Pricing & Negotiating: Regional Fashion Magazine

By Bill Cramer, Wonderful Machine

I recently was approached by a regional fashion magazine needing some advice on their photographer and photo director contracts. They had encountered some push-back on them and they wanted to know what they could do to make the agreements a little more palatable. The documents have three parts, an Independent Contractor Agreement (which would be for all vendors, like photographers, illustrators, stylists, etc.), Schedule A which spells out details specific to each individual contributor, and a Photography Director section explaining the expectations of that job. Here’s what I had to say:

Xxxxxxxx,

I hope you had a nice holiday season. I had a chance to sit down with your contributor contract today, and here are my thoughts (in bold). My main recommendation would be for you to license more limited use of the photos. I can understand why you would want to own all of the photographs outright. However, this provision is so far out of the mainstream that you will have trouble finding a decent photographer to agree to it. Or put another way, a more reasonable contract will afford you the opportunity to work with better photographers.

I think it would be reasonable to ask for first editorial print use in your main magazine and use in your other publications for a period of three months (which matches up with the compensation terms). New uses after that could be compensated with a renewal of the 2% commission for that new period or with a simple rate structure for the different uses you commonly need and then negotiate for anything unusual that might come up.

My other concern is that the language is unnecessarily complex. You’re not really paying photographers enough for them to hire an attorney to review your contract. The stakes are pretty low for you and the photographer/photo director. It would be better to find an attorney who understands the magazine business well enough to simplify the language sufficiently for the average person to understand it while still protecting your interests (and the contractor’s).

I hope that’s helpful. Please let me know if you have any questions.

Thanks!

Bill

INDEPENDENT CONTRACTOR AGREEMENT

This Agreement is entered into as of the _____ day of __________, ______, between Xxxxxxxxx Xxxxxxxx, LLC d.b.a. Xxxxxxxx Xxxxxxxxx Magazine (“the Company”) and ______________________ (“the Contractor”).

WHEREAS, the Company is in need of assistance in the area of __Photography________; and WHEREAS, Consultant has agreed to perform consulting work for the Company in ____Photography_________________ services and other related activities for the Company;

NOW, THEREFORE, the parties hereby agree as follows:

1. Independent Contractor. Subject to the terms and conditions of this Agreement, the Company hereby engages the Contractor as an independent contractor to perform the services set forth herein, and the Contractor hereby accepts such engagement.

This paragraph should be combined with paragraph 11 and 24 which cover the same ground.

2. Duties, Term, and Compensation. The Contractor’s duties, term of engagement, compensation and provisions for payment thereof shall be as set forth in the estimate previously provided to the Company by the Contractor and which is attached as Exhibit A, which may be amended in writing from time to time, or supplemented with subsequent estimates for services to be rendered by the Contractor and agreed to by the Company, and which collectively are hereby incorporated by reference.

This is vague. Do you mean to say Schedule A (as it’s written below)? It sounds like you’re saying that Exhibit A (Schedule A) constitutes an estimate (it doesn’t appear that way to me.) Do you mean to say that the Contractor is providing the Company with Exhibit A or that the Company is providing it to the Contractor (it is your form)?

3. Expenses. During the term of this Agreement, expenses for the time spent by Contractor in traveling to and from Company assignments shall not be reimbursable unless otherwise pre-approved in writing by the Company.

What about expenses like models, locations, hair & make-up, props, wardrobe, studios, equipment, catering?

4. Written Reports. The Company may request that project plans, progress reports and a final results report be provided by Contractor on a monthly basis. A final results report shall be due at the conclusion of the project and shall be submitted to the Company in a confidential written report at such time. The results report shall be in such form and setting forth such information and data as is reasonably requested by the Company.

This could be simplified and combined with the 3. Expenses paragraph.

