While we’re now used to ticking endless “accept terms and conditions” boxes without a second thought, a photography agent contract is a different matter. This is a legal document with far-reaching ramifications for a photographer’s career and earnings. Because of this, they should scrutinize and make sure they fully understand the document and all its implications. Having said this, most photographers find agent contracts very straightforward. Toby Mitchell, a UK photographer based in Bognor Regis, says,
Every agent approaches contracts differently, but ultimately they keep both the photographer and the agent safe in an understanding of how the relationship will operate. I like expectations to be made clear, so having a contract in place ensures that I don’t have any issues with the agent/photographer relationship and found the process very normal.
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The photography agent business model involves the agent acquiring work for the photographer. In return, the agent receives a cut of the photographer’s fee (usually between 25-30%). This is in contrast to the production company model which arranges the photography production and charges a markup to the client.
After speaking to many agents, organizations, and photographers it is important to note that there is no “one-size-fits-all” when it comes to contracts. Mary Dail, owner of Big Leo Productions and Director of Business Affairs at AMA explains,
Agencies have different contracts with their artists, and so they work differently when it comes to things like house accounts and billing. I know that some agents do not invoice clients for their artists. My agency does, but I still have a few artists who prefer to bill for themselves. Agents and photographers engage in a partnership agreement with terms that are reached between those two parties either by written or verbal contract, the specifics of which can vary from agency to agency. The AMA has been working on a number of resources for its members, including best practices and templates for certain terms and conditions that members may use and adapt as they decide, but we cannot dictate their agreements and they each independently determine what terms to use.
Contracts and conventions vary from country to country. In the US, for example, photographer-agent contracts vary greatly. While in the UK most photographer-agent contracts are similar. Lisa Prichard, who runs a photography agency in London, says,
In my niche of the industry (mostly advertising, branding, commercial), contracts are fairly standard. Years ago, London-based agents got together to make sure we all had key points in our contracts and formalized a standard Photographer/Agent contract. Agencies adapt them slightly, but the basics are often similar.
In either case, it’s important to make sure it’s all clear. Toby, who is represented by Pat Bates & Associates for the Americas and Pearson Lyle Management for the UK and the rest of the world, says,
Most things were covered in the contract and, most importantly, all fees and commissions were clear. However, I had quite a few questions for my US agent simply because some of the terms are phrased differently in the UK.
The most eye-catching variable is, of course, the cut the photo agent gets. This is normally between 25-30%, but there is more. The Atlanta portrait photographer John Fulton points out that this percentage is not just taken from the photographer’s fee. It can also be deducted from line items such as creative fees, licensing, equipment, re-licensing, etc. Re-use, syndication, and stock can sometimes be a gray area in contracts. Lisa agrees, saying,
Generally agents should get a cut of the fee paid for any re-use of images. This is because it involves negotiating additional usage rights based on what has already been negotiated. For stock or syndication, I would say the agent should only get a cut if the work isn’t in another library. For example, if the client has spotted the work on the photographer’s or agent’s website, and it’s available to be used commercially. Sometimes creative agencies approach agents to see if they can do an archive search.
Photographers whose work is suitable for syndication/stock are well advised to pay close attention to these terms. In addition, some contracts stipulate a share of the markup on photographic expenses go to the agent.
Often a contract allows photographers to work with existing clients without having to give the agent a cut. These could be long-standing clients, a charity, or sometimes a friend of a photographer who they want to offer ‘mates rates’. Some photography agents only apply a smaller commission to house accounts (perhaps 15% instead of 30%) for the first year, before transitioning to the full commission. Toby advises,
It’s worth discussing projects that come to you that you’d like to take on independently from the agent. For me, this only happens when, for example, a friend is inquiring or it’s a project I’d love to work on but it has a very small budget. As a rule of thumb, I like everything to be managed by my agents as it keeps all communication clear and keeps everyone on the same page from a calendar perspective.
Indeed, many photographers and agents we spoke to found it much more convenient to let the agent handle even long-held clients. This is because it simplifies their life when all client communication goes through the same channel.
