32 Comments

1. March 17th, 2009 at 4:45 am

   Speed

   The photographer, like any business owner, must decide to be in the business of financing his client’s operations — or not. He must answer the question, “What happens if I never get paid?” Small businesses frequently take the attitude (just before going belly-up) that they “need” that difficult (“slow pay” that becomes “no pay”) customer. In fact the last thing they need is a customer that doesn’t pay its bills.

   If you want to work for free, find a deserving charity. At least it’ll be honest about its ability to pay.

2. March 17th, 2009 at 9:10 am

   BettyLu

   Perhaps photographers shouldn’t produce or shoot the job until they get paid. Like at the car wash! You pay before they wash your car

3. March 17th, 2009 at 9:25 am

   Lou Lesko

   SPEED: Good comment about charity.

   BETTYLU: Unfortunately the business is such that if you’re not willing to accept the ridiculous terms, someone behind you is. I’ve walked away from a few jobs because I didn’t like the deal, but the job got shot anyway by another photographer.

4. March 17th, 2009 at 10:21 am

   constanza camargo

   WE owe it to ourselves to fight this to the end, I.E. successfully, like they did in the U.K.

5. March 17th, 2009 at 10:24 am

   Maslov

   Everyone should remind these Agencies upfront that usage rights to any images are not granted until payment is received in full. Even if one was to abide by these terms (and I don’t feel anyone should), are the Agencies & Clients willing to wait months until they are able to use the photographs? If they are published prior to payment, then they are violating the copyright.

   Should be wait to turn over the images until payment is received? Most of the projects I’ve worked on over the past couple of years have very quick turnaround times. Everyone should emphasize this to these Agencies.

6. March 17th, 2009 at 10:26 am

   peter berson

   We photogs need to realize that we need to be paid BEFORE the job.
   That’s correct.
   Re read that if you need to- before the job.
   50% up-front.
   Enough of the past. It’s not about the economy.

7. March 17th, 2009 at 10:35 am

   Lou Lesko

   As I read more about this, I wonder if Omnicom is taking advantage of a down economy like a war profiteer in war time. Or are they really feeling the bite. I’m going to reserve my opinion until I get more facts.

   In the interest of balancing the discussion, I would love to hear from Omnicom.

   That said, it is my hope that the photo and commercial production worlds can unite the fight. Ominicom as a huge corporation that realizes much more profit from the advertising projects and should shoulder the debt risk not pass it off on the production entities.

8. March 17th, 2009 at 11:33 am

   Kate Company

   I truly agree with Norman’s comments. We need to continue to educate the client and remind the Art Producers and the Art Directors about usage rights, terms and copyright ownership. We need to have the Art Producers as our allies and try and provide them with the information and the ammo to go back to their client with hard facts……

9. March 17th, 2009 at 12:13 pm

   michael ash

   norman
   is right on here…..
   they are unable to use the images UNTIL we are paid….copyright infringement
   so if that’s their game, lets play hardball !!!!!

   how can anyone lay out the cash for these companies….

   JUST SAY NO…..PLEASE

10. March 17th, 2009 at 1:15 pm

    BUD LAMMERS

    First the fees dropped, then the full buyout, usage… forgot what that was ?. The only way
    I would roll the dice is to bill the entire P.O. with with NO receipt backup. Even then bankruptcy is bankruptcy. They want the cake cut plated feed to them and their lips wiped.

    How about the whole P.O. plus a 25 % interest payment tacted on… Maslov is right though.
    where can we get funding on a $250,000.00 job.

11. March 17th, 2009 at 1:31 pm

    Tricia Scott

    There aren’t too many photographers who can upfront this type of money (and shouldn’t!). Imagine 3 jobs happening at the same time, upfronting it all.

    This would also require quite a bit of pre planning on the agency end in order not to run into the “licensing rights are granted when invoice is paid in FULL” clause. As Norman mentioned, I can’t remember the last job that had more then a few weeks pre-pro time, if that.

