What Exactly is Exclusivity?

Wide shots that show more than one animal or provide more context about the way they live always sell better in stock photography than tight portraits. It’s easy to think like a photographer and get attached to photos that are technically difficult to make. But when it comes to selling stock, it’s often the more boring and mundane shots that buyers are looking for.
Photo and article by: Annalise Kaylor

When you sign up to sell stock photography, you’re presented (usually) with two options: exclusive or non-exclusive. While Jared will return to his stock series soon, we’ve received a few email questions about a particular couple of paragraphs in the Getty/iStock terms and conditions surrounding what you can and cannot do as far as exclusivity is concerned.

First and foremost, I’m not a lawyer, nor did I stay at a Holiday Inn Express last night. Sorry, that lame joke is courtesy of “workshop brain” that has settled in during our busy workshops in Yellowstone. But I digress. My interpretation of the clauses is based on my experience and is not legal advice.

Here is the paragraph from the iStock Artist’s Agreement that raises eyebrows:

[b. You represent and warrant that you shall not: (i) license your own Content (except occasionally and then only for legitimate creative purposes); or (ii) predominately license the content of only a few contributors. You agree that you will not collude with another iStock member to have that member do either of (i) or (ii) above for your benefit. You acknowledge that genuine subscription customers typically license files from many contributors and you agree that your subscription licensing behavior will conform to this typical conduct. In addition to any other available remedies, if you breach this paragraph iStock may immediately terminate this Agreement and/or, if applicable, cancel your subscription package without any refund to you. You further agree to forfeit any royalties earned by you in connection with your misconduct.]

At first glance, it seems like they are saying you cannot license your own photographs on your own site or personally if those same photos are already in your stock gallery. That’s partially true, but this is about something a bit different. When choosing to be “exclusive” with a stock agency, you are agreeing that you will not sell or use the images they accept (other than for fine art in most cases) on any other stock or photo-buying website. They also throw in a “similar content” modifier. The “similar content” piece, seems to be a throwback to how we used to license photos and do assignment work.

Let’s take a stroll back in time to the days of photojournalism and photography gigs when not everyone had a cell phone spitting out photos and videos in real-time. I get a call from a magazine or paper for an assignment, go out and do the work, then turn in my frames to the photo editor for review. Film (yes, some of us still love shooting film) or digital, the editor would review my “take,” as it’s called, and choose the images they wanted from the assignment. If I had a selection of images that were of the same topic or subject, but not exactly or closely similar to the photos the editor grabbed, I could keep those images and license them as I wished, typically starting a set amount of days after publication. Typically, this was about 90 days after publication.

So, the editor would publish my piece, the 90 days would pass, and now I’m free to license images they didn’t take from me to anyone I want and on my own terms. Thus, a flat fee for an assignment could potentially be bolstered with additional earnings from licensing the other images.

Today, that’s not the case. Storage of images is now in clouds instead of basement archives. There’s always more space available, so editors will take ALL of my images from the assignment and if they aren’t used for this assignment, they can always pull from them for later use in another story. I won’t earn anything more. The pay is the pay and I can’t sell anything I don’t use. Adjusted for inflation, assignment rates for big publications have actually gone down about 30% than they were in the 1970s. During that time, photographers at least had other ways to monetize the frames not being used, but not any longer.

I push back on contracts from publications all of the time. After all, if you want to license something directly from me, then you have to license it on my terms. When I first started with assignment work, I thought I couldn’t push back. But you can and you should. Red-lining contracts is perfectly normal and part of the negotiation process.

Fast forward to today, and you have clauses like the one Getty/iStock has put in place for their exclusive contributors. Everyone wants more of your share. Grabby grab grab.

When you’re exclusive to Getty, the current rate you start at for photos is 20%. That could be 20% of a rights-managed sale for $495, or that could be 20% of a royalty-free sale to someone who bought credits at a discount, resulting in a much lower payment to you. If you choose not to be exclusive to Getty, everything is the same except you only earn 15% instead of 20%.

With iStock, which is now owned by Getty, there is a tiered payment system in place. If you decide to be non-exclusive, you earn a flat 15% across the board no matter how many images of yours are downloaded. If you choose to be exclusive and only post these images to iStock, you earn 25% right off the bat. But, once you hit a certain number of downloads of your images, that percentage goes up. Once you have 1,050 downloads, you now earn 30% and with 11, 235 downloads of your images, you’ll earn 35%. If you want to make the highest tier possible, 45%, you need to sell 681,083 images in a year. It starts all over again on January 1 of each calendar year.

iStock also has a credit system, where their clients can buy a subscription pack for images at a discount, allowing them so many downloads for a set price. This results in a set price to you, the photographer, as a “royalty.” For non-exclusive contributors, that’s just .10 cents per image. Exclusive photographers will earn .75 cents for those downloads and $10 for anything in their premium collection.

So why does this pertain to that clause in the contract? Because of the tiered system iStock has in place for exclusive contributors who want to bump up their earnings. If you’ve sold 900 images, but really want to hit that 1,050 mark and bump your commission to 30%, it’s relatively inexpensive to buy one of their royalty-free bundles, license your own work (or have someone do it for you) just to get up to the next tier. When you hit a benchmark to get a higher commission, it starts the month after you hit that mark, and you continue to earn that rate for the following calendar year, as well.

With this in mind, you can quickly see how someone who has been investing their time and energy into producing a hearty stock image collection could “game” the system to place themselves in the higher tier. In the case of my 900-image example, it would only cost about $150 to hit that next tier, which could easily be offset by the 5% sales bump for a photographer with a large archive over the course of a year.

The next part of the agreement talks about buying patterns of customers. Automated systems are extraordinarily good at assessing natural buying patterns. This comes in handy for things like preventing credit card fraud or for marketing new products to current customers. iStock can tell when someone is buying credits to license only their work or only the work of a few people in an unnatural fashion. And in my estimation, this is a warning for anyone considering gaming the system.

So should you be exclusive?

Personally, I prefer to not be exclusive. I don’t find the bump in pay to be worth having my work only on one site. I have an agent in Europe who represents some of my work and I like to sell in different markets. I don’t want to guess which of my images should go in which stock collection, either. For me, the simplifaction of being non-exclusive works best.

And what about similar content? How similar does it need to be?

You’ll have to use your own judgment, but here’s how I guide myself in that respect. I am mindful of what is in the same “take” for the day. In Yellowstone, where Jared and I are right now, I have a lot of repeat subjects over the course of a month. For example, I have a whole collection of bighorn sheep from DuBois, Wyoming, and a pile of bighorn sheep photos from an area near the northern range of the park. Two very different landscapes, though the subject is the same. Because they were in different locations, they are easily seen as different photos. But I do want to put some from each location into each of the stock agencies where I sell my work.

As I decide what to upload for stock, I ask myself “Would the average non-photographer easily tell the difference between these photos?”

I don’t ever upload anything to different sites where it’s technically a different photo because my Sony a1 fires off 30fps, but the image is indistinguishable to the average person. I make sure photos to different sites are taken with plenty of time in between them and have the subject in a different light or scene. I don’t overthink my choices, to be honest. If you have to ask yourself if something is too similar, then it probably is and it’s best to avoid putting it up on another site.

That’s my interpretation of this specific clause in the agreement, and I’m glad a few of you decided to write in about it to hear our take on the matter. If you have any other questions, please don’t hesitate to send them out to us at info@photowildmagazine.com.