Survival Rights

In today’s stock photo environment, the concept of “survival rights” in a contractual agreement between photographer and stock agency no longer makes sense.

Many stock photo agencies have clauses in their photographer contracts that allow the Agency to continue to license rights to the photographer’s images for years after either the photographer or the agency terminate the agreement. If the agreement is “exclusive” then the photographer cannot do anything to try to generate revenue from the images, even if the Agency has not been generating much, or any, revenue from them for the photographer.

This all goes back to a time when agencies were taking in transparencies, storing them in file drawers, editing submissions, shipping images out to customers who requested certain ones, sometimes making massive numbers of dupes at the agency’s expense, placing some of the images in print catalogs, and generally incurring a lot of expense in managing the imagery they accepted into their collection for marketing.



At that time agencies felt they needed the right to continue to license the imagery for a period of time in order to protect their investment.

In today’s market, most of this has changed. Copies of a digital file, not film that needs to be returned, is delivered to the customer. Agencies have set up systems that allow them to automatically accept virtually every image submitted to them. There is little or no editing. Photographers are required to keyword each image so customers are able to find then. If the keywords are inadequate the agency does little or nothing to make the images more findable. There is a degree of inspection to insure that digital files meet certain technical standards, but no judgment in terms of quality or marketability.



Another argument for survival rights, when Rights Managed licensing was king, was that clients who had licensed rights for a very specific use in a particular project might come back later and want to re-license use of the same image for a different project. In such a case the agency wanted the ability to re-license the use.

Now, all that has changed. Most images are licensed as Royalty Free. For one base fee the customer is granted unlimited rights to use the image in any way they choose -- on multiple projects -- for as long as they like. There are still occasional exceptions, but they are rare and not the way most images are licensed. It is highly unlikely that agencies will lose much revenue today is they no longer have the right to re-license use to a customer who used the same image previously.

Custom editing by agency experts to help customers find what they need is mostly a thing of the past. Now, each customer is expected to spend his/her time doing the editing. As collections grow in size, editing becomes a much more laborious task for the customer.



Now, all survival clauses do is take control of how an image will be marketed out of the hands the image creator and turn it over to a third party that may, or may not, be doing a good job of licensing rights.

It is highly unlikely that any photographer would want to pull images from an agency if the images are consistently earning revenue. But if the images aren’t selling, and haven’t been selling for a reasonable period of the time, the photographer should have the right to take the work and go elsewhere.

Deleting Images

Given all this one would think that contracts between photographer and agent should be for rather short, initial, get-to-know-you periods. After that either party should have the right to terminate. The images should either be returned to the creator shortly after termination, or at the very least the creator should have the right to begin trying to license copies of the images through other sources.

It should be a very easy for agencies to delete every image file belonging to a particular photographer (the photographer’s name should be attached to every one of his or her image files), or to delete specific image numbers that the photographer might supply to the agency.

But, no! The agencies don’t want to do that. That would require some work on the agency’s part and they don’t want to put forth any additional effort that is not revenue generating for them.

It is easier for the agency to simply hold the photographer’s work hostage. If a customer happens to want to use that image, then the agent gets its share. However, more likely what happens with today’s huge collections is that the image gets buried in the search returns and no customer ever sees it or knows it is there.