Diversification and A Variety of Clients

Each week, my subscription to BusinessWeek arrives and I look forward to reading it. Yes, yes, there are many articles which don't apply to me, but I do appreciate keeping up with other fields, and I really enjoy seeing the work my colleagues produce for this publication, and I've had an assignment or two grace their pages, and, quite importantly, they have a very fair contract for their photographic contributors. For less than $1 a week, you too can get this collection of insights delivered to your doorstep.

But, that's not why I write. It's because of a really great message that resonates with what I've been trying to say for some time. In today's mail my Business Week arrived, and in Jack and Suzy Welch's column, Ideas The Welch Way (he, legendarily formerly of GE), responds to a question which posits:

"Companies let go of troublesome employees. Is it ever a good idea to apply the same practice to troublesome customers?"

In part, they respond:

"...there are some circumstances where the old adage about customer supremacy can actually be destructive, and it makes sense to say no or even goodbye....when a customer's demand for price destroys your profitablility, or worse, creates industry pricing chaos, that's when you have to hold the line and dump the customer...now, sometimes your big customers...they own you, and they know it. So with them, you may need to endure...outrageous demands."

Sound familiar? Are you a diversified photographer who has many clients in multiple arenas, or just a few big ones? How about clients making outrageous demands? If you're not diversified, you feel you must put up with them, and it often seems like a spiral that you can never escape.

Dumping the bad clients, and embracing the best, turning away the bad deals, and celebrating the good. I know, I know...I hear the refrain "but I'm new to business, how do I get these clients?" Well, frankly, one at a time, and initially, they are few and far between. Why? Because the "best" clients, with "good" deals, have photographers they call upon. They don't know who you are, or that you exist. They only look for another photographer when theirs is not available. And, in the meantime, the deals that others are turning away are coming to you. I know it takes awhile, but like any good thing, it takes awhile to come around.

BusinessWeek (along with Fortune,Fast Company, and Kiplinger's Personal Finance)are among those publications I look forward to each month. For less than a cheap (i.e. non-Starbucks!) cup of coffee, I get much more of a pick-me-up than that java would provide, each and every time.

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An Original Picasso for $50? That's what they say...

If you're a Pablo Picasso, and your work has sold for millions, and you donate a work to charity, you may only donate the cost of the canvas and oils. Sad, but true.

For years, a bill has been percolating on Capitol Hill whereby an artist could donate their work, and take a deduction up to the full appraised value of their work. Manners of appraising are different. You could have an individual certified appraiser determine the value, or you could produce historical sales figures to justify the value. A year ago, the Senate passed a bill that would give artists this right - (see http://www.collegeart.org/advocacy/000253/) yet this measure did not make it into law.

To read a history about what the folks at the College Art Association have done, visit this link, and our friends at the Graphic Artists Guild provide some interesting historical background on this link, reminding us that "...before 1969 artists, composers and writers (artists) could donate self-generated works to a non-profit institution and receive a fair-market-value deduction. Subsequent to 1969, as part of broad tax reform, they could deduct only the cost of materials."

The Charitable Giving Issue Center, writes, in part "...bill would allow artists to deduct the fair market value of a donation of tangible work that they have created. Living writers, musicians, artists and scholars who donate their work to a charitable cause would earn a tax deduction based on full fair market value. Currently such work receives only a deduction based on the cost of materials unless it is donated posthumously by the estates. The new provision, which has been long supported by arts organizations, would serve the public interest in spurring the donation of art to collecting and educational organizations that use art in their charitable mission. It would also address the inequity of current law with respect to artists vis a vis other donors."

Americans for the Arts, on January 12th outlined their arts agenda in the new Congress, which includes "Enacting legislation allowing artists to claim a fair market value tax deduction when they donate their work to charities for use rather than resale. The Senate has approved this provision five times in the past four years, but the House has yet to follow suit."

So, in the meantime, what's an artist to do? Well, there is one organzation that claims to have an answer, but I don't know a whole lot about them. They state that "The only legal way around this is an artist's relatives may take off the retail value of the works if they donate the artists' works. Artists themselves may exchange works with other artists and each donate the others works for the full retail value. In both cases you must have: (1) IRS recognized museum; (2) formal written appraisal; (3) the appraiser supply you with the IRS required forms." For more information on them, check out the Artist-Museum Partnership Act and find out of you can make this work-around viable.

However, with this continued effort, it will eventually become law. until then, good luck. Oh, and don't bother the "get paid then donate" route, it's simply a wash and there is no real tax benefit. I can see a time where I could significantly reduce my taxable income -- legitimately -- by donating fair-market-value services and final imagery to worthy non-profits, but I am not holding my breath.

