Pretty Standard Stuff...a vent and question
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shanekislack
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PostPosted: Mon Sep 21, 2009 6:57 pm    Post subject: Pretty Standard Stuff...a vent and question Reply with quote

So this makes 3 times this year that I receive a contract to sign, after the shoot, that the buyer claims is "pretty standard stuff", but outlines 1 or more things that were not contracted in the initial consultation or estimate. Yes, I need to stand up for my rights, enforce contracts, etc, however I always feel like the jerk. Most of the time it 's little stuff like exclusivity but in one case it was copyright transfer!

Does this happen to you guys? How do you handle it?
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Leslie
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PostPosted: Mon Sep 21, 2009 8:04 pm    Post subject: Reply with quote

Anyone can *ask* you to sign anything after the fact, but as long as you have your estimate signed by someone with the right authority for the client, which you really should do before ANY shoot, you have a contract and they have to pay.

When someone comes later with something like a rights-grab, don't get defensive. Instead, first ask them why they need to change? "We negotiated terms and agreed to the estimate, so I'm surprised. What has changed for you since then?" That way they aren't threatened and can try to explain, but usually will say something like "it's just procedure." You can then reply with "I think it is better if we stick to our original contract. These changes won't work for my company unless the fees go up considerably and I don't think you want that."

If they insist they need their contract signed (which is hooey usually), tell them that you'll need to redact it, send them the new version, and get their initials first. Tell them your lawyer (even if you don't have one, fib a little) has a fit when you don't do this. But also say "I'm sure we'll be able to work out something."

Remember that you'll always do better to be friendly and understanding, but stick to your best interests.

Remember also that I am not a lawyer and this isn't legal advice.
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shanekislack
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PostPosted: Mon Sep 21, 2009 8:51 pm    Post subject: Reply with quote

Thanks Leslie, that's a great diplomatic way to address it.

I'm still wondering if this happens frequently to others; if it points to something I'm doing.
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Gordon Moat
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PostPosted: Mon Sep 21, 2009 9:14 pm    Post subject: Reply with quote

I have to wonder how many other professions have customers or clients who dictate the terms after the work is already done. It's like they feel you are struggling so much that you would agree to anything. Reminds me of the friend of mine who would often ask for extras at a restaurant, and then bitch about the extra charges for little items he felt they should have just given him.

Sure, similar instances have happened on a few projects I did in the past. The worst was a music CD package I was putting together for a band and an independent music label (now no longer around (go figure)). Almost at the point that the design was ready to go to the printers, they tried a rights grab and complained about the fees that they already agreed to in writing. I said I would stick to what we originally agreed, and felt that was in the best interest of both of us. I almost walked away from the entire project, and I was willing to give back most of the deposit; they made me feel like shit. Instead I held my ground and acted in what I felt was the most ethical manner, and everything worked out as originally agreed. I think in that situation, one lawyer in that was the one pushing to try a change and rights grab, and it did get a bit ugly, though I will avoid relating the details. I do think they gained more respect for me after that, and when it came time for a reprint of the CD package, they agreed to my fees and terms without modification.

Consider that if you agreed in order to continue getting work from the same client, that they have just set the ground floor for how they deal with you in the future. You will be expected to give similar concessions on future projects. The alternative might be that you no longer work for that client, but if you had to change your relationship with them, then have you really lost a great client?
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bubs
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PostPosted: Tue Sep 22, 2009 7:58 am    Post subject: Reply with quote

I just finished a simple 3 day roadtrip type shoot for a tourist board through an agency. It was quoted and agreed upon. Then all of their scheduling went south and I was driving to nearly the same locations everyday shooting different subjects; they couldn't line up all the ducks in a row. It therefore went over by 2 days and the milage went way up as well as expenses.
When I went back to the client to tell them this, they said "thats tough, you quoted us a flat rate for the job".
I basically got screwed out of 1000. Not going to argue with them as they feed me a lot of work. But......
Then I get a call a few days later asking for a couple of additional images for a different "book". I said sure but I will have to charge you a usage. They said it was fine and would get back to me with an amount (remember usage where I am is a flat rate of 25 per image no matter what or where it is). She emailed me later to say I can't bill them anymore because this "book" is part of the initial project. I told her I was never briefed on this second book.

At this point the account rep emails me this "The job that XXXX has asked for the images for is an extension of the first one - for a very similar but shorter book, being supplied to the same people at the same event which cross references the first one, so at no point would we expect to pay additionally for these.

