Friday, February 2, 2007

Primer & Refresher: Terms & Conditions

The Question comes in often enough...I need a contract, or I don't understand how to put a contract together. Well, here's my solution: I will deconstruct my original contract, term-by-term, and parse what each piece of it means. Sometimes in excruciatingly painful detail. For those of you who don't know how to write them, well, this is a primer. For those of you who do, it's a nice refresher.

Once you know exactly what each term means, you can effectively communicate to the client why it's all there, demystifying it for them (and yes, yourself). So, sit back, and relax. This isn't coming immediately, and there are nearly 20 T&C to review. Further, the T&C will be interspersed with other posts. Some of the terms are easier than others. BUT, I have added a new label "Terms and Conditions" so, after the fact, you can pull up all of them at once and review them at your leisure. Further, you can use the comments section to pose questions that either I, or others can can answer. If it's a great question, or one that helps the clarification, I will go in and edit the post to make that more clear.

I won't go over the front of an estimate (atleast not just yet), this is about the back side, the "fine print" as some might say. The First one's easy, but I will put that in a seperate post!

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The Friendly Photo Editor

Consider the friendly photo editor.

They are the ones who fought for you, the photographer, so that you didn't have to be presented with a WMFH agreement. They fought for you to be paid a fair rate, and you didn't even know it.

Sometimes, they are upfront with you, and tell you that, while they know that their approved rate is low, that it is perfectly acceptable to bill for every piece of equipment as rental, since you either rented it yourself, or incurred the expense of owning it.

In some instances, these photo editors will direct you to bill prep days. They will find ways for you to arrive at their required line item maximum rates, but where your bottom line is what you wanted it to be in the first place.

Are these photo editors (the ones who tell you to hike your rate in other ways) helpful? Yes, in a way. No, in another.

For the "Yes" side, we suggest, it's the bottom line that matters. If what the publication is willing to pay equals what you want to be paid, then does it really matter how that number is arrived at? Many photographers just list:

  • Assignment Fee - $1,500.

But what about this:

  • Assignment Fee - $1,000.

  • Lighting Rental - $ 500.

Are we just assuming that the photo editor wouldn't pay that? That they assume we own the equipment? Isn't this a fair way to approach it? Some shoots are more complicated, and require more equipment, so this makes sense.

Yet, many photographers will trot out what amounts to $1k in equipment rental, and do the assignment for $750. I think that, when a good dialog exists between photographer and assigning editor, everything can be fairly worked out, for the most part.

Often, when I am speaking with a photo editor, and I ask "What budget are you trying to work within?", and following the answer, my next question is "are you including expenses, like an assistant, and equipment, post production, and so on, in that figure, or is that 'plus expenses'", and their answers are evenly split. Some say "that's including expenses", or "that's plus expenses", or, "that's plus expenses, but don't go over $X." It just depends upon how they prefer to outline the assignment.

Through this dialog, we can learn if it's a reasonable request, or not. Sometimes though, even the friendly photo editor does need a little help on this.

Consider now, the "No" side. The argument that advising you to bill for prep days, to bill for extra equipment, for a travel day when it really didn't apply, etc means that they are not completely friendly. They absolutely mean well. However, the "Yes" side is somewhat of a Machiavellian approach to assigning photography. The idea that the ends (i.e. bottom line is all that matters) justify the means. Here, for the suggestion that the photo editor is not friendly (but are well meaning I again want to emphasize) the ends should not be justified by the means. The PE should be given the leeway to sign off on whatever the specific line items are, rather than be subject to the bean counters telling them that X, Y, or Z is what is paid. Yes, yes, I know. This is supposed to be optimal, but it's not really realistic. Or is it? Is it fair? I think that if there is a range of fees, and the PE advises you that it is "plus expenses, including equipment", then I think that would work.

For me, and I think this is the best way, is to ask "plus expenses - assistant, lighting rental?" And if they say yes, then we're all set. If they say "oh, that's including everyting", then I need to see if that's fair when I add everything up. This takes the onous off of the PE, and back on us, to ask the right questions.
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How to Do It Without Ruining It For Others

So, the question came in "How do I work as a semi-professional photographer without ruining the livelihoods of those who do it full time?"

Boy, that's a responsible question. (seriously).

First, you must determine what your objective is. So, let's make a few assumptions.

1 - You really enjoy photography.
2 - You'd REALLY enjoy seeing your work published
3 - You might consider trading in your cube-job for a camera and satchel if you could afford it.

