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SIMILARS
August 13, 1998
"What is a similar?" The answer is so subjective that there is absolutely no agreement among
clients, stock agencies or photographers as to a general statement of what is, or should be, a
similar.
Agencies establish policies on "similars" so they can license exclusive and restricted rights
to certain images, and be sure that no other image that the client might judge as similar will
ever appear in the market place.
In deciding what is a similar, FPG gives their photographers the following advice. "Would a
reasonable client be upset if we licensed one of these images to them and the other one to a
competitor?" They go on to provide a three page set of guidelines for the photographer to use
in deciding what is similar. One problem with the above definition is determining what is a
"reasonable client." If we assume the customer is always right, then anything the customer
wants is reasonable. FPG acknowledges to their photographers that because the definition is
extremely subjective they tend to err on the side of a "wider" standard, feeling it is "better
to be safe than sorry."
When the standard is based on the interpretation of "any" client it is possible to go to some
real extremes. In one legal case it was argued that two pictures of couples having breakfast
in bed were similar enough that if a client purchased exclusive rights to one, the client
would be upset if the other appeared in a ad produced by a competitor.
In this case the people in the two pictures were different, the photos were taken in different
cities by different photographers, at different times. The clothing was different, the bed
clothes were different, the walls of the rooms were different colors, the light was coming
from a different direction, and the images were handled by different agencies. Still it was
argued that the second image produced infringed on the rights of the first and would make it
impossible to license the first for an exclusive use.
Normally, we think of similars as images produced by a single photographer and not those
produced by all photographers. But there are a lot of very similar pictures, produced by
different photographers that could conceivably present problems for certain clients,
particularly if both uses were licensed by the same agency.
If an agency licenses an exclusive use of a man talking on a cell phone, are they obligated to
take all other images of men using cell phones out of circulation for the duration of the
license, even if they were taken by other photographers they represent? If the agency
takes images produced by other photographers out of circulation then a proper agency
production strategy would be to get as many photographers as possible to produce images
on the same general subject so that once one is licensed there are still others available
for licensing.
If the agency removes similars taken by other photographers when an exclusive is licensed who
gets paid for the usage? Does all the money go to the one whose image was used, or does
everyone share proportionally based on the number of images removed from the market?
Do We Need An Industry Policy On Similars?
To answer this question we need to consider the needs of clients, agents and photographers,
and identify the attitudes of each toward similars. We also need to consider how important
restricted use sales are to the industry.
- What are the gross dollars earned from restricted use sales as compared with one-time
non-exclusive sales? Big agencies say a lot. Smaller agencies say almost nothing. This will
also vary from photographer to photographer, depending on the type of work each does.
Photographers can easily calculate how important it is to them by looking at their sales
reports. Clients should be paying several thousand dollars for any use where that image, and
"similars" are being held out of the market for a period of time. If you get 50% of the gross
sale look for sales where you received at least $2,000. If you get 25% look for sales where
you received at least $1,000. What percentage of your gross stock income do these sales
represent? Most photographers will find that in spite of their size, these sales make up a
very small percentage of the photographer's total stock income.
- Some agents believe that in the future, given the improving quality or RF images, a much
larger percentage of the sales made by traditional agencies will be for restricted uses. At
Selling Stock we believe there will still be plenty of opportunities for traditional agencies
to license one-time uses for fees much higher than RF prices. Traditional agencies will be
able to provide a much larger selection of imagery, technical information about the imagery,
information about who has used the image in the past and other research and support services
that RF companies can not provide.
Needs
Photographer The critical issue for photographers is to earn the maximum return on
the images they produce. For many this may mean keeping the maximum number of images in
circulation in the maximum number of markets.
No agent (even the giants) reaches every client in the world. Some buyers prefer to deal with
specialists or sellers who understand their particular needs. Stock agency editors play a
critical role. No editor can fully comprehend the future needs of all clients. Some will
select better then others for particular segments of the market, and these market segments
tend to find the agencies with better editing. Photographers tend to sell more images when a
larger number of stock agency editors are selecting from their work.
Client The client who uses a stock image for a major advertising campaign wants to be
sure that their competitor doesn't use the same image for the duration of the campaign. If
their customers think of their company whenever they see a particular image, that image has
very high marketing value for the company.
