226 THE BATTLE CONTINUES - ASMP/PACA
June 5, 1999
The war of words between ASMP and PACA continues.
A problem for both organizations in our rapidly changing marketing environment
is that the interests of their respective memberships have become so diverse
that each has difficulty in defining a coherent policy that represents the
interests of all members.
An increasing number of ASMP members earn some of their income from Royalty
Free, and yet in their public statements ASMP is vehemently opposed to RF.
Clearly, on this issue, ASMP doesn't represent the "undivided interests" of
all its member photographers. On the other hand, PACA has some member
organizations that have removed the term agent from their contracts. These
companies clearly do not want to accept the fiduciary responsibilities of
being an agent, and prefer to deal with photographers as suppliers.
Currently there are ads on TV for a forest products association that
stresses their interests in protecting the environment. They point out that
companies that failed to agree with their clearly defined policy were ejected
from their association. Don't expect to see either ASMP or PACA
taking policy positions that require them to eject members.
After the smoke settles, the battle between ASMP and PACA is unlikely to
result in any changes in photographer/agency relationships. On the whole
agencies will not become any more
"photographer friendly" than is currently the case.
As has been the case for some time, photographers need to recognize that not
all agency agreements are equal. Most agencies are willing to negotiate
on certain points within the agreement. Photographers should carefully
examine every agency agreement with a critical and skeptical eye and have a
clear understanding of the downside risks before signing.
The following is Victor Perlman's response to the PACA public statement
concerning the May 3rd meeting
(See Story 223) . Perlman is
ASMP Managing Director and General Counsel. Below that is PACA's response
ASMP Response To PACA
On May 3, 1999 representatives of ASMP and PACA met at the request of PACA
to discuss some issues relating to the relationship between photographers
and stock agencies. At that meeting, ASMP presented PACA with a draft of an
open letter to PACA, but indicated that distribution of it would be withheld
for the time being. On May 10, PAGA issued a "Statement Regarding ASMP" in
a memo addressed to its members. This letter is provided in response.
The PACA statement is so self-serving as to be fundamentally inaccurate, and
some of its basic premises are absurd on their face. PACA claims that "ASMP
was to have provided" a statement of the photographers' responsibilities to
agencies. This is simply not credible: PACA, not ASMP, is the entity that
would know what stock agencies want from photographers.
Further, the agreements with photographers that PACA has recommended, and
the agreements used by most of PACA's members, already contain virtually all
of the responsibilities that photographers could possibly owe to stock
agencies, and far more than photographers should owe. Suggesting that it
was ASMP that had the obligation to find out what responsibilities the
agencies wanted or expected from photographers simply does not fly.
The points that ASMP made at the meeting, and the points that PACA has
markedly ignored, are:
1. that most agreements between photographers and stock agencies are,
at their core, unfair to photographers, and
2. that ASMP is demanding that PACA take some action to correct that
situation and recommend agreements to its members that provide at least some
minimal fairness to photographers.
The fact that PACA agreed to do so in 1992 and has ignored that agreement
and the basic elements necessary for a minimally fair agreement is really
beside the point. All we are asking is for contracts that provide at least
the minimum rights necessary for some fairness to photographers. If PACA
needs to know what those basic elements are, it need only look at the five
points that it agreed to in 1992. Or, if PACA wants a truly, not just
minimally, fair agreement, we would be happy to provide a copy of the
standard MPCA photographers contract for its consideration.
PACA has suggested that ASMP is not doing its job when it says that "ASMP no
longer represents the undivided interests of the working professional
photographer-" In fact, that is precisely what ASMP is doing when it
confronts stock agencies and their trade association over business practices
that have eroded to the point where photographers are considered mere
service providers and most agencies have become the masters instead of the
agents. It is therefore no wonder that PACA feels so threatened that it has
refused to deal with the issue of fairness,- it obviously feels that
fairness to photographers is contrary to the business interests of its
members. If PACA wishes to prove ASMP wrong in that conclusion, it need
only live up to the commitment it made seven years ago and recommend that
its members give photographers at least certain fundamental and essential
rights. PACA need only respond in positive actions instead of negative
Victor S. Perlman, ASMP Managing Director and General Counsel
ASMP has once again indicated their refusal to engage in meaningful
conversation about shared concerns, the censorship of information provided
to stock photographers through local chapter meetings, exaggerated
misinformation about agencies in general, and ASMP's direct public promotion
and recruitment of photographers for a PACA agency competitor and
ASMP-founded agency, Mira/MPCA. It is extremely unethical toward PACA
agencies and ASMP's member photographers for ASMP to attempt to play the
roles of both competitor and critic. The criticism leveled at PACA is done
so under the guise of the best interests of the ASMP membership, rather than
joining PACA in the common issues that affect all aspects of the industry.
Once again, ASMP refers to the seven-year-old claimed "Joint Statement."
Once again, PACA questions the validity of this "Joint Statement." It must
be admitted that, at best, it is a disputed, incomplete document. However,
ASMP's position that the current needs of stock photographers are
represented in this "Joint Statement" has been taken into consideration.
PACA has referred the list of five issues to the PACA Legal Committee for
consideration in their continuous evaluation and updates of all documents
contained in the PACA Legal Handbook. Of course, it should be understood
these issues are currently addressed in varying degrees by individual PACA
agencies. PACA advises that photographers should carefully examine contracts
and business practices before joining or re-signing with any agency.