12. March 18th, 2009 at 4:41 am

    Kathleen McCormack Rogers

    All agents and photographers should band together and include the “licensing rights are granted when full invoice is paid in full” terminology right on their websites (as a former agent, we used to have this in BOLD at the top of an estimate). This will send the message “don’t call for me if you don’t agree.” When the ad agencies run into this enough, they’ll have to do something about it. Imagine an art/creative director going into a meeting with a client with no photographers to suggest for a job because they can’t find any that’ll work with the client’s terms?? In the end, that agency’s creative will suffer because they’ll end up hiring a less-experienced photographer who isn’t savvy enough to know he/she’s agreed to a bad deal. This is probably the same photographer who doesn’t even know that the copyright law protects him. And they’re out there. We all know they are.

13. March 18th, 2009 at 10:36 am

    Gina Knepell

    The thing is, even if you can or are willing to work without an advance, you should never do it. If you agree to work for Omnicom companies within this new set of terms you will give them the idea that this is a workable solution for THEIR problem. Now, they are trying to make their problems become your problems. YOU REALLY HAVE TO SAY NO. This has to be a united front. It’s possible that photographers who are more desperate for work will agree to this under the threat of “take it or leave it”. That, when it happens, and it will, will be unfortunate for the cause against this potential trend.

    Don’t let it become a trend with companies; Omnicom to be just the first big corp. in a potentially long line who try to adopt these terms. If they can’t get people to work for these terms they will be forced to re-assess.

14. March 18th, 2009 at 11:50 am

    Jen Worth

    Copyright violations aside, photographers rarely have the means to bankroll a production. Unfortunately, there’s always a photographer who’s willing to do a buyout or undervalue their photography, but if there are people out there willing to abide by these new policies, there will be lasting consequences to the industry. Unless there’s resistance to these policies, they could last much longer than any recession and become the new “industry standard”.

    Speaking as an Art Producer, many of us do not need copyright reminders. We are merely cogs in the wheel, and we only have so much we can control. There are Art Producers who have gone to bat for photographers in regards to industry standards for production advances, but it’s not solely their job. If these terms are not acceptable, photographers and agents needs to step up and say so, even if it means declining a project. That is absolutely the only way that agencies will take note.

    This begins before the job is shot. Don’t look to the legalese on your invoicing to do the legwork.

15. March 18th, 2009 at 12:18 pm

    Eugene Mopsik/ASMP

    ASMP Position Statement – Omnicom Passes the Buck

    It has been brought to the attention of the American Society of Media Photographers (ASMP) that the Omnicom Group, the world’s largest advertising agency holding company, has changed its terms and conditions in an effort to limit their agency liability and in so doing transfer that liability to independent photographers and producers. Basically, by disclosing their agency status and for whom they are acting, the advertising agency is only liable to the extent that their client has specifically paid them for any amounts payable to you. Additionally, ASMP has been informed that reps are being told that there will no longer be any advances on assignments.

    These new policies are most probably the result of the market and governmental pressures experienced by major corporate clients such as GM who in their effort to avoid bankruptcy are now prioritizing their financial obligations and will make payment according to those priorities. In other words, some suppliers will be waiting significantly longer to be paid depending upon the client’s priorities. That being the case, agencies do not want to be left on the hook for reimbursement of monies expended on behalf of their clients, especially where the fear of bankruptcy exists.

    These terms and conditions are simply not in the best interests of photographers, producers or clients. This action, clearly taken in anticipation of increasingly difficult financial conditions is a unilateral effort to shift the burden onto those who are least prepared to bear it. Should an independent photographer of moderate means be the banker for a Fortune 100 company? By eliminating their customary role as intermediate financier, agencies are removing value from the value-added chain, and that will ultimately lead to an overall dampening effect on commerce.