Clients preparing a campaign are usually willing to pay substantial five figure amounts for
exclusivity. Occasionally clients think they should be entitled to exclusive use of an image
for a very low one-time use fee. Such requests are normally denied.
What the client thinks is a "similar" will vary with each image chosen, and with each
campaign. If the image user starts losing business and their competitor shows up with a
similar image in one of their promotions, in all likelihood the client would seek legal
redress from the image sellers.
Clients often like to know the history of sales of an image they have chosen, in order to make
sure their competitors have not used it previously.
Agents Most agencies can easily supply previous sales information for a specific image
number. But, when it comes to supplying a sales history for all "similars" to that number the
issue becomes much more complex. Few, if any agencies can do this for the majority of images
they currently have on file. They may be able to do it for some of their newer images, or for
very unique subjects, because their policy is to edit so tightly that they place few if any
similars to new images into their general file. They also require, by contract, that the
photographer withhold all similars not selected from the market.
There is no way to determine in advance which clients will want exclusives and which ones
won't, or which images they will want to use. Therefore, an increasing number of agents want
to be able to license exclusives to any image in their file, and to be assured in
advance that they can honor such a license.
Some agents, particularly those who specialize, take a different approach. They will normally
license one-time non-exclusive rights to use an image. If the client wants to place
restrictions on future usage the agent contacts the photographer to see if such restricted
usage can be licensed. These agents take the position that they are willing to lose an
occasional exclusive sale in order to give clients who are primarily interested in one-time
use licensing, a greater choice of material.
Reasons Agents Want To Control Similars.
The agent wants to be prepared to supply excellent and immediate service to the client,
and to fulfill the clients expectations with as few questions as possible.
Once an exclusive is requested, the agent doesn't want to have the inconvenience of going
back to the photographer to try to place restrictions on similars.
The agent wants to be able to advertise that they can license exclusive rights to every
image in their file. (Technically, they can never guarantee this because the print catalog
image that a client selects today might have been licensed exclusively to another client
yesterday. As on-line catalogs become more popular, agents may be able to remove an image
from the catalog whenever a restricted usage is licensed.)
There is a fear that in the future clients will only come to "RP" (rights protected)
agencies, if the agency can offer exclusive use on every sale.
The agency also wants to keep similar images out of the files of their competition so
clients will have to come to them to find a particular image.
The agent doesn't want to lose a big sale if the photographer can't restrict future usages
of the image.
The world is getting smaller and more and more agencies have the potential of marketing
worldwide through the use of electronic catalogs. Therefore, in theory, there is less need
for multiple agents than there was in the past.
The agency wants to be able to license rights in foreign countries where rights control in
their particular country is of much greater concern, than is normally the case in the U.S.
market.
The agent doesn't want to get in a bidding war when the client can get the same image from
two different agencies.
The agency wants to avoid the hassle and extra costs of handling some images
on a non-exclusive basis, and others exclusively.
On the other hand, in theory, as a larger and larger percentage of the images are placed in
on-line databases it should not be that hard to add a field that would indicate whether the
image was available for exclusive licensing or not. There is no reason why both systems can
not co-exist in a single agency. Most large agencies currently handle some images that can
only be licensed on a non-exclusive basis.
Foreign Agencies: In the past, European clients have tended to have greater
expectations of restricted rights to any image they license than do North American clients.
Normally this restriction for what they would define as "their competitors" is automatically
included in the base price. The agent making the sale is expected to automatically know who
those competitors are, but traditionally that list has been small because it included only
those doing business and marketing to a language group within that country.
Other languages and other countries were not considered a problem because the readership of
each individual publication or promotional material did not cross borders.
Now all that is changing. Advertisers want to sell products across borders and when possible
they want to produce unified campaigns rather that something totally unique for each language
group. Consequently stock agents want to sell across borders, but in most cases they only
have rights to license their images within their country. The transition to worldwide
licensing rights is an extremely difficult problem. Everyone wants worldwide rights, but only
a few even approach worldwide distribution.
