Sunday, June 28, 2009

Breaking The Bank

Ken Lewis didn't ascend to the heights of the banking industry by being a pushover. Quite the contrary, Lewis, the CEO of Bank of America, has always driven a hard bargain.

One Sunday last September, at the urging of (then) Secretary of the Treasury Henry Paulson and the President of the Federal Reserve Bank of New York, Timothy F Geithner; Ken Lewis made the deal of the century... or so he thought... in taking control of Merrill Lynch. Paulson & Geithner, knowing that Lehman Brothers was about to fail and that, despite their lofty titles, they were powerless to stop it, scrambled to find a buyer for the next domino in line before it, too, fell. They set-up a meeting between Ken Lewis and Merrill Lynch CEO John Thain. Paulson and Geithner were desperate for Thain to find a buyer for Merrill Lynch that very day, fearing that if Lehman fell and dragged Merrill down with it, the entire economy would collapse like, well, a line of dominoes.

Early that Sunday morning, Thain planned a 1:00 PM meeting in Merrill Lynch's corporate apartment at the Time Warner Center in New York with Ken Lewis. Thain offered Lewis a ten percent stake in Merrill Lynch, generating enough cash to keep Merrill afloat. But twelve hours later, Lewis, not content with a mere ten percent, had acquired all of Merrill Lynch.

Yes, Ken Lewis drives a hard bargain. He made John Thain an offer he couldn't refuse and took all the marbles.

Last week, photographers thought they'd got a glimpse of the competitive Mr. Lewis, up-close and personal. Bank of America had a new deal for photographers, or so it seemed. One of our correspondents wrote...

i cannot remember if it was this forum... that recently had a posting about Bank of America and their new all rights policy..but it seems to be true..although i was previously booked for a shoot for this coming weekend, today they inquired about their new contract which includes all rights for the same money.. i declined, offering alternatives, but this seems to be non-negotiable it saddens me to lose this client, but giving my work away for less than it is worth, is just not an option

This one comment unleashed a wave of criticism aimed at Bank of America... 40+ messages... and it wasn't until the most recent messages had been posted that we finally got to see the actual document.

When I read the text of Bank of America's new deal, the one that everyone's been up in arms about, it seems perfectly reasonable to me provided that the fee is commensurate with such a broad license.

There is one key passage which reads, Photographer agrees to indemnify, hold harmless and defend Bank of America from and against any and all liability, claims, damages, and costs arising from or incurred as a result of Bank of America using the Photograph as described above.

This is the only part I have any objection to, and only because it's exactly the reverse of my standard terms and conditions, which state that the client will, indemnify the Photographer and his Representative against any claims and damages, including reasonable counsel fees, arising from the Client's use of the photographs and the Photographer's or Representative's use of material on instructions of the Client.

Any time you're dealing with a large multinational corporation such as a top-tier bank or pharmaceutical company, you're going to be licensing a very broad rights package that doesn't necessarily enumerate each and every possible use. That's okay, if you price your license accordingly.

I'm a Bank of America customer and I get to see how extensively they use images. Newspaper, trade & consumer magazines, direct mail, POP, billboards, letterhead, web, brochures, annual reports, post-cards, posters, car cards, ATMs, envelopes, etc, etc... you name it. If your picture is central to their campaign it will be everywhere. According to the document I read, Bank of America seems to be willing to limit the length of time for each use and they're only concerned that you don't release the images for use by their competitors (it's not even exclusive, rather industry-specific). It's not an all rights in perpetuity throughout the universe in all media known and unknown, nor is it a Work Made For Hire contract. Bank of America doesn't seek our copyrights. It is, in fact, a limited use contract (a/k/a rights-managed) rather than an egregious rights-grab.

So what's the real problem? The photographer failed to negotiate a fee commensurate with usage. Except for the money, there's nothing wrong here. Oh, except that Bank of America's reputation was unnecessarily trashed.


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