Pricing & Negotiating: Editorial Assignment for The American Lawyer Magazine

by Bill Cramer, Wonderful Machine

I got a call a little while back from Maggie Soladay, photo editor at The American Lawyer magazine. She had an assignment to photograph a pair of attorneys who were trying to keep the city of Harrisburg, PA out of bankruptcy. She needed a portrait of them in a setting that would give the viewer a sense of the city. She expected to use one photo with the article.

Maggie said she could offer a fee of 500.00 plus up to 900.00 in expenses. I asked her if she paid for space and she said no, but if she used a picture on the cover, she would pay an additional 500.00. I asked her if she had a contract or if she’d like to use mine. She said she’d send one over. I told her that it sounded like it could work and that I’d take a look at the contract.

Here’s the contract she sent:

It’s pretty short and to the point. It could be a lot worse, coming from a magazine about lawyers. Here’s the breakdown:

1) The pictures are original and not defamatory. Fine.

2) Included in the fee, they get exclusive first use of the pictures and non-exclusive reuse “in context” for editorial or promotion use. “In context” means that they have to show it in the layout as it originally appeared. I don’t mind this because it’s rare that this would happen, and the fact that it’s in context generally means that it’s more about the article or the publication than the photo. I’m more concerned that they can use any number of pictures any size for 500.00. There was a time when I might drive a harder bargain than that. An additional 500.00 for the cover would be quite low if it was a consumer magazine that sold on the newsstand, but for a trade magazine I think it’s (on the low end of) reasonable.

3) They can use the photos for article reprints and for “out of context” use for a predetermined fee (see schedule A). The prices for the article reprints are a little on the low side in my experience, but not unreasonable. The prices for out of context print and web re-use are less generous. 25% of the 500.00 fee is only 125.00, which is what I’d normally charge for use of one image smaller than 1/4-page. Here, they can use the picture any size for that fee. I’d normally expect 100.00 for web use and they’re offering 55.00 (seems like an odd number).

4) In the past, a three month embargo period would be considered a little excessive for a monthly publication, but it’s not unusual these days. And given the subject matter, embargo time is not a big issue here. Additionally, I’ve found that if an opportunity arises to re-license an image to a third party during an embargo period, you just have to clear it with the assigning photo editor. Typically, as long as the issue has hit the news stands, most publications are pretty flexible regarding the embargo period.

5) Even after reading about personal jurisdiction, I still don’t understand it. Here’s how Maggie explained it, “Paragraph 5 of the contract says that, ‘Each party consents to the personal jurisdiction of the federal or state courts located in the State of New York.’ What does that mean? Our artists and photographers are all over the world. England for instance has very different media laws than we do.” I’m not sure why it’s not sufficient to say, “Should a dispute arise, it shall be governed by the laws of the State of New York.”

A few facts to consider. The American Lawyer is published by ALM. It’s sold by monthly subscription for 445.00/year. It’s not sold on newsstands. Their circulation is 9600 with a readership of 89,000. Their average reader’s household net worth is 2.4 million dollars.

To some photographers, this fee and contract will sound like a pretty good deal. Others will think it’s a little stingy. For someone like me, it’s pretty much middle-of-the-road. Whether it works for you depends upon how busy you are and what fees and terms you’re accustomed to getting. I later asked Maggie how frequently she accepts revisions to the contract. She said, “Never. Unfortunately I was instructed that we cannot use photographers or illustrators who require revisions.” How frequently do you pay more than 500.00/day plus expenses? “500.00 is the fee for all of our shoots but allowed expenses within budget differ. We don’t have flexible budgets per issue so I am really straight, clear and fair upfront. I can’t afford surprises and I like clarity from the beginning.”

I chose to do the job. Here’s the call sheet:

The subjects were great. My dad grew up in Harrisburg, so I enjoyed poking around the city. I finally found a spot in a parking garage that framed them nicely and offered up a good view of the city. Here’s how it ended up in the magazine:

Here’s the invoice:

Months later, I got an additional payment for a reprint (turns out they’ve raised the reprint rates slightly since I signed the original contract):

And a few months after that, I got another:

In addition to her day job as photo editor at The American Lawyer, Maggie is the New York City chapter chief of Salaam Garage, a humanitarian media organization that works with non-profit organizations to support positive social change.Read more…

If you have any questions, or if you need help estimating or producing a project, please give Wonderful Machine a call at (610) 260-0200. They’re available to help with any and all pricing and negotiating needs—from small stock sales to large scale ad campaigns.

