The most successful freelance photographers share one thing in common: they dictate the terms and conditions under which they work. Unfortunately, the reality of the market today is that few freelance photographers operating a small business are able to achieve this level of independence. Publications, wire services and even portrait subjects increasingly demand that photographers sign contracts, giving away their rights, before any work is done.
How can a photographer turn the tide against this reality of the marketplace? It’s a question I’ve struggled with my entire career.
When I was a newspaper staff photographer, I had no power or leverage. The work I created for the newspaper was made-for-hire, meaning that it belonged to my employer. But when I became a freelance photographer for a metro newspaper, the terms and conditions of my work were more favorable.
For several years, I was able to work on a handshake and invoiced the paper for both assignments and reuse. I also distributed my work to a stock agency for sales of secondary use. Four years later, I’m still receiving quarterly checks for the images I submitted to my agency.
A Marketplace Shift
After a while, though, a market shift occurred. Media conglomerates wanted to own all of their content outright (oops, it’s not really theirs) and be able to resell and market the work for additional profits. Editors for the newspaper where I worked demanded I sign a non-negotiable “written agreement” (another term for contract) stating that the work I created for the paper would be owned entirely by them. If I refused to sign the agreement, I would no longer receive any assignment work from them.
Over time, this became the standard contract that was distributed throughout the editorial marketplace. In many cases, the terms of the contracts expanded to include ownership of all of the outtakes, prohibition of secondary sales to another a publication or agency, and the indemnification of the publication from lawsuit.
Indemnification is one of the most egregious demands of media companies. It basically means that the photographer is liable for any lawsuits brought about by the work after it’s published. I’m still at a loss for words on this one.
Today’s reality is there is little work being done by freelance photographers that doesn’t fall under at least some of these conditions — and it spells disaster to anyone looking to grow a business as a freelance photographer.
The question then becomes not only how to avoid unfavorable agreements, but also how to create a space where you, the small business owner, can dictate the conditions under which you work.
I’ve found weddings to be a great answer. Rather than being handed a contract, I distribute my own. If a client wants to negotiate the terms and conditions of the contract, I can easily do so and typically the client will end up paying more for my services. Finally, I am able to work amicably rather than hold a grudge or feel ill-will toward my client. This is the type of job satisfaction you can’t find working in the world of newspapers and magazines.
From my point of view, this is one way to change my negotiating position. I won’t ever have to say “yes” to an assignment editor, and I feel better that I’m not participating in a system that allows media companies to take income from photographers and call it their own.