Pro-Imaging

WAITING FOR YOU TO DIE

November 28, 2007

Over the last decade we have recovered in excess of a quarter of a million original analog images on behalf of our clients.  That number is minuscule compared to the photography which ought to have been returned to the hands of its creators.

The images have been recovered from stock agencies, reps, magazines, media conglomerates, archives, museums, ad agencies and the like.  In each instance the shooter’s images were in the possession of an entity which no longer (if ever) possessed ownership or possessory or licensing rights in the images.  In each case the images were not returned or (even) their existence revealed to the rightful owner, until a lawyer’s letter was sent and/or a lawsuit commenced.

We have been asked by more than one journalist how it is possible that countless images of historical, journalistic or artistic importance are out of the hands of their rightful owners.  The answer is as simple as it is unsettling: These companies are waiting for the shooter – you - to die.  It is all quite simple really.  Here is how the game is played:

Typically: 

1. Shooter terminates agreement before its normal expiration date, or ends “oral” agreement with stock agent, agency, gallery, poster company or substantial equivalent(s);

2. Written agreement ends and is not renewed BUT contains some lengthy sell off period giving agent continued right to license or sell shooter’s images;

3. Licensing revenues slow down to a trickle or are non-existent and shooter no longer provides new images to agent;

4. Shooter retires;

5. Shooter dies.

Shooter or spouse asks for images back.  Agency replies: 

A. “It will take the usual 3 years to get your images”

B. “We have put you on our waiting list and we will let you know when we locate your stuff but please understand there are X number of shooters ahead of you so it will take some time”;

C. Says ‘OK’ and then proceeds to make no efforts at locating or returning the images but it nevertheless may send you periodic letters “detailing their efforts to locate and return the images”.  Said letters are intended to pacify you and/or let any applicable Statute of Limitations expire - and that is generally the result achieved...

Utterly predictable and virtually inevitable next play:

Most shooters being passive by nature, sit back and wait and wait and wait.  Sure an occasional phone call is made to the agency and most agencies know how to jerk photographers around well enough to stall them for years.  The longer the stall period the greater the likelihood of one or more of the following occurring: 

A. Photographer grows weary and simply gives up;

B. Photographer is too busy trying to make a living with other photo endeavors and gives up;

C. Photographer is no longer employed in the photography business and dealing with his/her prior - less than successful career - is avoided at all cost and therefore, gives up;

D. Writes letters, makes phone calls, makes reasonable, sensible efforts with/to agency.  Is stonewalled, “Yessed” to death or flat out dared that if speed or lack of returns is “not good enough, sue us”, and then gives up;

E. Believes rightly or wrongly that he/she can’t afford the money involved in pursuing the matter;

F. Fears being “blacklisted” by other agencies.

G. Dies.   

If the shooter then ceases his/her efforts for any reason (typically one or more of the above) the images will stay put by (if nothing else) inertia.  If the photographer’s surviving spouse does not take up the cause for return or if the shooter’s will does not provide for someone to assemble and handle the photography of the deceased, the images remain where they are, with the agency.  Game, set and match.       

If the images have in the past run without a credit line naming the photographer, they may continue to run bearing only the agency’s name.  If the shooter’s name has in the past appeared, the agency may take the image, put it away for “safekeeping” or hide it for X number of years or become unable to find it.  All this notwithstanding, the fact that if a client called and needed the image within say 24 hours to meet a deadline, there isn’t a single agency that could not locate and deliver the image to its client for use.  Such fact makes agencies very uncomfortable. 

Then one day, like magic, a photo of say JFK, Jackie Robinson or any other frequently photographed notable, runs in a magazine or is included in a television documentary.  No photo credit appears attributing the image to “Sally Photographer” (now deceased) or “Sally Photographer/Agency”.  When the image is (now) used, agency banks a 100% royalty fee because the image is now “owned” by it. 

Now stay with me here…

Assume that a surviving family member, Sally’s son, a moderately successful podiatrist practicing in suburban Butte, Montana, recalls (only) that his mom took pictures of JFK.  What are the odds that he will take all steps necessary and will ascertain that: 

-   the shot used was in fact taken by his mother; AND

-   such use was improper; AND

-   mom never sold the image to her then agency; AND

-   therefore the agency should not have it;

if he has neither the negative of the image nor mom’s business records from 44+ years ago?  In real life these issues rarely, very rarely, occur to survivors as very few of them are engaged in or know anything abut the photography business.

In the rare event that Dr. Photographer does possess enough gumption to contact the agency, a smart agent tells him, “We are so very happy to hear from you!  We are holding a check for $500!  Where can we send it?”   Dr. Photographer is overjoyed.  He just got $500 for a phone call!  He now knows that in the future the agency knows where to send money when, as and if there are any future uses.  He pours himself a glass of his favorite adult beverage and toasts to his own brilliance. Agency fires out a check to him sans backup via FedEx.  The two will never cross paths again as despite any subsequent uses there will be no returns of the images still being licensed.  Nor will there likely be more checks sent to the good doctor either.

Finally, and here’s the really big pay off for the agency: 

As you must know, many agencies are having difficulty generating a profit.  The smaller fish continue to be eaten by the larger ones, continuing a decade old stock business trend.  An agency which owns neither images, nor copyrights but merely rights to represent photographers’ work, has little to no value to prospective purchasers of that business.   Such a company would hardly  be an ideal candidate for an initial public offering (IPO). 

The existence of an archive of quality photography, would however, be classified as a “hard asset”.   Such archives have proven value, they are clearly “hard assets”.   In short, an agency with an archive does have something worth buying.  Sales and acquisitions in this industry have taken place without either conducting detailed inventories of the images acquired or ascertaining their respective legal title or provenance.  Ask yourself, “If agencies don’t ‘own’ their images, what are they selling”? 

Beware of abandoning your photography and/or your licensing rights.  If you wait too long to start a lawsuit to recover images and/or money, you may lose your right(s) to sue.  Make sure your will provides for an accounting and designation of a knowledgeable photo person to assemble your images and maximize photo revenues after your death. These warnings apply with equal force to the ongoing licensing of any images by an agency.  Many agencies behave as if they possess a continuing right to license images and issue royalty statements to perpetuate the appearance that the agreement, although expired, is still in effect.

Your images are your work product, your creative life and represent income to you and/or your family.  If you do nothing to protect it, the blame is all yours.  Yes, there are some legitimate agencies out there which conduct themselves in relatively ethical ways.  The overwhelming majority of agencies, archives, libraries, distributors, etc. in our thirty years of experience most certainly do not. 

© Edward C Greenberg, PC. All rights reserved. Not to be reproduced without permission.