Tag Archive: contracts
Well, I’ll admit to a mistake when I’m wrong. Thanks to Colin M. Lenton for writing in to let us know that AOL’s StudioNow looks ok for photographers. The contract for video work is a Work For Hire arrangement, but the photo contributor contract allows for 3 levels of rights transfer for photography: buyout, limited exclusive license, and non-exclusive license. Read the relevant bit here:
“For each engagement, StudioNow shall acquire: (a) ownership rights; (b) an exclusive license; or (c) a non-exclusive license to all work performed under the applicable engagement. The type of rights granted or assigned by Filmmaker shall be designated by StudioNow and such designation shall appear in the engagement packet or assignment as applicable.” -StudioNow photo contract, accessed on 16 December 2011
The standard wariness for approaching a job still applies. If the contract calls for a buyout, make sure you’re getting compensated for giving up your copyright. Fees should be quite high for such an arrangement, but copyright, like everything, can have a price. For limited exclusivity or non-exclusivity, fees should be less. Be aware of your copyright.
As it looks now, StudioNow might well be a good opportunity for photographers looking to get into corporate and advertising work.
UPDATE (20 March 2013): TurnHere is now known as SmartShoot and remains a rights grab.
We try to publicize good opportunities for photographers through the blog here and our deadline calendar. In deciding whether or not to include a contest or call for entry on our calendar, we look at the terms and conditions of submitting work to the contest. A good contest, in line with Pro-Imaging’s Bill of Rights Standards for Photography Competitions, promotes the winners’ work while respecting them and their work. Usually, this means by entering or winning a contest, the photographer retains all rights to his or her images and that the contest and its sponsors can use the submitted or winning images only to publicize the contest and its winners and only for a short time period. All of the contests on our calendar conform to these basic guidelines.
But we see a lot of contests that have bad conditions for entry, usually in the form of a “rights grab,” which you’ve also probably encountered in contracts for assignment photography. A “rights grab” takes your copyright away from you, preventing you from reselling your work ever again and, potentially, from even showing your work in your portfolio. It’s a dirty tactic, and it’s sad to see how many photo contests have rights grabs. A good rule of thumb is that any contest run by a travel-related company (airlines, luggage companies, resorts, etc.) is a rights grab. For the organizations in charge, running these contests is a quick, easy and cheap way to build an image library for its future use. Why should an airline company, for instance, pay fees to photographers to take pictures of tropical destinations when all of their paying customers will just send in their travel pictures for free? It’s a bad deal for photographers. Your rights have value. Here’s a short mention of one photographer earning upwards of $140,000 by relicensing images to the same client over 8 years. Had the photographer worked under a buyout, work-for-hire, or other rights grab situation, he would have made nothing beyond the initial fee. Had he submitted them to a rights-grabbing photo contest, he would have made nothing at all.
I thought I’d share two rights grabs that recently caught my attention because they at first seemed like interesting opportunities for me to gain exposure and future work.
National Geographic’s My Montana contest features a pretty standard rights grab. It’s particularly sad to see National Geographic taking advantage of photographers in this way, especially since the organization has been so supportive of photography and photographers since the beginning of the craft. Here’s the rights grab, from the contest’s rules‘, Section 4:
Submission of an entry grants Sponsor and their agents a license and right to use, publish, adapt, edit and/or modify such entry in any way, in whole or in part, and to use such entry alone or in combination with other works, as solely determined by Sponsor, in commerce and trade and in any and all media now known or hereafter discovered, worldwide, including but not limited to the Website, without limitation or compensation to the Entrant and without right of notice, review or approval of any such use of the entry.
Reading that section, it’s clear that by entering a photo in the contest, you give National Geographic and the State of Montana the unlimited, perpetual, worldwide right to use and publish your photos anywhere for any purpose. National Geographic could publish your photos in one of their books, or sell it as a poster on their website, and you wouldn’t see a dime. If Montana’s Office of Tourism wants to put your photo on a billboard in Times Square or on the side of a train in Minneapolis, they don’t have to pay you. And they could do it now, next month, or 300 years from now, and you wouldn’t know. I personally know the value of this. Montana’s Office of Tourism recently contacted me to license a photo for this year’s winter tourism guide (page 9 of this PDF). It was a very small usage, but it paid for rent. Had I submitted the photo to the contest, it wouldn’t have won and they could have used the picture for free. I would have lost twice, and possibly many times in the future, too.
I tried contacting National Geographic through the contest website and twitter, but have not gotten a response.