5. Inventions. Any and all inventions, discoveries, developments, contacts and innovations conceived by the Contractor during this engagement relative to the duties under this Agreement shall be the exclusive property of the Company; and the Contractor hereby assigns all right, title, and interest in the same to the Company. Any and all inventions, discoveries, developments and innovations conceived by the Contractor prior to the term of this Agreement and utilized by [him or her] in rendering duties to the Company are hereby licensed to the Company for use in its operations and for an infinite duration. This license is non-exclusive, and may be assigned without the Contractor’s prior written approval by the Company to a wholly-owned subsidiary of the Company.

This is not reasonable. Photographers (and writers) aren’t in the business of creating inventions for magazines and Xxxxxxxx is not in the business of buying inventions from its contributors. It appears that your attorney is using a standard legal form and didn’t customize it for your purposes. It would be better for both parties to have an agreement specifically edited for photographers in order to minimize confusion.

6. Confidentiality. The Contractor acknowledges that during the engagement [he or she] will have access to and become acquainted with various trade secrets, inventions, innovations, processes, information, records and specifications owned or licensed by the Company and/or used by the Company in connection with the operation of its business including, without limitation, the Company’s business and product processes, methods, customer lists, accounts and procedures. The Contractor agrees that [he or she] will not disclose any of the aforesaid, directly or indirectly, or use any of them in any manner, either during the term of this Agreement or at any time thereafter, except as required in the course of this engagement with the Company. All files, records, contacts, documents, blueprints, specifications, information, letters, notes, media lists, original artwork/creative, notebooks, and similar items relating to the business of the Company, whether prepared by the Contractor or otherwise coming into [his or her] possession, shall remain the exclusive property of the Company. The Contractor shall not retain any copies of the foregoing without the Company’s prior written permission. Upon the expiration or earlier termination of this Agreement, or whenever requested by the Company, the Contractor shall immediately deliver to the Company all such files, records, documents, specifications, information, and other items in [his or her] possession or under [his or her] control.

The confidentiality is fine, but it’s not logical to combine that provision with the ownership of the images. This paragraph says that photographs created by the photographer are the property of the magazine. That’s unnecessarily antagonistic and not reasonable for your modest budget. You’re going to be able to work with a wider pool of talented photographers if you simply license the usage you actually need to produce your magazine and then negotiate additional usages separately.

7. Conflicts of Interest; Non-hire Provision. The Contractor represents that [he or she] is free to enter into this Agreement, and that this engagement does not violate the terms of any agreement between the Contractor and any third party. Further, the Contractor, in rendering [his or her] duties shall not utilize any invention, discovery, development, improvement, innovation, or trade secret in which [he or she] does not have a proprietary interest. During the term of this agreement, the Contractor shall devote as much of [his or her] productive time, energy and abilities to the performance of [his or her] duties hereunder as is necessary to perform the required duties in a timely and productive manner. The Contractor is expressly free to perform services for other parties while performing services for the Company with the exception of services within the same scope of work and responsibility as work performed for the Company (i.e. Fashion Editor for the Company and Fashion Editor for another company). For a period of six months following any termination, the Contractor shall not, directly or indirectly hire, solicit, or encourage to leave the Company’s employment, any employee, consultant, or contractor of the Company or hire any such employee, consultant, or contractor who has left the Company’s employment or contractual engagement within one year of such employment or engagement.

The Non-Hire Provision is reasonable, but it seems to say that a photographer signing this agreement would not be permitted to work as a photographer in a similar capacity for other similar publications. The very nature of being a freelancer is that you have to work for a variety of publications. That part of this paragraph is unreasonable.

8. Right to Injunction. The parties hereto acknowledge that the services to be rendered by the Contractor under this Agreement and the rights and privileges granted to the Company under the Agreement are of a special, unique, unusual, and extraordinary character which gives them a peculiar value, the loss of which cannot be reasonably or adequately compensated by damages in any action at law, and the breach by the Contractor of any of the provisions of this Agreement will cause the Company irreparable injury and damage. The Contractor expressly agrees that the Company shall be entitled to injunctive and other equitable relief in the event of, or to prevent, a breach of any provision of this Agreement by the Contractor. Resort to such equitable relief, however, shall not be construed to be a waiver of any other rights or remedies that the Company may have for damages or otherwise. The various rights and remedies of the Company under this Agreement or otherwise shall be construed to be cumulative, and no one of the them shall be exclusive of any other or of any right or remedy allowed by law.

