Omnicom Group’s Bad Terms For Photographers And Producers

So, it appears that Omnicom Group doesn’t want to be responsible for paying vendors if the client hasn’t paid them. It certainly seems to be the trend these days where citizens are held responsible for corporations that can’t pay their bills but an advertising agency eliminating their traditional role as financier for advertising campaigns maybe signals an impending overhaul of the way business is conducted. It seems like some kind of insurance may be required to pull off a big budget shoot in the future.

Here’s the media alert ASMP sent out:

Omnicom Passes the Buck

It has been brought to the attention of the American Society of Media Photographers (ASMP) that the Omnicom Group, the world’s largest advertising agency holding company, has changed its terms and conditions in an effort to limit their agency liability and in so doing transfer that liability to independent photographers and producers. Basically, by disclosing their agency status and for whom they are acting, the advertising agency is only liable to the extent that their client has specifically paid them for any amounts payable to you. Additionally, ASMP has been informed that reps are being told that there will no longer be any advances on assignments.

These new policies are most probably the result of the market and governmental pressures experienced by major corporate clients such as GM who in their effort to avoid bankruptcy are now prioritizing their financial obligations and will make payment according to those priorities. In other words, some suppliers will be waiting significantly longer to be paid depending upon the client’s priorities. That being the case, agencies do not want to be left on the hook for reimbursement of monies expended on behalf of their clients, especially where the fear of bankruptcy exists.

These terms and conditions are simply not in the best interests of photographers, producers or clients. This action, clearly taken in anticipation of increasingly difficult financial conditions is a unilateral effort to shift the burden onto those who are least prepared to bear it. Should an independent photographer of moderate means be the banker for a Fortune 100 company? By eliminating their customary role as intermediate financier, agencies are removing value from the value-added chain, and that will ultimately lead to an overall dampening effect on commerce.

Meanwhile, there is no incentive for the agencies to make photographer friendly changes to their terms and conditions as long as photographers are willing to accept the current terms. Notice of these changes should be included in your blogs and discussed on related lists and social networking sites. The issue needs to become viral and requires significant support from key photographers in order to gain traction and effect change. If it is business as usual for the agencies, then nothing will be accomplished.

ASMP would recommend that photographers include in their paperwork a statement making it clear that there will be no grant of copyright license until all related assignment invoices are paid in full. Images should be registered with the Copyright Office immediately upon completion of the shoot and prior to first publication and/or possible infringement so that in the event that legal action – a last resort – is needed, recovery of statutory damages and court costs will be possible.

In addition, the Association of Independent Commercial Producers (AICP) recommends the following:

“If an agency’s internal policy insists upon these payment terms (sequential liability), the production company should:

a) Make sure the advertiser (“client”) also signs this agreement. If it is a rider, the terms of payment and the full contract price should be added to the rider.

b) Be provided with the advertiser billing and contact information.

c) Copy the advertiser on all invoices.

d) Notify the advertiser of payment due as soon as terms of the contract (payment dates) are not met by the agency.”

As a possible course of action, since the agencies are shifting liability to their corporate clients, perhaps photographers should consider approaching the clients directly for advances and or other payments prior to the beginning of the assignment.

Ultimately, this is a case of the supplier beware!

Eugene Mopsik

Executive Director, ASMP

mopsik@asmp.org

There Are 42 Comments On This Article.

  1. This is indeed a fucked up change. I’m a photographer, not a bank nor financier. It was bad enough when the two big stock agencies shifted all the production costs onto the photographer with zero guarantee of purchases. In addition, when was the last time anyone was paid from an ad agency before 90 days? (most often 150-180 for me).

  2. As an emerging pro photographer, i have to say this is very disheartening. Now i’ve got to have $2-10,000 on hand at all times to fund shoots, and wait 30-180 days to have that money returned (not to mention monies withheld for lack of approval). Or, is this just an early indicator of a move towards (more / larger) agencies having in-house photographers?

    • @Kenneth, $2-$10,000. Last summer we had to pay $36,000 for last minute flights to the other side of the world for us and our crew before the advance came in. Luckily the advance came quickly.

  3. All of this news is shitty. We should skip dealing with the middle man, the agency, when it comes to money and just deal with billing the client. Rather then waiting for an agency to pay us.
    The mega ad agency or omnicom might crash and we can go back to smaller run places. There is more control and less bull shit.

    • We need those kids from the agency to bring us their doodles on bar napkins and swipes from other people’s portfolios to keep our photo shoots fresh and innovative.