Some agents have contracts for specific geographical regions or industries. For example, an agent might not want to represent the photographer to the editorial industry or businesses directly. Or, photographers may only be represented by an agent for advertising work (or high-value productions) and do editorial work independently. Lisa says,
A photographer should only have one agent per region. So the only time a photographer would have more than one agent is if they are represented in a different country. Also, they might have their work in a stock library or be represented by a gallery, but these are treated as disparate areas. Having said that, I do negotiate fees on ‘stock’ if the work isn’t in a library. Many agents wouldn’t be happy if the photographer was repped by someone else unless it is full-on TV commercial directing, for example.
Contracts often stipulate who is responsible for marketing and promotional costs. A contract should cover who is responsible for the photographer’s website, email and print promotions, and social media. Lisa’s agency, for example, pays 25% of the digital marketing costs, but this varies widely between different agencies.
Any number-crunching, including estimating and invoices as well as collections, is usually handled by the agent. However, there can be exceptions that should be detailed in the contract.
The contract should clearly outline who is responsible for the various aspects of the photographer’s business.
Ideally, the photographer/agent relationship is built on mutual trust, but that’s not always the case. Does the contract stipulate how the photographer and agent can verify each other? Some agencies have processes in place that allow photographers and agents to check their financial reporting, but Lisa says,
If one party gets to the stage of wanting to audit the other, it’s no longer a healthy arrangement. We are always transparent with estimates and go through them with the photographer before they go to the client. Also, a photographer is always welcome to see the final invoice, but generally, this isn’t something that comes up.
Likewise, photographers must be honest about who they work for, as anything else could badly backfire. For example, if a photographer does a job for a client without giving the agent the cut that is set out in the contract and the agent finds out (it’s a small world!) it will not only damage the relationship, but the photographer is also in breach of contract, which could have legal consequences.
But like with any relationship, there can be several reasons why an agent-photographer relationship breaks down, and most will just part ways. However, in the unlikely case that the photographer and agent can’t agree, the contract usually stipulates whether the resolution should be reached by arbitration or lawsuit and under which country and state law.
While most agent-photographer relationships work well, it’s worth making sure the terms to terminate a contract are fair and acceptable to you. It’s often a month’s notice, plus an arrangement of how much the agent gets from ongoing work the agent secured. Some contracts also include severance pay. While, of course, the agent and photographer hope that this will never happen, it’s well worth paying close attention to this part of the contract. If the severance pay is too high, a photographer may simply not be able to change photography agents, even if it would be in their best interest.
Some photographers balk at the severance pay but considering that agents often spend a year or more building up awareness for a photographer before they start to see results, it’s reasonable that they collect a commission on projects for some time after the contract is terminated.
Established photography agents live and die by their reputation, so it’s unlikely they will include something untoward in their contracts. However, it’s still worth reading it with a critical eye. Andrea Stern, the owner of SternRep, advises photographers to watch out when somebody is pushing for a long-term commitment as well as severance pay when the relationship ends. Hers is six months, meaning that a photographer will continue to pay the same commission for six months after their contract ends, which is common. Lisa says,
If a photographer sees something in a potential agent’s contract that worries them or they think is unusual, that might be a sign the agent isn’t right for them. And, if an agent doesn’t have a formal contract, this is something to watch out for too!
Photographers are advised to get legal advice from an independent media lawyer before signing a contract. Separately, they can turn to their photographers’ association if legal counsel is offered as part of their service.
While contracts are usually fair, it’s still worth scrutinizing them, as they form the basis of the photographer-agent relationship and it’s only if those obligations are fulfilled, that the relationship can thrive, so it’s worth taking your time with it. Or, as Lisa puts it:
Agents are generally very friendly and fair. Agent contracts are there to simply set down all the expectations and make everyone’s lives easier.
DISCLAIMER: This article does not constitute any form of legal advice and should not be treated as such, or relied upon. We disclaim all liability with respect to actions taken or not taken based on the information provided.
Expert Advice: The Photographer/Agent Relationship
Cornell Law School Legal Information Institute: Contracts
The Association of Photographers: Photographer’s Agent Job Specification
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