Case Study: Agency Contract Bait and Switch

The Summary:

We've all glanced over a seemingly benign document an art buyer or client has asked us to sign as a "formality", prior to beginning a project. Let's face it, it's becoming second nature to "agree" to wordy Terms of Use Agreements without reading them (think Facebook, Instagram and Tumblr). In fact many corporations, especially in the tech industry, are inappropriately utilizing the very same language found in their public online Terms of Use Agreement, in their assignment contracts as well. This case study might get you to think twice before placing your name on the dotted line without first reading and understanding what you're being asked to agree to.

I was recently presented with an interesting situation that unfortunately seems to be getting more common as corporations attempt to usurp ever-increasing rights while paying less in licensing fees and shifting all legal risks to the photographer.

An agency's art buyer sprung a last-minute legal document on me that, if put into effect, would have undermined all previously negotiated stipulations and left me relinquishing all rights to my images without compensation. It also required me to never bring a lawsuit against the client - a Fortune 500 global corporation - for any cause including negligence, infringement or defamation.

The Details:

An art buyer whose agency represents a Fortune 500 global tech corporation had approached me to shoot several environmental portraits on location throughout the country. The art buyer indicated that they needed to license the images solely for their client's website on an exclusive, unlimited basis in perpetuity.

Production costs, nominal fees and terms were agreed upon and the shoot was set to begin the following week (as the deadline was tight). All that remained was for both of us to formally execute (sign) the contract. 

Later that same day, however, the art buyer sent me a form to sign (indicating it was "just a formality") entitled: "Photographer’s License, Release, and Waiver".

Upon reading the first paragraph of the document, I found language that seemed to be pulled directly from the corporation's public online Terms of Use Agreement and was inappropriate for the project I was being assigned. I was surprised to learn that their Waiver actually undermined every stipulation (pertaining to licensing and indemnification) that all parties had agreed to in prior negotiations. The document went on to supplant the agreed licensing with an 'all rights, including sub-licensing, in-perpetuity' clause as follows: "I grant to ____________and its subsidiaries, affiliates, licensees, successors, and assigns an unrestricted, sublicensable, assignable, irrevocable, perpetual, worldwide, royalty-free license to photographs, digital images, taken by me on behalf of _________ (the “Content”).

By signing the agreement I would be handing over all rights to my images to this global corporation allowing it to re-sell licenses for profit without any further compensation to me. More over, the Waiver would have prevented me from approving how my images could be used or altered and from seeking legal remedies against the corporation as a result of any misuse. This was clearly an inappropriate over-reach and well outside of what we had agreed to or was needed for this assignment.

In response to and in consideration for their tight deadline, I sent the art buyer my contract as we had discussed and agreed along with a list of questions regarding the Waiver I was being asked to sign. I did this with the expectation that there typically is a dialog between the photographer and art buyer, especially when the parameters of a project have changed.

Unfortunately, this time things did not go as expected.  Within a couple of hours, I received a note from the art buyer indicating that she was seeking another photographer for the project, as the Waiver was "non-negotiable" and she didn't have the time nor the inclination to discuss legal matters further.

There are many take-aways from this story. It instructs us first that it's imperative to read any and all contracts you are being asked to sign. And if you don't understand something in the contract, contact an attorney (APA has a great one). Be honest, straightforward and respectful in your dealings with clients. And if you need to have something clarified or need to ask a question of the person hiring you, do so respectfully and in the spirit of ensuring everyone is on the same page and expectations are managed on all sides.

Even if you do all these things with the best intentions, however, there may be times when, for reasons unknown, there is a lack of reciprocity from the person hiring you, such as in this case study. But remember that if a relationship starts out on the wrong foot and you are not feeling right about how you are being treated, it might be time to walk away as it usually only gets worse.

Now more than ever, it is important for all of us to hold the line on ethics in our industry to ensure our livelihood into the future.

I've provided a copy of the Waiver I was asked to sign (see below). Please pay special attention to the highlighted language as it is appearing more and more in contracts and should raise a red flag in your negotiations.

"The Truth Is More Important Than The Facts." Frank Lloyd Wright

"A doctor can bury his mistakes but an architect can only advise his clients to plant vines." Frank Lloyd Wright

Celebrating Frank Lloyd Wright today. He died on this day in 1959.