  4. How will the photographer know whether the client has paid the agency? Without acces to the client’s correspondance and accounts the photographer would just have to take the agency’s word for it.

    And what if the client doesn’t pay for a long time, the agency tells the photographer the client hasn’t paid, then some time later the client coughs up – is the agency likely to go back to the photographer and admit that the client paid up after all and hand over the cash?

    Or, the agency might make a commercial deal with a client to pay a bill on one campaign and write off another one. Or to, say, write off half the amount on one campaign in return for being given another job. How does this affect the photographer? There are far too many possibilities and variables which have nothing to do with the photographer. It’s a crock of shit.

    • @Simon Crofts,
      More confusingly, what about when the agency has a massive account like GM which has already paid a retainer and/or has receivables coming and going like a revolving door. Often it’s run more like a tab, rather than discrete invoices being paid for specific jobs.

  5. ad photographer

    1. It’s good that ASMP responded quickly to this issue. It makes you wonder: where was/is APA National here? Looks bad when ASMP beats you to the punch, in an ad agency matter.

    2. Yes, Rob, I too wonder how an “insurance solution” would work in this situation. I have heard of insurance line items on large film productions, but certainly not to address sequential liability. I think that’s more for weather or delays. What would you do — go to your Agent with a P.O. for a hundred grand, and say, “hey, I want to buy a policy for the P.O. amount, in case my client goes belly up in the next six months”? (And laughably, let’s hope that that insurance agency is not AIG). And then, could you add that Insurance Line Item to your Estimate? To cover your ass in advance? I’d say yes.

    3. Advance: So, if they’re not issuing Advances any longer, (ie General Motors article recently), then you could put in a separate line item on the Estimate and call it “Fee for Advance Money that you never paid”, and bill the cost of the borrowed money?

    4. And for sure, in addition to Mr. Mopsik’s good suggestions above, I’d also add in another one, in upper case: “No Usage Rights are granted until the entire invoice is paid”, and then hold their feet to the fire. What do you do then — monitor the ad agencies’ deadlines and production/submission deadlines for publications, and issue some kind of Cease/Desist letter that prevents them from using your image in InDesign files sent to magazines until the magazine is paid? (Now that’s got to be great for public relations with your client, huh?)

    5. Weird times indeed. With this topic, and the sales tax topic, it’s good for young photographers to be reading. And they thought it was only about shooting good pictures… Good pictures are about 2% of the equation, in real life.

    • @ad photographer,
      A week after i got my business license i realized how difficult this biz was going to be, But this is ridiculous.

      • No Name #1

        @Kenneth,

        ASMP is known for jumping the gun and claiming credit for all sorts of actions.

        Are you so sure APA is not working behind the scenes?

        Just because you are the first to crow about it does not make you the biggest rooster in the yard.

    • @ad photographer,
      point #5- yes there is a reason why art buyers talk about working photographers/agents with production experience and it’s not just about barking orders on set.

  6. This is indeed yet another example of why advertising agencies are no longer needed. Omnicon has now decided that yet another of their “services” is no longer a valid business model : that of actually commissioning and supplying finished work to their client. If Omnicon will not accept responsibility to it’s vendors for work they commission on a clients behalf then neither the client nor the vendors used for production no longer need Omnicon.

    The creative strategies generated by the agency can be had via freelance creatives who can invoice the client directly along with the producers who facilitate the idea ie film companies, illustrators, and photographers. The client would save on average 17.5 percent on production and the producers would have a direct line to the client. Since the ad agency now fulfills exactly what their clients request they bring virtually nothing to the table except the ability to fulfill the clients request ie commission producers.

    Independent media purchasing agencies are buying more media for advertisers than at any time in the past, there are more freelance creatives available than ever, marketing and advertising mba’s are available for hire by clients directly and what corporation would not want more efficient and effective advertising at a substantially reduced cost.

    Some one please tell me what this behemoth actually provides their clients that can not be done without them. Hey Omnicon the magic’s gone.

    • @Carl Corey, While I love this idea the one thing that freelancers do not hold over the giants is bulk buying. You can bet Omincom gets better media rates than joe freelancer would. Though you do raise a good point – saving the 17.5 % – would that be enough to level the playing field. Maybe not quite but close. Time to shake the model.