About a month ago I received an email from TurnHere with the subject line: “Hiring Professional Freelance Photographers.” The email said, “We’re growing our network of professional photographers and like what we’ve seen of your work. TurnHere provides paid shoot jobs to our photographers on behalf of some of the world’s premier brands (Google, Microsoft, Audi, . . .) and we’d like to invite you to apply to our network as part of our early access program.” Corporate work is a growing part of my business, and it looked like an interesting opportunity. After seeing the website, it looked even better: more than $12 million paid to creatives, $100,000 made by a single person this year, 600+ jobs currently available through the system. Sounds great! But the Independent Contractor agreement is really ugly. For instance, Section 4.a and b:
TurnHere is the sole and exclusive owner of, and Independent Contractor hereby irrevocably assigns to TurnHere all Deliverables, regardless of whether such Deliverables are specified in any Project description, and all rights, title, interest, and ownership throughout the world in any Deliverable, including all Intellectual Property Rights in and to any Deliverable. Independent Contractor hereby irrevocably and unconditionally waives all enforcement of each of the foregoing rights. All Deliverables are and will belong exclusively to TurnHere, with TurnHere having the right to obtain and to hold in its name, any and all Intellectual Property Rights. … In jurisdictions such as Canada, where moral rights may not be assigned, Independent Contractor irrevocably and expressly waives in favor of TurnHere and agrees never to assert any and all “moral rights” that it may have in any Deliverable.
That’s hard to parse, but what it means is that you never own any pictures you take as part of TurnHere and that you can’t even show them as part of your portfolio. More than that, there’s no requirement that your work will be credited to you once it’s used in an advertising campaign. You’ll get paid (though I don’t know the rates) but you’ll have nothing to show afterward. Everything you do for the job becomes the property of TurnHere. This hurts you in a couple of ways. You can’t relicense any of your pictures to the original client or future clients. This may not seem like a big deal when you’re looking at a commission and don’t have a lot of other work, but subsequent licensing fees can and should be a part of your future business. I know a couple of photographers who’ve recently paid for cars and houses through corporate use of photos that started out in an editorial assignment.
Steer well clear of TurnHere and any other such deals. By taking part in such a scheme, you’re crippling your future earnings and making it difficult even to market yourself through your previous work. TurnHere suggests that by working through them, you’ll be able to associate yourself with some of the world’s top brands, but reading the above excerpt of their agreement about “moral rights,” your name will not be associated with the pictures you make for these companies. The only way to get work is to show your previous work. Here, you don’t have the right to show your photos without permission of TurnHere after the fact. By agreeing to work for TurnHere, you’ve pulled the rug out from under yourself before you’ve even begun.
I emailed back and forth with a representative from TurnHere to try to figure out what was going on here, and they seemed receptive to input from potential contributors. But communication died off without getting an official response from the company.
The sad fact is that rights grabs are becoming more and more common. The good news is that sometimes you can negotiate away a rights grab in a contract. I’ve had to do just that a few times this year. In a couple of cases, I was successful and achieved a decent fee for a limited usage of my work. In other cases, I’ve had to turn down the work because it was a bad deal for me. And I’m not a copyright absolutist. Everything can be had at a price. If someone wants to pay a million dollars for perpetual, exclusive rights to a photo shoot, I’m all ears. I have sold full copyright to one image in my career, and it was for a very nice fee.
Contests with terms such as in National Geographic’s My Montana contest and assignment contracts such as TurnHere’s make the future sustainability of a photographer’s career all but impossible. The best way to protect yourself is to educate yourself and keep your rights. You never know what images will sell down the line, and you don’t want to decimate your future earnings. A good place to start with learning about contracts and rights is with John Harrington’s excellent Best Business Practices for Photographers book. And here are a few tips on how to avoid a rights grab and how to deal with rights grabbing photo releases common in the music industry.
UPDATE (20 March 2013): TurnHere is now known as SmartShoot and remains a rights grab.
“I wasn’t surprised that he didn’t like my revisions. After all, it’s his job to look out for Here Media’s interests. But I decided to take him at his word that he wanted to be “as fair as possible to both parties”. So I thought if I could clearly (and calmly) articulate my concerns, I’d have a good chance of a reasonable compromise. The fact that the fee was so low made it hard for him to ask for such broad licensing.” -Bill Cramer, Bill Cramer Dissects Here Media’s Contract
I’ve been mired in contract negotiation for the past couple of days, so the issue is at the front of my mind. Bill Cramer, of Wonderful Machine (of which both Matt and I have been a part at various times), provides a wonderful, real-world example of contract negotiation. In the back and forth, he handles objectionable licensing terms with grace and manages to successfully modify the terms of the shoot to a much more reasonable licensing agreement with the magazine. It’s a useful lesson for when an email hits your inbox that reads “all rights, all media, in perpetuity.”
(via an old APhotoEditor post)
“Starting work without a contract is like putting a condom on after taking a home pregnancy test” -Mike Monteiro of Mule Design in his talk, Fuck you, Pay Me
While the above video is aimed generally to designers, there’s a wealth of information that should apply to any freelancer. Mike Monteiro, Design Director and co-founder of Mule Design Studio and his attorney give some real talk about the value of contracts, how to spot bad clients, and how to prevent yourself from getting in a bind. It’s long, but well worth the time.
The Photojournalists’ Cooperative is shaping up to be a great resource. A facebook group now numbering well over 2,000 members, the Cooperative is designed as a place
“to give freelance photographers a platform where they will exchange ideas and help each other maintain high standards as they navigate the dramatically changing business of photography in the areas of: image licensing, contracts and copyright protection.”
