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Through this area we aim to show you which terms and conditions to look out for when receiving a contract for a commission; the various guises they come under; what they mean; and how to negotiate changes.
Please note that contracts must be agreed prior to the shoot – you do not have to accept a contract which arrives after the shoot, unless you are happy with the terms.
A contract is an agreement between two parties and is a legal document binding on both parties. Many contracts issued by commissioners are long and legalistic, others are short and to the point. Most of them will contain terms that you are expected to agree to, but which are not in your best interests. Contrary to popular belief, it is not illegal for a contract to ask for an assignment of copyright – contract law overrides copyright law. A contract can cover anything provided it is not an illegal act, eg., murder! If both parties agree to the terms of the contract then it stands.
In general, the last set of terms and conditions received before the shoot are the ones that are binding, so it is very important that you read all paperwork the client gives you and query the areas you are not happy with, or do not understand, BEFORE you start the shoot. Any amendments made to the contract, and agreed, MUST be in writing (email is fine).
“No terms or conditions endorsed upon, delivered with or contained in Your quotation, acknowledgement, acceptance, specification or similar document shall form part of the Contract and You hereby waive any right which You otherwise might have to rely on such terms and conditions. Supply of the Deliverables in response to a Purchase Order or Order Amendment shall be taken to imply that You have accepted the terms and conditions of this Contract.”
“This Agreement sets out the entire agreement between the parties and supersedes all prior discussions between theme and all agreements, statements, representation, terms and conditions, warranties, guarantees, proposals, communications, and understandings whenever given and whether orally or in writing.”
When talking to your contact at the clients, be aware that they didn’t write their company’s terms and conditions – the lawyers did. Lawyers have to look after their clients’ interests, so often write what are known as ‘belt and braces’ contracts – everything gets thrown in, just in case! Your contact may never have read the terms of the contract, but is instructed to send it out for each commission – just filling in the blanks, which make it relevant to your commission. Patience may be required.
“None of our employees or agents have the authority to modify or amend any of these terms and conditions of purchase. To purchase goods or services or to enter into an agreement for the purchase of goods or services……… no modification or amendment of these terms and conditions shall be binding on Us unless agreed in writing by one of our Directors.”
It’s also worth remembering that many of the contracts sent out to commission photography are exactly the same contracts as they would use to purchase stationery or toilet rolls – a lot of the contract will have no bearing on the service you are providing but some of the terms may have a consequence:
“Ownership and risk in the Goods shall pass to Us when the Goods have been delivered……”
Commissioning companies often try to secure all rights (including copyright) in the work in order to control where and when the images are shown, for as long as they wish without further payment; give themselves the right to resell or license the work to a third party; and remove self promotion use by the photographer.
“In consideration of payment of the Fee, the Contributor hereby:
assigns to ……… with full title guarantee all vested, contingent, and future copyright and all other rights in and to the Work throughout the world for the Term;”
“You shall, promptly at Our request, do or procure to be done all such further acts and things and the execution of all such other documents as We may from time to time require for the purpose of securing for Us the full benefit of the Contract, including all right, title and interest in and to the Intellectual Property Rights and all other rights assigned to Us”
Payment is rarely in line with the amount of use a copyright assignment will give them:
“…….. will pay the Contributor £10 in consideration for the duly signed grant of rights”
The rights demanded may also extend to future commissions:
“All created Rights shall be proprietary to and owned by Us immediately on its coming into existence and full details of it shall be disclosed to Us promptly as the same comes into being. This agreement shall act as an assignment of all future Created Rights.”
And for all images taken whether used or not:
“The Photographer assigns to the Publisher all copyright, all rights in the nature of copyright and all other intellectual property rights in all of the photographs taken as a result of this Agreement, including those ultimately selected for inclusion in the Work and proofs, …………”
The rights the client is wanting will come under a variety of different headings:
In principle, we are opposed to the assignment of copyright. However, we recognise that there are times when market forces make this difficult to avoid – if you can’t negotiate a wider licence then please ensure you are paid a fee commensurate with the rights you are transferring.
If a copyright assignment is not demanded then a wide-ranging exclusive royalty free licence may be demanded. This is second in line to a copyright assignment – you keep the copyright but can’t do anything with the images (which is a bit of a contradiction as owning the copyright is supposed to give you the right to control copying!).
