I recently had an interesting experience negotiating the terms of a contract with a new magazine client for a cover shoot. I’ve had hundreds of these conversations over the years, and they can be tricky. Sometimes I get stuck working with someone who doesn’t really have the authority to negotiate changes, or with someone who has no stake in the process and doesn’t care if the deal falls through. But in this case, I found myself corresponding with an attorney, Alex Paul, who was willing to hear me out, and interested in working to find a solution that we could both live with. With Alex’s permission, I’m reprinting that correspondence here.
I initially got a call from Albert Smith, a photo editor at Here Media (formerly Regent Media), just before Christmas. He needed a cover and opener for a magazine called HIV Plus. He was offering $2000.00 (including expenses) for a studio portrait of two people. After talking through a number of ideas, we agreed on a waist-up portrait of the two guys on a light gray background for the cover and a variety of full-length portraits of them on blue seamless for the opener. I was not enthusiastic about a 2000.00 flat for a magazine cover shoot. It was a small magazine, and it was a relatively simple picture. I chose to counter with the following estimate which Albert accepted.
To give you some context of my pricing mentality, last year I shot 78 assignments and had gross revenue of $364k. Including residuals from some of those assignments, that averages out to just over $4600.00 per assignment (including billable expenses), across all sorts of editorial, corporate, and advertising projects. My cheapest individual assignment last year was $1000.00, my most expensive was $24,000.00. If I had a busier start to the year, I would have held out for more on this one, but given that I make money on some of the expenses, I was comfortable with the final amount.
On Jan 22, 2010, at 11:42 AM, Bill Cramer wrote:
Thanks for thinking of me for your HIV Plus shoot. Here’s a cost estimate for your consideration:
Fee for Bill Cramer to produce a variety of photographs of two people, for one-time use in HIV Plus magazine, and concurrent web use | 1000.00 |
Equipment rental | 600.00 |
Digital captures delivered by web gallery for editing | 300.00 |
4 files were prepared for reproduction (with basic clean-up, but without retouching) @ 25.00 | 100.00 |
1 file upload (any number of files at one time) | 25.00 |
2 assistant days (to get and return props, and shoot day) | 250.00 |
Studio rental | 500.00 |
Chairs, stool….(I’ll return what I can) | 300.00 |
2 rolls of seamless paper (1 white, 1 colored) | 100.00 |
Meals for cast and crew | 100.00 |
Total | 3275.00 |
Please confirm as quickly as possible so we can prepare for tomorrow.
On Jan 22, 2010, at 3:06 PM, Albert Smith wrote:
Confirmed. Though we may need 4 files instead of three.
Even though we had been talking about the assignment off and on for nearly a month, the project was still uncertain until the day before the shoot. Though it’s certainly not ideal, it’s not entirely uncommon to get a contract from a magazine just hours prior to a shoot. That’s what happened in this case.
Here’s the contract Albert sent to me (click to enlarge):
I made a number of revisions to the contract (which I’ll explain), and sent the following version back that same afternoon (click to enlarge):
The end of the day came, and I hadn’t gotten any reply from their legal department, so I agreed with the photo editor to go ahead with the assignment, and sort out the contract later if necessary (also not my usual preference).
I got the following response from Alex Paul in their legal affairs department that night:
On Jan 22, 2010, at 6:51 PM, Alex Paul wrote:
Your e-mail and revisions to our standard terms and conditions were forwarded to me for review. We carefully crafted these agreements to be as fair as possible to both parties and you have proposed changes to the agreement that are inconsistent with how we do business. For example, you struck the limitation of liability provision in its entirety, which dramatically alters our risk tolerance and you’ve made other changes that impact our business model (for example, the “one-time” use provision wouldn’t allow, arguably, the ability for us to digitize the print magazine). In short, we don’t allow other photographers to make changes as it soon becomes too difficult to track the many different demands from various photographers.I know the photo editors are excited to work with you. Can you reconsider your positions and sign our standard terms and conditions “as is”?
