Negotiating The Editorial Contract

- - Working

Bill Cramer has an excellent piece on negotiating an editorial contract with a new client over on Wonderful Machine (here).

It’s pretty amazing that people starting out on the publishing side know so very little about the appropriate terms to include for hiring photographer. Inevitably it starts with boilerplate language handed to them from some well meaning lawyer looking to protect the company but you got to wonder why companies think they need all these rights and all that protection in the first place. It’s not like there are examples where the lack of an indemnity clause took down a media company or the lack of all encompassing rights prevented them realizing their true profit center, selling mouse pads with cover photos on them.

When starting a new job photo editors have a couple big hurdles to sort out if they want access to the high end talent of the industry. Your rates and your contract are deal killers on all but the biggest of jobs. I’ve never had a problem raising rates after starting a new job but I always ran into insane roadblocks with the contracts. At one company I worked at they had such a lock down on contracts that any changes had to be run by a very busy lawyer who was in charge of multiple titles. And, they refused to pay an invoice if the company didn’t have a signed contract on file. We ended up knocking on the lawyers door so many times in the first couple months that she finally called a sit down meeting to modify the contract. Of course any changes we made had to be approved by the owner of the magazine so I was very careful to insert language where I could instead of wholesale rewriting because he would be less likely to strike the entire change if it was small words instead of entire paragraphs. Anyway, half the modifications were passed and half were rejected leaving me in the position to let photographers know the terms were only negotiable in extreme circumstances, because now the lawyer instituted a policy of once a week modification discussions (too much door knocking I guess). Combine that with the fact that editorial could be slow in handing over assignments for each issue and working with new photographers could become a real high wire act if they didn’t like the terms of the contract.

Back to Bill Cramer’s piece (here), he shows incredible aplomb after striking the offending passages and receiving the loaded reply of “I know the photo editors are excited to work with you. Can you reconsider your positions and sign our standard terms and conditions ‘as is’?” and instead of flying into a rage, taking the time to calmly educate the client on why the changes are necessary.

In the end he prevailed, but it seems so insane that people would want to spend an ounce of time mired in contract negotiations defending terms that as far as I’m concerned have zero value to the media company instead of producing content that will attract readers and advertiser to their product.

There Are 20 Comments On This Article.

  1. Thank you Rob for writing this piece and the all important link back to the Wonderful Machine article.

    I’ve had decent luck with primarily higher-end magazines in turning the contracts into win-win. I’ve even (rarely) had a few incredible magazines ask me to bill more for digital kit and travel/production days to make up for the lower creative fees.

  2. When the company gives the photographer a shitty contract and threatens to kill future projects unless you sign, you have to be prepared to walk away. Period. They’ll come back, and you’ll be in much better shape than all those other people who signed under ‘duress,’ even though the threats meant nothing. That was a tough lesson to learn.

  3. What Bill wrote about knowing your worth and value is one of the most important assets a photographer has don’t give it away. Deals have to be win-win. This post should be required reading for all photography schools. It’s up to each photog to make the industry better for everyone. Bill went to the mat not only for himself but for everyone who is going after him. Bravo!

  4. I had terrible trouble with contracts when I was at a magazine. Before we were purchased by a large media company we had a standard contract on a form. It had to be signed for each photo use, each shoot. The terms were incredibly broad, but photographers were permitted to strike out any offending clauses with no consequences. It was a drag in that every payment was tied to the number on this contract rather than the invoice number, but the fact that the terms were flexible made the rights part easy.

    Then we got purchased by a large media company and the lawyers informed me that we would have to come up with standard contracts with the same terms for everyone. Some things I objected to stayed in the contract, but mostly it was workable, however it was in stone and I told photographers if they could not sign it we could not work with them. We could pay them more, but we couldn’t change terms. Yes ridiculous indemnity language was in there, also arbitration language. But there was nothing I could do to change that stuff, and I agree it really was useless to the company to have in there.

  5. I will also say this about knowing your worth. It is important, some clients won’t ever appreciate your worth, or perhaps can’t afford what you are worth. Everyone should have a line in the sand and the confidence to stick up for themselves

    However it cuts both ways. Some photographers have an exaggerated sense of their worth. A photographer who is difficult to negotiate a contract with is often a photographer that never gets used again. Few photographers have work that is totally un- substitutable for a given publication. So if you are really good, but also really make negotiation an incredibly long process, then it may be difficult to keep using you. That may be fine if a photographer doesn’t need much work at the rates that my company is paying. So even if you work it out this one time, internally the lawyer and the managing editor might say, “don’t work with this guy anymore, or only if you have to”.

