Is the focus of the agency Editorial or Corporate?
Many major editorial stock agencies in Europe have massive duping operations.
They take in subject matter on a broad cross section of stories, and put together
packages of 50 to 100 dupe transparencies each week which they ship to hundreds of
newspapers, magazines and subsidiary stock agencies around the world. Photographers are usually
not informed that their images have been included in these packages. Agencies are
compensated for these packages in several different ways.
- The publication may pay a flat weekly fee entitling them to unlimited use of all
images in the package. Photographers get a proportionate share of the total package
price irrespective of whether their image was ever published.
- In some cases, in addition to the base package price, the publication may pay
an additional fee for each picture used based on space. In this case the photographer
will get a royalty on the additional fee.
- Subsidiary stock agencies may pay a modest dupe fee and license rights in the
normal manner. In this case, they share compensation with the parent agency and
the photographers in more or less the traditional manner.
There are a host of issues that this method of operation raises, but I want to focus
on the return of images. Customers receiving these packages understand that They Do Not Need To Return The Images.
The customer is allowed to file the images. If they used them after the initial period
(a week or a month) the customer is usually required to pay an additional fee. If
they don't want to file them they can throw them out. After all, making new dupes
from the stored originals is cheaper than the postage to return the dupes.
This marketing approach led to a dangerous customer mindset in the 70's and 80's.
Many customers came to believe that all images they received were dupes, and therefore
of no value. This attitude carried over into the corporate realm and often presented a major problem for corporate agencies that wanted their images handled carefully
and returned. Corporate agencies that were trying to compete against the well established
editorial agencies were reluctant to try to force clients to pay for loss or damage for fear they would lose a customer. As a result many European agencies had difficulty
collecting for lost or damaged transparencies in the 70's & 80's.
It is my understanding that there has been a change in attitude among most of the
clients outside the U.S. and that they now understand the differences between the
dupes sent to them in editorial packages and the dupes that are sent out as a result
of a request from a stock agency catalog, or a request to research the general file.
Nevertheless, many of the dupes and "similar original" images that went into European
and Asian files, 5, 10 or 15 years ago may have been thrown out.
Stradiotto And The Image Bank
This abstract discussion takes on a sense of reality when you consider the situation
that has developed between John Stradiotto and The Image Bank.
In August, 1994 TIB determined that they no longer wanted to represent John, after
having handled his work for almost ten years. Lilly Filipow sent him a letter on
August 29, 1994 terminating his TIB contract and pointing out that, "Post termination
matters such as the return of the original transparencies and royalties earned after
termination will be handled with strict observance of the terms of the contract."
John began to patiently wait for his images, but by July 19, 1995 (almost a year later)
John had received only 147 of the 2250 images he had on file with TIB. He wrote
a letter at that time to Lilly, but it went unanswered.
However, more images were returned and by November 16, 1995 he had received a total
of 494, or 22% of the images he had on file at TIB.
As luck would have it John is making more now selling his images directly than he
ever made from TIB. He figures that if he can do that well with only 22% of his
images, maybe he could do even better if he had access to all of his work. It might
even be possible that another agency could sell his work. At any rate, John believes he
has a right to expect return of all
of his property.
The return clause in the contract John signed gives TIB a lot of leeway. It says:
"If THE PHOTOGRAPHER requests in writing a return of all or part of his images upon
termination of this Agreement, this shall be done in a reasonable period of time
for re-assembly and re-delivery of such images. TIB will, of course, use its best
efforts to see that THE PHOTOGRAPHER'S material is returned as soon as possible. TIB agrees
that if for some special reason THE PHOTOGRAPHER requires a speedier retrieval,
it will attempt to assign special clerical personnel to perform such retrieval; however, the expense of same, if any, will be borne by THE PHOTOGRAPHER."
John now recognizes that one flaw in the language is that TIB gets to define
"reasonable" and that it could be a very long time. This was not the way he interpreted
this clause when he signed the agreement. At TIB's current rate it could take five
or six years before he gets all his originals. TIB could argue that an even longer
time is "reasonable." During that time, of course, John's ability to make money
from his photographs is being restricted.
In another clause in the contract TIB has no responsibility for lost images. They
could easily declare all missing images lost, and according to the contract, probably
have no further financial responsibility to Stradiotto.
