Pricing & Negotiating: Fast Company Contract
Friday April 29th, 2011
by Bill Cramer
A few months ago, I got my first assignment from Fast Company. I was happy to hear from Assistant Photo Editor Lisa Parisi, who asked me to photograph a computer scientist at Carnegie Mellon University in Pittsburgh for a story they were doing on robots. Fast Company tends to use great photography, so I was glad to have the opportunity to try to impress them.
Lisa was very organized about the assignment, which was really helpful. She sent me a Call Sheet with all of the details of the shoot – including contact info for the subject and a list of situations they wanted to cover. She also sent a Photo Directive that provided general guidance about what kind of pictures Fast Company likes to use, as well as nuts-and-bolts reminders about shooting with and without eye contact, horizontals and verticals, posed and off-moment pictures, a variety of angles, expressions and scale. Lisa also sent about 30 photographs to show examples of their idea of a successful environmental portrait. Having said all that, she was also quick to point out that if her expectations didn’t match up with the reality of the situation, I was free to take the pictures in whatever direction I thought was appropriate.
In her first email to me, Lisa said, “Our budget for the Fast Talks are typically flat fees of 1500. But I realize the travel might make it higher in this case.” She elaborated on the phone, saying that she could cover hotel, mileage, parking, tolls, meals. I took that to mean that she didn’t want to pay for a travel day for me or my assistant. It would be a five-hour drive to Pittsburgh, which we would do the night before. I would shoot in the morning and then drive back to Philly. In retrospect, I probably should have pressed at least for the additional assistant time, but I didn’t (of course, I paid my assistant for that time anyway).
Whenever I work for a flat fee, I back out the expenses that I would otherwise charge, to see what the creative fee really is. For a shoot like this, I normally charge 250.00 for an assistant (in this case, it would be more like 400.00 or so with the travel). I normally charge 300.00 for a digital fee, which includes cameras and the initial processing and posting a web gallery. If the creative fee is generous, I typically don’t charge separately for strobes or file prep. Otherwise, I’ll charge 150.00 − 300.00 for the strobes on a basic editorial portrait shoot, and 25.00 for each file prep. 1500 − 400 − 300 − 200 = 600. A modest fee, factoring in the travel. I asked Lisa if they pay space when they use more or bigger pictures and she said they didn’t. She said for this section, they usually use one or two medium to smallish pictures, and that they pay more for features and covers.
At this point, I usually ask the client if they have a contract they’d like me to look at. After all, the fee for the job doesn’t mean much without knowing how the client intends to use the pictures. But with the shoot coming up on such short notice, Call Sheets and Photo Directives to absorb, and some reading to do on my subject, I chose to concentrate on the creative rather than spend what little time I had reviewing and negotiating a contract. That’s not my normal operating procedure, of course. Negotiating terms after the fact can be awkward to say the least. But I had met Lisa before and I had worked with her Director of Photography Leslie Dela Vega when she was at Time, so I was confident that we would be able to come to terms amicably afterwards. If Lisa had sent me the contract before the shoot, I would have been obliged to read it carefully before accepting the job. If I had the contract in hand but let the negotiations go until after the shoot, it would be harder for me to press for changes at that point because it would be reasonable for her to say that I knew the terms in advance.
Photographers should be aware that there are some unscrupulous clients out there who will intentionally withhold sending a contract until after a shoot, thinking that the photographer will have diminished leverage to negotiate at that point. The fact is that both parties are equally disadvantaged in those cases. After all, the client can’t publish the pictures without the photographer’s permission and the photographer won’t get paid until they have reached an agreement with the client. That was not the case here.
I enjoyed the shoot. Here are a few of my favorite pictures along with a tear sheet:
A few days after I delivered the job, Lisa did send over their Photography Commissioning Agreement (modified, signed version). As far as magazine contracts go, it was more photographer-friendly than some and less than others.
Here’s a breakdown of the terms:
1. Fees. This says that we’ll negotiate the rate separately for each assignment. That’s fine. Though my preference has always been to structure editorial fees on the basis of a day rate vs. space. That way, the compensation is proportionate to the use and you only have to negotiate the expenses on a case-by-case basis.
2. Grant of Rights. Exclusive first worldwide rights. Fine. Archiving rights. Fine. Web use. Fine. Use in the publisher’s other magazines at their normal space rates. Fine. Anthology use is starting to push it a little. If they’re going to create a new product that generates new revenue, I think that deserves additional compensation for the photographer. I didn’t think the point was significant enough to object to, so I let it be. Reprint rights. Not fine. When a third party licenses editorial photos as part of an article, they’re typically used for promotion, which is essentially advertising. That has real value and should be negotiated on a case-by-case basis. I struck that line. Foreign language editions. Okay, but also pushing it. Again, if the publisher is making significant new revenue, I think the photographer should too. In this case, I don’t think they have foreign editions. So I chose not to fight that battle. Advertising use. In retrospect, I should have clarified that they could use the pictures for advertising provided they were used in the context of the magazine. As a practical matter, I think this is what they would do anyway. Syndication and other third party use. No. Again, if my photograph is generating new revenue, I think I’m reasonably entitled to some of it.