If you really enjoy photography, you'll first need to determine if you just love seeing the photos you took of the local landscape, or if you feel that you want to try to change the world with your revealing images from {insert location here.} Perhaps you enjoy revealing people's outward appearances in a way they've not seen themselves before, or maybe it's the solitude of the studio and still life that gives you peace.

Then, realize that, in order to be paid, you'll need to follow someone else's direction. This has the potential of diminishing your enjoyment just a little (but not always.) You may find that you have to follow directions you don't like, and, as noted in A Remarkable Photograph even the best of us are called upon to photograph things that are less than exciting. In the end, however, I would speculate that the person dabbling in photography would find that the worst day as a photographer is better than the best day riding the pine in a cube. (Don't get your hopes up though, it may well not be!)

Ok, so, here's where many folks run into trouble. They want to see their works published (hopefully with photo credit). This is really the impetus behind the problems with $1-stock photography, people who's enjoyment is derived from just seeing their work published. People with idle time and a digital camera are so eager for (supposedly) bragging rights and a split-second in any spotlight that they will sell their images for a true loss. They'd enjoy being able to walk into the shipping super's office while on break moving pallets in the warehouse to say to their boss "some day boss, I'm gonna be a photo-grapher. See here, I got one-a my there photographs in this magazine ad..says right here in the photo credit...oh, wait, the ad doesn't have a photo credit, well, boss, I tell ya, it's mine, and some day....". Fact is, that moment of excitement pretty much ensures a mindset that they're never going to be able to leave the warehouse and earn a living as a full time photographer.

The beauty of having a job that pays the bills is that you can choose clients that are paying you appropriately, and only when they are paying you appropriately. When I started out, everyone wanted everything for free (or cheap). I can tell you, as I noted earlier about eating top ramen (Starving Artist), it ain't easy starting out. But, consider this: If you have a job that is paying you $40k a year, that equates to about $150 a day ((40k/52)/5). Add in what you would have to charge to rent your digital camera, two lenses, and a flash (about $150), and you're near about $300 as a really really bottom end, which doesn't take anything else into consideration. Then, say to yourself that if you're really lucky, just starting out, you can do two assignments a month, or 24 a year. That then equates to about $1,650 a day, plus camera rental of $150, or about $1800, again, not considering much else expense wise. This means that when someone calls you and you have to take a day off from work (didn't you feel that sniffle coming on last night?) it's worth somewhere between $300-$1800, easy. And furthermore, since you don't have to take the job, you can afford to say no when they want to pay less, or want all rights. If you're not sure how to charge or what to charge, feel free to look at my pricing pages and charge as similarily as you'd like. You can use the language in the contracts, etc (just don't forget to change the name.)

As you grow your intermittent number of photo assignments, you'll have fewer and fewer vacation and sick days to call upon. Consider this, if you have two weeks of vacation, and 6 sick days a year, plus 3 personal days, that's 23 days you can take, without any problems, to do assignments. At some point, you are getting consistent calls from your newfound clients -- who respect you and your fees -- and as you grow this type of client, rather than the cheap ones who want everything for nothing, you can then consider trading your job for the freelancer's life, but not until then. Or, you can simply remain semi-pro, filling your evenings, weekends, and occasional vacation/sick day with work that pays properly, and respects you and your copyright. Furthermore, you can be at peace in the knowledge that you are not doing harm to your colleagues. And, moreover, when you are downsized out or laid off, you will have a backup base of clients to earn money from -- at a rate of income that will sustain you! And, this applies not just to staff photographers, but also to general employees in other non-photo-related fields.

In fact, you could actually do your local colleagues a favor -- whatever you can discern they would charge for an assignment, charge 20% more, since you don't HAVE to have the assignment, you can make your colleagues look good by comparison, and when you get that job you are being paid a premium for the work you'll do, and grow a list of intermittent clients who pay for you as a premium photographer.

If you'd like to see this topic expanded, send me an e-mail indicating in which direction, and I will try to expand it that direction on occasion.

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Thursday, February 1, 2007

NYT Update

Ok, you know you're in trouble when the blog Gawker, Manhattan's gossip blog tells you you need some photoshop help. In this article What Could Bog Down the Bull someone decided that dropping the bull statue into 1/2 frame of sand was all that was needed, with just a little feathering on two feet and none in the front. It's horrible. Earlier today I mentioned that the NYT, as it regarded the Boston Globe would be outsourcing to save $75 million, but here, it seems they started with their art department and got someone from elementary school to do the work for them. I mean, look at that to the left. That's just laughable. And look at the line where the sand hits the white area above? I mean, this MIGHT fly if it were a thumbnail, but heck, it plays as a 600px by 430px image. And look at this, to the right....the "artist" didn't even bother to feather this foot! I have to say, I expect more from the New York Times.

