Nothing But The Truth: Photo Lawyer Interview
Joel Hecker has been the photography attorney that I turn to for nearly fifteen years. He’s helped me with copyright issues, publicist agreements, book publisher relationships, and contracts with photo reps.
We recently sat down for a chat, and much of it was focused on the photographer/photo agent relationship. I’ve had reps for over 25 years, and I find their input into my career extremely valuable, but it is ultimately a business partnership and that starts off with a properly negotiated contract.
In particular, I wanted to discuss Severance, the arrangement where the photographer gives either a portion of their upcoming fees, or some calculation of their previous commissions, to their agent at the end of their relationship.
Chris Buck: When a photographer friend shares a photo agent contract with me it’s like an eight-page document with, two or three things that matter, and all the rest is noise.
The contracts talk about all kinds of things, like, “What do we represent you for?” and Commissioning Rates and all that, but the thing that really gives people trouble is the Severance. Is that also your take?
Joel Hecker: No, not completely. Severance is one of the important things. The Economic Terms, and the Commission structure are obviously important. House Accounts can be important because if you have them and they stay with you, then you don’t want to have to pay commissions to your rep on these fees.
And the Severance, yes. Looking forward in time, the Severance is very important.
Indeed, the built-in problem with Severance is that it’s so far away. It’s human nature to be like, “They’ll have a cure for mortality by the time I get there.” People have a hard time putting themselves in a context that’s so far away in time, and they sign off on things they shouldn’t.
I have to break this into two parts: experienced photographers on the one hand, and newer photographers on the other.
For the newer photographer the idea that an agent is willing to represent you is the most important thing because you have to get known, and to build your reputation. If you have to pay more to get out of the relationship, assuming that it ever ends, you’re willing to do that because right now you’re not making anything. A severance therefore is meaningless because a percentage of nothing is nothing. That said, newer photographers should still be aware of the terms of any severance provisions and should certainly try to negotiate fair terms.
And yes, after a number of years and you’re now established and hopefully making a lot of money, if the rep agreement is terminated by either the rep or by the photographer, severance could come out to be a great deal of money. There’s a philosophical way of looking at it (which is how the reps look at it): the rep helped build your reputation and therefore you’re paying for the benefit you have already gotten as you move on without the rep.
The other side of the coin could be, “The rep did nothing, I built my reputation myself, and now I’ve got to pay extra in the form of severance.”
A photographer almost never leaves because they have some amazing opportunity. You leave because you’re not getting the work, or the relationship soured. You leave because you’re unhappy. The idea of paying 40 to 100 grand on the way out the door is embittering.
Yes, but there’s a flip side and I’ve represent the reps, so I understand that. I have had four or five occasions where there is a wonderful relationship between the rep and the photographer, then the artist gets married and the spouse wants to take it over. The photographer says, “What can I do? She’s my wife, he’s my husband,” and the agent relationship is over. The rep has spent an enormous amount of time and effort in building up a great career and now they’re left with nothing.
That’s the concept for providing for severance. So there’s a two-way street on this; it’s not all one way where the rep is grabbing money. The rep has presumably spent a lot of time and effort to establish a photographer, with the reward to come after the photographer becomes successful. A termination after success means that the rep does not get a commission on the money when it begins to flow in.
However, this rationale does not really apply to a photographer who is already established. In that situation, the rep does not have to spend time and money to establish an already established photographer, unless the intent is to move the photographer into a new market or direction. Most established photographers are able to negotiate very reasonable terms of severance, or no severance at all.
It boils down, as in most things, to who needs the other more. If a representative needs that photographer, either because of reputation (“I now represent this wonderful person,”) or “there’s a hole in the roster,” or “I can make a lot of commissions with this photographer”, or for some other reason, the rep is certainly willing to negotiate. You, the photographer, make a deal to your reasonable liking.
When you work for a photo agent do you give them certain suggestions for how to do Severance?
I’ve saw a photographer whose career was ruined by one of these overreaching severances where it was calculated based on number of years. Like, “One month per year,” and they’re with the rep for ten years and so they had to pay like a year and a half severance - some ridiculous timeframe.
The photographer was so angry they just chose not to work for a year. That time away from the photo industry really hurt their career, and both of their reputations.
I always try to make a fair deal no matter who I represent. My philosophy is that if you have too one-sided an agreement in your favor, it may very well come back to haunt you at some point.
When I represent an agent, and this rep has a “bad” existing form contract, I will say, “I think this is too onerous, I think you’re asking too much.” (However, it is never my decision ultimately, that is up to the client whether a rep or a photographer). In negotiation, if the photographer has an attorney, I will try to negotiate what I consider to be a fair deal with the attorney. Unfortunately, some attorneys will take an unreasonable position, and no deal is made.
There have been some court cases on rep contracts, but most cases get settled before trial. Generally speaking, an unlimited severance – such as six months for the first year plus one additional month for every year thereafter - is most likely onerous, and I think it would not be enforceable. However, a limit of up to a maximum of six months has been held to be enforceable.
There are multiple industry standards but the one that was most prevalent, at least a few years ago, was three months or six months’ severance for the first year, plus one additional month for every year thereafter, up to a maximum of six months, or up to nine months.
When I was representing the agent I would say, “That’s just not fair, and it may not be enforceable.”
When reps have a reputation for taking advantage of their artists it only makes it harder for them to get new people…
Absolutely.
And on the other side of the coin, I have represented reps who have waived severance. The rep will say, “I can no longer represent you” either because I can’t get business for you, or “You’re not willing to go in a different direction,” or you’re a dinosaur. “I’m going to waive the severance, good luck, and maybe I can help you get somebody else.”
Those are the good ones. That’s the way to do business because that word comes back. That person who left might actually refer other photographers to that rep. “Hey, what was the relationship like?” They’d say, “They’re great. It didn’t work out for me but they’re great,” not, “They took me for every dime they could get.”
So again, good people do good things, nasty people sometimes do nasty things. But that’s just a business practice that is individualized and not across the industry.