  7. I’d be happy to finance an ad shoot if I could:
    1. actually get enough credit to do that
    2. charge additional interest on the loan amount until it’s paid
    3. have insurance for when it doesn’t get paid
    4. have the agency pay those insurance premiums

    Which sounds totally doable. Right.

    This is bad for everyone involved — from the agency to the photographers to the producers, assistants, talent, etc…. Ultimately It will severely limit Omnicom’s choices of photographers. Most photogs won’t even have the ability to bid the job, because they don’t have the cash or the credit to do so. Others will stretch to make it work, then get buried as they carry 100k of debt through a slow, tight economy for 60, 90, 120 days. Eventually they won’t be available either, leaving a select few that have the cash or credit to pull this off.

    Best of luck Omnicom!

  8. This troubling news just drives home the point that as photographers (the small wheel in the cog) we need to get advances on EVERY job. Especially in this economy where jobs are harder to get, fees are getting hammered, and corporate culture apparently doesn’t believe in fiscal responsibility anymore.
    I always ASK for advances on larger jobs, now I’m going to be DEMANDING on EVERY job. I can’t afford not to. The economy is effecting me just as badly as it is GM. Only difference is the number of zero’s…

    The only reason this is being handed down from Omnicom is that they think they can get photographers to cave in to any demands. I don’t shoot autos, but I hope the truly talented photographers who do (the ones with the largest overheads of any type of photo speciality) will say no and stand up together on this one. And not just photographers, but rep agencies and producers.
    The bottom line is most photographers I know simply would go out of business trying to act as a bank.

    Spread the word. Your future as a photographer is about to end if they are allowed to get away with this.

  9. I received this request from a Omnicon agency in Detroit last week. This request is NOT limited to just photographers, but ALL vendors who might work with GM.

    My answer to my rep was a RESOUNDING……no. Its fundamentally wrong to fund anyone’s photo shoots, especially large corporations. Do not over think it or try to rationalize it. It’s WRONG and you should not ever do it. PERIOD!

    • ad photographer

      Here’s the link to PDN story.

      http://tinyurl.com/dkuaxh

      And I spoke with a friend of mine, a car shooter in Detroit, recently, and he says this is just the tip of the iceberg. The details are not encouraging.

  10. This is definitely going to become an issue not entirely exclusive to Omnicom as soon as other holding company CFOs decide further tightening the purse strings can decrease the amount of debt in their books.

    Here’s a piece I wrote about the issue when the film producers started to get up in arms about it a few weeks ago: http://tinyurl.com/dlmu4x

    Funnily enough, I’d just finished a piece on what Argentine creatives did and noticed as their economy slowed down a decade ago; a quote that stuck with me was this: “one thing I remember was the sudden all-powerful and in full metal jacket appearance of CFOs and other financial managers, messing even with the creative product itself, in some cases deciding over who should stay or go in creative departments. That was a moment when I said “oh dear, the boat is sinking.” (that’s here, btw: http://tinyurl.com/bug3tj)

    Generally I wouldn’t flog my own work this way but these two stories are pretty germane to the discussion; I’m glad people in the photo community are starting to take notice; the next step is to stand together and voice dissent and not take the jobs. the problem there is maintaining solidarity.

    • @Nick,

      “maintaining solidarity” I am afraid it won’t happen…
      I actually nether saw such thing… that mean before maintaining is bringing…

      But you’re right otherwise.

  11. What makes this all the more insane is when you start to think about how many ad agencies are under the Omnicom umbrella. Rise up people and don’t take this crap. When art buyers can’t get photographers to shoot, this will in turn get the creatives up in arms and the machine will grind to a halt. Or everyone will just use stock and say fuck it. I pray for the former.

  12. I think the solution to this issue will just have to be a counter suit type terms on our side wherein photographers demand payment in full prior to SHOOTING the job. Agreed upon estimate, shots, usage…hand over the check and we’ll get started.

  13. So what happens if the ad agency gets in a pissing match with their clients due to some dispute unrelated to the photographer? The photographer doesn’t get paid because of the politics of the situation?

    Is the photographer allowed to know the credit worthiness of the client? Who are they? can they even pay?

    How will TARP, TALF and the political winds effect their ability to pay?

    All this seems to end badly for those who want to be full time photographers with student loans to pay.

    http://www.universities.com/edu/Brooks_Institute.html

    • @Terry Divyak,

      that was my thought exactly! As an emerging photographer still trying to pay off my education, I should be looking to jobs to help me accomplish that, not be forced to choose between making a loan payment this month or putting it off to help finance a job instead. (which I know would be a dumb thing to do)

      Thankfully, being new to the scene it will be a while before I’m being considered for those big-budget gigs. I can only hope it gets better and not worse between now and whenever I get there.

