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IMAGE-EXCLUSIVE AND NON-EXCLUSIVE
August 11, 2000
Some photographers seem not to have a clear understanding or the differences between
an Image-Exclusive contract and one that is Non-Exclusive.
In an IMAGE-EXCLUSIVE relationship any images that one-agency accepts can not be
placed with any other agency. This means that only that agency, or the sub-agencies
representing that agency, can license rights to that image. Normally the photographer
can not even license rights to the image to one of his or her regular customers unless
the agency approves.
In such a relationship the definition of "Similars" that are also excluded from sale
becomes critically important. From the photographer's point of view the best
definition is one that says that only images that are "Identical" to the image are
excluded from sale. Thus, the photographer would not be allowed to license rights to
a "dupe" of the image, but could license a near similar, that might have contain some
of the elements of the image-exclusive image, but not all of them. (For example: same
couple, same clothing, same general location, but doing something different.)
In a NON-EXCLUSIVE relationship the photographer may even license a "dupe" of the SAME
image. Such licenses may be made by the photographer, or through another agency.
Some photographers who have contacted me have been under the impression that any image
given to one agency could not be licensed through any other agency, even if their
contracts were non-exclusive. This is not true. Historically, in this industry,
non-exclusive rights has meant the agency may license rights to the image for
non-exclusive uses, but that other agencies could be simultaneously licensing
non-exclusive rights to the same image.
The normal argument against non-exclusive arrangements is that if the agency does not
have exclusive rights to the image they will be unable to license the image for high
dollar advertising sales. In some sales where the image may get broad distribution
and be identified as connected with the company's marketing the customer will demand
exclusive rights for a period of time. If an exclusive can not be granted the sale
will be lost.
The first thing to recognize is that in a very large percentage of sales the exclusive
issue never comes into play. When it does there is almost always time to check
rights. At Stock Connection we represent all our photographers on a non-exclusive
basis. Many of our photographers have the same images with other agencies, both in
the U.S. and around the world. We do occasionally license exclusive rights and have
had no major problems in doing so. When such a request occurs, we contact the
photographer, discuss the use with him or her, and determine if the photographer can
pull other related images from his or her other sales outlets. In this way use is
restricted on only those images where there is an actual willing buyer for an
exclusive.
We find it hard to believe that if a customer requests exclusive rights to an image,
to which the agency only has non-exclusive rights -- and that customer is willing to
pay the high dollars that an exclusive should command -- that the agency would tell
the customer that they could not make the sale, without first making an effort to
check with the photographer to see if something could be worked out. The idea that
ALL "high ticket" sales will be lost seems, to us, ridiculous.
At present when a variety of marketing options seem to be working, photographers
should try to get their best images marketed in a variety of different ways, using as
many different strategies as possible. If any particular agency is not effectively
reaching all of the world's markets then the photographer needs to get their images
marketed by several agencies using different strategies.