BEYOND PRICE: THE OTHER MOVING PARTS OF A PHOTO AGREEMENT

There is no shortage of material available to photographers discussing the finer points of negotiation.  It’s catalogued in books and trade articles and usually aims to describe the ins and outs of the process to arriving at a favorable agreement.  These texts are typically part industrial psychology, part interpersonal communication skills, and a little bit of education about what a good contract looks like.

I don’t intend to use this blog post to reinvent that wheel.  What I do intend to do is to lay out a single principle around which a good negotiation should center and work backwards to describe how photographers can use their own creativity along with all the moving parts of a contract so that the final agreement isn’t disproportionately slanted in favor of the stronger party.

The principle around which I build my negotiations is so simple that it borders on being a truism: don’t give up something for nothing.

On the surface, this idea seems obvious.  Usage of a photograph has a price that is determined by how a client wants to use it and for how long they want to use it for.  Specific use for a specific duration.  The price of the image is tied to those two moving parts; change the use or the duration and the price will change with it.

Price, however, has more than one dimension.  Rarely, if ever, do photographers arrive at a bottom line that matches their client’s budget.  Herein lies the biggest trap for well-meaning photographers.  If your client’s budget does not match your price, it’s not in your interest to accept their budget without asking for some concessions.  The client must either come up on their budget or the photographer must negotiate additional terms so that the resulting deal does not give up something of value for nothing.

35,000 feet in the air, flying home from New York on Saturday, I realized that the airlines have started to tune in to this idea in the way they deal with travelers.  They are exceptionally effective at finding the maximum price a person is willing to pay for a seat and charging them appropriately.  Their voodoo considers a complex set of factors including demand, competition, and inventory, but essentially boils down to this: cheapskates will fly coach and book their seats early.  The more scarce seating becomes, the more it is worth.  The more comfort you want in your trip, the more you will pay for it.  The lesson to be taken from this is that price is only one factor in how a ticket is sold.  Time, convenience, and comfort account for the remainder.

Transferring this to how we sell our images isn’t as complicated as it might seem if we take into account the other moving parts in a deal.  Running through a typical photo contract, there are plenty of things that a photographer can bargain with aside from the price, including:

1. Size of the Images –How big and where will they appear?

2. Quantity of Images –How many images will the client use?

3. Use of Images –Will they be appearing in one format or is the client asking for additional usage?

4. Time of Delivery –Will you deliver ASAP or is this something you can put off for a while?

5. Method of Delivery  –FTP, personalized gallery, CD, prints?

6. Payment Due Date –Due on receipt, Net 30, Net 60, etc.

7. Interest and Finance Charges for Late Payment

8. Embargo –How long will your client have exclusive use of your images?

9. License –Exclusive, nonexclusive, future usage, buyout, etc.

10. Modifications –Will you allow your client to modify your images?

11. Options for Additional Usage –Are you allowing your client to lock in on a price for future usage?

12. Indemnification –Are you guaranteeing against any loss your client might suffer or vice versa?

13. Jurisdiction –Will disputes be heard in your state or will you have to go to your client’s state should trouble arise?

In short, the higher the price a client is willing to pay, the more flexible we can be with these additional terms.  The lower the budget, the more we should ask for in the way of concessions.

I’m always a little surprised to read message board posts that talk about deals as being rigid, inflexible things that are completely tied to a client accepting a specific price.  Intellectual property agreements can flex in so many different places that the real trick for the skilled negotiator is to figure out which term is important to the client and arranging the others so that the resulting agreement is fair to both sides.

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Matt Slaby is a Colorado-based attorney (and photographer).  Matt attended the University of Denver College of Law on a full public interest scholarship.  His experiences in law school include a PILG clerkship for ongoing civil work with El Centro Humanitario’s legal clinic as well as handling wage claims and contract issues for DU’s Civil Litigation Clinic.  He is a founding member of Luceo and, in addition to his photography, brings his legal background to the organization.  Questions, comments, and ideas for future posts are welcome.  Please add them to the comments section or reach me here: mattslaby@luceoimages.com

PS.  Yes, that’s my desk.  At least the cleanest part of it.

BEYOND PRICE: THE OTHER MOVING PARTS OF A PHOTO AGREEMENT There is no shortage of material available to photographers discussing the finer points of negotiation.  It's catalogued in books and trade articles and usually aims to describe the ins and outs of the process to arriving at a favorable agreement.  These texts are typically part ...