I hope this clarifies and I look forward to working with you in the future."

So, even though it doesn't say it in my contract, I'm obliged to give them the 2 images (remember its only 50).

I responded with this, "Sorry
no one briefed me that there were two jobs to be billed as one.

I dont care about the money(its 50), its the principle. If they tacked on another job to your project then they should understand that there will be extra billing(?)


thanks
I too look forward to working with you in the future
lets get this all behind us and push on"

Sometimes, more often than not, you just have to bite the bullet. I hate doing it but they are a big client and the market that I'm in works on not talent or creativity . . . . yet.

r
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shanekislack
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PostPosted: Tue Sep 22, 2009 1:39 pm    Post subject: Reply with quote

Wow, that's a tough one, Bubs. I don't know where you live, so I'm not familiar with the standards around there. With clients like those, who needs enemies?
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Leslie
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PostPosted: Tue Sep 22, 2009 3:48 pm    Post subject: Reply with quote

bubs wrote:
I just finished a simple 3 day roadtrip type shoot for a tourist board through an agency. It was quoted and agreed upon. Then all of their scheduling went south and I was driving to nearly the same locations everyday shooting different subjects; they couldn't line up all the ducks in a row. It therefore went over by 2 days and the milage went way up as well as expenses.
When I went back to the client to tell them this, they said "thats tough, you quoted us a flat rate for the job".


You quoted them a fee for the JOB AS DESCRIBED and if your paperwork does not say something to the effect of "any changes to the project will require changes in the fees and expenses" then bad on you. I'm sorry that sounds harsh, but every photographer needs to learn this lesson. Have Change Orders in your kit at all times. Get signatures authorizing additional money or DO NOT DO THE WORK. Stop the project and go home. They are bullying you and you must draw the line early and clearly.

They are looking for someone to bend over and take it from them. Stand up and say "no." Clients like that are not worth the time, effort, and abuse they heap on photographers and they will not learn otherwise until or unless more and more photographers hold their own business policies firm.
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James Cook
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PostPosted: Wed Sep 23, 2009 12:38 pm    Post subject: Reply with quote

Quote:
They are looking for someone to bend over and take it from them.


And once you have, they come to expect it from you and then from others. Their behavior is reinforced.

My experience has been that those I was the most giving to, became the least appreciative in the long haul. Those with whom I was firm, but polite and diplomatic, became some of my best clients AND they tended to treat me with the most respect.
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tcphoto
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PostPosted: Mon Oct 12, 2009 4:03 pm    Post subject: Reply with quote

Your signed contract is golden. No court of law will rule against you if they do not honor it's terms. I would simply ask them if they really need to own the Copyright and follow the conversation up with an Estimate for x5 the original contract. Nothing drives the point home like cold hard cash and they should recognize that they do not need it.

I shot a magazine cover last year that the magazine later wanted to use for a mailing. I quoted them a price, they didn't understand how I wanted to charge them for something they commissioned. I gave a little on the fee and the check was issued within days. Be pleasant, professional and hold firm on your contracts and they will respect you. Give into their request and they will run you through the wringer.
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Leslie
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PostPosted: Mon Oct 12, 2009 4:15 pm    Post subject: Reply with quote

tcphoto wrote:
Your signed contract is golden. No court of law will rule against you if they do not honor it's terms. I would simply ask them if they really need to own the Copyright and follow the conversation up with an Estimate for x5 the original contract. Nothing drives the point home like cold hard cash and they should recognize that they do not need it.


I'm sorry, this is nave advice. Never send am estimate/bill for any multiplier of the original invoice--that will screw you if it goes to court. Also, 5X is probably not even close to enough $$ for the copyright.

More importantly, signed contracts are fought out in court all the time and people who have signatures lose, often. The wording of the contract is what counts. While it is important to have signed contracts, absolutely, what there is in those contracts will make a huge difference in winning or losing in court. In this person's case, if the photog did not explicitly state that any changes to the project would invalidate the original estimate, there is a very good chance that a court would see the contract as one quoting a flat rate and he would have to eat it.