There Are 35 Comments On This Article.

  1. Good article. Thanks for taking the time to write it.

    You posed a question in #5 that I can help you with: “I’m not sure why it’s not sufficient to say, ’Should a dispute arise, it shall be governed by the laws of the State of New York.’”

    The reason that that statement is insufficient, and that a clause directing personal jurisdiction is required, is that a “governed by” statement means that the laws of New York will be used to decide a dispute, not that the courts of New York will be used. This can, and does, result in court cases being filed in places like LA, San Francisco, and Miami and forces the judges and attorneys to use New York law to decide the case. This is a bad thing because in most situations like this because the lawyers and judges are not familiar with NY law, so the outcomes can be odd. This also generally results in higher costs to litigate because it takes the lawyers more time to determine what to do because of their unfamiliarity with the law. A “personal jurisdiction” clause eliminates these issues by ensuring that the parties to the contract agree that if disagreement occurs, the NY courts will have jurisdiction over the matter.

    • See my comments below. Copyright issues concern federal and not state laws thus where the trial takes place (in theory) doesn’t matter.

      In practice, judges and lawyers located in State A employ the law of State B every day of every week. Such clauses are very common where for example a bit California company does a deal with a big NY company. They compromise in the drafting of the agreement and agree to use a NY Court but employ California law. Sometimes this makes perfect sense, other times and particularly for a solo creative, the court and law should be that of his/her hometown. That saves lots of money on travel and lawyers.

      99% of all lawyers know next to nothing about the economics of being a solo assignment photographer. 99% of photographers know next to nothing about the actual daily practice of law. I promise I won’t throw around terms like “f stop” with apparent expertise if you don’t use the term “personal jurisdiction” incorrectly.

      Jurisdiction means the court with power to decide. Venue means where that court is physically located. Which state’s law applies should be written into the contract, invoice or agreement in a separate paragraph or sentence. The three should not be confused.

  2. Ada Goodwin

    Excellent Post. Thank you for this.

    I was just wondering if you could explain the costs for digital capture, web gallery part. Would the magazine not expect this as part of the agreed fee? Or is this always an expense that is billed on top? I

    Thanks in advance. Any extra advice would be helpful.

    • Bill Cramer

      Ada, every publication will have a different expectation about what should be covered in the creative/licensing fee. (It’s often a sliding scale depending on how much they value the photographer.) Generally, for mid-level magazine assignments, clients expect to pay a separate line item for digital capture/web gallery.

  3. In my experience that’s unusual to not allow contract revisions. I’ve asked for and been allowed revisions probably for most magazine assignments–usually the contracts are way too broad about in future usage.

  4. Thank you for sharing this article. Very informative. This shows how complected contracting for a relatively straight forward assignment gets complicated. I’ve rejected jobs based on lengthy contracts where i would need a lawyer to review at my expense. For a day job, it’s not worth it.
    I’m hoping someday that there could be a more simple, “boiler plate” contract that the industry could adopt. The real estate business has done so. Editorial business such as this can do the same.

  5. Did you obtain permission from the people and companies that you negotiated with to share this information with the public? I am very curious. I know of clients and ad agencies who have fired and/or never hired a shooter again for disclosing such information.

    In any event, sharing such information is certainly of substantial help to your competitors. Known or unknown to you, one or more of them are likely to outbid you in the future. Two of them contacted me today in mild disbelief directing me to your article.

    Your reference to Paragraph “5” above is confused. Jurisdiction means which court has power to hear a dispute. It does not mean which state or country’s law applies or is to be used by that Court in determining the outcome. Therefore, you can (and commonly do) have a trial in ie a New York Federal Court located in NYC which is employing South Dakota law. You admittedly didn’t understand the paragraph but signed it anyway(?)

    I wish you the best of luck and hope none of this comes back to bite you in the butt. Should you have any dispute or interpretation issue with these lawyers (remember they are lawyers) your comments will be used against you – by them.

    Most respectfully, I don’t suggest voluntarily disclosing private negotiations without the permission of the other side – and even then, only under the most unusual of circumstances.

    • instead of being a dick why don’t you give him the benefit of the doubt. we’ve been doing this for several years now.

      glad that you’ve suddenly discovered blogs, but just because you can leave comments doesn’t mean you have to.

      good luck “outbidding” someone for a magazine job. oh boy, that’s a good one.