The option to "assign special clerical personnel" at John's expense is really a "Catch
22." If John were to take that option and try to search every file cabinet in 65
offices around the world (because the images are filed by subject not, image number)
it could easily cost him much more than the images are worth.
I contacted Lynn Martin at TIB on John's behalf to determine if there was some unexplained
reason why such a small percentage of John's images had been returned and to see
if anything could be done to expedite return.
She responded that the number of images returned thus far was "reasonable" given the
difficulty of searching through the millions of images in 65 offices around the world.
She argued this is a risk photographers must accept if they want the worldwide distribution
possible with a major stock agency. She said all TIB photographers understand this
and have made a conscious decision that the benefits of being a TIB photographer outweigh the risks of losing some images.
She also claimed that the TIB return policy is consistent with the practices of every
other major stock agency with international distribution.
Reactions of Major Stock Agencies
I felt that Ms. Martin was being unfair to other major stock agencies and advised
her that I would survey a few to determine if they agreed that what TIB had been
able to accomplish in the return of John Stradiotto's work was the best that any
photographer should expect from a major international stock agency.
I contacted Tony Stone Images, FPG International, The Stock Market, WestLight, The
Telegraph Picture Library (London), IFA- Bilderteam (Germany), Baveria (Germany)
and Alan Carey, president of PACA.
Richard Steedman, of TSM replied, "it has long been a standing policy of The Stock
Market not to publicly comment on the procedures of other stock agencies."
All the other agencies responded and most believed they could return at least 80%
of a photographer's images in less than one year.
Barbara Roberts of FPG pointed out that they have one full time staffer whose sole
responsibility is retrieving images which belong to photographers who have left the
agency. (Many agencies tend to make returning images to photographers the responsibility of the picture research staff when they have down time. Remember at most agencies
they have to go through every plastic sheet in every file drawer looking for the
photographer's name because there is no shortcut method of tracking individual frames.)
Sarah Stone of TSI made the point that they keep the originals of catalog images,
and any images selected for their duping program in a separate file. Only in rare
cases, and only with heavy liability clauses to the clients, do these original images
ever leave the office. Thus, these most salable images would be immediately available
to the photographer in the event of termination.
All the images TSI has in their U.S. offices are numbered and they can easily track
what images are where. Sarah acknowledged that the tracking systems of some of their
overseas subsidiaries are not as good and they might have more difficulty in getting images back from them.
All the U.S. agencies agreed that there are problems in recovering images that have
been distributed internationally.
Alan Carey of PACA commented, "I would suggest to John Stradiotto that he could file
a grievance with PACA if he feels he was not dealt with in a proper fashion by his
agency. This is the proper outlet for photographers who feel they have been wronged
by their agencies."
Who Instituted Termination?
TIB's failure to return images might be more understandable if John had been the
one who terminated the agreement. Instead, it was TIB who wanted to get rid of John.
TIB is not only saying they can not sell John's work; they are also, by not returning
his work, restricting his ability to compete in the marketplace.
I have heard rumors, not confirmed by TIB, that the contracts of many other photographers
have been terminated in the last year. If any of these photographers are experiencing
difficulty in getting their work returned I would like to hear from them.
- Never send any agency an image you can not afford to lose. When it is your intent
to leave images to an agency assume they are gone forever. Then you will not be
disappointed if they don't come back. Get dupes of one-of a kind images.
- In your contract require that on termination the agency send a letter of "notification
of termination" to all subsidiary agencies who might have your images. This letter
should ask the agency sub-agency to re-assemble your work as soon as possible and return it to the head office. Require also that your agency send you a copy of
this letter. (Some sub-agencies claim that they have never been notified when photographers
have left the primary agency.)
- Understand how your agency files and distributes images. Weigh the risks of losing
the images against the potential rewards.
- Images that are not numbered will be much more difficult to track than those that
are numbered, but just because an image has a number does not mean it will be easy
to retrieve. Most agencies have no records that tell them which image numbers are
filed in which subject categories. Consequently someone must search the entire file
looking for your name on the mount.
- Know whether all originals are retained at the home office, or if some of them
are sent to subsidiary offices?
- Recognize that getting a stronger clause in the contract is not necessarily the
answer. Understand what the agency is really able to deliver based on their standard
operating procedures. Don't fight for contract language you will never be able to
afford to enforce.