Faillissement stockbureau ‘Foto Natura’ - sequel to column January 8, 2014

Photographers Federation also acts on behalf of non-members

by: Jurriaan Nijkerk

Jurriaan Nijkerk. Is ruim vijfendertig jaar fotograaf. Hij werkte o.a. voor Philips, Gasunie en Witteveen + Bos raadgevend ingenieurs. Voor het NOB 'deed' hij (pop)concerten en theaterfotografie. Twee maal werd het team, waarvan hij deel uitmaakte, genomineerd voor de Nationale Coiffure Award. Hij was bestuurslid bij BFN en SVFN en had zitting in de examencommissie van de Nederlandse Fotovakschool.
Vanaf het eerste nummer van het vakblad DeFOTOgraaf leverde hij redactionele bijdragen en hij was ruim een decennium hoofdredacteur. 'Bij mijn aantreden was het doel een nieuwe opzet neer te zetten voor DeFOTOgraaf: een blad dat over fotografen en fotografie moest gaan. De opzet was ook internationaal, ik had mij ten doel gesteld België en Nederland te bestrijken, dat is ook gelukt. Het nummer van augustus 2010 was mijn laatste nummer, het werd weer eens tijd voor iets anders.'
www.jurnijkerk.com.
Stuur Jurriaan een e-mail.

The Photographers Federation (Fotografen Federatie) wants also stand up for non members of photographers organizations in the investigation of the affairs of Foto Natura. The director, Lars Boering, stated here about:

We actually represent professionals. I found out that in the group of professionally working wildlife photographers are a lot of amateurs --and thereby vulnerable to people like the Foto Natura owner Ellinger--, because it is very difficult to make a normal living in this profession. They are also involved in the bankruptcy of Foto Natura. Though these photographers are not all connected to the Federation, the case could be a bad example for the industry. I send them all to the curator to at least their file their claim.

Contracts, bankruptcy fraud?

On the article and the postings on Linkedin of those involved and our reactions in that, there are a number of photographers who contacted us. We are also in the possession of a variety of documents such as contracts. It is a fact that in 2007 the contracts were changed. Some photographers refused to sign, but new contractants did sign these contracts. The changes were that the contractors to the agency side became Foto Natura B.V., PXRS Unlimited BV, and Picture Box B.V. In practice this means that this could be an attempt to continue the business seamlessly, for example in case of bankruptcy. There were remarks from the side of Foto Natura after the bankruptcy addressed to a photographer that there could be a new start. It could be possible to continue the activities by the other companies (BV’s) of owner D. Ellinger, those are not involved in the bankruptcy.

Ellinger, as he stipulates, has a solid background in the legal area. In his own words he studied fiscal and copyright law at the Vrije Universiteit of Amsterdam in the period from 1984 until 1999 and would have completed his study as a Master of Laws.

Basically voids a contract with bankruptcy, and al the rights back to the photographer. Now, in some cases, the contracts could be still in force for the non-bankrupt BVs’. The photographer should never sign a clause of non-competition of two years, a clause like in these contracts. In fact this makes it impossible to practice his or hers profession. The photographer would put himself out of business for the period of two years. But it is evident that not every photographer is a Master of Laws.

It is remarkable that the contract changes took place in 2008. A time when for some stakeholders it seemed as if Foto Natura landed in heavy weather. However, it is by no means certain that there is bankruptcy fraud, although some people postulate this. It also depends on what steps the trustee in bankruptcy and the tax authorities can take successfully.

Annoying complication in competition

One of the annoying things in such a non-competition clause is that it is fairly legally untouchable in a business environment. This in contrary with a non-competition in employment. Whether this can also apply for the amateurs who contributed to Foto Natura is currently an open question. PhotoNmagazine.eu strongly recommends the photographers with such a contract to contact the Photographers Federation as soon as possible.

Lack of sales reports

Besides the lack of payments in some (?) cases, some photographers have also reported the lack of sales reports for one year even a year and a half. So therefore it was impossible to invoice Foto Natura. One of them stated that the American agent Minden Pictures, which represented Foto Natura abroad, as of January 1, 2013 started to pay directly to the photographer. The Dutch Photographers Federation received notifications that Minden Pictures was not the only agent who changed to direct payment to the photographers.

Sinking ship ?

It is for certain an employee --who worked in a key position-- left Foto Natura formally in December 31, 2011, ‘taking along’ a part of the business: the food section. This would have contributed to 10 % of the sales of Foto Natura. In January 2012, she started her own business, an independent agency specialized in food and lifestyle.

The book-keeper, who also knew about all the ins and outs, is said to also have left the firm in the same period, in 2011.