“an exclusive, perpetual, worldwide, royalty free license to use and exploit all photographs in any and all media known and in the future”
Why you shouldn’t give such a wide licence:
How/what should you negotiate:
Moral rights are personal to the author and are not assignable. However, in the UK, they are waivable and many contracts will ask for a waiver – meaning that you give up your moral rights. The two main moral rights are the right to a credit, and the right to object to derogatory treatment of your work.
“The Contributor hereby waives any moral rights under sections 77, 78 and 80 of the Copyright Designs and Patents Act 1988.”
Why you shouldn’t agree to a waiver:
How/what should you negotiate:
All contracts will have some form of these clauses, which ask you to indemnify the client from claims arising from the publication of the work, and requiring you to guarantee that you are the holder of ALL the rights in the work.
You may be expected to have the rights to everything within the image, as well as your own copyright, from models; locations; third-party copyright; trade marks; and any other property rights together with privacy and personal rights, which may exist in other countries.
|1.1||The Contributor hereby warrants and undertakes that:|
|1.1.1||The Contributor is the sole author of the Work, the Work is original and all necessary clearances and waivers to allow …….. to fully exploit the Work during the Term in accordance with this Agreement have been obtained;|
|1.1.2||The Work has not previously been published or exploited in any part of the world before the Delivery Date;|
|1.1.3||The Contributor will not publish or authorise publication or exploitation of the Work otherwise than in accordance with this Agreement;|
|1.1.4||The Contributor will not publish, exploit or authorise publication or exploitation of any other work substantially similar to the Work in any media (whether in existence now or developed in the future) unless otherwise agreed in writing by the Commissioning Editor;|
|1.1.5||The Contributor will use best endeavours to ensure that all statements purporting to be facts contained in the Work are true;|
|1.1.6||The Work contains nothing that is obscene, libellous, defamatory, blasphemous or offensive or which infringes the statutory or common law rights (including, but not limited to, copyright, moral rights, privacy rights and personality rights) of any third parties; and|
|1.1.7||The Contributor shall keep ……….. fully indemnified from and against all losses and all actions, proceedings, claims, demands, costs (including legal costs) and damages arising from breach of the above warranties.”|
Why you shouldn’t agree:
How/what to negotiate:
Many commissions will be subject to a confidentiality agreement - not only to prevent competitors getting wind of a new product before it is launched, but also to prevent commercially sensitive information which you may have been given to enable you to complete the commission, from becoming public knowledge.
This is perfectly reasonable but once the information (ie., product) comes into the public domain, the confidentiality agreement should end.
“You shall keep in strict confidence all information connected to the Contract, technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to You by Us, Our employees, agents or subcontractors and any other confidential information concerning Our business or Our activities which You may obtain. You shall restrict disclosure of such confidential material to such of Your employees, agents or sub-contractors as need to know the same for the purpose of discharging Your obligations to Us, and shall ensure that all Your employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind You.
This Condition shall survive termination of the Contract, however arising.”
If the photographer does not fulfil the brief then it is understandable that the client may want to reject the work, but the photographer should be given the chance to rectify the problem. If the reason for rejection was a technical error, the same applies. Rejection purely on aesthetic grounds is more difficult and rejection should be accompanied by payment in full.
”…shall pay the Photographer upon acceptance of the Work as provided in the Commission Form. The Fee shall represent full and complete payment for the rights granted to ……... ……….will inform the Photographer as soon as possible after receiving the Work whether it is acceptable or not. In the event ……… determines the Work is not acceptable and cannot be satisfactorily revised, ………… will return the Work to the Photographer either:
without payment if ………. in its reasonable discretion considers that it fails substantially to conform with the description set out on the Commission Form or is not of a publishable standard; or with a rejection fee equivalent to 25% of the Payment providing the Material was received by ……… by the delivery date.”
The headings which govern the rejection of work differ:
Contract will often have ‘odd’ terms like the example below, which, if taken (or meant) literally would prevent the photographer from doing any photography for other clients in the same line of business:
“The supplier will inform the Client if it is or has performed similar services to a competitor of the Client in the twelve months prior to, during and twelve months after these services are being performed for a Project governed by this agreement.”