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Free photos (and $13 Superbowl ads)

Boy, whoever said it couldn't get worse didn't have a grasp on reality. Doritos sponsored a contest to create a commercial in which the winner gets theirs run during the Superbowl, which cost Doritos $2 million dollars. How much does Five Point Productions (that's them on the right shilling even more for Doritos) say it cost them? $12.79. The Dorito's Crash the Superbowl contest stipulates you:

“…irrevocably grant… perpetual right and permission to copyright …exhibit and/or otherwise use or reuse (without limitation as to when or to the number of times used), the Entrant's name, address, image, voice, likeness, statements, biographical material and Submission…as well as any additional photographic images, video images, portraits, interviews or other materials relating to the … in any media throughout the world for any purpose, without limitation, and without additional review, compensation, or approval from the Entrant or any other party.
Nice. That basically means, you enter, we own you. No additional money for you for this. Ever. Remember the Wassup Guys? They’re in the ranks of rarely seen also-ran actors. Last seen? In a commercial for Dr. Scholl’s “Are you Gellin” campaign. Woo Hoo.

Does $12.79 really reflect the cost of the video? Absolutely not. Superbowl ads usually run upwards of $1 million to produce. $12.79 is probably the cost of the MiniDV tape and the bags of chips they used in the video. What about the time of the five guys? Is that an "in kind" donation to the project? How about the costs to rent the cameras, or the amortization of them over their useful life? Costs of the audio equipment used? Costs of the computers and editing software? Gas costs for the cars? Oh, and if you watch the commercial, there's an accident in there. What about vehicle repair costs? Oh, and one more thing -- they would have had to pay for a permit to be on the grounds of the stadium that is in the background of the shot. They were tresspassing when they made the commercial. As my good friend and talented photographer Michael Spilotro says, "clearly they're giving away the farm for a shot at success that they'll never have in the end."

Ok, so, how's about this? Think iStockphoto's going to do well? Well, think again. The Dreamstime folks think that photos should be free. That one on the left? Taken in Antarctica? Yeah, free. And, downloaded, it'a an 8.5MB file, not just screen resolution, and last I checked, 313 people have downloaded it for free (make that 314). Just as in traditional store-fronts, this is called a "loss leader", but you're loosing. A loss-leader for a store means that the store eats the price of the product they purchased to get you in the door. The manufacturer didn't give it away for a loss too. Where is the benefit to the photographer? This photographer, Jan Martin Will (also seen here cross-posting the same images on Dreamstime and Shutterstock), from Pasadena California trekked all the way to Antarctica (on someone's dime) and is now making his photos available for free. And how will they choose the ones they give away for free? Those that have been online for atleast a year with no sales.


You can bet that istockphoto and all the others will follow suit. What's next? Paying for the privledge of having your work out there? Oh, right, Getty's already got that one down pat. Now just wait until the ones you paid Getty to consider get offered for free through their istockphoto brand. While Wall Street analysts continue to be worried that penny-stock sites like iStockphoto (that Getty acquired in February 2006) will devastate Getty's rights-managed and royalty-free offerings, their CEO continues to believe that all's well. During his most recent conference call with them two days ago, Getty CEO Jonathan Klein went to great lengths to calm their fears, saying "We did not have a great year. Let’s be clear...but we have emerged in good shape." Wow. Pass the dutchie on the left hand side Mr. Klein.
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NYT Revenue Down

The Wasington Post reports today that the New York Times profits are down on the value of the Boston Globe, awash in red ink, and they are citing "company plans to save up to $75 million in 2007 through cutbacks and outsourcing." What does that mean? They are cutting costs on the backs of staffers by hiring more freelancers at a pittance of the pay they should be getting. Martin Baron, Globe editor does not expect to eliminate more jobs during 2007, nor is the paper for sale. If I believe no more jobs will be cut, then how about that Brooklyn Bridge? Selling that too are we?

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Wednesday, January 31, 2007

Keep Your Trap Shut!