Consolidation/Acquisition: A number of small agencies are being absorbed by larger
agencies. Typically, the larger agency asks the acquired photographers to sign exclusive
rights contracts and the strategies for handling similars change under the new management.
This presents a dilemma for the photographers as well as the agency.
The agency will be unable to license exclusive rights to many of these new images because the
photographers already have similars of many of the images on file with other agencies. The
photographers have to determine whether the new agency is likely to produce enough sales
volume to justify their pulling images from their other agencies.
The agency then has to decide whether they will handle some images on a non-exclusive basis
and other on an exclusive basis.
The photographer must also decide what to do about new production. Must he or she hold
"similars" out of the market, of every new image the agency accepts? Will this result in a
loss of overall revenue? Can the photographer justify the costs of new production without the
previous sales volume?
RF Producers: One of the strangest positions on "similars" is that taken by RF
producers. They do not want their photographers to license rights to any images that are
similar to those accepted for one of their RF discs. They take this position in spite of the
fact that they sell as many copies of each disc as possible, and guarantee every buyer
unlimited use of any image on the disc at any time in the future.
Their argument to photographers is that if the photographer (or his agent) charges the client
$300 or $1000 to use an image and the client later finds that he could have purchased the same
image for $70, or got unlimited usage of that image and 100 others for $250 the client will
feel cheated.
But, if the clients feels cheated it's not the RF producer who did the cheating. It's the
photographer or his agent, and if they are willing to accept the risk and deal with the
fallout why should the RF producer care? One might think it would be in everyone's best
interest to try to help the photographer earn enough from his or her photos to stay in
business and continue to produce.
A "money back guarantee" policy like that practiced in many other industries would be a very
simple way to deal with this problem. Photographers and agents licensing images through
several sources could offer such a guarantee to any customer who later discovered they might
have purchased the exact same image from another source for less. This enables the
photographer to make an image available at several different market levels and maximize
potential sales without alienating customers. The customer in this case is not expecting to
get exclusive rights so the only reason to be upset would be price.
Probably the greater concern for the RF producers is that photographers might discover that
they can earn more from licensing limited uses to their images than they can earn from RF
sales.
Implementing A Similars Policy With Clients.
When a stock agency puts a lot of emphasis on "rights control" there are a number of things the
photographer needs to understand about how the agency implements that policy.
Does your agency take certain similars out of circulation when a restricted use is
licensed to an image? Do they let you know when this happens? Is it clearly indicated on
your sales report? If you know, and it is a best selling subject, you might be able to
produce new images that would illustrate the concept, but not be competitive. This way you
have something different to offer new clients that would not violate the spirit of the restriction
on the image already sold.
Can your agency easily tell you which of your images currently are under restricted use?
Consider the sales your competitors are making of this subject matter while your images are
held out of the market. Was the fee worth it?
Does the agent search his records, without being asked, and volunteer information about
previous uses by other clients?
Does the agent try to talk clients out of using a particular image if it has been used by
someone else in the same industry? Do clients expect agents to provide this service?
Are customers being trained to believe that unless they are told up front about a
conflict, that they can now assume that there is none... even if they've paid no additional
fees to get an exclusive license? What does this do to the pricing model for exclusive use
licenses? Are customers being led to believe that they have something that they really do
not?
How does the agency deal with similars taken by different photographers?
How often does the agency license industry exclusives? Many images are only of interest
to a particular industry segment - finance, education, travel, hunting. Thus, if the image is
restricted for a period of time in only that "industry," in effect it is restricted from the
entire market.
Another Approach To The Problem
Controlling the use of similars is often presented as the only way a stock agency can stay in
business. There is another approach.
Instead of saying, "If you buy from us you can be confident that there will be no other uses
of the image that might upset you," try the following:
"Our normal policy is to license one-time non-exclusive rights. However, if you need
restrictions on future use of a specific image and/or its similars explain in detail what you
need and we'll do our best to comply. In most cases, we can also supply detailed information
as to previous uses of the image in your industry at your request."
We believe this is a more practical approach to the problem, and much less likely to backfire
on the seller.With this strategy there will be discussions about the specific image, its use
and the other images that the client feels are similar. The other images that need to be
removed from circulation can be clearly identified, and all this can be communicated with the
photographer.