    Meanwhile, there is no incentive for the agencies to make photographer friendly changes to their terms and conditions as long as photographers are willing to accept the current terms. Notice of these changes should be included in your blogs and discussed on related lists and social networking sites. The issue needs to become viral and requires significant support from key photographers in order to gain traction and effect change. If it is business as usual for the agencies, then nothing will be accomplished.

    ASMP would recommend that photographers include in their paperwork a statement making it clear that there will be no grant of copyright license until all related assignment invoices are paid in full. Images should be registered with the Copyright Office immediately upon completion of the shoot and prior to first publication and/or possible infringement so that in the event that legal action – a last resort – is needed, recovery of statutory damages and court costs will be possible.

    In addition, the Association of Independent Commercial Producers (AICP) recommends the following:

    “If an agency’s internal policy insists upon these payment terms (sequential liability), the production company should:

    a) Make sure the advertiser (“client”) also signs this agreement. If it is a rider, the terms of payment and the full contract price should be added to the rider.

    b) Be provided with the advertiser billing and contact information.

    c) Copy the advertiser on all invoices.

    d) Notify the advertiser of payment due as soon as terms of the contract (payment dates) are not met by the agency.”

    As a possible course of action, since the agencies are shifting liability to their corporate clients, perhaps photographers should consider approaching the clients directly for advances and or other payments prior to the beginning of the assignment.

    Ultimately, this is a case of the supplier beware!

    Eugene Mopsik

    Executive Director, ASMP

    mopsik@asmp.org

16. March 18th, 2009 at 12:21 pm

    Amy Rivera

    Lou, where did you get this info? I work for Omnicom and haven’t heard this.

    However….I think it has been fairly standard practice in the last few years to wait on the photographer’s advance payment until the client has paid the agency. (Has something to do with Sarbannes/Oxley as well). But that doesn’t mean the client doesn’t pay the advance and the agency forward it to the photographer. I have seen it be late but never non-existent.

17. March 18th, 2009 at 1:02 pm

    Lou Lesko

    Hi Amy

    This is the piece that appeared in Adweek

    http://www.adweek.com/aw/content_display/news/agency/e3i801548f98188f77a2a339aa21da98e3e

    I have a call out to Pat Sloan at Omnicom to get an official response.

18. March 18th, 2009 at 3:05 pm

    Eric Siegfried

    When you hire a plumber to fix a leak, tell them you’ll pay them 70-90 days later and you will have one hell of a mess to clean up!

19. March 18th, 2009 at 3:53 pm

    Lou Lesko

    ERIC: You just made my day.

20. March 19th, 2009 at 8:03 am

    BUD LAMMERS

    I seems to me that in the end, the Agency is trying to protect themselves from a client going BK on them. We can do all the paper work in the world to not grant copyright till we get paid in full. But the bottom line is… Do you want to be left holding the bag if the client goes belly up? Omnicom must have this in mind. One account going bad could really hurt the agency. One account going bad for you could put you out of business. You can’t get your car from the body shop till you pay the bill cause how do them take back the work… If our images make it to the printed page there’s no taking them back…. Let keep it real. Either your in or you out… But the copyright arguement is not going to matter if the client goes down. And they will use the images as soon as they get them. Sort of, the cows out of the barn the minute you take the job…. I also think that this to will pass. Omnicom will probably work with you and give you an advance on the healthy accounts… I still have faith in the system. Art buyers/Producers will figure out how to help I’m sure.

21. March 19th, 2009 at 8:48 am

    John Early

    I think Bud makes some valid points. Apparently copyright law does not supercede bankruptcy law. I found this out the hard way. I had a situation a few years back when marchFirst Agency went bankrupt and they demanded money back (from me and many other vendors) that they had paid me a couple years previously and had used my images. I had to hire a lawyer to get that amount reduced, but I still ended up paying them back money I had already been paid and spent and they had and were still using my images.

    I think Bud is right and that art buyers/producers will realize photographers need advances on most jobs and will work out an equitable solution.

