If this plan from Omnicom holds up, it’ll most definitely spread like baggage fees at O’Hare through the ad industry. Now, maybe I’m oversimplifying this, but if you’re faced with this type of contract, why not stipulate that you be paid before delivery of final images?

On the agency side, everything waits for the art to show up. Without it, all work stops. And I’ve seen plenty of scrambling and hastily-drawn checks made available when it’s realized that the art ain’t coming till a check leaves the building.

Here’s another little secret you may or may not know: big agencies like this will hold onto monies as long as possible before paying out because the interest made on deposits and balances are factored into the annual revenue. Now, this might not have direct bearing on this issue, but I’d think it just might.

So, if this kind of provision is worked into the contract from the photographer at the onset, I’ll bet that some poor schlub in Account Services will be made responsible for getting checks from the client in short order to pay vendors so the work stays on schedule.

Hey, for every action, there’s an equal and opposite reaction, right?

how about some positive news once and a while???

sg

sorry for the unclear language. i totally get your point, and i agree with everything you posted. and i would certainly not want to be the first photographer to go up against OmniCom in court. it seems common sense that their “agent” claim is laughable, even before you get to court. the main thing is to follow michael ash’s advice (and others), and simply say not to sequential liability and no advances. might be tough to say no in this economy, but not nearly as tough as eating the fee PLUS expenses on an expense-heavy travel ad job…

You’re completely missing my point (which is exactly the point you’re making too). I meant that the ad agency’s argument is a crock of BS, not the APA’s.

That’s what the sarcasm was all about when I said that they CLAIM to be an “agent” (definition from Webster: “a person or company that provides a particular service, typically one that involves organizing transactions between two parties”). They’re clearly NOT just a go-between in the transaction, but are creating entirely new works which are then re-licensed to the client as a derivative work.

My point is that, given the many years of industry precedent (I’m assuming there is also some legal precedent before this whole Omnicom thing), I question whether a judge would side with Omnicom, even with their millions of dollars worth of legal muscle. I suspect that, sadly, it’s more an issue of who can outspend whom, rather than an issue of legal precedent. Omnicom has the means to keep this in the courts for a long, long (expensive) time.

I suspect it would make a strong argument in court for photographers to make the case that the agency is creating wholly new works from their licensed work and is therefore an entity negotiating directly with the end-client on their own and NOT on behalf of either party. But I also think Omnicom would “out-lawyer” any photographer into the poorhouse if they tried to actually get it in front of a judge.

As for the sales tax issue, it is a completely different beast and I don’t think it really relates to this since A) the state isn’t acting on behalf of either party, and B) the state supposes that a commercial photograph, delivered over FTP or email, is a tangible good (it’s not) and therefore should be subject to sales tax. Oh yeah, and the state also claims it is a “sale” of a photograph (it’s not – it’s a license of a right to use a photograph, not transferring ownership of the photo).

But, since you touch on it (BIG disclaimer here: I don’t live in UT, and I’m not intimately familiar with the details of state policy – but the premise is the same regardless of the state)… I assume they don’t apply the same standard to, say, legal services (is the lawyer SELLING you a contract as a tangible good or are they offering a service by writing based on a level of professional expertise) or a doctor (is a doctor SELLING you a heart stent or are they providing a service of saving your life?) or an accountant (are they SELLING you a tangible tax return, or are the providing a service by preparing it?).

That said, I’m really glad I don’t live in UT.

quote: ‘I’m curious how this argument would hold up under real legal scrutiny…’

If you take the same mindset in this, as the government does in the recent Sales Tax discussions here, isn’t the advertising agency “the consumer” of our photography? They are taking our files, converting them to color separations, (and marking up our invoices at least 15%), and then preparing a new product that’s sold to the End Client.

The “agent” argument seems thin, at best.

The agency’s work is certainly not done Work For Hire, to the End Client; the agency retains ownership of it.

Seems time to review the wording on all of our Estimate forms, and make sure they’re tight.

This would be true if the ad agency were acting only as an intermediary and the producer/photographer were planning the creative, copy, concepts, and overall direction for the ads, but the fact is, the “agency” is in the business of commissioning creative works from subcontractors (ie: photographers) for the sole purpose of creating a derivative work (ie: a finished ad layout) for their client. The “agency” certainly holds copyright for the works they create for their clients (ie: designs, treatments, copy, logos, etc.) and would defend this to the teeth, however Omnicom is playing it both ways and claim to only be an “agent” for their client.

If Omnicom wants to turn over creative control to the photographers and only be a party organizing a transaction between the creator and the end client, then so be it, but they are very much in the business of creating original works.

I’m curious how this argument would hold up under real legal scrutiny…

So here we have GM approaching bancruptcy and saying they will be slow paying bills because of that. No way we should fall for that one. Then we have Omnicom refusing all liability – or help – to the photographer and putting the photog seriously at risk in order to try to do a job for Omnicom.

The solution, of course, is to “just say no.” But a lot of people are really struggling here in Detroit, with little or no work. I am sure some photogs will take the gamble and continue to work for these folks to try to keep some income flowing.

It is one thing to risk your creative fee. Quite another to front expenses for a job and have that money – a loan really – also at risk. That is no better than working on spec!

In addition to demanding an advance for expenses, I think the only realistic option for someone who wants to try to work with these a**holes is to insist that Omnicom be billed directly for all talent, rentals, and other expenses where-ever possible.

Photogs need to revert to being just one more service provider amonmg many, with responsibilty only for their own creative portion of a project. Let Omnicom do all of the work and make all of the commitments for a project. The photog from here-on out just shows up and picks up a rental camera to start working.

We are already getting screwed by the likes of AIG. No reason to put our business’, reputations, and families at risk taking on obligations that really belong to the large corporations like GM and Omnicom.