This has been a problem kicking around for some time, and I'm finally pissed about it. What is it? It's assistants shooting their mouths off about photographer's proprietary information, things they see and should just keep their mouths zipped about. The latest example is someone who needs a swift kick in the pants, and has (supposedly) given enough information that it would be very easy to narrow down exactly who he is. This is the example of someone who supposedly worked for Annie Liebovitz as a 5th assistant (and that person's job is to get coffee and hold the door open that low on the totem pole) and spied the (again, supposedly) new Canon camera. First, I know a little about how camera companies show off as-yet-unreleased camera bodies, and it more centers around the old body with a new chip and computer inside than it does blaring the new naming nomenclature on the front. Second, who is really this dumb when doing this as to reveal WHO they worked for and on what shoots? Are they dropping her name so as to provide some validity as we all say "oh yeah, she probably would be someone they'd show it to and get her input on, so it must be true!" all the while lying about actually seeing it in the first place?

So, let's assume that this idiot is just the latest in rumor mongering that happens on sets. What do we do about it? I can tell you that I have had to sign more than one multi-page non-disclosure agreement (a.k.a. NDA). From law firms to manufacturers with new products being photographed, to software companies I was talking to, NDA's are a way of life. My assistants too have had to sign these same documents. I am certain that Annie signed one as well (and has many many times), and this purportedly 5th Assistant was a one-off pickup for the day, and probably was not asked to sign one. But does that matter? Probably legally yes, but morally and ethically, it doesn't matter.

Press releases are routinely embargoed from release but sent out to give reporters time to research and file stories once the embargo is lifted. When Steve Jobs announced the iPod, Time Magazine signed NDA's to do the photography for the cover and the reporters did too to report and test it beforehand. Agreeing to withhold revelations about a product or person or organization are commonplace, and assistants, stylists, and so on see little problem with running their mouth off to their spouses and friends, boasting about how cool whatever they were doing was. It's simple - just keep it to yourself.

How then, can you impress upon those who are supporting you with this need and obligation? Make them sign a legal document saying they will keep their mouth shut. I am not an attorney, nor do I play one on television, but more than one friend has suggested I should be one. To that end, I have drafted something that should be a pretty good starting point for you to review and edit to best suit your needs.

Your e-mail to the assistant the following e-mail:

Dear Chris Assistant,
I am very glad to have you join me to assist in the production of photography on {date, location}. Before the commencement of the assignment, I must have a non-disclosure agreement on file for you. This agreement basically states that by signing you have agreed to keep confidential the information, products, or persons that you observe, is/are discussed, or otherwise revealed to you while on the assignment. I have attached a PDF of this document. Please print and fill out the “Recipient” portion on page 1 and the “Recipient” portion on page 3 and fax them back to the following fax #: (202) 555-1212.
And you then send along a modified version of this Assistant's NDA that I wrote. This NDA is a variation on past NDA's I have signed, taking parts from them, and making them applicable to an assistant who is working for a photographer either once, or on an ongoing basis. It need only be signed once for assistants who regularily work for you, as it remains in effect until cancelled. You can also use this with minor modifications to apply to stylists, makeup persons, location managers, producers, and so on.

In addition, you may also consider using a variation on this Assistant's Contract which outlines what you expect, and what the assistant can expect, when payment is to be made, and so on. One thing that often happens with assistants is when a shoot wraps early, or there is a definition of a 10 hour workday, after a six hour shoot, some photographers expect the additional four hours be used filing or working in the studio, and this is often a frustration for assistants. This contract spells out all of this so there are no misunderstandings on either party's part. Feel free to use yourself, adapt to suit your needs, either document. Don't go around selling it, or putting it in your books without talking to me first though!

Maybe this guy just made this up, this time. But he serves as a shining example of the blow-hards before him (and, sadly, after him). How will this affect Annie legally? She could be in some hot water if this is true. She (because someone with whom she contracted did so) breached the NDA. The 5th assistant is judgement proof and so will skate. Someone needs to go give him a good shake and a class in morals and ethics.
Update: A comment came my way via e-mail that suggests that without detailing my source, I become it in some way. I felt that putting the link to the sites that are repeating it, would just perpetrate the issue. I'd not detailed model #'s/features because it's a rumor, but the rumor, and the fact that it surfaced - true or not - highlights a problem with some assistants/stylists that has been going on, and with which I have had personal, first-hand experience regarding the revelation of proprietary information, and the steps we take to ensure client privacy. The URL was provided by another reader in the comments section, for those interested, and that site has a much much broader readership than my forum does, so I draw the conclusion that my readership is aware of the information either from that site, or the others that have repeated it. -- John.
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Monday, January 29, 2007

