Ed recently posted a reply to an article on the aphotoeditor.com blog. The answer was so brilliant (who knew?) that I thought it would be a good idea to bring it to the forefront here, instead of being buried in a comments section somewhere else. I think the advice given is critically important to any photographer contemplating entering into a rep/agent arrangement or living under one already.
I have personally written, read, amended, testified about and/or litigated at least 600 rep agreements from all over the world over my career. I have lectured and written on this topic countless times over the last 34 years. 50% of all marriages end in divorce but 99% of all rep/photographer agreements end in ”divorce”.
Briefly, very briefly, here are just some of the key points for all photographers to remember:
1. There are NO “standard” fees. The notion of 25% or 30% is put out there by reps as “standard” so the photographer will think that the fee is not negotiable. It is and there is no “going rate”. Since I am privy to the terms of hundreds of these agreements, I can state with certainty and have in court as an expert witness, – there is no “standard” nor should there be. Every business relationship is different. How come lawyers, doctors, car mechanics, electricians and photographers have fees that vary wildly but photographers are to believe that there is a ”standard” for photo reps? Stop and think about it. Does that pass the laugh test?
2. Never let a rep do your billing. Give the rep the opportunity to do your billing and you are letting the wolf in the hen house. Odds are you will find yourself in a law office after your accountant has explained to you how you got ripped off. We have sued or made claims on over 50 occasions where reps have simply stolen from photographers. We recently obtained a judgment from a court for punitive damages where an agent took (at least) $14,000 of the photographer’s money and spent it for his/her own personal needs. The judge awarded $100,000 in punitive damages. We are awaiting the results of yet another trial completed a few weeks ago where the rep simply spent about $28,000 due a photographer when the photographer elected to terminate their relationship. We have had two cases where the reps appropriated in excess of $200,000 due the photographer(s). In one case, a rep appropriated funds from several photographers, bought a house in another state and left town. That money will never be recovered. If reps didn’t steal from photographers, I would not own a vacation home in Pennsylvania.
3. Severance ought be rarely agreed to, must be earned and only after an extended and financially successful business relationship. It is not automatic and does not exist in any other profession. Severance on house accounts is most often an absurd notion. Worth repeating, the notion of severance as used by photo reps against naive’ photographers is preposterous. See thecopyrightzone.com “Collar of Pain” article on this issue.
4. Most photographers hire a rep because they feel that the rep is a better negotiator than they are. The very first person the rep out-negotiates is the photographer who typically signs the “form contract” the rep gives him/her without so much as a look through by a lawyer. Reps are acutely aware of photographers’ reticence to see a lawyer and understandably take advantage of that weakness.
5. BEWARE signing away 15, 20 or 30% of your gross income to someone who typically need not produce 1 penny of new business to “earn” their commissions.
6. Perhaps 2% of all reps know how to bill properly, are familiar with the law and engage in solid business practices. That 2% is a stretch. See #2 and do your own billing.
Finally, we represent several reps both in NYC and elsewhere. I could easily go on for pages on how reps can and do, screw photographers, illustrators, stylists and graphic artists. Never, never, ever sign any agreement with a rep unless it has been Koshered by BOTH your accountant and a lawyer.