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NEW PHOTOGRAPHER CONTRACT AT TSI
August 13, 1998
Tony Stone Images is circulating a new three year agreement to their contributing
photographers and is asking that all contracts be signed before September 15th and
prior to the launch of their new web site in October.
Photographers will receive 40% instead of 50% of all digital sales. Their images will not
be included in the on-line database unless they agree to the new contract terms.
The following is a preliminary report with the most complete information we have been able
to obtain as of this date. We will update this story as we obtain additional information.
Most photographers we have talked to believe the intentions of the Tony Stone managers are
good, but there are some points in the contract that need clarification. Photographers
should examine their version of the contract closely before rushing to sign.
To begin, not all contracts are the same. I have learned of at least three versions of addendum
2.4 in the back of the contract and Patrick Donehue says there are many more versions. "The
intention is to mirror, as closely as possible, the current version of the photographer's current
TSI agreement," Patrick said. To summarize, the terms I have been made aware of include:
- photographer exclusive (not allowing the photographer to offer any part of their
work to any other stock agency other than Tony Stone.)
- image exclusive (exclusive only for the selected images and all "similars")
- image exclusive, but also allowing the photographer to independently make small
editorial sales from images similar to the accepted images, but not to include editorial
sales for full pages and covers.
On the other hand, many photographers are being asked to sign agreements that are much more
restrictive than their current contracts. When individuals challenge TSI on this point
the response seems to be, "Oh, we made a mistake and sent you the wrong version. We'll
send you the correct version today."
These mistakes may well have been honest, but it is a standard strategy in many businesses to
offer a very restrictive version to everyone the first time out and see how many people you
can get to
agree to it. For those who complain you have a second version and you give on a few points.
And maybe there is a third version and so on. When Time Inc. was revising its photographer
contract recently, it was reported that every photographer got the most restrictive version
first, but that there were actually six different versions ready to offer when photographers
complained.
Photographers should carefully examine their agreements and not be steam rollered into
signing something that is not in their best interest just because they have been presented
with a tight deadline.
Another point about the "image exclusive" contracts is that they are conditional on the
photographer giving TSI first look at everything they produce. A problem arises because TSI
is also telling photographers that they don't want to look at everything the
photographer produces. They only want to see a tightly edited sample of the "best". Thus,
in order to satisfy the requirements of their editor, photographers must tightly edit their
submissions. It is unclear whether a photographer who signs one of these contracts can
legally attempt to market any of the situations not shown to TSI.
Under the new agreement the photographer is not paid in the month after the invoice is
paid , but within 120 days from the date the client invoice is issued , regardless of the
location of the sale. If the sale is eventually uncollectible, TSI assumes the entire risk
and the photographer is paid even if TSI never collects on the sale.
At first look this is a pretty good offer, even though most agencies usually have very
little problem in eventually collecting from clients. Occasionally, agencies have trouble
collecting large blocks of money from other sub-agencies. TSI had an experience a few
years ago when the Japanese agency they were dealing with owed them well over six figures,
and many of their photographers had sales that were booked well over a year before they
were eventually paid. This kind of thing would not happen under the new contract.
On the other hand, for sales made within the photographer's territory 120 days, if they
stretch to the maximum on every sale, could be longer than it takes to be paid under the
current system. Currently, photographers are paid monthly in the month after the fee is
collected.
According to the TSI press release, "There will be no changes to any financial arrangements
for the marketing of images in analog format where Tony Stone's rates are 50% for an in
territory transaction and 30% for an out of territory... For the first time, the new
contract sets a rate for online sales at 40% for in territory and 30% for out of territory
transactions."
Some photographers have asked why sub agencies or wholly-owned offices should be receiving
a percentage of the on-line and digitally fulfilled sales when they do absolutely nothing to
earn their commission, and are not involved in the sale in any way.
Patrick Donehue points out that TSI has to be careful not to undermine existing relationships
with local offices in various countries around the world. They will rely on marketing and
support from these offices to encourage local users to begin using the on-line systems. It
is anticipated that this will be very expensive. Getty Images has allocated $13 million for
digital development this year alone and much of this is earmarked for the development and
launch of the Tony Stone Images electronic commerce enabled website.
Another complexity, the details of which are still being worked out, is to provide 24
hour-a-day, 7 day-a-week negotiating service because these right-controlled images will be
licensed based on the usage. This service will have to be available in many languages
because the requests could come from any country in the world. In all likelihood the
local offices will be involved in some way in many of these sales.
The bottom line for photographers seems to be that the promise of a few years ago that
digital marketing would make it easier for them to distribute their images worldwide and earn
a greater portion of the gross sale fee seems to have been a false hope. Worldwide
digital marketing needs as many middlemen, if not more, and seems to be more expensive,
not less. So it looks like photographers will have to accept a lesser percentage of
the gross sale fee if they expect to participate in digital marketing. And there is
no assurance that there will be enough increase in volume to make up for the lost fees.
TSI has made it clear that if a client in the photographer's home territory finds an image
on-line, but then requests film rather than a digital file, the photographer will receive
50% of the fee rather than 40%. If it is an out-of-territory sale the photographer gets
30% either way.
The new contract has been endorsed by the Tony Stone Images' Photographers Advisory Group
(PAG) whose member include: Ed Honowitz, Ed Prichard, Laurence Monneret, Ken Fisher,
Andreas Pollok, David Madison, Dennis O'Clair, Doug Armand, Deni McIntyre, Nick Dolding,
Tim Davis, Tim Flach, David Joel, Julie Fisher, Chris Wahlberg, Paul Harris and Garry
Hunter. But, other TSI photographers should remember that these photographers are endorsing
the version they received, not necessarily the version other photographers have received.