I’d have to hire an attorney to understand this one better. It would be helpful if you could be more specific about what sort of injunctive relief you would want to exert. This paragraph seems out of proportion to the services you’re requiring and the compensation you’re offering. You’re not really paying the photographer enough for them to agree to this. Why are the laws of North Carolina insufficient to protect you in a case where a photographer does some damage to you?

9. Merger. This Agreement shall not be terminated by the merger or consolidation of the Company into or with any other entity.

Okay.

10. Termination. Either the Contractor or the Company may terminate this Agreement at any time by 10 working days’ written notice to the Contractor. In addition, if the Contractor is convicted of any crime or offense, fails or refuses to comply with the written policies or reasonable directive of the Company, is guilty of serious misconduct in connection with performance hereunder, or materially breaches provisions of this Agreement, the Company at any time may terminate the engagement of the Contractor immediately and without prior written notice to the Contractor.

Okay, but you should add that if anyone at the Company is similarly convicted of a crime or offense that the photographer can get out right away.

11. Independent Contractor. This Agreement shall not render the Contractor an employee, partner, agent of, or joint venturer with the Company for any purpose. The Contractor is and will remain an independent contractor in [his or her] relationship to the Company. The Company shall not be responsible for withholding taxes with respect to the Contractor’s compensation hereunder. The Contractor shall have no claim against the Company hereunder or otherwise for vacation pay, sick leave, retirement benefits, social security, worker’s compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind.  Consultant will not represent to be or hold itself out as an employee of the Company and Consultant acknowledges that he/she shall not have the right or entitlement in or to any of the pension, retirement or other benefit programs now or hereafter available to the Company’s regular employees.

Okay, but for clarity and brevity, this paragraph should be merged with paragraph 1. and 24.

12. Insurance and Mutual Indemnification. The Contractor will carry liability insurance if necessary (including malpractice insurance, if warranted) relative to any service that [he or she] performs for the Company.  Each Party agrees to indemnify and hold the other harmless from and against any and all claims, damages and liabilities whatsoever, asserted by any person or entity, arising from any action of infringement in relation to any trade mark, patent, copyright or action for passing off resulting directly or indirectly from any breach by the first Party or any of its respective employees or agents, of this Agreement or of any warranty, representation or covenant contained in this Agreement. Such indemnification shall include the payment of all reasonable attorneys’ fees and other costs incurred by the indemnified party in defending any such claim. The Indemnified Party shall promptly inform the indemnifying Party in writing of any such claim, demand or suit and shall fully cooperate in the defense thereof. The Indemnified Party will not agree to the settlement of any such claim, demand or suit prior to the final judgment thereon without the consent of the indemnifying Party, whose consent will not be unreasonably withheld. The indemnified party shall not by any act or omission admit liability or otherwise prejudice or jeopardize the indemnifying party’s actual or potential defense to any claim. The said indemnity is subject to the indemnified party’s duty to mitigate all of its said costs, expenses, damages or liabilities.

Okay.

13. Successors and Assigns. All of the provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, if any, successors, and assigns.

Okay.

14. Choice of Law. The laws of the state of Xxxxxxxxxxxx shall govern the validity of this Agreement, the construction of its terms and the interpretation of the rights and duties of the parties hereto.

Okay.

15. Arbitration. Any controversies arising out of the terms of this Agreement or its interpretation shall be settled inXxxxxxxxxx in accordance with the rules of the American Arbitration Association, and the judgment upon award may be entered in any court having jurisdiction thereof.

Arbitration is not a reasonable solution for most disputes involving photographers. The cost can be much more than litigation: http://www.btlg.us/News_and_Press/articles/arbitration.html

16. Headings. Section headings are not to be considered a part of this Agreement and are not intended to be a full and accurate description of the contents hereof.