  14. were’s the photographers strike? Well photographers are not unionized so nobody can afford it and it prob can’t be organized. It’s a a nice idea though – several months without photography. Lets see if they can get it from flickr. Would have to get Getty and Corbis on board too though (which will never happen – the days that they cared about the interest of the photographers are long gone)

    Anyway I don’t like the idea of dealing with the client directly too much. I have done it before – sometimes they have no understanding of the photographers jobs, life, career and risks (they see your day rate and think photographers are payed way too much etc). At the agencies they know at least a little about you and your risks etc.

    • ad photographer

      @doktor, @Anthony:

      It can be very simple. No lawsuit or countersuit is necessary. You just say no and move on. No advance, no scouting. No advance, no casting.

      Again, photographers cannot unionize. They are freelancers. Only employees can unionize. Hell, take three photographers, put them in a room, ask them where they want to eat dinner, and within ten minutes, it’s a huge argument, a fight breaks out, and the cops are called. So nobody get their hopes up about ANY kind of solidarity. It’s every man for himself in Photographer World. Always has been, always will be.

      And please, let’s put the term Day Rate to bed forever, can we? It’s 2009.

      And clients NEVER cared about the interests of the photographer. This is business; not a campfire. Do you care about the interests of the ad agency or the client? No, you just want to shoot a nice image, and get paid. End of story. So turnabout is fair play.

      • Why cant it work like Directors, Why cant we Unionize, Unions work in every aspect of film, and it works. why cant Photo follow film and Unionize?

        Every Man for himself, is why we are having this discussion and these problems, we dont respect ourselves, so our clients dont respect us.

        I would love the large inflatable Rat in front of any advertising firm, Conde Nast building, anywhere in NY protesting.

        If we dont stand as one, we fall apart as many.

        ASMP/APA need to join together.
        and
        Photography needs a larger voice in the industry.

        • ad photographer

          @KB SUAREZ,

          Mr. Suarez:

          Then do it. You are now elected president of the group that will unite APA and ASMP — these are your marching orders — go do it.

          You are that man. We elect you. Make it happen.

          Any time I hear a politican say, “We need to fix Social Security; we need to fix Medicare; we need to fix health care”, I just tune it out, because it’s clear they have no answer, and are just pandering to the masses.

          “We need; we need”. Of course, we need, but photographers are a desperate bunch, when push comes to shove. Rent comes due, and the ethics go right out the window. We have no one to blame but ourselves.

          Talk is cheap. Go fix it. I dare you.

  15. Sounds as if the contract with Omnicom is worthless; A contract with their client is now necessary with these changes. Or …. 100% down.

  16. A few years back photogs took on business week and where able to get that contract altered and day rates raised. If I remember correctly it involved freelancers and staff photogs. Eventually we just have to just put our collective feet down and tell these big corps to F off. Just say NO to these bastards. I’ve been shooting on my own for 6 years and assisted for 6 years before that, I’ve managed to stay debt free and pay the mortgage and have two kids with health insurance . . . Contracts like this make me want to throw in the towel on commercial shooting. People complain about bridezillas and weddings being a pain, but to be honest the last couple years I make more per job on weddings than on commercial jobs. Plus I write the contact and can choose who’s wedding to shoot. Dealing with these big companies and there contracts gets less appealing ever day, sure I might miss seeing my work in print, but I’d probably get over it.

  17. if you hire ME, you pay ME – I don’t give a shit about whether someone pays you or not because that is not my business – again if you hire ME you pay ME and if you put a bogus contract in my face I will rewrite it and send it back.

    Do they think my assistant would be ok spending 10 hours with me and me saying oh yeah the client never paid me so I’m not paying you for your hard work…sawrey.

    Photographers have no place in being banks or whores PERIOD.

  18. This is ridiculous. One way to add teeth to the ASMP’s advice would be to specify that your work is being licensed to the AGENCY for creation of derivative works and the license is transferred upon receipt in full of payment.

    On any estimate forms or other paperwork submitted, specify “this agreement shall supercede any other agreements, past and future, made between ______ ‘the Agency’ and ______ ‘the Photographer’.” …and make sure you get an original SIGNED by an art buyer (not a freelancer) employed by the agency. And also get the countersigned contract from the agency before beginning any work.

