“I Am The Chief Photographer”, and Other Contract Terms By Laypeople
posted by Dave Hoffman
Letters of Note is a great blog, devoted to publicizing good correspondence. The newest entry will be fun fodder for contract law professors and lawyers. It’s between Annie Leibovitz and Rolling Stone’s Jann Wenner, and concerned Leibovitz’s new contract:
Here’s how it starts:
“March 1, 1982
To: Jann Wenner
From: Annie Leibovitz
This document will serve as a letter of understanding between us for the next 20-25 covers over the next year.
Rolling Stone assignments will have priority commitment.
Rules of the cover will be discussed and fought over with each issue.
I will try to act as promptly and as reasonable as possible.
I will try to act on my best behavior.
And I will discourage the use of my photographs in any publications other than Rolling Stone on any regular basis.
I am the Chief Photographer.
Annie Leibovitz”
Read Wenner’s slightly more legalistic response after the jump.
“Rolling Stone
March 2, 1982
Annie Leibovitz
Rolling Stone
745 Fifth Avenue
New York, NY 10151
Dear Annie:
Your letter of March 1, 1982, is not exactly what I had in mind, but it’s getting close.
There are two points that remain to be clarified before increasing your fees; and both points bear directly on this matter.
1) Rules of the Cover: The basic rule — salability on newsstands depends, insofar as the photo, on subject recognizability — is not open to discussion, let alone being “fought over each issue.” Highest possible newsstand sales is the primary purpose of the cover, and recognizability is a final judgment that I make.
The elements that do — and don’t — go into recognizability are obvious — the standard facts of big heads, open eyes, strong colors, etc. — apply to at least 70% of the covers — and the natural exceptions are also obvious.
A bad cover due to limited or difficult recognizability — just like a bad cover due to poor choice of subject like Bill Hurt or Bob Hope — cuts newsstand sales somewhere between 25,000 to 50,000 copies, which translates to a $15,000 to $30,000 direct loss in company profits.
Therefore, any exception to the rules — and there are several good reasons (moral, artistic, bribery) to make them every now and then — must be discussed in advance. In the rare occasion when we can’t, you can try the experiment only if you also do a safety back-up in the conventional mode.
In other words, I am open to and in favor of changes, experiments and new ideas, but the final decision to risk $15-30,000 in profits is mine, and mine alone.
2) Other Publications: “Discourage” is subject to different interpretations between us. “Priority commitment to Rolling Stone assignments” and delivering the full potential in quality and value of the Chief Photographer means that you definitely not publish — as a “featured” photographer in any other magazine on an every issue basis.
I do not want to restrict your income opportunities — and thus am raising your fees to compensate partially — but the intent of my point here is clear and each of us knows where that line is drawn that gets you money and gets me exclusivity and the best work!
A few other points:
a) There has to be a stricter and longer embargo to U.S. re-publication of Rolling Stone photos in the U.S. — at least a year, with mutual agreement for exceptions.
b) Our daily and normal financial dealings will be through Mark Lipsky instead of directly with you, and will be done in a totally businesslike manner.
c) I’m planning to give you an office again at Rolling Stone in respect to all this because of your commitment “to act on your best behavior.”
If all these points are agreeable and in addition to your March 1, 1982, letter comprise our “letter of understanding” between us, please sign two copies of this and return them to me and your rates for work undertaken on the 20-25 covers for the next year will be $2500 fee per cover, $3200 for each cover with one significant inside shot, and standard rates for additional shots.
I am the boss,
(Signed, ‘Jann Wenner’)
Jann S. Wenner
Editor & Publisher”
To with Leibovitz responded:
“I am the Chief Photographer.
Agreed: (Signed, ‘Annie Leibovitz’)
Date: March 4, 1981″
Now here’s the legal question: is this an enforceable contract, or are too many terms left indefinite?
June 8, 2012 at 1:08 pm
Posted in: Contract Law & Beyond
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Responses (2)
Ken Rhodes - June 8, 2012 at 2:14 pm
My business partner taught me a good lesson about contracts:
A contract is not written and signed to pave the way to enforcement; rather, it is a document to record, and remind us, what we agreed to on the day we agreed to it. The reason a written contract is so much better than an oral contract is not the enforcability; it is the foregoing sentence.
In those terms, I’d say that exchange of letters is a pretty good contract. I don’t know about enforcability, but in case of a disagreement I think either party could pull out the agreement and say, “look here, we agreed how we would handle this situation, so let’s work it out how we said we would.”
A.J. Sutter - June 9, 2012 at 1:36 am
I’m inclined to agree with Ken. It would be interesting to know whether the parties ever sued each other over this contract. Certainly, if I’d been either side’s lawyer I would’ve cringed at reading it, and advised my client to reconsider. But the usual lawyer’s question of enforceability assumes that there is a dispute to adjudicate. That situation is more like a zebra than a horse for most clients, excluding a few naturally litigious ones. The vast majority of contracts are never litigated.
If both sides were happy with this exchange of letters throughout the duration of the relationship (which looks to have been about 1 year), then yes, it was definite enough for them to feel it was binding. Attorneys are too often taught that a contract is “for the lawyers,” or for a court. But first and foremost, and statistically speaking, a contract is for the parties.
It’s true that this way of addressing the issue is retrospective. But so is the traditional enforceability analysis, since it assumes future facts (viz., that the parties find themselves in a forum where enforceability will be adjudicated). It would be an interesting bit of cultural history to try to identify when people started to feel that it was worth paying lawyers to spend time anticipating and writing about low-likelihood future events, and how this feeling turned into custom and a professional standard.
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