The
Summary:
We've all glanced over a seemingly benign document an art
buyer or client has asked us to sign as a "formality", prior to
beginning a project. Let's face it, it's becoming second nature to
"agree" to wordy Terms of Use Agreements without reading them (think
Facebook, Instagram and Tumblr). In fact many corporations, especially in the
tech industry, are inappropriately utilizing the very same language found in
their public online Terms of Use Agreement, in their assignment contracts as
well. This case study might get you to think twice before placing your name on
the dotted line without first reading and understanding what you're being asked
to agree to.
I was recently presented with an interesting situation that
unfortunately seems to be getting more common as corporations attempt to usurp
ever-increasing rights while paying less in licensing fees and shifting all
legal risks to the photographer.
An agency's art buyer sprung a last-minute legal document on
me that, if put into effect, would have undermined all previously negotiated
stipulations and left me relinquishing all rights to my images without
compensation. It also required me to never bring a lawsuit against the client -
a Fortune 500 global corporation - for any cause including negligence,
infringement or defamation.
The
Details:
An art buyer whose agency represents a Fortune 500 global
tech corporation had approached me to shoot several environmental portraits on
location throughout the country. The art buyer indicated that they needed to
license the images solely for their client's website on an exclusive, unlimited
basis in perpetuity.
Production costs, nominal fees and terms were agreed upon
and the shoot was set to begin the following week (as the deadline was tight).
All that remained was for both of us to formally execute (sign) the
contract.
Later that same day, however, the art buyer sent me a form
to sign (indicating it was "just a formality") entitled: "Photographer’s
License, Release, and Waiver".
Upon reading the first paragraph
of the document, I found language that seemed to be pulled directly from the
corporation's public online Terms of Use Agreement and was inappropriate for
the project I was being assigned. I was surprised to learn that their Waiver
actually undermined every stipulation (pertaining to licensing and
indemnification) that all parties had agreed to in prior negotiations. The
document went on to supplant the agreed licensing with an 'all rights,
including sub-licensing, in-perpetuity' clause as follows: "I grant to ____________and its subsidiaries, affiliates, licensees,
successors, and assigns an unrestricted, sublicensable, assignable,
irrevocable, perpetual, worldwide, royalty-free license to photographs, digital
images, taken by me on behalf of _________ (the “Content”).
By signing the agreement I
would be handing over all rights to my images to this global corporation
allowing it to re-sell licenses for profit without any further compensation to
me. More over, the Waiver would have prevented me from approving how my images
could be used or altered and from seeking legal remedies against the
corporation as a result of any misuse. This was clearly an inappropriate
over-reach and well outside of what we had agreed to or was needed for this
assignment.
In response to and in
consideration for their tight deadline, I sent the art buyer my contract as we
had discussed and agreed along with a list of questions regarding the Waiver I
was being asked to sign. I did this with the expectation that there typically is
a dialog between the photographer and art buyer, especially when the parameters
of a project have changed.
Unfortunately, this time
things did not go as expected.
Within a couple of hours, I received a note from the art buyer
indicating that she was seeking another photographer for the project, as the
Waiver was "non-negotiable" and she didn't have the time nor the
inclination to discuss legal matters further.
There are many take-aways
from this story. It instructs us first that it's imperative to read any and all
contracts you are being asked to sign. And if you don't understand something in
the contract, contact an attorney (APA has a great one). Be honest,
straightforward and respectful in your dealings with clients. And if you need
to have something clarified or need to ask a question of the person hiring you,
do so respectfully and in the spirit of ensuring everyone is on the same page
and expectations are managed on all sides.
Even if you do all these
things with the best intentions, however, there may be times when, for reasons
unknown, there is a lack of reciprocity from the person hiring you, such as in
this case study. But remember that if a relationship starts out on the wrong
foot and you are not feeling right about how you are being treated, it might be
time to walk away as it usually only gets worse.
Now more than ever, it is
important for all of us to hold the line on ethics in our industry to ensure
our livelihood into the future.
I've provided a copy of the
Waiver I was asked to sign (see below). Please pay special attention to the highlighted
language as it is appearing more and more in contracts and should raise a red
flag in your negotiations.