Okay.

17. Waiver. Waiver by one party hereto of breach of any provision of this Agreement by the other shall not operate or be construed as a continuing waiver.

Okay.

18. Assignment. The Contractor shall not assign any of [his or her] rights under this Agreement, or delegate the performance of any of [his or her] duties hereunder, without the prior written consent of the Company.

Okay.

19. Notices. Any and all notices, demands, or other communications required or desired to be given hereunder by any party shall be in writing and shall be validly given or made to another party if personally served, or if deposited in the United States mail, certified or registered, postage prepaid, return receipt requested. If such notice or demand is served personally, notice shall be deemed constructively made at the time of such personal service. If such notice, demand or other communication is given by mail, such notice shall be conclusively deemed given five days after deposit thereof in the United States mail addressed to the party to whom such notice, demand or other communication is to be given as follows:

If to the Contractor:

______________________________

______________________________

______________________________

If to the Company:

Xxxxxxxx Xxxxxxxx, LLC / Xxxxxxx Xxxxxxxxx Magazine

address

Any party hereto may change its address for purposes of this paragraph by written notice given in the manner provided above.

Okay.

20. Modification or Amendment. No amendment, change or modification of this Agreement shall be valid unless in writing signed by the parties hereto.

Okay, but this could be added to paragraph 21.

21. Entire Understanding. This document and any exhibit attached constitute the entire understanding and agreement of the parties, and any and all prior agreements, understandings, and representations are hereby terminated and canceled in their entirety and are of no further force and effect.

Okay.

22. Unenforceability of Provisions. If any provision of this Agreement, or any portion thereof, is held to be invalid and unenforceable, then the remainder of this Agreement shall nevertheless remain in full force and effect.

Okay.

23. Competent Work/Ownership of Imagery. All work will be done in a competent fashion in accordance with applicable standards of the profession and all services are subject to final approval by a representative of the Company prior to payment.   All work, graphics, images, photography captured during this agreement for assignments, or once permission of use is given- The Consultant relinquishes full ownership and rights of imagery to the Company.

It doesn’t make sense to combine the Competent Work provision with the Ownership of Imagery, they’re unrelated (even aside from the fact that it’s not reasonable to expect ownership of the images.)

24. Representations and Warranties. The Consultant will make no representations, warranties, or commitments binding the Company without the Company’s prior consent. The Contractor will not use the Company’s name, image, brand or likeness without the express written consent of the Company.

This should logically be combined with 11. Independent Contractor and 1. Independent Contractor.

IN WITNESS WHEREOF the undersigned have executed this Agreement as of the day and year first written above. The parties hereto agree that facsimile signatures shall be as effective as if originals.

Xxxxxxxxx Xxxxxxxxxx, LLC d.b.a. Xxxxxxxx Xxxxxxxx Magazine

 

By:____________________________________________

Its:_President/CEO___________________ [title or position]

THE CONTRACTOR

By:____________________________________________

Its:________________________________ [title or position]

 

SCHEDULE A

DUTIES, TERM, AND COMPENSATION

DUTIES: The Contractor will perform duties as listed in the Photography Director position description. She will report directly to Xxxxxxxxx Xxxxxxxx, and to any other party designated by Xxxxxxx Xxxxxxx in connection with the performance of the duties under this Agreement and shall fulfill any other duties reasonably requested by the Company and agreed to by the Contractor.

It seems unnecessarily convoluted to have three separate documents for one agreement. You could simplify things by merging Schedule A into the Independent Contractor Agreement.

TERM: This engagement shall commence upon execution of this Agreement and shall continue in full force and effect through the 90 day probationary period, ending ___________ or earlier upon completion of the Contractor’s duties under this Agreement. The Agreement may only be extended thereafter by mutual agreement, unless terminated earlier by operation of and in accordance with this Agreement.

Okay.

