Most photographers, artists, and other creative people are…well…creative. They depend on their agents and representatives in the commercial, fine art, and other areas to deal with those sticky negotiating and icky money things.
Recently Ed testified as an expert witness at a hearing. The issue in dispute was the severance provision contained in the written (now terminated) photographer/representative agreement. Substantial severance was claimed due by the former rep. These issues affect illustrators and any other creative who uses or is considering retaining the services of a rep or agent. Severance is a product of negotiation. It is not a right bestowed on reps or agents by the Almighty. Reps will take whatever you give them.
The trier of fact (judge/arbitrator/arbitration panel etc.) incorporated Ed’s testimony into the decision saying that, “The severance obligation presented here was most succinctly stated by Edward C. Greenberg, the lawyer called by (Photographer) as his/her expert witness”. That testimony appears below. To hear “Ed” and “Succinctly” in the same sentence left Jack just speechless. Quite a feat. Regardless of that fact, Jack still feels that Ed’s testimony rocks when it comes to explaining the issues of severance. Severance is when an agent or rep continues to receive commissions after the photographer/artist sever their relationship. It’s sort of like “alimony”, but not that nice.
Greenberg Testimony (Verbatim):
“The other archaic — one of the other archaic assumptions is that the photographer has the ability, on 30-days notice, to terminate. He can’t if he perceives that he’s going to be paying two reps. Many photographers don’t consult attorneys, they don’t consult experts. The perception is that they are going to have to pay two reps, and they don’t bother consulting with an attorney and, therefore, they are restricted in their movement.
Now, this is sold to them, this concept is sold to them after the rep – - and remember, the first thing the rep is going to do with any photographer is out negotiate him or her — The rep says to the photographer, “Well, you know, it’s going to take six, eight, nine months to get going. We’re not really going to make too many sales for you or licenses for you in the first six to nine months”. But then on the back end, after a rep has failed to produce work, they want credit for the six to nine months where they said, you know, it’s going to take ‘start up’ (so no money is likely to be generated).
Next, there is no other industry, no other industry, where an independent contractor who works on commission, would get severance on accounts never procured by them. (For example) An independent contractor in the personnel business, a Hollywood agent, there is no industry where there’s an independent contractor relationship, and business has never been procured, where severance is paid.”
The trier of fact then wrote in the decision, “Mr. Greenberg also described severance clauses such as the one in the Agreement as a ‘collar of pain’ that forces the photographer to stay with the agency or retire or go out of business”.
The decision was very favorable to the photographer. The rep obtained only a small portion of the sum sued for and the request for attorney’s fees (allowable by their agreement) was denied in its entirety. We will not at this time disclose the facts and identities of the parties.
Severance is a product of negotiation. It is not a right bestowed on reps or agents by the Almighty. Your rep is not likely your “friend”. He/she thus should not be treated as one, but that may be part of your relationship and you might, in another parallel universe, actually be real friends. But you should really look at such a relationship as a business relationship with a business associate, with money being the motivating force behind each of you in this relationship. It might sound cold to some, but this advice comes from many years of Ed having to deal with these love fests after they end. Photographer/rep “divorces” are frequently only slightly less contentious than real divorces.
Think about it. You’re starting a relationship with a person whose talent is “negotiating” and getting as much money as possible. Your talent is….. being a creative person. When you have to sign a contract with a really talented agent/representative, not getting outside professional advice is like a ninety-year-old multi-millionaire with a bad heart not getting a pre-nup before marrying that 24-year-old “party girl”. Trust us, the kids will not be happy.
The great Carole King got it right when she wrote the pop classic “You’ve Got a Friend”,
People can be so cold.
They’ll hurt you and desert you.
Well they’ll take your soul if you let them.
Oh yeah, but don’t you let them.
That song went platinum for a reason. Yeah, your agent is your friend. Read the lyrics again.
Ed & Jack