    Or better yet, specify “as per the agreement signed ____ (date of activation of the agency contract), this agreement shall supercede…” blah blah blah.

    Maybe also throw in small print specifying that all parties agree the agreement is between the AGENCY and the photographer or something to specify the relationship (the “agency” is not really an “agency” then, is it? Rather it’s an company which is in the business of creating derivative works from subcontractors’ original, copyright-protected works).

    I would hope that, given two conflicting contracts, one of which specifies supercedence of other agreements, most judges would favor the little guy. It at least gives you more recourse and explicitly defines the agreement terms and relationship. I would think that any photographers who get shafted would be able to show plenty of precedence (aka: past jobs) and “industry standards” (aka: jobs completed with other agencies).

    However, I’m not a lawyer, so would any lawyers reading this blog care to comment?

  19. Great stuff dude… I just revised my terms slightly using a few of your suggestions:

    “This Agreement supersedes any and all prior representations and agreements, past and future, whether written or verbal. Neither Photographer nor Licensee shall be bound by any purchase order, term, condition, representation, warranty or provision other than specifically stated in this Agreement.”

    My agreement also defines Licensee as the Agency….

  20. Maybe we can get AIG to write PDS (Photography Default Swaps) for this. I read about the Omnicom issue through financial news on my investment account, and then decided to check here. No surprise to see it become a hot issue very quickly. Omnicom Group can issue bonds to fund future business, but I would bet that no photographers can do that.

    I have worked mostly corporate direct, and I am still new in photography. While I have been trying to line up more agency work, I have to wonder if I can afford the risk. If Omnicom succeeds in making this work, then it will entice other agencies to follow their lead. Currently the pace of deadlines and the use of in-house creatives already limit the usage of photographer through some agencies. I don’t think everything can fit into a draw or illustrated pattern, so at some point the agencies will need photography.

    Maybe its time to go back to the model that Magnum created, but with a twist. I really think ASMP, EP, and APA have been in-effective, largely because they do not speak with a unified voice. Sure, there is a one-for-all mentality of competitiveness, but I think a collective with some bargaining power would be a good thing.

  21. @9

    Andy is exactly right. If this year hasn’t taught photographers to take contracts seriously, nothing will. If Omnicom is protecting themselves from their clients, shouldn’t us relatively small fish do the same? Jeeeeezz.

    Thanks for the heads up Rob.

  22. Erica Chadwick

    After getting job requests for my photographers from Omnicom companies since this announcement, myself and other photo agents have found that many of the agencies under the Omnicom umbrella interpret these new terms differently. Some will still provide advances. Sometimes the advance will be promised, but it will be late. Some agencies are even saying that nothing has changed, and they haven’t even been told to change their practices.

    If you get a call from Omnicom, the best thing to do is ask a lot of questions before you estimate the job. Make sure they will provide an advance. Make sure your terms and conditions state that photographs will not be delivered until an advance is received.

    Make sure your invoices state that images may not be used until you are paid in full. This is to avoid copyright infringement and protect the agency and their clients.

    While I have not worked with an Onmicom company since this announcement, it is worth noting that several other agencies I have gotten POs from have changes the wording on their POs to include the “acting as agent for” clause, and sequential liability. We were not warned of the new terms before we received the PO, and the art buyers also did not know that there were new terms in the POs.

  23. Hello All,

    I think this is an OPPORTUNITY. Let me explain.

    I run a Digital prod company working internationally, among which with omnicom companies.

    Omnicom has and is still trying to pass this to its digital vendors as well. It is good to know that so far most of the big player are refusing such terms. It is good to know that they tried it with TV production companies a while back, but failed as no one wanted to work with them.

    I do agree that this moves goes a long way to question the role of Ad agencies. An essential role for the industry for so many years. A role that currently they seem unsure to hold. This policy is being crafted by someone who has little connection with the world of specialised services. True. But who cares?

    It is not the end of the world. If you look at this positively, it is an opportunity. A real opportunity to be paid in time. An opportunity to be paid upfront and on delivery. Enough of chasing money after the project. Enough of 30 or 60 or 90 days. etc.

    Omnicom wants to relinquish responsibility? Fine. Pay an advance and pay on delivery.

    If they don’t then there is an opportunity to go to brands direct and offer them an agency that will take that responsibility and service.

    By doing this Omnicom is creating opportunity for all.

    Onwards and upwards!