Welcome to our 3rd series of posts where we share the results from our conversations held directly with community leaders about top of mind photo-industry issues. Community Table was formed from the collective efforts of Matt Nycz andKate Chase of Brite Productions and Heather Elder and Lauranne Lospalluto of Heather Elder Represents with the idea that there is nothing more powerful in our industry than education.
And we held this event in San Francisco, hometown turf for not only advertising luminaries with names such as Riney, Goodby and Silverstein but also Elder,Lospalluto and Chase. So for this one, the Art Producers who joined us were long-time friends and neighbors that have been instrumental in keeping SF on the advertising map, who have played a key role in the creation of stand-out imagery for such national clients as Foster Farms Chicken, Sprint, GM, Comcast, The North Face, EA Games, Mini Cooper and Priceline. So we invited them to start the year with us, add their hard-earned insights and voices on estimating to our series, and over a lunch in early January and a breakfast in January they were more than happy to do so.
As a reminder, each Conversation Starter was directed to one person with a general discussion ensuing. Not surprisingly, many of the answers were similar to those of our LA and NY colleagues. Therefore, rather than sharing the entire conversation, we included the original question and then the quotes and notes that were most relevant. Please note, often times the person leading the conversation spoke most often.
And with that, we welcome you back to the table.
Please note, there will be eight posts shared over the month of April. Tune in every Tuesday and Thursday for the latest installments.
San Francisco Participating Art Producers
Owen Bly: Art Producer/Freelance
Kate Stone Foss: Art Producer/Freelance
Cameron Barnum: Art Producer/BBDO
Shayla Love: Art Producer/Razorfish
Suzee Barrabee: Art Producer/Goodby Silverstein & Partners
Dan Southwick: Art Producer/ Goodby Silverstein & Partners
Kristin Van Praag: Art Producer/Heat
Jacqueline Fodor: Art Producer/Venables, Bell & Partners
Rebecca Lanthorne: Art Producer/Butler, Shine, Stern & Partners
Analisa Payne: Art Producer/Freelance
Justine Barnes: Art Producer/Duncan Channon
Marissa Serritella: Art Producer/Butler, Shine, Stern & Partners
COMMUNITY TABLE – THE APPETIZER: PART 1
Conversation Starter 1: Sharing Information
Conversation Starter 2: Terms & Conditions
Conversation Starter 3: Removing usage After the Shoot
CONVERSATION STARTER #1
The Bid Process: Sharing the initial information
How do you present information to a photographer for a bid? Is it a formalized process at your agency or do you just send an email with whatever information is available.
Analisa Payne/Freelance Art Producer
“It varies. I’ve been fortunate enough to set it up as I see fit. I prefer to have a spec sheet. I highlight points in an email, but think it’s important to have everything in a form that has very specific information about the job that I know or to date and any visual reference that would go along with it. I try to think of any question that might come up along the way. And if I don’t have an answer for it, I note that.
I have a pet peeve about email when you get into a chain situation and points that need to be addressed are spread across multiple emails or communications. And I think things get overlooked often in those circumstances. So I like to have everything in one place even if I have to update and revise it from time to time throughout the process. I try to keep as much as possible from slipping through the cracks because a quick email to say something important may not get read or missed and then after the fact you’re trying to clean up a sticky situation.”
Suzee Barabee/Goodby Silverstein & Partners
“We have a lot of different ways. We start with a Statement of Work when bidding the job and then it’s formalized in the contract once the job is awarded. For Chevrolet, we had a specific estimate document we used for bidding.”
Kristin Van Praag/Heat
“We don’t use a formal document because we do not art buy as much as some other agencies, so formalized forms were not created. We send an email with the comp. We do however have formalized purchase orders. It is just a little more flexible with us. I haven’t run into problems yet. But if I did, I would formalize it.
Marissa Serritella/Butler, Shine, Stern & Partners
I’ve done it both ways. It’s more flexible here than where I was previously (and busier) so often it’s an email with all the info we have to share at the time. It’s important to share everything you know about it, but sometimes an organized email does the job just as well as a form. Is there something you prefer?