COMPENSATION:

A. As full compensation for the services rendered pursuant to this Agreement, the Company shall pay the Contractor __two (2%)____ percent of all advertising sales revenues generated and earned by Xxxxxxxx Xxxxxxxx Magazine betweenNovember 4th, 2012 and February 4th, 2013 . Such compensation shall be payable within 30 days of receipt of advertising sales.

The compensation doesn’t seem to match what the photographer is providing. The photographer is providing use of the pictures forever, while the compensation is limited to three months. In order for this to be meaningful, you have to allow the photographer the option of auditing your records. The compensation seems disingenuous. What are the chances the magazine will continue to cut the photographer in for a piece of the action if it becomes successful? The Photography Director job description may require that you treat that person as an employee rather than an independent contractor. You can read more about this at http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Independent-Contractor-%28Self-Employed%29-or-Employee%3F

B. Contractor will also be paid twenty percent (20%) of all advertising sales to which he personally recruits (solicits, follow up, closes, collection payment).Such compensation shall be payable within 30 days of receipt of advertising sales.

Okay.

—————————————————————————————————————————————

Photography Director

Xxxxxxx Xxxxxx Magazine

Job Title: Photography Director Division/Department Photography
Supervises: Contributing Photographers Reports to: Executive Editor
Last Revision Date: January 10, 2013

The Photography Director of Xxxxxxxx Xxxxxxx Magazine manages a magazine’s photography department. The Director supervises and determines assignments for staff and freelance photographers; negotiates with agencies regarding freelance photographers. Screens contact sheets and makes preliminary selections.

The Photography Director primarily oversees the photography for three major publications, The Websitewww.xxxxxxxxxx.com the quarterly Magazine and the weekly electronic newsletter, The Xxxxx Statement. The Director also manages the social media accounts for Xxxxxxxx Xxxxxxx including Instagram and Tumblr.

The Photography Director sets the publication standards for performance, and motivates and develops the staff. The Photography Director is also responsible for developing and maintaining the publication budget.

The Photography Director will focus on a variety of activities geared towards building the Xxxxxx local presence including:

1. Editorial – Build Xxxxxx audience through photography.  Source premium, relevant content ideas and manage editorial calendar. Create independent content including articles across a variety of editorial  (Fashion, Beauty, Lifestyle, Arts & Entertainment, Mens)

·        Establishes direction of photographic content of the website, e-newsletter and digital magazine.

·        Recruits photography staff as needed.

·        Responsible for the training and development of staff in which he directly supervises.

·        Provide support and direction to the department Editors and Art Director.

·        Schedules photographers for events and story assignments as necessary

1. Social Media – Use technology and modern marketing techniques to assist in managing the brand’s social media presence primarily using Instagram and Tumblr and sharing a portion of these photos to Twitter and Facebook.

Education & Experience

1. Two – three years experience in the media industry developing content, producing professional capacity photography and working within an editorial organization to deliver high-quality content on deadline

2. Demonstrated awareness, aptitude and capabilities with web platforms and web technology including Twitter, Facebook, blogging platforms, etc.

3. A person of the utmost integrity and character

Compensation & Time Commitment

The Photography Director should plan 10-15 hours per week to fulfill his fantastic role.  The Photography Director will receive two (2)% of advertising revenues generated from the website and the bi-annual digital publication.

Thousands of fashion & style-conscious readers throughout the Xxxxxxxx area rely on Xxxxxxxx to keep them in the know while on-the-go. The online media platform for stylish socialites features a bi-annual digital publication (also available in print), a weekly editorial e- subscription service (The STYLE Statement) and accompanying website, providing highly curated local content. The Xxxxxx reader trust Xxxxxxxx as her go-to resource for  what’s hip and new in local cuisine, fashion, beauty, culture, events and stylish living. The Photography Director of Xxxxxxxx Xxxxxxx Magazine wants readers to live, love, shop, dine and discover in his city as he does.