The major agencies want to avoid having to communicate with the photographer in such a
negotiation. But there is a tremendous advantage for the photographer in knowing the specific
image being used, and the specific similars that will need to be removed from the market
rather than having to make a decision that all similars of everything the photographer shoots
in the future will be held out of the market.
The major agencies are probably also afraid that in too many cases, the photographer would
say, "The fee is not good enough for all you want me to remove from the marketplace, and
therefore I won't agree to your terms." In this case the agency wouldn't earn anything for
its efforts. But, shouldn't photographers have some say in restricted use sales?
Bottom Line
Bottom line there probably isn't a solution. Agencies, particularly those controlled by
financial people, not photographers, will make every effort to gain control of the entire
production of every photographer they can. As long as good photographers are knocking at
their doors they will get away with it. Nothing will change this until those prepared to
license non-exclusive uses have an effective system for distributing images worldwide.
DEFINING "SIMILARS"
The following proposal is being circulated among stock agencies in an effort to try to develop
a definition for "similars" to which all agencies can agree. "Similar" with regards to
photographic images is defined under the following two general categories:
- Photographs of the free natural world, outdoor public places or manmade landmarks are
similar when created at the same time, same photographic shoot by the same photographer, and
are images of the exact same scene, subject matter, arrangement or portions of the same scene
with slight variations of images within the photographic shoot from change of angle, lens,
f/stop, filtration, brightness or other minor variation in the same scene. Photographs
involving a specific natural element (whether living or non-living) moving within the scene or
are sequences of that specific natural element are considered similar. In the case of the
primary subject moving within a scene, those images with different primary subjects are not
considered similar.
- (a) Photographs of pre-arranged situations involving the same recognizable model(s)
wearing the same outfits, engaged in the same activity during the same photographic shoot by
the same photographer are considered similar.
(b) Photographs of unique, one-of-a-kind, non-living subject matter (whether released or not)
prearranged and created during the same photographic shoot by the same photographer are
considered similar.
How These Rules Might Be Interpreted In Practice
The following are a few situations where these rules might present difficulties
for photographers.
There are several huge colonies of King Penguins on the eastern shore of South Georgia
Island. This is where everyone goes to get almost all of the endless serried ranks of 100's
or 1,000's of penguins standing nose to nose. Are all the shots that a photographer takes in
one day "similars"? Or, assume that the actual "photographic shoot" -- the time spent on this
island -- was three days. Are all the shots taken on the shoot "similars"? If, the
photographers agency licenses one penguin shot for a one-year exclusive, does that mean that
all the rest of the penguin shots taken on this trip must be held out of the market for one
year?
If the photographer moves to another rookery, on the same island on the same day is this now a
different shoot?
Part of the problem with the definition in this situation is the definition of "exact same
scene." Is shooting close ups of a few penguins, or adults with a chick, part of the "exact
same scene," or not?
Often several photographers go on these trips together. If two photographers are standing
side by side and shoot with the same lens and in the same direction these photos are not
similar because they were taken by two different photographers. If a photographer takes a
spouse, or an assistant along on the trip, and after shooting some pictures, hands the camera
to the assistant the resulting pictures are not similar because they were produced by two
different individuals.
A photographer builds an office set in the studio. There are six desks and workers are
placed at each desk. A dozen models are brought into the studio and one shot has all twelve
in an overall picture. Next the photographer zeros in on activities at various desks with
one, two or three models in each frame, still using the same background and wall decorations,
but the background is out of focus in most pictures. The photographer also shoots some
close-ups of hands on the computer keyboard. Are the tight shots of individuals, or the twos
and threes "similars" to the large group shot because they were taken on the same day on the
same large set? Are the close-ups of hands "similars?" If the models change clothes are they
"similars," simply because they are the same people? If the photographer uses one of the same
models in another office set on a different day are the pictures similar? If you think some
of these are not similar is every client likely to agree with your definition?
The photographer finds a Lion pride at play in the Masai Mara. Playful cubs are grousing
with each other, teasing mom, being chastised by mom, etc. These subjects are perennial best
sellers because they work on multiple levels both as natural history pix and as concept pix.
