202 RANDOM THOUGHTS 3
February 9, 1999
Policy Change At TSM??
The Stock Market has always been a strong advocate of photographer
exclusive contracts. Richard Steedman has consistently argued that an
agency should represent the whole body of work of a photographer, that an
agency will always promote a photographer's best work, and that if certain
images aren't selected for promotion by the agency then they shouldn't be
promoted anywhere else.
However, now that there are so many major stock producers dissatisfied with
the representation they are getting from some of the other major agencies,
we have learned that TSM is making some exceptions to this rule and is
willing to accept some photographers on a non-exclusive basis.
When the recent Stock Market 12 catalog came out one of TSM's major
producers immediately spotted what he was sure was a John Lund picture
above the name of John Martin. Lund, of course, has been a major producer
for Tony Stone Images for years. Fearful that his agency was being
deceived by some unscrupulous photographer who had ripped-off John Lund's
image and that the agency was possibly involved in a copyright
infringement, the photographer immediately called TSM.
He was told, yes it was a John Lund picture, that John Martin is the name
Lund uses for pictures he has placed with TSM and that TSI is fully aware
that Lund is supplying some images to The Stock Market.
Lund also got a call from an art director he has worked for who said, "I
don't know who this John Martin guy is in the new Stock Market catalog, but
he is ripping you off."
Lund is not the only one. We understand that Tim Davis and Renee Lynn are
now also represented by both Tony Stone Images and The Stock Market. There
may be others.
Changes At Corbis
Holli Morton who was Director of Sales and Personnel at WestLight has
retired. Her primary goal had been to fully integrate WestLight into the
Corbis system and that was deemed completed on January 11th. Helen Menzies
who was with Corbis in the UK has been brought to the LA office as sales
manager and is serving, at least temporarily, as director of the Los
A new "Creative Freedom 3" catalog and CD of mostly WestLight images has
been delivered to customers under the Corbis Images logo. The WestLight
identity has totally disappeared from all promotional material.
The Digital Stock identity has also disappeared as a result of the integration.
Founders of Digital Stock, Matthew Klipstein and Charles Smith are wrapping up
their relations with the company and will be leaving shortly.
The new Corbis Images site has gotten rid of a lot
of the consumer offerings that still litter Corbis's main site. Users have
a choice of looking for Royalty Free images or Licensed Rights images. If
they choose licensed rights they get to search through a single database
that contains all the WestLight images, the primary Corbis file supplied by
individual photographers direct to Corbis, as well as images from Outline,
LGI and Bettmann. This site should be a much more user friendly offering
for graphic designers than the previous site.
I have recently heard that at least one photographer who has been with
Corbis for about four years has paid off his advance and is now receiving
actual payments for royalties. His share of gross sales for 1998 was up
significantly and represented over 45% of his total advance. Other
photographers report that sales in last quarter of 1998 showed marked
improvement. Maybe clients are finally finding the Corbis on-line site..
According to Peter Howe the company structure has changed and they are
taking in fewer images in Bellevue and London. This resulted in the
departure of three editors from Bellevue and one from London. New material
is now being edited at the various divisions - WestLight, Digital Stock,
Outline, LGI and Bettmann.
In theory the photographers who originally supplied material to Corbis are
still shooting and could continue to pump new material into the files.
However, many are so disillusioned that few seem to send in new material.
Some have been told not to make new submissions. I also hear that Corbis
is rethinking the $4.50 per image deal and won't offer that anymore.
Rights of Privacy
Ever wonder how the UK press gets away with publishing images of
celebrities that might get photographers sued here in the US. According to
lawyer Charles Swan of The Simkins Partnership in London there is no
"rights of privacy" or "rights of publicity" as in the US and most of the
rest of Europe. It is not unlawful, per se, to exploit someone else's
image for commercial purposes without permission.
How does your agent handle payments for use of your images?
Some Agents have an account into which they deposit all royalty payments
and a separate account for operating their business.
When they receive payments from clients the entire check is deposited into
the royalty account. They don't remove anything from this account until
they have paid their photographers their share of the monies. At that
point they also pay the agency's share of monies into their general
operating account. All agency operating costs are paid out of the general
That's the way your monies should be handled. Most agencies that operate
in this manner pay monthly because they don't want to wait a long time to
begin using money they have collected from clients. But, just because they
pay monthly isn't necessarily a guarantee that they pay you first before
they start using money out of the royalty account.
The downside for the agent is that he can't use the money as soon as
collected. Assume the agent pays photographer commissions on the first day
of the month, based on all monies received the previous month. If a royalty
payment arrives on the 1st or 2nd of the month the agent has to wait a
whole month until he can start using his share of that money. For many
this temptation is too great. On average for the agents who pay monthly
the money sets in the agents royalty account for 15 days before he can
begin using it.
Nevertheless, the photographer's "agent" has a fiduciary responsibility to
preserve the independence of the photographer's funds versus that portion
that belongs to the agent.
Some agents write checks at the end of the month and then hold the checks
until they have cash in their account to cover the checks.
Recently, a photographer noted his checks from his agent were arriving
almost two months after they were dated. When he questioned the agent the
agent came back with the following justification.
"As I see it, we are one of the few agencies left that still writes checks
on a monthly basis. Maybe we are the dumb ones." For almost two years
"we've been holding the monthly royalty checks for one month before mailing
them. At the end of the year cash is a bit tight so sometimes the mailing
gets delayed a couple days beyond that month hold time."
This agent isn't bothered at all that he has no funds to cover the checks
he is writing. Somehow he believes he is fulfilling his responsibility by
writing the check and that it makes no difference when he hands that check
over to the photographer.
On the other hand, if you think one month holding time is bad, consider the
situation of Philip Chudy with Pictor. See story 197 .)
And it is just as bad when the agent doesn't write checks or report sales
at all, as Picture Perfect did. See story 192 .)
Just because the agent has a separate royalty account doesn't mean it is
used in the way it was intended. When I led a group of photographers in an
audit of Uniphoto in 1990 we discovered that they had a separate
photographer account into which they put all royalty checks. The problem
was that whenever their operating account got low the then owners (who are
no longer there) freely dipped into the photographer's account to pay
current bills. They did this with absolutely no consideration as to how
much of this money was then owned to photographers.
When we totaled up their funds in early October, 1990, they owed
photographers in excess of $200,000 for royalties collected in the previous
quarter. They had no money in their operating account and less that
$25,000 in their photographer royalty account. On top of this, payday for
their employees was two days away and that would eat up most of the
$25,000. But the owner was driving a Porsche.