Most of Xxxxxx’s editorial content is selected locally in addition to various regional, national and international fashion and travel features.  A well-connected  Photography Director and his team of photographers has a finger on the city’s pulse and is responsible for selecting content, along with networking within his community to grow the Xxxxxx brand.

There Are 9 Comments On This Article.

  1. I’d love to see a contract lawyer, who specializes in IP and understands the photography/illustration world, market plain english contracts directly to publications/corporations. I find that many companies have a boilerplate contract something similar to (but not quite as bad as) this. Surely there’s a market in here somewhere for an enterprising lawyer– Lesley Burns?

    • Colin Mattson

      Amen, brother. I’ve seen similar terrible boilerplate at everything from mom and pops to zillion dollar Fortune companies, and the refrain is always the same: “Oh, that’s just boilerplate legal [requires/told us to use]. It doesn’t mean anything and we wouldn’t enforce it for [role you are filling.]”

      Really? I get that art buyers are typically salaried, full-time employees (and that interns are interns) and don’t have to deal with contract law on a regular basis, but what on earth do non-contractors think a contract is? Yes, I’ll just go ahead and sign this binding legal document that opens me up to millions of dollars in nonsensical liability because you told me you’d never hold it against me.

      A world in which some wonderful lawyer gets art departments to adopt appropriate, fair boilerplate contracts is a world I want to live in. And to give credit where credit’s due, I applaud Bill’s client here for seeking out advice (seriously, mystery publication, good on ya) and Bill for offering his usual excellent advice to them.

  2. In line with what you wrote and Matthew writes here, these contracts typically read like a boilerplate document put together by an attorney with little practical knowledge of how the industry in question actually works. The photo editor or assistant (or intern!) who contacts the photographer is often put into a very awkward situation in trying to mitigate the damage caused by such a document by having to balance their own interests (and job security) with the task of simply hiring a photographer to shoot a job – which should be a straightforward situation.

    Additionally, that initial contact person may not even understand the language in the contract themselves, and so becomes unable to act as a advocate for both their own interests as well as those of the photographer. What a mess. Finally, I think half – or more – of the problem is the native tendency of attorneys to place defensive barriers to disaster in order to ward off problems that don’t even really exist except in the mind of the paranoid (as me how I know…). I’ve put stuff in my own T & Cs that mimics this attitude from my own end.

    Nice piece, as usual, Bill. Thanks for sharing and I hope to hear the follow-up regarding the contract, if there is one.

  3. A business needs contracts tailored to their needs. Off the shelf contracts like this look overly aggressive and will turn away talented people.

    And the thing is, that it very likely wasn’t meant to be aggressive. The magazine just didn’t know better, and thought that contract needed this kind of protection. And protective it was: like a tank rolling towards contractors.

    Kudos for that magazine to seek advice.

    Some points are totally foreign to this business – see the section about ownership of copyright, which magazines really don’t need.

    And some points cannot even be enforced: ideas can’t be copyrighted, and how would you want to own an idea an independent contractor had during a shoot for a magazine? That sounded more like a contract for a scientist who worked in a corporate lab, not like a contract for a creative person.

    The best contracts are short and precise and don’t need endless lines of legalese which only makes people unrestful and weary. Just put down the rules in clear, concise sentences. You probably won’t even need a lawyer for that.

    Good writing is rare – I see this goes for contracts as well. Looks like the law profession needs its own Pulitzer to raise the awareness for quality writing.

  4. Another excellent edit to a limiting contract! Slow and steady education will hopefully support better relationships for all of us!

    I do second Matt’s comment – gap to be filled!

    Thanks again Bill!

  5. How about a turn where the talent (photographer, assistant, models, producer) provides the contract based on reasonable industry standards. The end users contracts frequently leave freelancers and small studios hanging on a precipice of business death.

    The above contract grabs every IP item it can. I can’t imagine any person in their right mind willing to sign and work withing the confines of the contract. It would be like being point without a rifle, body armor, and bullets while searching a village for terrorists.

  6. The xxxx.com hyperlink in the photo editor section reveals the magazine in question.