They are "endearing".
Are all general play cub-to-cub shots shot in the same pride on the same day similars? There
are endless "geometries" and "actions" possible. Where along this light-year continuum do
"similars" start and stop? Does the client have the right to expect that all frames taken
over a multi-hour period will be withheld from the market when the client licenses the
exclusive right to use a single frame?
What if some cubs are three times as large and thus convey the concept of unruly teenagers
rather than beguiling babies? It's all the same pride. It's all the same day. However,
these are different primary subjects so they may not be similar.
Let's say we have a cub gnawing/pulling on a patient and forebearing mom's tail (a perennial
and justifiable favorite. Is this a similar with a shot of the same cub resting beside its
mom that was shot on the same day? What is a different cub starts the gnawing/pulling on the
tail. Same mom, different cubs -- are these "different primary subjects"
What about the shots of a bald eagle in flight? This is a consistent good seller which
works as a natural history picture and as an icon for "Pristine/America's symbol/"wild and
free." When you get into eagle flight shots everyone basically wants the same wing-set (fully
outstretched, slightly cupped as it swoops in, quartering toward the viewer. If you shoot two
shots of the same eagle within 20 seconds of each other, but one shot is further out with a
strong green background, and the next has a background of blue water as it swoops in for the
catch, are these two shots "similars"? If you shoot a different eagle, but the average person
can't tell it is a different eagle, on the same day, but with similar backgrounds (water or
trees), are the two images similar?
Is a similar angle on a bird, against a similar background, shot two years apart, qualify as a
"similar"?
What about a tight shot of a snarling tiger's head. This is a huge seller and is often
used to show aggression, anger, or lethal danger. Is one tiger shot full frame vertical
looking directly into the camera a "similar" to the same action on the same day shot from a
side angle? What if we change tigers, but they are both shot on the same day? If the same
tiger snarls differently at two different times in a half hour period, can you or your client
tell that it is the same tiger shot on the same day?
What about digital compositions? Take a shoot with a tiger running on a beach. The
photographer shoots from a variety of angles using a variety of lenses. One frame is licensed
for a two year exclusive. Does that mean all the other frames have to be taken out of
circulation? What then if the photographer takes another frame from the same shoot and
digitally makes the tiger jump through fire, or takes out the beach and puts the tiger against
a sky background. Are all these shots "similars" because the major element of the shot was
done at the same time by the same photographer.
What about a shot of Monument Valley taken from the same angle where every photographer
who visits there shoots? I guess it is a "similar" if the same photographer shoots from the
same angle on two different years, but all those shots by other photographers that look almost
exactly the same are not "similars". That may be a good justification for agencies getting
coverage of the same situations from many different photographers so they can continue to have
something to license when all the images from one photographer are locked up as "similars" to
one image that was licensed for an exclusive.
A photographer brings a model into the studio and shoots some pictures of that model using
a cell-phone and a laptop computer. Some agencies would say that is only a "prop switch" and
thus it doesn't really change the visual impact of the image. On the other hand it would be
easy to see how a photographer could make two very different looking pictures of the same
subject using these two props in one location. Because they are judged to be similar, if the
photographer decides to shoot both will the agency only keep one or the other? If the agency
will only accept one for the files, why should the photographer bother to shoot both? If the
model changes clothes does that make the image different? If the photographer hires a
different model for each prop used, but shoots the images in basically the same location, on
the same day, are all these images similar? How much time and money is it necessary for the
photographer to spend to discover that he must throw away most of his production?
A photographer sent a broad selection of polar bears wrestling to his agency. They kept 5
for their general file and put 2 in their print catalog. They wanted the photographer to
withhold all other polar bear wrestling shots from the market in order to protect the
marketability of the two in the catalog. The photographer did not agree. The agency was given
first shot at the photographer's best images and those the agency choose for the catalog were
not distributed in any other way.
The photographer argued that he had spent a good deal of time and thousands of dollars getting
these images and that the agency doesn't attempt to reach certain markets that the
photographer approaches directly. Since these images were accepted by the agency the
photographer has made a lot more money selling the "rejects" directly, than the agency has
made for him, even with 2 images being in the catalog.