I am only a law student and this should not be taken for real legal advice. Talk to your own lawyer for the best advice for you. That being said, I have read so many contracts cases recently that looked "easy" but that the court ruled against the "obvious" winner--because of wording issues like this.
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tcphoto
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PostPosted: Mon Oct 12, 2009 4:25 pm    Post subject: Reply with quote

Leslie, after reading your responses for years I am convinced that you would argue with a tree. I appreciate your fighting for photographers rights and our Industry but I am not the enemy.
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Leslie
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PostPosted: Mon Oct 12, 2009 4:55 pm    Post subject: Reply with quote

Of course you are not "the enemy" (besides, there is no "enemy"). I didn't say anything against you at all. I'm sure you meant very well and wanted to do nothing but help. I appreciate that.

What I said was that the advice was nave, and I stand my that opinion. That is not at all personal--I am talking about the advice and its impact.

I hope you can keep these things separate. I certainly do not mean to imply anything against you. I simply don't want what I think is less-than-helpful advice to get promulgated--no matter how well intentioned it is.
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shanekislack
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PostPosted: Mon Oct 12, 2009 5:14 pm    Post subject: Reply with quote

Good news. The client that wanted to change the shoot to "work for hire" finally paid...6 months later. They had the gall to send it to their lawyers, whom after talking to me and seeing the original estimate/invoice told them to pay up!
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Mike
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PostPosted: Wed Oct 14, 2009 5:44 am    Post subject: Reply with quote

I run into this a lot, it's like a game of telephone. The phone conversation doesn't quite match the email which doesn't quite match the estimate or PO.
If it totally changes things I go back to the AB and tell them there are some changes than are needed on the PO, and by the way, I can't get a fie to them until they get me the correct PO. It usually works, I try to remain calm about the whole thing, I used to get pissed but now I expect it.
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Leslie
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PostPosted: Wed Oct 14, 2009 1:14 pm    Post subject: Reply with quote

@Mike
Sadly, it is far too often a deliberate tactic. The AB is instructed to "play dumb" or to act frustrated that the wrong PO was sent, but really, it is just an attempt to, well, really to steal more usage.

I have often wondered if someone brought that to court what the result would be. There are contractual issues involved with signing something you thought was something else. Hard to prove and persuade that is was malicious, but maybe...

The point? Read everything from the client and object to the objectionable things immediately and professionally... before the shoot.
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James Cook
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PostPosted: Thu Oct 15, 2009 10:55 am    Post subject: Reply with quote

I'm reminded of an experience I had with Rodale Press some years ago. I was called by a photo editor and asked to cover a major running event on spec. I refused but not before politely explaining my reasons. She called back later and made an offer with what was too low a rate. Again I refused.

I don't recall how many times we went through the song and dance, but once we agreed on the fee we went through it over terms. She wanted everything at first but we worked through a few stages until she accepted the terms I had begun with - which were quite standard. It was a fee for the coverage and a guaranteed minimum usage.

She mailed me a printed contract with everything exactly as I had pursued it from the start. And I don't mean a contract she ran through a printer on her desk; it was an established form that Rodale used for contracting photo jobs.

In my mind's eye I could see the trays on her desk with contracts for all the various stages we had worked through. I wondered how many photographers caved earlier in the process and got one of the other forms. Of course I wondered too if there were better trays than mine.

When I actually covered the event, I encountered another photographer working for the same editor. This person had agreed to work on spec; getting paid only for whatever was published.

The editor had it all. She had no obligation to spend more than what she had committed to me, but had two of us covering the event. She had a monetary incentive to use six of my images before it became an even playing field for any additional images to run with the story. The other photographer got screwed; serving primarily as a backup.

Yes, our clients have schemes they've developed to get more from us for less. Unfortunately there are many among us who consistently reinforce that behavior.
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Koa
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PostPosted: Wed Oct 21, 2009 12:15 am    Post subject: Reply with quote

The principal for my son's school wanted me to design a school logo for her with the school itself as the basis. I took 75 images, stitched everything together, converted it B&W and Voila!, school logo appropriate for t-shirts, letterhead etc.

The work is a donation. Yet, I still sent her a contract stating that I continued to hold the rights to the image butv that the school could use it in any way they wanted as long as it was for the schools benefit.

My concern was that someone outside of the school would start making t-shirts and such with my image and sell the stuff for a profit. No problem with me as long as the school gets a cut of that profit.

Either way, I gave her a usage fee of $15,000 and then placed on the contract, "Fee Waived".

Well, she sat on the contract for six weeks and gave it back to me stating that the name of the school in the contract was wrong.

The name was correct. What was different was the title of the picture. I used the original name of the school instead of the one being used now. I used the name because I am big on history and I wanted the original name to be remembered. The fact was, she did'nt like it and wanted me to change it.

