Image Exclusive and Non-exclusive

Posted on 8/11/2000 by Jim Pickerell | Printable Version | Comments (0)

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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.


Copyright © 2000 Jim Pickerell. The above article may not be copied, reproduced, excerpted or distributed in any manner without written permission from the author. All requests should be submitted to Selling Stock at 10319 Westlake Drive, Suite 162, Bethesda, MD 20817, phone 301-251-0720, e-mail: wvz@fpcubgbf.pbz

Jim Pickerell is founder of www.selling-stock.com, an online newsletter that publishes daily. He is also available for personal telephone consultations on pricing and other matters related to stock photography. He occasionally acts as an expert witness on matters related to stock photography. For his current curriculum vitae go to: http://www.jimpickerell.com/Curriculum-Vitae.aspx.  

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