On the heels of our interview with Howard Bernstein about photographers landing agents I have a question from a reader about contracts with agents. I asked APE contributor Suzanne Sease since she’s seen it all to weigh in on what percentage is reasonable and what to look for when signing a contract with an agent. Here’s her answer:
So many times folks think just because they have an agent, the phone is going to ring and the bank account is going to be full. STOP! Make sure you do your research before you sign any contract. A contract is a legal binding agreement that costs some photographers 6 figures to get out of. Before you sign, you must have it reviewed by a lawyer who understands this business.
The standard is 25-30% of the fees, but you need to be really careful with house accounts – you have to decide if you are going to be in charge of your house accounts with no compensation or a reduced compensation. You have to make a detailed list of who are on those accounts from the beginning since you usually can’t add someone in later. You have to discuss up front the expenses for travel, portfolio showings and marketing.
I believe it is crucial that you handle all financial expenses through your business and not the agents. When you receive payment, then you send your agent their cut. All estimates should be sent to you and the client on the same e-mail so you know what they received. That way there’s never a problem with missing fees, underreported income or timely payment.
Severance should have a limit of time for the payment of the accounts they either have established a solid relationship with or brought in as an account. I have seen clients who can’t switch agents because the severance is too lengthy and would cost them too much money. There are a lot of great agents but at the same time, there are some really bad ones. If your agent has a good reputation, they will be great for your business but if they don’t then they can kill your career. It is important for you to talk to photographers in their roster and ones who have left. If you can reach out to a consultant, art buyer or art director.
15 Comments
Very helpful, as always. I’m going through the contract phase of signing with a rep as we speak and this was good to hear. Just for piece of mind that the contract I’m potentially signing is on the up and up.
Timely post for me as well. I’m just starting the look for a rep. This will be helpful when the time comes to talk contracts.
WRT 25-30% of fees. What fees? Would it just be the photographer fees or would it also include things like retouching, scout days, travel days, etc when they are completed by the photographer.
It should only be on the creative and shooting fees of the photographer not crew.
Jeff
I’ve been on both sides regarding ‘billing direct’ vs. having my reps bill for me. And honestly I can see the validity of both points of view, as well as the concerns.
In one rep relationship I always got all the expenses up front, and the rep would be the ‘bad guy’ with the agency if they were dragging things out (ALWAYS on GM jobs) to ensure the final invoice was paid in a (quasi) timely fashion. Fortunately for me, that agent had good relationships with the ABs on the accounts I shot for, so it was never a flash point, or reflected poorly on us insofar as being asked to be paid in a timely fashion. The check was sent to me as the invoice was on my studio letterhead, and I paid the 25% commission immediately upon receiving payment.
I’ve had a few agents over the years. With another one, they’d get the advance money, help produce the job and get the final invoice paid. In that case I’d simply get my fees, minus commissions, plus markup on the costs they didn’t handle. That was a sticking point, because the house was effectively taking most of my mark-up. However it did simplify things come tax time somewhat as most of the hard costs of each job ran through their books, not mine.
Most of my reps have worked on the ‘de facto industry standard’ rate of 25%. I think that people considering and/or paying 30% (or any percentage over 25) of their fees as a commission are absolutely insane. If YOU are paying 25% against your earnings, make damn sure they’re paying 25% of YOUR marketing costs – any thing that brings them (potential) revenue should also reflect your risk against their ROI.
I have a big problem in paying commission on things other than shoot fees, although I can see that cutting both ways. IF the agent isn’t motivated to arrange high scout day/travel day/pre & post day/lighting prep day fees (via a potential commission) they may not push hard for adequate compensation for those line items for you. Not saying that this IS the case, but it could be . . .
As Suzanne says – BE SURE to talk to everyone you know about reps you’re considering – everyone. Ask for references, and they SHOULD do the same. And get it all in writing. It’s a marriage, absolutely. And as anyone who’s been married more than once, with a lot of assets will tell you, a pre-nup IS key.
Cheers
The article was GREAT!!!! There is one part that stood out to me however (see below). As a junior agent at Wave Represents I have witnessed a particular photographer take a hike on our commission as he parted ways with us. This particular photographer handled his own billing as you specified below and where did it leave the agent???? cheated out of 20K
“I believe it is crucial that you handle all financial expenses through your business and not the agents. When you receive payment, then you send your agent their cut. All estimates should be sent to you and the client on the same e-mail so you know what they received. That way there’s never a problem with missing fees, underreported income or timely payment.”