Recent Work for Santa Fean Magazine

This is the first time Santa Fean magazine has actually run a jewelry feature such as this. I'm honored to have been involved with making this happen.  Here's a couple images from the shoot...

A Delicate History

Throughout millennia mankind has sought ways to fix that which was observed in the three dimension in a two-dimensional form so that others in the future might share in the observation. From the time of the Pharaohs when encaustic sealed the likeness of royalty on their sarcophagus to Joseph Niépce's first photograph on a crude pewter plate coated in bitumen of Judea and developed in the oil of lavender and turpentine man has strived fruitlessly to make the image permanent.

In photography the word "archival" has had many interpretations and definitions. Some "archival" methods fix the photographic image well past the photographer's life span and others not so much. One example of the least permanent and most volatile media ever used is the cellulose nitrate film base produced by Eastman Kodak from 1889 to 1952. This film was widely used by the motion picture industry during this time period as well as by still photographers of the day. While this material had the advantage of being the first transparent flexible plasticized base commercially available it unfortunately has virtually the same chemical make up as guncotton; a highly explosive material.

Left to decompose over just a couple of decades this material becomes extremely unstable and has been known to auto-ignite. In fact in 1978 both the United States National Archives and Records Administration and George Eastman House had their nitrate film vaults auto-ignite. Eastman House lost the original camera negatives for 329 films, while the National Archives lost 12.6 million feet of newsreel footage. The world loses priceless imagery and cinema footage every second of everyday to the instability of this media.

Now, thanks to the advent of digital imaging, photo and cinema archives worldwide are frantically setting about committing the content contained on nitrate negative material to digital storage before it is gone forever. Once the original film is scanned and "digitized" it is then placed into cold storage to slow degradation and prevent combustion. This worthwhile endeavor is a race against time.

As luck would have it one of these priceless archives is right out my back door in Santa Fe, New Mexico. The Santa Fe Palace of the Governors Photo Archives is one of the oldest photo archives in the country and many of the negatives (glass, nitrate etc.) date back almost 200 years and document the history of the West.

I have been lucky enough to have a front row seat as a participant in helping preserve this history. Once a week I volunteer to descend the basement steps and join the team in digitizing the over 800,000 (and growing) negatives in the collection. I freely admit that I have always had the tendency to lean towards geekness but this experience has been one of the most rewarding applications of this character quirk so far. Everyday I spend with these unique documents brings the excitement of what history I might uncover and what mystery might be solved before punching out at 5pm.

A Jury Of Someone's Peers

Over the course of the last year I have primarily focused on my personal work and have had the opportunity to present this work in two separate portfolio reviews. These two experiences could not have been more diverse. I will explain further on. But first a brief background on the portfolio review phenomenon.

In recent years we have seen the “photography review” concept gain traction in both the fine art and commercial photography worlds. This method of seeing and being seen is ostensibly meant to cut down the time it would take for a large number of artists and reviewers to connect through conventional means (i.e. cold-calling and one-off meetings). As speed dating has done for many loving couples so has the paid review done for photographers and their potential suitors.

For those who haven’t had this experience before or are not aware of the process I will briefly explain. Many of these events are held as a benefit for non-profit trade organizations (i.e. ASMP, APA etc.). The basic premise is that an artist pays to have their work reviewed by several, sometimes dozens of industry professionals over the course of a few days in a series of roughly 20-minute meetings. The artists scan the list of reviewers a few weeks in advance and submit their wish list of whom they would like to meet with. Finally a lottery decides who on the wish list the photographers will see and when the meeting will take place.

I have just described the non-juried review. There is one more wrinkle to discuss, the juried review. This method injects an added level of gatekeepers chosen to decide whose work is worthy to be seen by the reviewers. A photographer pays to submit his or her work to a panel or jury who will then decide if the photographer should be allowed to pay further to have their work reviewed by industry professionals who can potentially help in the artists’ future success. Seems excessive and counter-productive to the detractors of this method but the proponents say this extra filter will keep the work at a high level. Of course whose standard of “high level” is being applied is the big question.