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Public Funds and Media Access

The Associated Press is reporting that "Two Missouri lawmakers are challenging a National Football League policy prohibiting local television stations from covering games on the sidelines...Legislation filed Tuesday would force the NFL to allow local TV cameras on the sidelines of games hosted by the Kansas City Chiefs and St. Louis Rams, both of whom play in publicly subsidized stadiums. Media denied reasonable sideline access could sue for damages. Since a Missouri law cannot overturn a nationwide NFL policy, the bill focuses solely on the two stadiums in Missouri. It says that any entity owning, operating or leasing a stadium for which at least 10 percent of the construction costs came from state or local taxes cannot prohibit media photographers from having reasonable access to the sidelines of the playing field."
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It seems that this makes some sense. Yet, with the broader definition of media these days (bloggers have been granted media credentials in many cases) it could be an all or nothing case. Either you let all bona fide media access the venue, or none, otherwise face a restraint of trade claim. Further, since almost all stadiums nowadays have substantial public funding behind them, this bill could have far reaching consequences for those watching in other jurisdictions.

The one thing that has kept bona fide members of the press (especially freelance ones) from bringing a restraint of trade suit against the leagues is simply having the financial backing to do so. If you've ever called a team PR department and told "that's nice that you are media, and have a press credential, but unless your circulation is X, we can't give you a credential" and hung up frustrated, the primary hurdle precluding you from forcing the issue - and winning - is the finances to file a "restraint of trade" claim. What is restraint of trade? Simply put, it's "An action or condition that tends to prevent free competition in business, as the creation of a monopoly or the limiting of a market."

Each person would need to file seperately, and, in the meantime, you'd have to get an injunction preventing a team from restraining you at each game.

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Primer & Refresher: Terms & Conditions: Page Title

First things first: the page title. Here it is:
"ALL SERVICES AND LICENSES OF LICENSOR ARE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS".

Why waste a post on this? Well, because we are dissecting the T&C, that that means everything. What if the title said "Proposed Terms & Conditions", or "Terms & Conditions for Photographic Services"? What if it said "Terms & Conditions"? Of what?

"ALL SERVICES" refers not just to the photography, but the pre-production and post production, and everything inbetween, hence "ALL".

"LICENSES" is what you are granting to the client. You're not selling anything, not giving anything. A license is a term which is the legal granting of permission to do, possess, or use something, for a limited period of time, as defined within the language outlining the scope of the license.

"LICENSOR" - that would be you. You are the person creating the intellectual property and then granting a license to the party(ies) requesting it. The party commissioning you would be the "licensee". If you just owned physical property (like an apartment), you would be the "Lessor" and the occupant would be the "Lessee".

"TERMS AND CONDITIONS" - simply put, the definition of words used in the agreement, and an outlining of the conditions (i.e. you pay me for work, I agree to the work, you agree to give me photo credit, you agree to pay me within X days my fee and all expenses, and so on) that define this relationship.

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Oh, the Happless Duck!

Below, our happless duck, over the past two days has been quite degraded by prospective clients, and those purportedly aspiring to be like the duck.


What continues to make me roll my eyes is the notion that we photographers sit around doing nothing, and fortunately, the WTD strip is written by a photographer, so he knows whereof he's speaking. For us, if you consider today, Thursday, as the fourth day of the week (and for photographers, that must be stated, as most of us work weekends regularily) then I'm supposedly in the midst of the 30th hour work-week wise, and I've only had a camera in front of my face for about two hours so far. Does that mean I'm slacking off the other 28? How about the fact that I have to work this evening, when most folks will be sitting down to dinner, or have a meeting midday Saturday? Beyond that, clients have called saying "remember {job a year ago}, we can't locate the CD, do you have an archive of it?" Of course we do. And yesterday was spent transitioning images from January live drives to archival drives, in a manner which allowed us to respond immediately to that type of client request. In addition, we are working on a major retouching project that lives up to the previous The Art of the Retoucher entry and then some.
In addition, we've been working on sending out estimates, and thank you notes for the past week's assignments. Indeed, it has been a productive week so far, yet by the non-photographer's way of seeing things, we've only worked two hours and been standing around doing nothing the rest of time time.

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Shhhhh! We're Talking Pricing here...

BULLSHIFT! Everyone's afraid to talk prices. Everyone says "oh, we can't talk prices because of anti-trust laws." Again, I say, BULLSHIFT! Wikipedia has a pretty decent outline of price-fixing:

Under U.S. law, price fixing is only illegal if it is intentional and comes about via communication or agreement between firms or individuals. It is not illegal for a firm to copy the price movements of a de facto market leader called price leadership, which has been seen to be the case in markets for breakfast cereals and cigarettes. But informal agreements or unspoken agreements to fix price also can violate the antitrust laws.