        • we just shared inside information on the fees and negotiation tactics with a small market magazine. Edward is using fear tactics to get us to stop doing this.

          He claims that photographers who compete with Bill are likely to now outbid him in the future and two of them contacted him personally about this.

          He claims that the information Bill has shared with all of you will provide substantial help to his competitors.

          Edward also alludes to the possibility of getting fired and/or never hired for sharing this information with us.

          He also lets him know his comments could be used against him by lawyers.

          Then he wraps it all up by saying even if you have permission to disclose private negotiations you should only do it under the most unusual of circumstance.

          WHY???? I have no fucking idea. People do this constantly here. If you write an open and honest post about your business someone will always leave one of these SHUT UP comments. It never ceases to annoy the living shit out of me.

          • Marc Carter

            Oh. I thought maybe he did something to you personally other than offer an opinion, one people can agree with or not…

              • Isn’t the point of this website to help and inspire photographers and creatives? There’s nothing wrong with constructive criticism of someone’s work, but suggesting that they should not share knowledge wreaks of immaturity and insecurity.
                Bill has been generous enough in the past to even share mistakes that he has made along the way, and I always appreciate his willingness to let others learn from them.

              • yes, i'm anon but youre a dick

                A photo editor always on his period.

                Funny what gets this guy riled up and then starts calling others names which, ironically, he himself demonstrates so well. The hypocrisy is amusing… but kinda sad.

                At least it keeps the comments section entertaining.

    • Bill Cramer

      Our Pricing & Negotiating posts tend to come in one of two flavors. Either we don’t disclose the photographer or the client, in which case we don’t get permission from anyone. Or, we involve the photographer and the client and get (at least tacit) permission from everyone. I think it’s good for the industry for photographers to understand the value of their work and learn how to negotiate contracts.

      Magazine photographers don’t compete on price. Magazines have set budgets and photo editors get the best photographer they can for their budget.

      We all sign things we don’t fully understand. (Have you ever rented a car?)

    • You’re saying he shouldn’t be posting this because it’ll help other photographers? You realize the dude runs Wonderful Machine, right?

    • This is a only a comment a lawyer could leave. How do you know Maggie didn’t give Bill permission? Didn’t law school teach that making assumptions makes an ass of you? Pretty sure assumptions don’t hold up in court either.

  6. Very interesting to see how things are done in the States. I fear that many magazines here in the UK would have reprinted without alerting the photographer, or more likely included all future use in the contract. That being said, I’ve never had to sign a contract when working direct to client (including large blue chip companies) or design consultancies. Perhaps I should have!

    The daily rate does seem low (although I don’t shoot editorial) and I wonder how many of the magazine’s subscribers bill less than $500 a hour! However if you can bill your own equipment and post-production under expenses, you end up with a reasonable fee for the job. Great portrait, by the way.

  7. Permit me to address this “firestorm” about my comments. First off, this is hardly a new subject for me or the columns and lectures I do with Jack Reznicki.
    We have been talking about this type open disclosure for over 25 years and especially in addressing the oft held misconception that anything, anywhere on the web is privileged or can remain unseen by clients or prevented from being used as evidence in court.

    A few points in rapid fire.

    1. Your competitors and your clients use these tid bits against you. We teach negotiation and bidding strategies. We have never found it necessary to use real names or even actual numbers. For decades we refer to clients and/or numbers as ie. “Big Newspaper, Inc.” or “Major TV Network” or X$ or 3X$ – unless the case and facts have already made the press;

    2. Photographers use this information to outbid other photographers every day. How do I know? Because they tell us so. They are wise to do so. Often I wind up doing the paperwork or litigating some dispute where the genesis of the bidding emanated from a chat room, blog or equivalent posted by a rival. Magazines do from time to time compete for photographers and do offer different deals to different photographers for assignment work. With respect to non-editorial work , it is very common to have 3 shooters bidding a job. Some clients/agencies require that at least 3 bids come in before awarding the job.

    3. I represent people in publishing, PR and other typical photo clients and more than a few art buyers. They read these posts and use the contents as source material when “negotiating” with photographers. How do I know? Because they tell me so. We see it so often that we bring it up at our lectures at SVA, Hallmark and Photoshop World as well as in our workshops. Not all photographers are altruistic. Those of you who think otherwise at perhaps, just perhaps a tad naive’. We call it a survival technique.