    Also it’s not unusual for a contract for a cover to include the rights to use it in any and all media in perpetuity. Every company needs that for a cover image, it’s not a re purposing of the cover but the actual cover with text on it. That cover may appear in subscription cards, and in other media including TV. Any time an article is quoted on a TV show, they invariably include the cover of the magazine as a visual. All editorial contracts want to make sure that use is covered.

  6. Speaking of knowing your worth… 2 assistant days for 250 without travel time for pickup/returns isn’t exactly going to keep the bills paid either. Skilled assistant(s) can make or break a shoot. Many (outside of NY, LA, CHI) cannot spend enough time learning what they didn’t/couldn’t in art school because they’re not making ends meet. More decision makers should recognize that rather than depend on the intern mentality.

  7. How do you handle it when people send you contracts to sign after the job is shot. Every time this has happened, the terms are different that what we spoke about and what is on my signed estimate.

  8. I think there are three important points made here.
    One treat them how you want to be treated when negotiating.

    Two to don’t buckle under to the sales pitch they using on you oh this is standard, especially if you are a newbie trying to break into the scene.

    Three, this one is probably the most important, know who you are and what you are worth. People often sell themselves short. Just don’t do it.

    I think this applies to every photographer out there

    Rob Cudos sir a very important subject for all to read.

  9. It’s a great example for well established photographers. Unfortunately I don’t see re-negotiating contracts as workable for emerging photographers.

  10. scott Rex Ely

    If the contracts are so bad, then what is motivating photographers to participate?

    It doesn’t make any sense.

    Obviously the existing content must be good enough for photographers to want to even consider an assignment.

    So how can the attractive content that motivated the photographer to consider an assignment not be of any value to the advertisers or the readers?

  11. Thanx for all the previous posts. When it comes to discussing the contract the first thing I say to my client is that the contract is designed to make both parties feel comfortable and safe. I make a lot of effort to break this down for them and for myself so it is all out in the open. Ie. The contract is designed to clarify what, where, when and I am going to deliver the images and also includes details about the creative process as well. Of course the contract is very thorough with regards to the responsibilities of the contractor. I always have strategies for adding or taking away things from the contract depending on how the negotiations go. Of course I have to have all these things worked out in advance, and know the possible routes that the negotiations can go….. If a new request comes up which I am unfamiliar with, I usually say I will think about and see how I can work it into the contract….. The thing I always go back to is this – when some one wants to contract a professional photog that means they have some thing big happening, they are investing money and generally the client is pretty excited about what they are doing. They may not show it but they care deeply about the results. Key into this excitement at the right times it will be very useful to you during your negotiation process.

  12. I have to disagree with this section by Dean “The thing I always go back to is this – when some one wants to contract a professional photog that means they have some thing big happening, they are investing money and generally the client is pretty excited about what they are doing.”

    This article was about an editorial contract. Magazines or other editorial outlets generally produce numerous shoots per month, and necessarily one cover shoot per month. A cover shoot is not a new, exciting or one time thing, although the cover has the highest stakes and most people involved. It’s something you want to be excited about but it’s also got to be part of your routine because there is a constant production cycle, you have to do this whole thing again next month. And, you have to repeat this process several times every month, although nothing has the effort involved in the cover. Plus you handle picture research and invoices and other paperwork. Each occasion cannot always be treated as a special moment, because it has to fit into your workflow.

    This is why you have go to photographers you’ve worked with a lot, you know you can count on who will deliver for you without major hassles. If everything grinds to a halt for an extended negotiation, you realize that this photog cannot fit into a regular workflow that easily. If someone makes it an incredibly drawn out process to negotiate the job, they better be hot shit and really worth it. Oftentimes I’ve been less than excited by the final work product after using a new photographer with a long contract negotiation and higher than our usual fees. That’s been very often the case actually. Sometimes it really was worth it, and you are willing to go through hoops to use that shooter, but they can’t be in your your every day aresenal if they take that much energy.

    Which is fine, they may not want to be. They may have ad jobs lined up the wazoo. But not every photographer can take the stance of dealing with a fine tooth comb on the contract and have that work for them. Especially new photographers. Realize that some of these decisions are out of my hands, and usually any time the company lawyer is involved my boss is frowning at me.