An agent has responsibilities by law to offer images in a manner serving the best interests of its principal - here artists, illustrators and photographers.  A mere "content distributor" can market images (or not) with little or no accountability.  So assume that a stock agency has, images subject to royalty payments as well as other comparable  images which it owns either outright or on which it pays a royalties of far less than 50% to the creator.  Does the agency push the “50/50” image which if licensed, generates 50% less income than the agency’s own wholly owned image?  Oh what a dilemma the agency salesperson faces?  What to do, what to do. What would you do?  Need more time to think? 
 
    So the "50/50 split" creator is at a distinct competitive disadvantage and is utterly unaware of any negotiations engaged in by his/her agent.  During this de facto secret process,  the creative's competitive (or superior images) are effectively OFF THE MARKET!  Certain agencies continue to co-opt competitive images by buying, failing to return or losing them and thus a large body of competitive work fades away into the ether.
 
    Note the acquisitions of smaller agencies and archives by large agencies such as Corbis. Note the disappearance of photo credits bearing photographer’s names and the increasing number of photos credited to agency or archive ONLY.   If you ask some civilians to name today’s most popular photographers many will answer, “Mr. Getty and Mr. Corbis”.  By the bye, ever wonder how this guy Corbis managed to shoot more pictures than all of the photographers you know or ever heard of - combined?  As you must know, Mr. Corbis is the only photographer in history who was imbedded with American troops in each and every battle, in each and every war, from Gettysburg to Bagdad and has the photo credits and copyrights to prove it. But I digress.

    Images wholly owned by an agency yield 100 cents of every licensing dollar to the agency.  A  “50/50, 60/40" creator gets  nothing and has effectively agreed to let the agency hasten his/her own demise by pushing him/her out of the market.  Is it any wonder that media companies and stock agencies like to call artists and photographers "lemmings"?

    So when is an "agency" not an "agency"? Why, when it says so!  Notwithstanding the fact that some stock agencies hold themselves out and promote themselves as "agencies" or  "agents" they nevertheless seek to avoid the legal status of this legal relationship at when appropriate.  Like when a creator alleges that his/her agency has done him/her wrong.  The agency's legal position instantly morphs to, "We are only a content distributor.  We have no special obligations to our content providers other than to try to sell (sic) their work".  

    Confused?  You should be.  In this world of corporate speak and naive creatives, the agencies continue to make every effort to eliminate the word from your intellectual property vocabulary.  They require that you ignore all of the time tested legal and plain English definitions of the word.  They know that most creatives sleep right through this part of the mugging.

          At law, an agent is entrusted and empowered to represent, stand in the shoes of, act, etc. for another person or business.  The agent is obligated by law to act in the best interests of his/her principal.  An agent has a responsibility imposed upon him/her by law to do those things which in the exercise of reasonable or sound business judgment to benefit the principal - the person who empowered and authorized the agent. The legal foundation of the principal/ agency relationship is TRUST.  Trust carries with it responsibilities and obligations imposed by law.

         Photographers, illustrators and artists are the principals who appoint and entrust  "reps", agencies and agents to procure business in exchange for money - commissions.  You guys are the bosses.  You have the power, they are supposed to work for you, not the other way around. 

         An agent can not act or permit actions which serve its self interest to the detriment of the creative.  Every state has laws which make agents who self deal and act without proper regard to the best interests of their principals, subject to liability.  In short, the actions of agents can be kept in check by the power of law and the assistance of the courts.

    A mere independent sales representative or distributor rarely is burdened by such legally imposed responsibilities and obligations.  He/she can sell one product over another at his/her whim.  An independent distributor selling products rarely has any obligation or allegiance to one brand over another.  He/she may favor one brand over another.  A mere salesperson can sell (or not) anything he/she believes to be in his/her own economic self interest only.  It logically follows therefore, that no one cares, especially not the courts, what products a distributor elects to sell.

    Recently a well known stock agency, whose name is known to you all, has denied by its lawyers, in writing (twice), that even though:

        -  its own contract heading identifies itself as the
           "agent";
        -  it promotes and advertises itself to its clients and
           prospective "content contributors" as an "agency”
           and “agent for content";
        -  prominently uses the word "agent" on its website...

 it is NOT an "agent" for any of its contributors, content providers or “partners”. (Note that if you are not receiving a share of the agency’s profits nor are responsible for a share of its losses,  you are NOT - despite what the agency may fondly call you - a “partner”, pardner. 

    Yes, it sounds illogical.  Yes, it is counter intuitive. Yes, it is utterly bereft of a semblance of merit. Yes, the issue will now have to be litigated at great expense. And oh yes, the agency has more money than God and lots of attorneys to litigate this.

    The creatives now must dig down deep into pockets made bare by the very conduct of their financially fat agency in order to have a judge ultimately decide whether their agency is in fact, an agency.  I see much gnashing of teeth, many lawyers buying large gemstones and countless trees being felled so that thousands of pages of legal briefs can be created.

         All of this, YES ALL OF THIS, could have been avoided had the contract simply stated that, "The agency has all of the obligations and is deemed an "agent" of the creative pursuant to the laws of the State of ______________".  One sentence.  Just one damn sentence.  Had it been included, the creatives would be proud owners of some obscenely priced luxury vehicles and more importantly, their new attorney could be blissfully planning a very early retirement.  Gee do I sound cranky? How unprofessional, so sorry.

    So in this world where creatives don't consult lawyers and where desperation motivates business, black has become white and visa is now versa.  Continued acceptance of the vocabulary of your enemies inexorably moves creatives ever closer to economic extinction.

     If, as and when litigation is filed we will provide the name of the case which will of course, reveal the name of this week’s agency/offender.


    Edward C. Greenberg, PC
    100 Park Ave.
    33rd Floor
    New York, NY 10017