Incidents of agents stealing from their artists are about as commonplace as sunrises. The techniques used by sales reps, agents and gallery owners to steal monies due photographers and illustrators typically fall into one of a few select categories listed below. If an artist never assumes and uses the phrase “trust implicitly” in business relationships, the signs of self dealing by those you should have a “trusting relationship” with, will be as obvious as a state trooper’s siren. That’s not to say that photographer/agent relationships can’t be good; Jack had a long and wonderful relationship with his late agent Elyse Weissberg. But they had checks and balances in place as far as invoices and payments.
The title of this piece we wish was our invention, as it fits this piece so well, but it’s attributed to the Fonz himself, Henry Winkler.
Here is a list, culled from Ed’s real experiences, as to what to look and listen for if you would like to receive monies that are actually due you. These are not things we think might happen, these are all things that have happened to photographers and artists.
1. Failure to Supply Copies of Client Payments. If your rep/agent fails to provide you with a copy of the payment check, money order, wire transfer etc. made by the client the odds are good that monies due you will not come to you in a timely manner – if at all. There is simply no valid reason for a rep not to provide a copy of a payment instrument received from a client or customer – none.
In Jack’s case, he always did the billing himself, received the payments, and sent a copy of the check with the rep’s commission check. Checks and balances without assumptions.
2. Payments from Personal Accounts. Your rep/agent/gallery is XYZ Photo, Inc. After receiving various statements, memos, contracts or even checks on “XYZ Photo Inc.” letterhead you commence getting such things, especially money, from the account of “Joe Schmoe”, even if Joe Schmoe is the President of XYZ Photo Inc., you ought assume something is very, very wrong. Likely funds are be co-mingled – legalese for “mixed” – between corporate monies and personal funds. Very likely Mr. Schmoe is using funds due photographers including you, to buy a house, car or pay tuition. Happens every day. Robbing Peter to pay Paul. No excuse for such behavior is viable.
If this happens, first talk to your accountant and have him/her contact your rep/agent. Most likely your CPA will then tell you to call a lawyer.
3. Consistently Late Payments. You see your work run by the clients but you have not been paid by your rep. Your rep claims that it has not been paid by the client but there is no proof that the rep has sought payment nor that the client has failed to pay. Advise your rep that if you are not paid promptly you will need to have your attorney contact the client directly as use without payment is in effect, copyright infringement.
Your invoice to any client should always have the following wording: “Rights Licensed Only Upon Full Payment of Total Billing ”
4. Lack of Statements. No business records means bad business records. Foul play is likely afoot.
5. Word of Mouth. Other photographers with the same agent/agency are complaining about not getting paid. Simply put – where there is smoke there is a raging fire. You are likely the next in the non-payment line.
6. Lawsuits. If your rep/agent is being sued and/or has been sued by other creatives for non-payment or questionable accounting practices, have your lawyer get copies of the publicly available litigation papers. He/she can then contact the lawyers representing the aggrieved creators and perform other due diligence to determine whether you may be a victim as well. The odds are very good that if other photographers have hired lawyers or made complaints to local district attorneys alleging missing funds that there is considerable reason for you to investigate for the benefit of your own wallet.
7. Review Statements. Review your statements with your accountant periodically. If the exact usage, specific client, nature or term of use are not set forth on your statement you ought be suspicious – very suspicious.
8. Claims of “Uncollected Fees”. Often such fees have been collected by the rep/agent from the client but you are being lied to in an effort to buy time to pay you money due you. See also Madoff, Bernie.
9. Additional Commissions. Reps/agents taking cuts out of fees for re-touchers, stylists even catering fees without your consent, knowledge or approval. Bad sign, bad practice and indicative of the lack of character (or transparency) of your agent.
Remember that the first rule of boxing is also that of any small business, “Protect yourself at all times”. And never assume.