I wasn’t surprised that he didn’t like my revisions. After all, it’s his job to look out for Here Media’s interests. But I decided to take him at his word that he wanted to be “as fair as possible to both parties”. So I thought if I could clearly (and calmly) articulate my concerns, I’d have a good chance of a reasonable compromise. The fact that the fee was so low made it hard for him to ask for such broad licensing. Also, the fact that I had already shot the assignment, and with their deadline looming, gave me some additional leverage.
In any negotiation, opposing parties say things to support their point of view (rhetoric). The way the game works is that you can say anything you want to (whether it’s true or not), but in the end, the only thing that matters is the contract. Some negotiations are lopsided, with one party getting everything they want. This happens when one side has all the leverage, or when the other side is ignorant of their own value, or both. The most equitable negotiations happen when both sides understand the value of the products or services, and they work to find common ground. After all, if it’s a terrible deal for one of the parties, they will eventually realize it, and then the relationship dissolves. If both sides are savvy, they’ll look for ways to add value for the other party to make the relationship profitable for the other while still getting what they want out of it.
1) The rhetoric: he refers to his terms and conditions as “standard”.
The reality: “standard” implies that their contract is somehow customary in the industry. The subtext is that this is simply the way it’s done and you should accept it. The contract may be customary for that company, but there’s no such thing as a standard magazine contract. Magazine contracts come in all shapes and sizes, and many are much more favorable than this one.
2) The rhetoric: “We carefully crafted these agreements to be as fair as possible to both parties…”
The reality: They wrote the contract in the most favorable terms to them. (Don’t get me wrong. I do not blame Alex or his company for this. They are in business to make money, which I wholeheartedly encourage. If they can get contributors to sign this contract as-is, more power to them.)
3) The rhetoric: “…you struck the limitation of liability provision…which dramatically alters our risk tolerance…”
The reality: What about my risk tolerance? The contract asks for the contributor to indemnify them (including attorney’s fees, etc., with no limit), and at the same time, expects the contributor to limit the client’s liability to the fee for the shoot (which you’d expect to get anyway), meaning that they don’t want to accept any liability for anything under any circumstances.
4) The rhetoric: “…we don’t allow other photographers to make changes…”
The reality: What he’s saying is, “What makes you think you’re so special?” I suspect this line is often very effective.
On January 25, 2010 11:17 AM, Bill Cramer wrote:
I understand your concerns, and I’m happy to work with you to find mutually satisfactory agreement. I’m sure you can appreciate that with such a modest fee ($1000.00 plus expenses), I can grant only modest terms. My usual rate for a project like this is 2500.00 for a cover image and 1250.00/page inside, plus expenses. I would be happy to sign your agreement without any revisions for a creative fee of 5000.00 (cover, plus 2 pages inside) plus the $2750.00 in expenses (which were already approved by Albert).Otherwise, we might agree on some middle ground. Here are some of my concerns:
1) Your Rights paragraph refers to use of any kind in connection to “products of Regent”. Albert simply hired me to shoot pictures for editorial use in HIV Plus magazine. This paragraph means that all of Regent would be able to use the pictures for advertising purposes in addition to the one-time editorial use that Albert called me about. If you need broad use of the pictures, the fee has to be commensurate with that use.
2) Your Development paragraph says that you can arbitrarily reject the work and not pay the contributor. I certainly would not expect to get paid for a job that I didn’t perform properly. But the way you have worded this paragraph means that if you kill the story for some other reason, you don’t have to pay the photographer. I think that needs clarification.
3) Your Payment Terms paragraph says that you don’t have to pay until the story is published. I would like to be paid within 45 days of invoice instead.
4) I’d like to have an expiration date on the contract. Otherwise, it’s easy to have misunderstandings in the event of a future contract.
5) In the Limitation on Liability paragraph, it’s not clear to me whether that would limit the extent of my indemnification to you. If it would, could you say that in the Indemnification paragraph?
Please feel free to call me any time to discuss this further.