22. March 19th, 2009 at 11:16 am

    NY Photographer

    I spoke with an art buyer (they wish to remain anonymous), and here’s what they said…

    “…the policy is we don’t cut an advance until we get paid the advance from the client… it means photographers get advances a little later than normal (maybe a couple of weeks), but they do still get them. It’s not true
    that they don’t get an advance at all.”

    They added that if such changes had been made, theyre not aware of them, and ask if this policy has been published somewhere by Omnicom themselves.

    BTW, sorry to remain anonymous, but this was at the wishes of the art-buyer. Axes are chopping off heads all over the place these days. Thanks for understanding.

23. March 19th, 2009 at 11:22 am

    Lou Lesko

    NY PHOTOGRAPHER: Thanks for taking the time to contact an art buyer and post the info.

24. March 20th, 2009 at 8:03 am

    ASMP: Omnicom Passes the Buck at nyc.locationscout.us

    […] Resolve | Livebooks Blog | No more advance checks, says Omnicom […]

25. March 22nd, 2009 at 8:26 am

    APA MEMBER

    Stephen Best / APA National CEO                                                           March 21, 2009

    APA on Omnicom statement…”our policy has not changed”

    The last week has seen ever-increasing concern and anger in the advertising community concerning a change in the way the Omnicom Group and its subsidiaries conduct business between Omnicom subsidiaries and suppliers.  Advertising Photographers of America (APA) reached out for comment from the Omnicom Group about the crisis.  With the Omnicom Group being the world’s largest advertising holding company, a change in terms and conditions affects the advertising community on so many levels.  The policy of concern is called Sequential Liability.  Sequential Liability simply means that the agency only pays the suppliers after it has been paid.

    Quoted from The Association of Independent Commercial Producers (AICP) published guidelines dealing with this trend:

    “Certain agencies have inserted a Sequential Liability clause in their contracts. Others have added a side letter to be signed by the production company. Still other agency contracts do not overtly refer to Sequential Liability as being in effect, but do refer to the agency “acting as agent for” (the advertiser), which suggests the same thing.

    If the agency is requesting the recognitions of a “principal-agent” relationship, then the client (principal) should not be released from the obligation of payment until total payment is made to the production company. It should be clarified that even if the client pays the agency, the client remains liable if the agent defaults in fulfilling the payment obligation.

    Sequential Liability means that the agency as agent for its principal, the advertiser, is liable for payment to the production company only if the advertiser has paid the agency; otherwise the advertiser is directly responsible for the payment.”

    On Thursday, March 20, 2009, at 11:47 AM, APA spoke with Pat Sloan, Omnicom Director of Public Relations, to express the concerns of APA and others to the
    opposition of this policy.  APA members are not able to finance major advertising projects and these terms and conditions are not acceptable.  Director Sloan’s statement is that there has been no change to their policy on this matter.

    Sequential Liability has been policy in the industry for many years.  The reality is that advertising agencies, many are Omnicom’s subsidiaries, have provided advances and credit to production companies and photographers to begin awarded projects with substantial expense.  “Business as usual” must continue was stated to Director Sloan.  APA members, independent photographers and small business owners, are not in a position to finance commercial projects of possibly hundreds of thousands of dollars.

    APA business practices have long promoted the inclusion of “statements of intent” to receive 50% to 100% of expenses before the start of a job.  It is imperative that this practice continues without removal of advances by clients.  Photographers should also include that the photographer owns the copyright and any license agreement must be paid before the release of images.

    As creators of intellectual property, photographers hold the copyright on their images.  It is imperative that registration of images be immediately submitted to the U.S. Copyright Office.  Copyright law and licensing agreements with your clients provide you strong legal protection.  APA recommends legal action only as a last resort but registration is needed to recover statutory damages and legal fees.

    We must stand together and confront these terms and conditions because they are not in the best interest of photographers and their community of support.  If even one accepts them, it will cascade and the role of advertising photographer will change to one of being a financial institution or bank for clients.  We must not go down that heavily liable road.

