Common Cents:

Someone to Watch Over You (Not!)
August 2008

by Mark Loundy

"I'm a little lamb who's lost in the wood
I know I could, always be good
To one who'll watch over me"

Ira Gershwin

Many photographers picked up cameras because they don't like to write or aren't very good at it. This leaves many freelancers at a disadvantage when it comes to creating freelance contracts that will support their self-image as "starving artists."

Thank God for The Associated Press. Several years ago, the AP came to the aid of freelancers with the now widely adopted pre-written Work For Hire freelancer agreement. No more worrying about getting the text just right or consulting with a scary attorney. All photographers now had to do was sign and return and they could be assured that they would be screwed over.

In May of this year the AP revealed a new and improved freelancer contract. At first glance, the AP's latest release seems like they might have taken a step backwards. The new contract adds royalties for resales after the initial assignment, which would be a return to the bad old days of photographers making money off of their own work. Who the heck wants to pay more income tax?

But not to worry, the contract excludes sales to AP members or anybody who subscribes to an AP service. It also only pays royalties on "net revenues," which can be as little as zero. Any images submitted to the AP prior to the new contract are also excluded.

The AP has provided for its contributors' peace of mind in so many ways, it's unlikely that any freelancer will ever have to worry about any additional income. But if by chance you find that an AP licensing of your work does get past the carefully crafted protections of the contract, you'll only have to worry about half of the usual agency payment. The AP will only inflict 25% of the net revenue on you.

You also won't have to worry about organizing any stock images because the AP now takes every image you shoot — not just the selects.

But wait, there's more! If you sign now, you will also get an indemnification clause at no extra cost (to the AP). If some wacko decides to sue the AP for any darn reason, you get to pay for the legal bills.

I know I'll be sleeping better knowing that the AP is leading the way for the publishing industry in watching over the interests of freelancers everywhere.


• If an ill wind blows no good, then we had an ill wind this month.


Sauce magazine in St. Louis. Its editors seem completely unfamiliar with customary image licensing. They say that they pay "by the photo." Even at that, they top-out at around $75.

• It's difficult not to feel guilty when saying no to a non-negotiable all-rights contract when the client is the Make-A-Wish Foundation.

• The Miami Herald for its ever-popular all-rights and indemnification contract.


JPG Magazine for its every-issue content and revenue-generating contest. Every entrant pays $25 per entry for the chance of winning $100.

Please let me know of any particularly good, bad or ugly dealings that you have had with clients recently. I will use the client's name, but I won't use your name if you don't want me to. Anonymous submissions will not be considered. Please include contact information for yourself and for the client.


• A tip of the press fedora to the folks at the Columbia University Law School who put together the "Keep Your Copyrights" Web site. It's a layperson's guide through the basics of U.S. copyright law and how it applies to creators. One of the coolest features is a list of contract clauses that can be selected according to type of author, type of rights and then by how favorable (or unfavorable) the clause is to the creator.

You might not care what per stirpes means — but your kids might.


Keep Your Copyrights Website

NPPA Independent Photographers Toolkit

Advertising Photographers of America Business Manual

Common Cents Column On The Cost of Doing Business

Editorial Photographers

Editorial Photographers Yahoo! Group (Message Archives)

Small Business Administration

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© Mark Loundy

Mark Loundy is a visual journalist, writer and media consultant based in San Jose, California.