Folks at the Art Publishers Association outline that "...lower courts have found that if the goods at issue are not fungible and there continues to be competition in other areas, such as quality, experience, and service, the exchange of price information does not violate the federal price-fixing statutes. For example, one court found that the exchange of pricing information between school portrait photographers was not an antitrust violation, since there was no agreement on prices and there was strong evidence of competition in other areas such as quality and service."

sound like us? Quite definitively it looks to me!

Carolyn E. Wright, over at The Photo Attorney says that photographers seeking advice "... sometimes will solicit this information on web forums only to be told that activity is illegal. But is it? It depends. Asking other photographers what they charge for their services is not illegal. ...if you continually ask other photographers what they charge and then adjust your pricing to match theirs, your conduct probably is illegal. ...If you ask others what they charge so that you don't price yourself out of the market or charge too little, then you probably aren't breaking the law. But it's best to check your competitors' pricing rarely and not automatically use it as an excuse to change your prices to match theirs. "

I submit that with the number of photographers, and almost infinite style-types that exist, it is near impossible to make a valid claim of price fixing. Further, discussions on chat boards and listservs - especially public ones - diminish the argument that any dialog that took place was in secret, one of the tenants of the law that precludes price-fixing. A public discourse, among fellow photographers, I submit, would be a long shot at making a case for an anti-trust violation because it wouldn't meet the tests that there was an "agreement" nor one that was "secret".

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United We Stand Divided We Fall

Excerpted from Their Article

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The American Association of Advertising Agencies has two words of advice for agencies asked to give away rights to ideas they present in new-business pitches: Say no. The American Association of Advertising Agencies has come down strongly on the side of an agency's right to own the ideas it presents when pitching for a client account. It is the first time the trade association has taken a position on the matter, but the leading ad-agency association is taking action (via a white paper) because "in the last few years, there's been a tendency for marketers to ask for ownership of ideas," said Tom Finneran, exec VP-management services. "It is an onerous matter for agencies." (Download the white paper). Several years ago Hilton Hotels set off a firestorm of protest among agencies when it asked contenders in a creative review to sign over their rights to ideas they pitched -- with no compensation in return. "Agencies need to know that just because they're given a document asking for rights doesn't mean they must sign it," she said. The paper cites alternatives to ceding ownership such as asking a prospective client to agree in writing that ideas presented in a pitch are owned by the agency. TBWA/Chiat/Day has a clear policy about idea ownership. "We never accept a stipend because we always retain ownership. In a pitch situation, we work with a prospect the same way we would with an existing client," said Laurie Coots, chief marketing officer worldwide. "We keep accurate records of resources, activities and document the value of all we've done." She goes on to say "When you act like something [of yours] is valuable, others treat it like it has value too."
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Does this ring a bell? Furthermore, this is a valuable white paper to share with any AD who insists on copyright/ownership. Just point them in the direction of the Ad Age/AAAA information (politely and with tact of course!) and your argument will be that much better towards retaining ownership of your work.

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Lies, Lies, and More Lies

I became aware of a list on the Painter Creativity site that is directed towards Native artists and designers. Below are the top lies, but more importantly, if you're curious about how this native-centric website encourages people to respond to each of the lies, click through to the link above as the responses are interesting.

Top 10 Lies told to Naive Artists and Designers
Mark W. Lewis
1 "Do this one cheap (or free) and we'll make it up on the next one."
2 "We never pay a cent until we see the final product."
3 "Do this for us and you'll get great exposure! The jobs will just pour in!"
4 On looking at sketches or concepts: "Well, we aren't sure if we want to use you yet, but leave your material here so I can talk to my partner/investor/wife/clergy."
5 "Well, the job isn't CANCELLED, just delayed. Keep the account open and we'll continue in a month or two."
6 "Contract? We don't need no stinking contact! Aren't we friends?"
7 "Send me a bill after the work goes to press."
8 "The last guy did it for XXX dollars."
9 "Our budget is XXX dollars, firm."
10 "We are having financial problems. Give us the work, we'll make some money and we'll pay you. Simple."

The article goes on to say "In the end, working commercially, being a terrific artist is about 25% of the task. If that is the only part of the task that you are interested in, do yourself a favor. Don't turn 'pro.'"

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Sour Grapes?

So, the folks who are inspired to make and (essentially) give away their work for the joy of seeing their work out in the world are up in arms because people are further spreading their (supposedly) royalty-free work beyond where they were expecting. This istockphoto thread about the Flickr distribution of their work has got many folks a flutter on the iStockphoto message boards.