    The Omnicom Director of PR did promise to recommend a meeting to discuss these matters.  It is APA’s hope that a meeting will be arranged and discussions will continue to a successful resolution.

    As previously stated, BE CAUTIOUS and don’t be afraid to walk away.  We must stand together.

    Stephen Best

26. March 26th, 2009 at 1:31 pm

    Walter Westbrook

    While this is a classic power play, Omnicom is attempting to push liability down, as they (and others) believe that the vendors (producers, photographers, crew, talent) have no choice. Yes, there will always be people fighting for scraps and consciously devaluing the market but IMO they don’t last long. Their way of doing business is not sustainable.
    Our challenge in the current climate is managing cash flow. We have threatened to pull a project at the last second without a wired advance posting to our account. It’s a hard choice to say no to a project but that discernment is even more critical now. For us, the question is how can we run our business in a way that elements/minimizes the need to bend to these new “terms”, from Omnicom or anyone.
    Pushing bad business practices down your food chain might be writing on the wall. Bad business now might mean no business later.

27. March 26th, 2009 at 4:35 pm

    Dustin Lacina

    As someone who spent a long time as a copywriter, this is pretty standard.

    Few agencies pay you until they get paid by the client. Admittedly, this does mean photographers get the shaft in having to front for shoots where as a copywriter should hopefully have paid for their word processor and their internet service.

    I know Omnicom (Which is what? The 2nd largest holding company?) has a big stake in lots of agencies, and those agencies aren’t making nearly what they used to because, well, no one’s buying or giving anymore. So they’re definitely feeling the hurt (I know several people at Omnicom agencies that have started grinding their teeth to stubs). But it’s not just them being evil/greedy. Plenty of other agencies have had to start doing this because–they just don’t have the cash. All of these places run so hot on overhead that until they get it from an agency–they don’t have it.

    Maybe once things cool down and banks start making more sense (here’s hoping) then a newer, more stable and less insane business model will emerge. Until then, us freelancers have to take serious stock of what we can and cannot afford, and hope our credit cards can keep us afloat for those 60-75 days (I have had payment held up to 120 days before, it’s sick).

28. March 26th, 2009 at 11:24 pm

    PK

    Ya, this is essential SPEC.
    “We’ll pay you IF the client pays us, and if the client doesn’t like the shoot, and doesn’t pay us, then we can’t pay you.” That’s SPEC.

    Also, fronting 30K in expenses, is just crazy. I don’t know any business owner willing to do that in any business except loaning. Where is the collateral?

    I would never agree to those terms. I don’t care who the client is… I’ll take a hike.

29. April 2nd, 2009 at 9:05 am

    DeBoer

    Cover your backside like a good businessperson. Think clearly about money matters as though you were buying a house because the cash outlay on many jobs make a damn good down payment on a good sized home.

    OK, let’s see a show of hands …. who among us is doing a 6 figure job without the client signing a Master Services Agreement? Ok, good. Second … who among us will shoot a 6 figure job while financing your client’s client without guarantee of payment for out of pocket expenses? Hmmmm, I’m not seeing all hands raised. That’s way too risky. Time to rethink if that is your S.O.P. Seriously folks, does this even require thought?

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32. December 6th, 2009 at 6:08 am

    David B

    If your think Omnicom is not good to it's word now, just read what they've done to their own: This year Omnicom announced that the health insurance benefits promised to currently retired employees will end December 31, 2010.

    Had these retirees not believed Omnicom’s promise of health insurance coverage until age 65, many would have bought personal policies when they were ten 10 or 15 years younger. Now they are faced with buying coverage to make it to Medicare–five or more years away– at an age when insurance is much more difficult and costly to get.

    They didn’t leave their older, ex-employees empty handed though; they provided them with the e-mail address of an online insurance company.

    Count your fingers after you shake an Omnicom hand–better wash it, too.