Common Cents - Freelance News and Views

Portions of this column were originally written for the November 2008 edition of News Photographer Magazine.

Mark Loundy is a media producer and consultant based in San Jose, California. Full bio.

The opinions in this article are those of the author alone and do not necessarily represent the official views of the National Press Photographers Association.

November 2008, Volume 74
By Mark Loundy

"We must all hang together, or assuredly we shall all hang separately."

— Benjamin Franklin

It's not as if we woke up one morning and editorial rates had imploded and contracts suddenly turned into one-sided suicide pacts. No, we did it one assignment and one contract at a time. Every time a photographer agreed to a lowball rights-grabbing contract it became just a bit harder for the next photographer to make a good deal.

And it certainly wasn't Jill Greenberg's fault. If you recall, Greenberg got an assignment from The Atlantic to photograph presidential candidate John McCain for the Magazine's October cover. After the session, Greenberg called McCain over for just one more set-up — which turned out to be bottom-lit monster-style lighting hidden by a top light in which only the model light was functioning.

Greenberg not only gloated about her subterfuge calling McCain's handlers "not very sophisticated," she posted on her website heavily manipulated images from the shoot that added bloody fangs to McCain's mouth. One image included a monkey defecating on McCain's head.

Veteran Intellectual Property attorney Ed Greenberg (no relation to Jill) opines that photographers might be risking their legal necks by not behaving professionally on assignments: "Regardless of whether your written contract, agreement, invoice or if (God forbid), you are operating without a written agreement, all contracts by law contain what is called an 'implied agreement to deal in good faith'. In plain English, a party to a business transaction or agreement is required to be 'fair' and act in good faith with respect to the other party. Such requirement exists in virtually all states and again, does not require an explicit, written clause be in writing. It is part of all transactions."

Even if every publication has not (yet) inserted a "Greenberg Clause" into their contract boilerplate doesn't mean that she did no damage to the profession. Her antics added yet another excuse for publications to demand even more control of images shot on assignment. When asked about the Greenberg incident a source inside The Atlantic is quoted as saying, "wait till you see our new contract."

Like it or not, each of our actions affects all of us.

Guideposts. Their standard contract actually indemnifies the photographer for legal issues.
Sailing World for their one-time use contract. But you've got to get past their ugly rights-grabbing contract first. They also have two pay scales. Make sure that you're not getting paid as an amateur.

Pink magazine for responding that they, "try not to buy pictures," in an exchange over their request for an image.
The management for Beck, Foo Fighters and The Mars Volta for demanding the copyright to images shot at their concerts. Reports are that if you push back on their pre-concert releases, they will cave.

Class Editori in Milan, Italy for not getting a native English speaker to translate their contract. It is nearly indecipherable. The portions that I can understand appear to be about grabbing the photographer's rights and indemnification.
SPM Sports for expecting professional photographers to buy into their all-volunteer publication concept. "Hey kids, let's put on a show!"
The Biography Channel for offering $20 to use an image on one of its nationally distributed shows.

Please let me know of any particularly good, bad or ugly dealings that you have had with clients recently. I will use the client's name, but I won't use your name if you don't want me to. Anonymous submissions will not be considered. Please include contact information for yourself and for the client.

Leftovers

If you shoot for any Gannett publications, watch out for contract changes. Word is that they want to unify all of their freelancer contracts into one that is decidedly bad for freelancers. There are also reports that assigning editors have backed down when shooters refused to sign one of their less desirable contracts. (Disclaimer: I have done video work for Gannett under a very clean one-time use agreement.)

Jeffrey Gitomer, author of "The Little Red Book of Selling," writes in AZBiz.com about negotiation, " Negotiation is for people who are lousy at selling..." Gitmore says that if you adequately establish your value and sell as high-up in an organization as possible, you may not have to negotiate. This is a must read.