3. Services. The photographer will follow instructions and adhere to professional standards. Of course.
4. Expenses. Publisher will pay for travel expenses. Fine.
5. Publisher’s Expenses. Publisher will arrange and pay for studio and location fees. Fine.
6. Submission and Acceptance. Photographer will turn in the photos as soon as possible and the magazine has no obligation to run them. Fine. What it doesn’t specifically say is whether they’ll pay the photographer if they reject the photos. I take that to mean that they will. I’ve seen contracts where the client wants to pay a kill fee if they choose not to use the photographs for any reason. I think it’s reasonable for the photographer to reshoot the job at his own expense if the pictures were unusable because of his negligence. But I also think it’s reasonable for the client to pay the photographer in full if they choose not to use the pictures for any other reason.
7. Payment. Publisher will pay photographer in the ordinary course of business. Okay. But specifying 30 or 60 days would be better. Photographer will provide copies of receipts and will be issued an IRS 1099 form on the total invoice (which the photographer will have to claim as income). Good. Some magazines want original receipts, which is not reasonable. (The photographer needs the originals in case of an audit.) If the client does insist on originals, they should 1099 you for just the fees rather than the fees plus expenses.
8. Exclusivity. 90 days from on-sale date. A little on the long side, but fine.
9. Models, Etc. Photographer will get releases signed when asked by the photo editor. Fine.
10. Retention of Photographs. Publisher may hold on to original photographs until publication and duplicates thereafter. Okay, but not ideal. I’m shooting digital, so it’s a moot point. But photographers delivering original transparencies should put a limit on how long a magazine can hold the pictures without publishing them (this goes for exclusivity too).
11. Credit. You will get a credit, but we’ll decide what it looks like. Okay.
12. Representations and Warranties. You shot the pictures, they’re yours to license, and their publication won’t infringe on anyone else’s rights, and the photographer will cooperate in defending any third party claims. Fine.
13. Term. The agreement will be effective until terminated by either party. Okay, but not ideal. I think it’s better to have an actual termination date. The contract is going to evolve one way or another. Having multiple contracts can make it unclear which contract affects which assignment.
14. Independent Contractor. The photographer is independent for tax, unemployment, insurance and liability purposes. Fine.
15. Miscellaneous. The contract is governed by the laws of the State of New York. Fine.
I then sent my invoice with the appropriate back-up. (You’ll notice that I only had one hotel room. I actually didn’t share a room with my assistant. Our shoot happened to be close to her parent’s house, so she stayed there.)
Last week, Leslie Dela Vega was kind enough to field a few questions from me. Leslie has been the Photo Director at Fast Company since last November. After receiving a photography degree at San Francisco State University in 1998, Leslie landed an internship at Vibe Magazine. In between, she has also worked in the photo departments of Self, Premiere, Teen People, then back at Vibe as DP, Fortune, Time and Essence. Leslie is a frequent speaker and panelist and she has helped judge competitions for SPD Awards, American Photo Awards and Communication Arts Photography Annual. If that’s not enough, she has also continued to pursue her own photography when time allows.
The robot shoot I did for Lisa was for your Fast Talks section. The rate was 1500.00 plus travel expenses. Do you have standard rates for other sections of the magazine and for the cover? And if so, what are they?
We have just the front of the book, then features. For the front of the book our budget is usually 1500.00 which includes all expenses. Unless of course, there is travel involved. For the feature well, it usually depends on what is being photographed, how it is photographed, is there a concept, additional props, studio, etc. It’s a little more production heavy so the budget varies. But they usually start at 1500.00 and go upward.
How much/how often do you stick to those rates and how much do you negotiate depending on the photographer?
We stick to those rates all the time, unless of course, there is a special circumstance, like more equipment is needed for a particular shoot. At times, some negotiating is required if there is a photographer we really want to work with and travel is needed, etc.
Of the photographers you work with, what proportion of them sign your contract as-is and what proportion successfully negotiate revisions?
Most of them sign the contract as is. If there are any revisions, it’s usually the 3rd party clause, which is understandable. But [even when] that clause … is not revised, I will ALWAYS reach out to the photographer and discuss the situation (if it arises) with them so they are fully aware and will work with them.
Do you have any experiences you can relate or advice you can give photographers about how to best approach the negotiating process with magazine photo editors?
Please remember that most photo editors, if not all, are on the side of the photographer. We know how hard you work, and if we have a relationship with you, there is a trust involved. So you should be able to feel comfortable in negotiating any assignment and we will try as much as possible to accommodate you, if not more. Our goal is to bring incredible imagery to our magazines and we can only do that with you. It’s a 2 way street. We need each other.