Posted on 8/13/1998 by Jim Pickerell | Printable Version | Comments (0)



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


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.


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.


  • 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


    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


  • 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


    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.


    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


    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


  • 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.

  • Copyright © 1998 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, 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:  


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