Having been involved in a couple agent/photographer separations that involved lawyers, I can tell you that it goes both ways. The only way to avoid this is to have a signed agreement. If you were cheated out of 20k, and you didn’t have a signed contract…
Also – in response to the article – severance should never cost the photographer any money. The old agent takes severance commission on accounts for a period of time, but that just means the new agent doesn’t get a piece of those accounts until that time is up. It doesn’t affect the photographer at all, and also gives the new agent more incentive to get new clients!
Always Google the rep, ask whether he/she has been sued and get copies of the court papers. In NYC and in LA there are repeat offenders. If you ask around and find several disgruntled formerly represented photographers and/or ask an attorney to do a litigation search you will find out in short order which reps are reputable and which ones seem to attract the attention of lawyers.
We have sued some reps as many as 7 or 8 times yet photographers continue to hire those who have stolen repeatedly from their comrades. It is safe to assume that if a rep has been sued numerous times there is probably something to the claims.
Can you sue him/her?
Did he have a signed contract with your agency?
My favorite photographers don’t have reps, they hustle that much harder!! Pimp your own shit!!
Nice collection! I’ve always been a photography lover ever since, I love everything from nature, wildlife and portrait. I am an Athletic Trainer by Profession but always had a keen Interest in photography. The main focus of my business recently has been strength in wedding photography.
Rob, your rep page says it was getting a big update as of March 2012. Did that happen?
I have personally written, read, amended, testified about and/or litigated at least 600 rep agreements from all over the world over my career. I have lectured and written on this topic countless times over the last 34 years. 50% of all marriages end in divorce but 99% of all rep/photographer agreements end in a “divorce”.
Briefly, very briefly, here are just some of the key points for all photographers to remember:
1. There are NO “standard” fees. The notion of 25% or 30% is put out there by reps as “standard” so the photographer will think that the fee is not negotiable. It is and there is no “going rate”. Since I am privy to the terms of hundreds of these agreements, I can state with certainty and have in court as an expert witness – there is no “standard” nor should there be. Every business relationship is different. How come lawyers, doctors, car mechanics or electricians have fees that vary wildly but photographers are to believe that there is a “standard” for photo reps? That does not pass the laugh test? Stop and think about it.
2. Never let a rep do your billing. Give the rep the opportunity to do your billing and you are letting the wolf in the hen house. Odds are you will find yourself in a law office after your accountant has explained how you got ripped off. We have sued or made claims on over 50 occasions where reps have simply stolen from photographers. We recently obtained a judgment from a court for punitive damages where an agent took $14,000 of the photographer’s money and spent it. The judge awarded $100,000 in punitive damages. We are awaiting the results of yet another trial completed a few weeks ago where the rep simply spent about $28,000 due a photographer when the photographer elected to terminate their relationship. We have had two cases where the reps appropriated in excess of $200,000 due the photographer(s). In one case a rep appropriated funds from several photographers, bought a house in another state and left town. That money will never be recovered If reps didn’t steal from photographers I would not own a vacation home.
3. Severance ought be rarely agreed to, must be earned and only after an extended and financially successful business relationship . It is not automatic and does not exist in any other profession. Severance on house accounts is most often an absurd notion. Worth repeating, the notion of severance as used by photo reps against naive’ photographers is preposterous. See thecopyrightzone.com “Collar of Pain” on this issue.
4. Most photographers hire a rep because they feel that the rep is a better negotiator than they are. The first person the rep out-negotiates is the photographer who typically signs the “form contract” the rep gives them without so much as a look through by a lawyer.
5. BEWARE signing away 15, 20 or 30% of your gross income to someone who typically need not produce 1 penny of new business to “earn” their commissions.
6. Perhaps 2% of all reps know how to bill, are familiar with the law and engage in solid business practices. That 2% is a stretch.
Finally, we represent several reps both in NYC and elsewhere. I could easily go on for pages on how reps can and do, screw photographers, illustrators, stylists and graphic artists. Never, never, ever sign any agreement with a rep unless it has been Koshered by BOTH your accountant and a lawyer.
Thank you so much for taking the time to educate- it is so appreciated!!!
True that.
Thanks for all the valuable information.
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