Lauranne Lospalluto/Heather Elder Represents
“Having a spec sheet to work from is very helpful so we see everything that is required and don’t follow up with small detail questions that probably annoy you.”
Kate Stone Foss/Freelance Art Producer
“I think it’s important when presenting to the client to have it all on one document that is very clear so everyone knows what they are getting. When they are looking at the estimate as well so we are all on the same page. It’s an evolution as well – things change and are cut.”
Kristin Van Praag/ Heat
“The spec sheet or initial email serves as a completion report at the end.”
Kate Stone Foss/Freelance Art Producer
“I cc as few people and include as much information as possible on the spec sheet to avoid tagging important questions onto the very bottom of a long email.”
Owen Bly/Freelance Art Producer
“Each shoot is its’ own beast. I call first to warn about what’s coming and then clarify with an email. With reps you know, it’s fun to call and chit chat.
At Goodby we wrote an email with bullets and went over any questions on the call. I liked being able to customize it—each email was tailored to the needs of the specific shoot so a form wasn’t necessary.”
Lauranne Lospalluto/Heather Elder Represents
“Some art buyers like talking with us and others are hands off. There are plenty who don’t call.”
Jacqueline Fodor/Venables
“I wish I had a form. I have worked with art buyers who are very organized and have everything documented and checklists. I’m always envious, but that is not me.
Many times I have to triple bid, so I send the same email to all the agents and if there’s a favorite I let them know. After I send the email, I pick up the phone and call right away.
The email includes the comp, potential shot list, usage, and any other details. This is just a framework. The other party won’t know the complete scope of work until the creative have a conversation with the photographer.”
Heather Elder/Heather Elder Represents
“Do any of you ever send the same request to more than one photographer at the same time?”
Jacqueline Fodor/Venables
“Yes, especially if it’s a triple bid, but it’s a separate email to each rep. I’m transparent and again, will tell the rep if their photographer is a favorite.
It’s rare, but sometimes we’ll want to work with all three. But the creative generally know who know who they want to work with. But I need to be prepared to present all three.”
Heather Elder/Heather Elder Represents
“How often does the second or third choice rise to the top after the call?”
Jacqueline Fodor/Venables
“It’s rare, but it happens. You may think you know who you want, but until the phone call and there is a love connection between the photographer and art buyer nothing is final.
I work on the relationship with the rep. But if there’s a new photographer then it comes down to the relationship between the photographer and the creative. And there is a chance they might want to work with them. You never know, so I try to be prepared. A wild card can always be thrown in there.”
Kate Chase/Brite Productions
“Have you ever worked with a form?”
Own Bly/Freelance Art Producer
“I have worked with a spec sheet, but I prefer to structure it my own way. Everyone has their own personal style. I have run departments and as long as each art buyer or production manager makes it work, whatever works is fine. If this means they want to work with a form, that is also fine. I just prefer not to.”
Heather Elder/Heather Elder Represents
“I find that when we receive forms it’s a much more formalized process and there is less communication with the art buyer because all the details have been included on the form.
To me it doesn’t matter at all. I just hope than when we get an email and details are left off for conversation, the other party is available for calls and emails.”
CONVERSATION STARTER #2
The Bid Process: Terms and Conditions
Why is it that you send the terms and conditions at the very end of the process?”
Marissa Serritella/Butler, Shine, Stern & Partners
I’ve worked at agencies where the terms are sent up front with the comps and bidding materials. It’s true I suppose that other than that, we don’t have them available until it prints on our PO’s. I don’t think it’s meant to be shady though. And I think it’s ok to ask for it if needed. I guess our main concern is the usage, which we do spell out up front. I’m not sure if photographers would need to see them or benefit from seeing them up front. But again, I’d share if they ever asked.
Suzee Barrabee/Art Producer Goodby Silverstein & Partners
“We can’t write the Purchase Order until the job is awarded.”
Shayla Love/Art Producer Razorfish
“Since my agency is digital, we don’t have a lot of existing contracts with photographers already, so typically everyone is a new vendor. I’ve been including the Terms and Conditions forms they are going to sign in early emails and highlight all the details, including the rights agreements. All of the details that are in the vendor agreements that they have to sign are very big important and should affect their bid or give them an opportunity to opt out.