I sent the contract back today without the change.

RTeally, how does a customer get nearly $1,000 in work and $15,000 in usage fee's free and still have room to complain.

She must be wearing custom tailored pants to hold those big polished balls she's swinging between her legs.

I agree with the above poster... the more you give the less you are appreciated.

-Koa-
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Mike
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PostPosted: Wed Oct 21, 2009 1:03 am    Post subject: Reply with quote

Koa wrote:


Either way, I gave her a usage fee of $15,000 and then placed on the contract, "Fee Waived".

Well, she sat on the contract for six weeks and gave it back to me stating that the name of the school in the contract was wrong.

The name was correct. What was different was the title of the picture. I used the original name of the school instead of the one being used now. I used the name because I am big on history and I wanted the original name to be remembered. The fact was, she did'nt like it and wanted me to change it.

I sent the contract back today without the change.

RTeally, how does a customer get nearly $1,000 in work and $15,000 in usage fee's free and still have room to complain.

She must be wearing custom tailored pants to hold those big polished balls she's swinging between her legs.

I agree with the above poster... the more you give the less you are appreciated.

-Koa-


I guess you showed her. It could have been $100,000 in usage fees, if they don't have to pay for it, it's a made up figure that means nothing. Maybe she wanted the contract to reflect the current name of the school not your historical reference (seriously, what's the deal with not changing the title?).

PS: Are you able to deduct the $16,000 for a donation?
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Koa
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PostPosted: Wed Oct 21, 2009 1:25 am    Post subject: Reply with quote

Mike wrote:


I guess you showed her. It could have been $100,000 in usage fees, if they don't have to pay for it, it's a made up figure that means nothing. Maybe she wanted the contract to reflect the current name of the school not your historical reference (seriously, what's the deal with not changing the title?).

PS: Are you able to deduct the $16,000 for a donation?


I know, I'm being a hard head but here's what the big deal is about it.

Puerto Rico was inhabited by the Taino Indians and they where pretty much decimated when Columbus arrived.

The Taino, in an effort to escape the Spaniards fled deep into the mountain, right where my town is at now.

About sixty years ago, several influential towns people decided to change the name of the town to the last name of the major land owner here. The land owner was a Spaniard (from Spain) so the original name is pretty much faded.

About 10-15 years ago, this land owner found the remains of an entire Taino village on his property. Utencils, ceramic pieces, arrow heads, vases, you name it, it was on the land. What did he decide to do? He bulldozed everything.

My reasoning is... why should we give our town the name of someone who's country raped our women, murdered for sport and enslaved our people? By the way, the Taino were the first slaves in America. The African slaves were brought in later to replace the Taino that were decimated. That's why you see Black, White and Brown Puerto Ricans.

So, the one place on the island where the Taino escaped to, and they were still hunted down even here, and it has a Spaniards name. Slap in the face, don't you think?

My photography for the past six years has centered on this culture.

Did you know that the Spaniards played a game with the Taino? They would line them up and place bets as to who could cut a Taino's head off with one clean sweep of their sword. If they only cut half way, then they brought the next native up and tried their luck again until the head came clean off with one swoop of the sword. Nice game, eh? Place your bets!

So, yeah, I do not like this town being named after a Spaniard who had no qualms in bulldozing and smashing the remains of an entire Taino village. Those were historical artifacts which can never be recovered.

The family still owns and runs that land, even though they still live in Spain.

That's why I try and keep the original name of the town alive and I am not going to have the Principal change the original name of the school.

And deducting the cost of the work never entered my mind. And the fee that I charged was a rough estimate of what I could potentially have made had they payed a usage fee over the next 20 years for it's use on letterheads, Internet and other electronic media, t-shirts, posters, brochures etc.

As for it not meaning anything... I learned a very long time ago that even if you give something for free, to always attach a value to it. People need to know the worth of what you are giving them in materials, time and usage fees. If not, they will expect the same everytime and that's when you truly under value the industry. Free is nice, but there is always some cost to that "Free"and I make sure that the recipients are aware of how much I am ACTUALLY giving them and how much they are ACTUALLY receiving.

Free is really not free and they need to know it.

-Koa-
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Leslie
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PostPosted: Wed Oct 21, 2009 3:38 am    Post subject: Reply with quote

FWIW, you still cannot deduct donated services in the US. Only the ACTUAL costs (no markup) of the materials.

Congress has still not fixed this, though it may happen soon.
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