In April of this year I participated in a non-juried portfolio review. Registration was a first-come-first-serve affair with the first 160 applicants allowed to participate. No other filters were imposed and there were no gatekeepers except of course for the participants’ ability to afford the event (thousands of dollars for travel, hotel, meals and entrance fees). Since this was the first time I have shown my personal work in this type of venue (I have participated in several non-juried reviews in the commercial realm) I had no preconceived idea of what to expect. Detractors though had warned me that this non-juried event will surely be a mishmash of amateurs and bad work and that it would be a waste of my time and money. But this was an experiment for me. I went to experience the event with a complete open mind. As it turned out the detractors could not have been more wrong. I was amazed at the level of work, professionalism and commitment displayed by people from all areas of the medium. Sure there were a few artists that weren’t ready for prime time but I’ve seen that in juried events as well. The over-all impression was one of diversity and fresh ideas. Both the reviewers and photographers I spoke with felt that the experience was productive and valuable.

In order to get the full portfolio review experience, in June of this year I made the decision to participate in a juried review. The well respected event I participated in requires the artist to pay a fee to submit his or her work to an unnamed jury who will then choose the work of 100 photographers who will then be allowed to pay further to participate in the review. I paid my money and submitted my work to the anonymous jury. That was as far as I got. My three bodies of work never made it past the faceless few.

As a seasoned artist and art educator I am not a stranger to receiving and delivering rejection. And certainly working in the commercial world I’ve developed quite a thick hide. Nevertheless I was intrigued by the particular idea that work would need to be “chosen” to be reviewed. I have been a reviewer and have been reviewed in many non-juried events and never felt nor heard anyone express the opinion that there needed to be an added layer of filtration. Gallery shows, photo awards, yes judge and jury to your heart's content. But why jury a portfolio review?

My curiosity was further piqued since my work was being judged by an unnamed panel. Who were these people? Are they of a caliber that I would be honored just to have them see my work even if it meant they were not impressed? And by the way who chose the jurists and what was their criteria and credentials? And who chose the people that chose the jurist etc. etc.? And finally, if I don’t know anything about the jury how could I make an informed decision as to whether my work would be appropriate to submit? After the jury had made their selection their names and comments were released save for one jurist who declined to make any comments at all. As it turns out the jury was made up of three unremarkable, marginal industry members with very similar backgrounds and combined resumes that were, how best to put this? Thin.

The whole question of gatekeepers, how they are chosen and what criteria is being applied is a nagging one that challenges all areas of the arts. This challenge was highlighted when during a panel discussion the weekend of the juried event an audience member brought up her concerns over the homogenization and lack of real diversity of the work accepted for the review. She continued by asking if anyone on the panel wanted to comment on the possibility that this phenomenon could be a symptom of a small, non-diverse and inexperienced jury. No one on the panel wanted to touch that third rail. But if discussions in the lobby afterward are any indication it became clear that most in the audience where thinking the same thing and wondered out loud how such a jury could be selected and if a jury might even be counter-productive for a portfolio review.

The folks that put on these events do a wonderful service for the photographic community. They are good people who agree to throw themselves into the fray of artists’ egos, expectations and psychoses for the love and benefit of the medium while receiving little if any compensation. That’s why it’s so important to ensure their hard work is as beneficial to the photo community as possible by encouraging that care be taken when deciding when and if to apply a jury standard. And then assure that that jury is diverse enough to broaden our view and experienced enough to understand their responsibility.

The Gatekeepers

Who decides what photographs we see? Are we losing important photographic voices as editors, art buyers, curators, publishers, art jurists and gallerists become the arbiters of which photographers deserve to be seen? Are we witnessing the homogenization of the photographic medium? What is being done to assure that myopia does not govern accessibility to diverse points of view?

Recently there have been several occasions that brought to mind the slow but steady filtering of talent that goes on in our medium. A filtering that removes and edits the work of talented artists from our view and in so doing perhaps silences their public voices forever. Because of this these artists may never get the chance to inspire, challenge or provoke us. I find this sad but perhaps unavoidable as a function of the shear volume of imagery to be seen. The issue then is not so much that editing occurs but how best to go about deciding who does the editing and what criteria is used so that we will be assured of a broad, vital and diverse pool of talent now and in the future.

In the past several decades we've witnessed vast changes in the way photography is disseminated. Some changes have helped expand our view and others not so much. This is of course a broad subject and one in which I can only scratch the surface here. But I look forward to your comments and observations as they will serve to round out our understanding of how this filtering occurs, what its long-term affects might be and how we might make adjustments so as to expand rather than narrow our view of the world.

More to come...