The group admins are an impressive array of working photographers, and the membership is a diverse range of people from those just entering the industry to well-established photojournalists. There’s a little more information at lightstalkers, and much more in the facebook group. Membership is open to anyone, but you must have a facebook account. And while you’re logged in to facebook, consider linking up with us, too.
“I am ashamed of you and your management colleagues [at the New York Times]. I still have the highest regard for your editors, writers, and photographers. Your statements have the feel of events in Florida during the last election with lawyers and persons of authority depriving people of what was theirs. You are expending huge amounts of highly paid time to deprive freelance photographers of their property and consequently of income for the minimal amount of profit that will be generated by this mean-spirited policy. It is not acceptable. You use your muscle in words in a court of law because you are lawyers. I will use my muscle in words in the court of public opinion because I am a communicator.” -George Zimbel in a 2001 exchange with a New York Times Co., lawyer
George Zimbel’s website is a treasure trove of vintage photography and stories of the days of photographic yore (check out the blog). Via The Photo Brigade, I see that Zimbel has published a 2001 exchange with a New York Times Company lawyer when trying to reclaim a vintage print that the Times claimed it owned. It’s an interesting look into some of the unexpected and strange legal hoops freelancers sometimes need to jump through.
Bad contract and bad payment practices: Reader’s Digest Publishing Australia and Time Inc. (via JP Morgan)Dec 7, 2009 by M. Scott Brauer No Comments »
Bad Contract: We’ve got a number of readers in Australia, and perhaps this is old news to them, but it’s instructive to freelancers everywhere. Reader’s Digest Australia has just foisted a new contract on its contributors, and it’s a doozy. Take a look at this clause:
RDA shall have the exclusive right set out in section 2 herein [exclusive worldwide rights to publish and distribute], for a period of 24 months which shall commence from the date of publication of the photos and thereafter the rights set out in secton 2 shall be read as non -exclusive for an indefinite period.
Lightstalkers (email me or comment here if you need an invitation, by the way) and Kenneth Jarecke have a clause-by-clause analysis of the contract. The best thing to do with contracts like these is to just say “no.” There’s no way to make a living releasing work compensated at normal editorial day rates with such expansive rights being relinquished.
Bad payment practices: Time Warner’s payment vendor, JP Morgan, has unveiled a new payment plan for all suppliers. Essentially a codified 2/10 net 30 payment program, all suppliers are required to pay a fee to Time Warner if they want to be paid on time. Ranging from 4 percent fee for payment within 3 days to a .5 percent fee for payment in 25 days. John Harrington also notes that the fee is for an acceleration of approved payments, rather than an acceleration of payment. So, you’ve still got to wait the 30-90 days for the payment to be approved and then you’ve got to pay a fee if you don’t want to wait another 30 days on top of that. JP Morgan sees this model of payment, that is, exploiting small vendors’ need for cash as a way to make more money, as a “lucrative tool”. From JP Morgan’s explanation:
“There is another large pool of suppliers…the non-strategic suppliers. These suppliers are typically small to mid-size suppliers…they are also the hungriest for cash and much more likely to accept discounts versus strategically sourced suppliers. Understanding your supplier’s need for cash is a key to success.” -JP Morgan article
Gawker’s report, with interesting discussion, points out: “Given how desperate freelancers are to be PAID NOW, largely because companies like Time Inc. never pay them on time, this is a pretty genius idea.” John Harrington’s Photo Business News & Forum has good analysis, as well.
For commiseration: Check out Clients from Hell and ClientCopia, growing collection of client horror stories from designers and other creative professionals, this short about what would happen if the vendor-client relationship occurred in real world situations, and this brilliant exchange between a designer and a client who wants him to work for free (the client in that case is none-too-pleased with it being published and claims it is a hoax, by the way. Others see no reason to believe either side.).
On July 28, 2009, the Guardian announced new contractual terms soon to be forced upon contributing freelance photographers. In emails I’ve received about the matter, photographers liken it to the fight against the New York Times freelance agreement a few years ago. A petition has been started. Essentially, the Guardian is trying to escape usage fees for the unlimited re-use of images from commissioned assignments. Traditionally, Guardian News Media has paid for subsequent usage after initial publication. From the petition:
At a time when press photographers are suffering severe hardship as a result of the economic downturn, it comes as a further blow to be informed that [Guardian News Media] demands unlimited re-use of our photographs free of charge.”
Even if you don’t regularly shoot for the Guardian, please sign the petition in support of your fellow freelancers.
The British Photographic Council recently surveyed more than 1,000 photographers, press agencies, and picture libraries and found some disturbing trends. Editorial Photographers: United Kingdom and Ireland has the results. 93% of photographers have come under pressure to hand over greater rights to clients for no increase in the fee, with 76% saying that their income has fallen as a result.
Some more key points:
These findings are only representative of the UK, but I imagine some similarities in the worldwide photo industry. More data in the full survey results PDF.
(via The Click)
The American Society of Media Photographers has a great primer online for improving a bad contract. Hold your mouse over the highlighted bits for some commentary. The real sad thing of it all, though, is that the bad contract isn’t made up. (via PDNPulse)