People -- when you give you work away for peanuts, don't get upset when someone makes peanut butter and starts re-distributing it! Perhaps this use is outside of the scope of the license - and I want to emphasize "perhaps", but this is what you cheer from the rooftops about in the forums when you run across one of your images on a billboard that you received $0.50 for, right? The idea of some communal "I just want to see my work in print" mentality somehow here has been turned on it's head. And now, the free-love hippies of the 60's cum free-photos hippies of the 00's are screaming "not fair" when they think they are being exploited.

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Voicemail - be a pro

When you're not home, your voicemail is the only - and initial - interaction that your prospective client will have with you. Making sure that it is a professional and positive experience can easily mean the difference between a prospective client leaving a message and their hanging up. To that end, make sure your voicemail on the landline and on your cell phone are complimentary, written down, and practiced, and sound professional. When recording it, do so in a quiet room.

If your home line is also your business line, your spouse will have to understand that the message will say "John Smith photography" rather than "you've reached the Smith family...". With the costs of a second line fairly low these days, it's economical to have that second line be the family line.

Consider hiring someone. For a small business such as most photographers operate, the fee to do the work is minimal, and the benefit you'll receive from being percieved as a professional business will be well worth the expense. Doing a search for "voice over talent" (without the quotes) and then adding in your city or state will give you great results, or you can try the Voice123 where they will bid for your work, and you can hear samples of the people you might hire.

Here's the script for my voicemail:

Regular Message:

• Thanks for calling John Harrington Photography. We apologize that we are not able to take your call right now. You may also try contacting John on his cellular phone. 202-255-4500. To leave a message here, please begin speaking after the tone. Thank you.

Message callers receive when you are on the line:

• Thanks for calling John Harrington Photography. We are currently on another line, and can’t take your call. Please leave a message including your telephone number and what your call is regarding, and John will return your call as soon as possible. To leave a message here, please begin speaking after the tone. Thank you.

Cellular Phone Message:

• Hi, you’ve reached the offices of John Harrington Photography. We apologize that john is not currently available to take your call. Please leave a detailed message and John will return your call as soon as possible. Please begin speaking after the tone. Thank you.

If your fax line has voicemail by default, set the fax to answer by 2 rings, and if for some reason it does not answer, have the voicemail pick up after six rings, with the following message:

• You’ve dialed the fax line of John Harrington Photography, at 202-544-4579. At this time, the fax machine is not functioning. Please call the office at 202-544-4578 so we may reset the fax machine and receive your fax.

By having your cellular phone sound the same as your landline, a call made to your landline which you've forwarded to your cell phone because you are out of the office will sound similar to your landline and clients will not know that the call's been forwarded.

And one more thing, don't have a soundtrack! You're a photographer, not a DJ.

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We Are Not Alone

So, the models are the latest to feel the squeeze. In the February 3-4 edition of the Wall Street Journal Weekend Edition Strike a Pose, Count Your Pennies, models are being hurt by reduced fees and foreign models coming to the US to take "their" work. The chance of becoming successful as a model was already slim-to-none, and Slim just left town it seems. Models from the former Eastern Bloc are being imported, much to the chagrin of the locals. During the 2006 Fall Fashion Week, Calvin Klein had all foreign models, and over half were from the former Soviet Union and environs.

The article cites industry experts that say "it's a client's market" and that NYC fashion houses are no longer paying at all, instead, you (might be, but not always be able to) "work for trade", meaning you get to keep a dress (or two) you've worn. This a far cry from when models were paid $10k (or more) per show. Now, Milanese houses are paying about $650, and ply the girls with "think of the exposure you'll get";, which is something that many a still photographer has heard over and over and over again. The article follows the travails of 18-year-old Bianca Gomez (above, right) in New York, who, among other things, footed her own $4k bill to fly to Milan for auditions. "After four days and no bookings, Ms. Gomez sat outside the Milan office of her agency's partner firm, and cried. 'I hate it here,' she said. 'They don't treat models as humans." This is similar to the treatment that photographers have had to endure for years, by many unapologetic clients who have been known to say, on more than one occasion "If they'll work for peanuts, then that's all we'll pay them." To save money elsewhere, "Ms. Gomez takes the subway, cooks macaroni and hot dogs for dinner". All this while the fashion houses and media conglomerates make their millions, Ms. Gomez works for a trade for next seasons' frocks, and unknowing photographers make their images "for photo credit and exposure."

Worse, the WSJ reports that the coveted cosmetic ad contracts are going to celebrities and not models, for the most part, and the fashion houses fear that big name supermodels will overshadow their lines, so they prefer the unknowns. Further, the model pays all her expenses for auditions overseas, the agency does not participate, yet when they do get jobs, the agency takes their 20% off the gross pay, not the net pay, before the model even gets her portion. Gone are the days when an agency signs a girl and then nurtured their careers, and yet there are no shortages of girls. For Klein's show their casting folks looked at between 700 and 1,000 girls for their 22 spots, according to the WSJ.

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