I get really scared if they’ve already estimated and I have to say “Oh, by the way, you have to sign this document.” It can take months to get to that point.”
Suzee Barrabee/Art Producer Goodby Silverstein & Partners
“I call out all the rights in the terms and conditions and will tell the artists to cross out the section that says we get all the rights.”
Shayla Love/Art Producer Razorfish
“I think it’s different at every agency. Our agency is different than any ad agency I’ve worked at. Everything is on paper and there’s no formal system in which I have to get an approval. Technically, even if you come in to just show books, we are supposed to get all of your photographers individually signed up as vendors. They want this on file so that if a conversation about a project transpires we are covered. Because of copyright, the rep cannot be the vendor, the photographer needs to be the vendor.
Analisa Payne/Freelance Art Producer
“It’s always been my understanding that the terms on the front of the purchase order supersede those on the back. When I was at Hal Riney, this was a big deal because people would write the terms and conditions on the back and the powers that be in finance would have none of that. So we ended up being very clear about the Terms & Conditions on the front took precedence. So when it said that they were work for hire on the back, we made clear that we weren’t purchasing the copyright and this calmed everyone down.
Heather Elder/Heather Elder Represents
“More so in the last year, we’ve gotten terms and conditions that are asking us to give away quite a bit including the right to use the images for self promotion. To be awarded a job and then find that out is very challenging. And even though you can’t generate that paperwork ahead of time, maybe there’s a way to communicate that information so I can run it by the photographer to help them make a decision. Or so that at least they go into it with their eyes wide open and opt out if they prefer.”
Unknown
“If the photographer doesn’t agree to the terms and conditions, we go to the client and generally they will say “They can use it after five years” or “They can use it on their website,” The document is just a template they use and they are sometimes open to changing it for things like self promotion.
Rebecca Lanthorne/BSSP
“We use the same form for designers, illustrators and photographers so we have people cross out what they’re not comfortable with, like “work-for-hire” or “release of copyright.” I work with a set system that generates this paperwork that doesn’t allow us to edit the legal terms.”
Suzee Barrabee/Goodby, Silverstein & Partners
“We’ve spent weeks negotiating the terms and got to a point once where we agreed to disagree which is kind of scary. But it’s a certain risk level, especially when dealing with indemnity.”
Kate Chase/Brite Productions
“We had to hire a lawyer for one negotiation. There were extensive terms and conditions, statement of work and purchase order. And it was overwhelming and a $3,000 undertaking.”
Suzee Barrabee/Goodby, Silverstein & Partners
“A big one is sequential liability which means that the photographer doesn’t get paid until the agency gets paid. If the client doesn’t pay the agency, we technically aren’t obligated to pay the photographer. This happened due to all the bankruptcies in the dotcom era.”
Owen Bly/Freelance Art Producer
It used to be that Purchase Orders had the Terms & Conditions specific to that job typed up on the front with the standard Terms & Conditions on the back. And it was written by lawyers to cover not just photography but a whole range of stuff. And in particular the right to retain ownership since all agency POs say they own whatever you do.
Kate Chase/Brite Productions
Wouldn’t it be more logical to send the Purchase Order or at least the Terms & Conditions before or during the bidding process because you can veer off into a lot of negotiation on the purchase order?
Owen Bly/Freelance Art Producer
In any Purchase Order you’ve gotten from an agency, there will be conflicts in Terms & Conditions every time because they’re not specifically tailored to art buying. They’re pre-printed.
I try to outline them to that specific job. It’s almost like the pre-printed Terms & Conditions are meaningless but they’re not. What I type in is specific.
Jacqueline Fodor/Venables
I’m going to put everything into the PO that pertains to that job. And by that time, I’m not going back to the client.
Heather Elder/Heather Elder Represents
To your point, if there is a discrepancy, if PO says work-for-hire or they own the copyright it’s too late to negotiate. In those situations it’s very important to read it and know that Terms & Conditions on your PO superscede prior negotiations. You have to protect yourself..
