Alex Trabek’s Jeopardy clue is, “Let the buyer beware”- the question, “What is Caveat Emptor”? That Latin phrase has become part of our daily English vocabulary known to lawyers and laypeople alike. The title to this piece, “Caveat Artifex” is however a relatively obscure phrase that is likely to be more important to creative people. The English translation is roughly “Let the artist beware”.
Just to be clear, an “artifex” means much more than an artist—a closer translation would be artisan or craftsman. The Romans didn’t really have the concept of an artist like a photographer, film-maker or even inventor. They had more specific words for particular kinds of artists, like pictor (“painter”), but artifex is probably the closest you’re going to get to “artist” which for our purposes here equates to photographer or illustrator. Please, no comments from anybody who really knows Latin!
Notwithstanding the vast amounts of time some of us spend on the web reading real or fake news, playing games or staying in touch with Aunt Rosie in Juno, using the Internet for business seems to be more rarely employed. What follows is an all too common scenario where the failure to use a search engine for about the same time it takes to play a game of solitaire or send a happy birthday email, can end up costing a photographer many thousands of dollars. Here is the step by step scenario:
- (Our scene opens with a phone call) Excited Rep/Agent calls photographer and says: “After my brilliant negotiating, XYZ Company wants you to shoot their big ad campaign for their President’s Day Sale. Catalogs, point of purchase and newspapers. XYZ Company has 20 retail stores and they sell home appliances. They want what you love to shoot, lifestyle, using their products. Four models and five days of shooting. And they are going to pay what I asked for, which means you will net $100,000!” (Close up of photographer’s big smile)
- (Close up of the paperwork) Paperwork prepared by Rep/Agent with Rep/Agent’s name as “vendor”( To which we say “?”) The word “copyright” does not appear anywhere. The paperwork is second-rate legally speaking.
- (Composite of photographer shooting models) Photographer finishes shoot on location in Florida, 6 weeks before the images run in a massive campaign for the President’s Day Sales. Ads run in February and terminate right after the holiday.
- (Sad violins play in the background) XYZ Company does not pay its bill. Photographer has not registered the copyright of his photos. Rep/Agent makes no real effort at collection because he/she is busy with other things. (Close up of calendar pages falling off calendar) Nine months pass and XYZ Company files for bankruptcy protection for the third time in ten years. (Curtain falls to really, really sad music. Fade to black)
Without going into the legal weeds here, the photographer is not likely to get paid. There are many reasons for the legal roadblocks, including but not limited to, failure to timely register, having the Rep/Agent as the creditor instead of the photographer, and the images have long been out of circulation.
This entire nightmare scenario was however, was easily avoidable. The Rep/Agent, nor the photographer ever performed a simple Google search on XYZ Company when the initial call first came in. Had anyone done so, they would have seen that the XYZ Company had filed two bankruptcy actions within the last few years, had notified several of their landlords that it wanted to terminate leases early, had fired many workers and there was no doubt that another filing in bankruptcy was in the air, along with the smell of death for the XYZ Company.
All of the above information had been in the local newspapers, trade magazines, the WSJ, had been reported on all local TV news and radio stations, customers were posting on Facebook that shelves were not being re-stocked and some stores had big signs in the windows promoting the sales of floor models. In sum, the XYZ Company was well into its death spiral when it initially contacted the Rep/Agent. The XYZ Company had been around for many decades so its impending demise was of great interest to the general public and its several hundred employees.
The Rep/Agent should have simply Googled the client to see what if anything was being reported on the web regarding the XYZ Company. As a new potential client, the very least due diligence the Rep/Agent should do was to make sure they wasn’t anything reported or involved in that would give a photographer pause. Remember GM and Chrysler filed for Bankruptcy protection. Ringling Bros. is closing after 146 years in business.
Bottom line for all, no matter how big or small the client is or what your perception of their finances may be, ALWAYS do a search on the client’s current activities.
Had the Rep/Agent or photographer known that which was common knowledge and widely reported in the local press, they would have either turned down the job or hired a bankruptcy attorney to structure the shoot so as to assure payment. A company in bankruptcy or about to be, can be forced by a court to pay up front and/or in full for intellectual property. A Google search on the XYZ Company would have revealed its problems simply by reading only the headlines of the numerous stories about their financial problems.
The reasons for doing a simple search of a potential client go beyond bankruptcy concerns. Perhaps the company is about to be bought out or is moving from St. Paul, MN to Dublin, Ireland. In such cases you may be dealing with people you don’t know. Don’t assume that just because a client has met your price you necessarily want to do the job.
Perhaps the FBI, SEC, IRS or one of the other countless state or federal agencies is looking into the company’s practices such that you don’t want to get caught up in their mess. This is especially important if the company is tangling with the FTC or FDA over it advertising content and claims. You don’t need the aggravation nor should you desire to spend time and money if for example, if the Feds want your records so you can be a witness for them.
The web has made doing basic homework quick and easy. Spending just a few minutes can prevent you from literally working your butt off for no reason at all. For those of you who have reps or agents, do yourself a favor and send them this article AND also do your own search as well. Numerous social media posts or comments from other photographers referring to a specific company that “never pays”, “never pays on time”, “I had to sue to get paid…” should not be ignored. Numerous comments and/or posts from various sources of this type should be treated as a big stop sign.
“Where there is smoke there is fire” has become a proverb because it is usually true. Make sure all that smoke doesn’t end up burning your backside.