A Remarkable Photograph

This is a remarkable photograph of a Kastle keycard being used at a Kastle wall panel. The photograph was published on the front page of yesterday's Washington Post Business Section, and the story continued on into the inside of the paper, where another photograph appeared after the jump. At first blush, it appears simple, ordinary, and otherwise posed. Similarly, the inside photo is comparable, of two executives standing facing one another in (probably) the lobby of their offices. What is not, however, ordinary, is who took the photographs. The photographer is Carol Guzy, probably the single greatest winner of photographic competitions for as long as I can remember, and an amazing visual communicator, someone who will be remembered past her time for the work she produced. Someone who has traveled the globe documenting famine, suffering, and the triumph of the human spirit.

So, why is this legendary photojournalist taking a photo such as this? That is precisely why it is remarkable. Because it's a part of what all newspaper photographers are called upon to do, document the ordinary from time to time. Not every photograph is an award winner, let alone even viable to enter a contest, nor should they be. Many many photographs taken by many many photographers illustrate a story, sometimes in a very straightforward way. This photograph is remarkable for what is is not, and for the fact that it was a living legend producing the image. It illustrates the point that we all are called upon to produce images that fill the day-in and day-out assignment sheets.

I often am called upon to produce images akin to this. Of course, there are images which are produced for magazine covers, inside features, and the like. Yet, so too do requests for straightforward images that simply and succinctly illustrate something without fanfare, or international implications. Yet many an aspiring photojournalism student sees the contest winning images, often times from far away places, and dreams that if only they too could be in that land at that time, they too could catch a break that would catapult them to stardom. Thus, they neglect the production of the images that will fill more of their assignment logs than they'd like to think about. The high school player of the week, the pet of the month, and, yes, the PR-looking image for the front of the business section of an electronic passcard system.

Every photographer produces images that vary from the monumental to the mundane. It is approaching each assignment with as much enthusiasm as possible that makes the work worthwhile. It is accepting that there is a fair ebb and flow to the assignment types that we all receive. It must not always be the global hot spot, or the peaking politician, or the major celebrity that we are called upon to photograph. We all experience a mix, every last one of us.

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Sunday, January 28, 2007

The Psychology of $1K & Pricing Your Work

If an image is worth a thousand words, what's $1K get you? Questions. How about $960? Fewer questions, for sure. $960, or $1,020 are figures that fall into a concept that is referred to as Odd Number Pricing. Now, to be specific, (as Wikipedia points out) "a 1997 research study published in the Marketing Bulletin, approximately 60% of prices in advertising material ended in the digit 9, 30% ended in the digit 5, 7% ended in the digit 0 and the remaining seven digits combined accounted for only slightly over 3% of prices evaluated." Thus, my examples that each end in zero, supposedly don't fall into this notion of Odd Number Pricing definitively. However, where this concept best applies to products sold at retail, here I am addressing the concept more than the specifics. In that, a photo fee that is $1,000 seems (to a prospective client) to be more negotiable than one you outline as $960, which seems less negotiable. I feel that if you fee was listed at $999, a client would find that silly.

I consider the quality of work I bring to an assignment, and the level of service that accompanies it, on par with the Nordstroms/Saks/Tiffany's of the retail world. There is a market for that level of quality and commitment to the client, yet there is also a market for the Macy's, Target's, and K-Mart's of the world, I just don't aspire to that segment of the market. As such, I see (and I hope too that my clients see) that the type of work I deliver is considered as "premium" or "prestige" pricing. If you too aspire to this level of work, then target that market. Past APA President Jeff Sedlik once recounted during a presentation at PhotoPlus a conversation he had with his accountant, where he outlined that he just wasn't earning enough money. His accountant's advice? Triple his prices. As Sedlik tells it, he's never regreted it, except that perhaps he regrets not doing it sooner.

Photographer's consultant, Debra Weiss, recounted at another PhotoPlus panel presentation that she moderated her experiences with Glenn Wexler about the time Wexler left Art Center in Los Angeles. Some of the more valuable advice Wexler got was "Find out what the most expensive photographer producing album covers is charing and charge the same, or more." Wexler, to his credit, followed the advice. Oftentimes, Premium Pricing applies when the risk of failure in the production of the photo (either once in a lifetime moments, costly re-shoots, and so on) means that it's worth it to pay the extra money to reduce the risk of failure.

Give great consideration to how you price your work, and position yourself in the market. Taking the right (and reasoned) approach will make all the difference in the world.

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