Bill Cramer Dissects Here Media's Contract
FYI: These observations should not be taken as gospel. The results of any given negotiation are unique, and to a large extent arbitrary. Our objective is not to endorse a particular pricing or licensing structure, but to simply shed light on the process itself.
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 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:
|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|
|Digital captures delivered by web gallery for editing||300.00|
|4 files 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|
|Chairs, stool....(I'll return what I can)||300.00|
|2 rolls seamless paper (1 white, 1 colored)||100.00|
|Meals for cast and crew||100.00|
On Jan 22, 2010, at 3:06 PM, Albert Smith wrote:
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. But that's what happened in this case. Here's the contract Albert sent to me(click to view larger):
I made a number of revisions to the contract (which I'll explain), and sent the following version back that same afternoon(click to view larger):
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:
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 where 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 party's over. And if both sides are savvy, they'll look for ways to add value for the other party to make the relationship as profitable for the other while still getting what they want out of it.
Alex replies to my contract revisions:
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 whole-heartedly 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:
On Jan 25, 2010, at 7:02 PM, Alex Paul wrote:
On January 26, 2010 6:05 AM, Bill Cramer wrote:
On January 28, 2010 9:09:55 PM, Alex Paul wrote:
...and the following revised contract, which I accepted without further revisions (click to view larger):
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.
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