Shhhhh! We're Talking Pricing here...
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".
Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.
6 comments:
About bloody time someone stood up to this non-sense that we can not compare notes within out communities.
Much needed conversation and discourse. They great fear that ASMP was somehow involved in setting prices so long ago and for all these years people believed it.
NOW, if we could just get clients past the APA price survey of the late nineties and the absurdly low creative fees paid for editorial - then we could make some progress.
OF all the articles and rants on this site - this is by far - the best and most important article to have been published.
Thanks John. You raised it up a notch.
There is a big difference between ascertaining what price *are* and attempting to reach an agreement on what prices *should be*.
Asking other sellers about their rates is no different than looking at the price of oranges in a supermarket. In fact, a good argument could be made that increasing price transparency -- such as through discussion on a public forum -- makes the market more competitive, not less.
Nice post, John.
I think the real barrier is in our peculiarly american reticence to discuss money in general. Consider how taboo it is to ask someone at a party "How much do you earn?"
Likewise, photographers are afraid to tell what they charge for fear that it might not be enough, or that they'll be perceived as snobbish, or that they're breaking some social more. The whole subject is repressed in our society!
John:
Nice post. The thing I wonder about is LAWYERS...you can call a law firm and get a billing rate for an attorney. And lawyers talk about what other firms are charging and what their own billing rate is...how is that any different from pro photographers? No different, except that lawyers are well organized and know how to avoid antitrust issues...they are lawyers after all. Why is is wrong for photographers to be transparent about how they bill? How is it antitrust for us, but not for them, nor any other profession?
Laura B.
I think the whole "anti-trust" argument was made by Weisgrau to keep himself in power during his reign at ASMP.
I've always felt that that argument was hollow and pointless. Like it gavecreedence to the heads of the trade organizations.
Photographers have always spoken to photographers they respect and know, to get a sense of feel of what is right (and profitable) and more than anything else, to not underbid another photographer by making a mistake.
i think the only actual problem is that photographers (like many other small busineses) dont want to talk about what they charge. I really dont think it has anything to do with anti trust law, i think thats just a red herring
Post a Comment