep you down. This is a fear driven business – please try not to buy into any more fears than you positively have to.

7. This is a business. Don’t try to make everybody like you. Make better images. That way you can walk away with a sense of accomplishment and more money.

OK – now a word about stock. I have always believed that stock should be more expensive than assignment photography. There are tremendous advantages for an agency in using an already existing image. First and foremost there is no risk – they know exactly what they’re getting. They don’t have to deal with the photographer or the rep and that has to be worth something. In addition, the agency does not have to send an already overworked creative team to a photo shoot. They can stay in their office and be even more overworked, while saving the agency travel expenses.

Again, the uniqueness of an image plays a major role in determining its value; however, too many photographers look upon stock sales as found money. They are not considering the greater value it has to the client. If more people had subscribed to the idea that some stock is not only as valuable as assignment photography but even more so, there might not have been as big a bite taken out of the assignment market as there has been, and, it probably would have been a bit more difficult for Corbis and Getty to reduce the value of imagery to $20.00.

I can’t say this enough – please get behind the value of your work and the contribution you are making to the marketplace. No one is doing you any favors when they hire you. Your imagery is vital to the success of the ad. How many magazines do you think would sell without pictures? The clients know the answer to that question and so should you. Photographers have always held the power but only a few have realized it. Maybe that will change. Stranger things have happened. Look who’s in the White House…

©2001-2006 Debra Weiss – All rights reserved.