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Contracts
Unfair Contract Terms

Introduction

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.

Contracts

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.

Terms and Conditions

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).

Examples:

“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.”

Negotiating

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.

Example:

“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:

Example:

“Ownership and risk in the Goods shall pass to Us when the Goods have been delivered……”

Copyright Assignments

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.

Examples:

“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:

Example:

“…….. will pay the Contributor £10 in consideration for the duly signed grant of rights”

The rights demanded may also extend to future commissions:

Example:

“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:

Example:

“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:

  • Assignment
  • Rights and Licence to Use
  • Payment of fees
  • Grant of Rights/Rights Granted
  • Intellectual Property Rights
  • Copyright
  • By signing and returning this agreement…

Why you shouldn’t assign copyright:

  • You will lose control of how and where your images are used
  • They can sell/licence your work to a third party
  • If the company goes under, the copyright in your images becomes an asset in the liquidation of the company
  • If the company is sold your images go with them to be used by others
  • The fee you receive will not be commensurate with such wide use

How/what should you negotiate:

  • Explain you do not assign copyright, that you license your work
  • They do not need copyright, they need an exclusive licence to use
  • They do not need all media, worldwide, in perpetuity
  • The cost of all the usage a total rights assignment gives is extremely high
  • Show them the copyright4clients website
  • Ask them exactly where they need to use the work so that you can price the job fairly
  • Offer an exclusive licence (allows the client to control the work during the negotiated term)

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.

Wide Licences

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!).

Example:

“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:

  • You will not be able to license those images elsewhere ever again
  • They do not need all media, worldwide, in perpetuity
  • You will lose all control of how and where your images are used
  • They can license your work to a third party
  • You will not receive money for any of the further uses
  • The fee you receive will generally not be commensurate with such wide use

How/what should you negotiate:

  • Use the same reasoning as for a copyright assignment (above) without the 1st point but stating that you prefer to license for the amount of use the client needs in line with the payment offered or available.
  • At the very least, get the ‘exclusive’ nature of the licence removed, in order that you may be able to license additional non-exclusive uses.

Moral Rights Waivers

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.

Example:

“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:

  • Credits will enhance your reputation
  • It is important that your metadata stays with your image wherever it is published
  • Why would the client treat your image in a derogatory way? They possibly only need the right to crop.

How/what should you negotiate:

  • Try to get the clause removed because – No credit or metadata means the work is more likely to become an orphan work in the future
  • A credit costs the client nothing
  • Derogatory treatment of the image could damage their sales as well as your reputation
  • If they won’t remove the clause add the following – “Work may be reformatted, cropped, retouched or edited providing that the changes are not derogatory, damaging or malicious.”
  • The image will be credited where deemed possible

Indemnification and Warranty

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.

Example:

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:

  • Even a lawyer cannot be expected to know the laws in all countries.
  • You are being forced to guarantee circumstances and be liable for consequences that are outside the scope of your control.
  • You will be liable if the commissioned work is found to be infringing somebody else’s rights, and you may have to defend yourself legally, whilst possibly having to pay your client’s legal costs and any settlement that is reached with the claimant.

How/what to negotiate:

  • The 1st line should be altered to end “to the best of the Contributor’s knowledge”

Confidentiality

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.

Example:

“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.”

Kill fees / Rejection

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.

Example:

”…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:

    • Deliverables
    • Remedies
    • Termination
    • Acceptance
    • Non/Acceptance

Odds

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:

Example:

“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.”