    4. There is no story, anecdote, negotiating strategy, technique etc. that can not be told using pseudonymous. Doctors, lawyers, accountants, psychologists, teachers and countless others refrain from using real names either because they are compelled by law, an ethical code or otherwise from doing so. There is no difficulty is suggesting techniques without using real names. If a photographer/illustrator/stylist wants to say that ie. “Y&R is great to work with” or “The Chevy campaign I did with Joe Blow @ Grey was a dream” – fine.

    5. You can believe what you wish. If you want to kill the messenger, that is up to you. Remember that your clients say things to non-photographers that they would never say to photographers. It is their job to negotiate you out of your underwear. Unlike photographers, your clients/ad agencies etc., don’t show their cards before all the money is on the table.

    • Respectfully: No one is out bidding anyone on $500 editorial jobs. Did that part go over your head? I don’t care what your experience is. This was EDITORIAL not COMMERCIAL. And those 2 photographers who contacted you about this? Total jokers. Any one who would complain about a $500 editorial job seriously lacks the balls to be in this business.

      If this were a commercial post could you not see the educational advantages to those in this industry who have never bid on a job? Probably not. You see photography is not like Law. There isn’t a school in the land that teaches photography business right and how to bid and what the fuck usage should be and how much to charge for a single shot used as a banner ad for a month online in NSW only. Better yet because information has not been shared so freely by the elder statesmen of photography you have green shooters saying YES to creating a 5 min Youtube video with talent, music and banner ad stills. All for $5000. I recently spoke to a photographer who told me they bid on a job to shot 60 talent over two days in studio with HMU and wardrobe, while giving away all future rights – unlimited usage – for the whopping fee of $10000. When asked WHY? he said he really had no clue what to charge. (and you see 10 grand is big money when the phone doesn’t ring often) Wouldn’t it have been nice for him to see an actual bid before undermining every other serious photographer in this market and setting forth this pattern of low paying gigs for that company in the future. I know. Not in the eyes of the law. I mean seriously. You say it right there in point 5 (FIVE effing points! You certainly do get paid by the hour) Their job is to negotiate you out of your underwear. When those bidding have no prior experience or information to go on I’d say most of these shooters are going to be going commando.

      But whatevs hey. Keeps you in business!

      APE isn’t advocating a tell all. He is trying to help photographers. Take it or leave it. Imagine trying to learn Tort law piece meal and not in school? By having to ask some old lawyers – some who would help and others who weren’t so sharing – you got this kinda mish mass of info that you could then try to take a run at the bar exam with (if it were based solely on Tort). Throw in an industry that is essentially lawless (the ad world, with no standardization of rates or usage) and try to apply that semi-pro knowledge there. Wouldn’t be so easy hey?

    • Bill Cramer

      I’m sorry to see all the upset. I enjoy a spirited debate, but I hate to have it get too emotional or too personal. I’m sure Mr. Greenberg is sincere, but I see things a little differently. The clients already know what all the photographers charge because they can just go out and ask them. It’s the photographers who are in the dark and have the most to gain by sharing this information. Most of our pricing posts do have the photographer’s and client’s names removed because it’s too awkward to get those permissions. When I have shown the photographer’s name, it’s always been my own.

      If anything, sharing this information will create upward rather than downward pressure on pricing. If a photographer is going to bid on a job without knowing anything, s/he’s much more likely to underbid rather than overbid.

      I have seen a tendency over the years for established photographers to tell young photographers that they charge more than they do in hopes that they can keep prices high. This just adds to the confusion. It’s much more effective to tell it like it is, for better or for worse, showing actual numbers and actual contracts.

  8. Shawn G. Henry

    Excellent post as usual, Mr. Cramer. Your sharing is both much appreciated and much needed. Thanks to Rob for providing the forum in which to share and learn.

  9. Bill,
    You should build a book about pricing and negotiating. In the meantime, your posts are reviewed and discussed in my business of photography classes. It also help me better build quotes for my clients and prospects as well.

    Many Thanks!

  10. Maggie Soladay

    Hi folks-
    I did give permission. And I did so to help photographers and budding photographers. The photo biz is a galaxy of little bubbles but we don’t have to stay there.
    There is very little pricing competition in editorial as far as I know. Where the competition lies in talent and know how and delivery. No one bids for editorial jobs in my experience as a photo editor. When i was a commercial photo producer I found open and honest conversations like this one to work best for estimating for clients and keeping clients as well.
    I love this post and happy to help.

  11. this is an amazing post and resource. thank you so much for the insight. the transparency is really helpful and appreciated.