Owen Bly/Freelance Art Producer
When you give us a bid, it will say that it superscedes anything we give you and our POs will say the same.
Kate Chase/Brite Productions
If you had a choice, would you send the PO before the estimating begins?
Owen Bly/Freelance Art Producer
No, because every single agency PO has conflicts. I’m not talking about what we type in. I’m talking about what is already in the standard PO.
In 25 years I’ve only had a problem with this after the fact once. It sounds like you guys have had more.
Kate Chase/Brite Productions
I come from the post side and retouchers never got Purchase Orders. With some clients, there is so much in the PO that doesn’t apply. I thought wouldn’t it be cool to get it before the job because if someone is saying ‘You are assuming all liability for this shoot,’ that is a big deal. And that’s pretty much on every purchase order.
And after it’s awarded, everyone is excited and then you get the Purchase Order and put on the brakes. There are these terms that could really affect your accepting this.
Heather Elder/Heather Elder Represents
Although I would say these guys probably don’t want to get in to pre-discussions with people about things that aren’t going to happen 100% of the time.
Owen Bly/Freelance Art Producer
I don’t think there’s any answer beyond tailoring the POs to specific jobs and requires the lawyers to get involved.
Kate Chase/Brite Productions
Wondering how organic this process is because we do a lot of cross-offs and sometimes we are told that no cross-offs are allowed. These are the terms and you have to make a decision and you’ve already been awarded.
Owen Bly/Freelance Art Producer
If it’s a licensing or usage issue and usage is spelled out in what we type in, we’re trying to give you guys a leg to stand on if there is a 001% chance something goes down at least you have what we said on the Purchase Order.
CONVERSATION STARTER #3
The Bid Process: Removing Usage After the Shoot
How do the Terms and Conditions address a situation where a photo shoot occurs but the client no longer wants to pay for usage?
Suzee Barrabee/Goodby, Silverstein & Partners
“If the day rate, expenses and usage are estimated as separate line items, then I always put in a clause that states that the photographer doesn’t get paid the usage fees until it is approved by the client.”
Heather Elder/Heather Elder Represents
“Telling a photographer that the images are not being used and that the client does not want to pay for them (especially if it has nothing to do with the quality) is a really hard conversation to have after the fact. If the day rate and the usage fees were not divided – which does happen sometimes due to budget etc – then my inclination would be to still charge for the full fee. But the situation may require us at the time to determine what is day rate and usage after the fact and just charge for that. Regardless, going back to the photographer after the fact is not easy and not often fair. It really needs to be addressed up front or the photographer needs to be clear in their own Terms and Conditions on how this is handled.
So much of what we do is expectation management and this situation is a perfect example from both sides.
The Bid Process: Usage Time Frame
What if the usage is for one year and the images don’t get used until six months after they are shot?
Rebecca Lanthorne/BSSP
“I always state clearly that usage starts on day of ‘first insertion, post or use.’”
Suzee Barrabee/Goodby, Silverstein & Partners
“With talent, you have to include the date of use in contract otherwise the talent agent can claim that the shoot date is the first day of usage.”
Analisa Payne/Freelance Art Producer
I’m finding that I need to manage this up front with the client so we are all on the same page with regards to the usage period because if no dates have been put out there six months later, it will be assumed you are extending beyond the initial period.”
Please note, there will be eight posts shared over the month of April. Tune in every Tuesday and Thursday for the latest installments. To see previous Community Tables posts from Los Angeles and New York City, please link here.
And, as always, thank you Allison McCreery of POP Blog for your flawless transcription and partnership on this project.
Reblogged this on One Hour Photo Show.
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Wanting a rebate and eliminating usage after the shoot, after all is done, is not right. Everything is based on those initial specs and we frequently estimate the entire project with that usage in mind. In reality they are not purchasing photographs, but rather they are purchasing a license to use those images whether they use them or not. You order your meal at Spruce, If you choose not to eat it, should you not have to pay for it? I think not.
Well said! Thanks Norman.
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