On Jan 25, 2010, at 7:02 PM, Alex Paul wrote:
I understand your concerns and we are appreciative of you working with us at a reduced rate. Unfortunately, we do not have the budget right now to pay your normal rates. I think your proposals re: “middle ground” indicate that we’re really not far apart at all.For example, we have no intent of using your images for advertising (I can double check, but we don’t ever really do this *except* to advertise our own magazine.) By that I mean, we like to take thumbnails or smaller versions of our cover (your cover photograph could be one of those covers) and use it to advertise subscriptions to the magazine. We don’t alter the cover (except to reduce it) or use the image out of context. Is that problematic at all?
I can clarify the “kill” portion and the payment terms of the contract.
As for an “expiration” of the contract, if we ever have a future contract, then that future contract—if it covered the same subject matter—would replace this one. Otherwise, we don’t want our rights to use the images to expire. You don’t intend that, do you? In other words, we don’t want to re-pay you in a year if we are still selling those magazines.
Finally, yes, we can limit your indemnification. I’m not that clear on the details. Are you hiring models and getting model releases?
On January 26, 2010 6:05 AM, Bill Cramer wrote:
Thanks for understanding. If you would be willing to address all of my concerns, I’d be happy to leave the fee at 1000.00 plus 2750.00 in expenses. If there are some terms you can’t budge on, let me know, and we can agree on a suitable fee.I’m sorry, I could have been clearer about “expiration”. I don’t mean to say that I would want the agreed upon terms to expire for any particular assignment. I simply mean that a particular version of a contract should apply to assignments shot during a particular period (say, 2010 – 2012). My concern is that when the contract does change, there’s a lot of opportunity for ambiguity going into the future, since not everyone is going to be aware of every contract. Having a contract state that it applies to assignments shot during a particular period eliminates that ambiguity.
I appreciate the fact that you seem genuinely interested in addressing photographers’ concerns. I’ve been shooting magazine assignments for over 20 years, so I have a pretty good understanding of both photographers’ and clients’ interests. I know that as an attorney for Here Media, your first inclination is to protect your client. But I do think that by crafting a contract that is sensitive to the interests of photographers as well, you can save yourself a lot of haggling, and at the same time, build good will with your contributors that will pay off in terms of loyalty to your staff and quality of your product.
If you have the time and the inclination, I’d be happy to discuss your contract(s) with you at length (free of charge!) to help you create the most effective document(s) possible for the mutual success of your publications and your contributors.
I look forward to hearing from you.
On January 28, 2010 9:09:55 PM, Alex Paul wrote:
Thank you so much for your patience and for your willingness to shoot for us. Our editorial director worked with some of our photo editors, I believe, on getting our standard forms into shape; they tried to be as even-handed as possible, but also give us the flexibility to work within our business model. Regardless, if you think our photography agreement could use some work, I’d be happy to revisit the form of the agreement. You are the first one that I’ve encountered that has requested changes.Anyway, attached is a revised Contributor Agreement and Project Details sheet in PDF format. In my haste, I may have missed something, but I don’t believe so. Can you take a look at the attached and let me know if it is in alignment with your understanding and previous revisions?
(I did notice the agreements that you were given were under our old corporate name—Regent Media. We re-named ourselves to Here Media, so you’ll see that reflected throughout the agreement.)
I will also let Albert and Michael know that I believe we’ve finalized this matter.
…and the following revised contract, which I accepted without further revisions (click to enlarge):
Even though it wasn’t the most lucrative assignment in the world, I felt that in the end, we were able to arrive at a “win-win”. And I was really impressed with Alex Paul’s ability to defend the interests of his client and still work things out with me. Some clients think it’s in their interest to have contracts go completely their way. But if they’re smart, they’ll realize that crafting a contract that addresses the interests of photographers as well as their own will encourage productive relationships that will serve them well in the long run.
A Couple of Tips:
And by all means, feel free to contact us when you’re in a bind with contracts or any of the issues mentioned above. We can walk you through it, step by step, or just take a quick look at what you are about to sign, so we can give it the thumbs up or offer a few tweaks.
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