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Bad Contract Tutorial


It is all too common for a publisher to ask you to sign a work agreement that cancels your rights while imposing new obligations on you. But you can protect yourself. First, learn to recognize bad contract terms. Second, be ready to propose fairer terms.

 

Below, we present an example of an extremely bad contract — one that is actually being used by a New York publisher — along with a point-by-point explanation of what's wrong and what would make it better.

 

To use it, rest your mouse on a highlighted clause. The explanation will pop up in a box. (Javascript must be enabled in your browser for this to work.)

 

The suggested replacement text for a bad clause, if any, is presented in the popup and, for convenience in adopting into your own contracts, is also given at the bottom of the page.

 

This is unconscionable. It retroactively changes the terms under which preexisting work was licensed, against the photographer's will and without additional payment.
Alternative: There is no alternative language — most photographers will probably want this language deleted. If it is deleted, the phrase "Pre-Agreement Material" should also be deleted wherever it appears in the agreement.
This is unreasonable. It gives the client the right to reject photographs that are within the specifications that the client gave the photographer at the beginning of the assignment.
Alternative: Delete this sentence. If the client will not agree to delete this, another alternative is to add "In that event, Publisher may not use any of the Photographs and shall pay Photographer all expenses and one-half the original fee."
The client can "modify" the images as it wants and can do so without using the photographer.
The client can require the photographer to perform post-production work beyond normal trade practice without being compensated.
Alternative: Delete the highlighted language and replace it with "Photographer will use reasonable efforts to cooperate with all reasonable requirements. Photographer will receive compensation for such additional services in accordance with Photographer's regular schedule of fees for such services."
The photographer may own the copyright, but the client gets a license that lasts forever to use both new and old work for any purpose, and to allow others to use those works, as long as the use is in any way tied to one of its publications. It can sublicense them, presumably collecting payment for the sublicenses, without having to pay the photographer for those uses.
Simply put, the client can do anything it wants, in any medium it wants, as long as there is some connection between the use and some publication that the client puts out.
Alternative: As mentioned earlier, the phrase "Pre-Agreement Material" should be deleted wherever it appears. In addition, the compensation should be proportional to the extremely broad grant of rights. If not, the rights should be carved back to the point where the grant of rights is reasonable in comparison to the fee.
There is an embargo period, lasting from the point where the publisher approves a photograph until three months after the photograph is actually published. Since the client determines when — and if — a photograph is published, the client can essentially prevent the photographer from making any use of it indefinitely.
Alternative: Add "However, in no event shall the exclusivity period last more than nine (9) months from the day on which Photographs are submitted to Publisher."
The word "opportunity" is vague and undefined. Not only are similars and seconds covered by the client's exclusive rights, so are any photographs on the same subject, even if created completely independently.
Alternative: Delete this sentence and replace it with "Except as expressly permitted by Publisher in writing, all photographs with the same subject matter specified in a work order that Photographer creates while working on the assignment obtained through that work order will be deemed Photographs and will be subject to the exclusivity and all other provisions of this agreement."
If the photographer, or an assistant, even shows the photographs or otherwise discloses their existence to another party during the embargo period, the photographer loses the right to compensation, is subject to suit by the client, and the client still gets all of the rights under the contract.
Alternative: Delete this paragraph. If the client will not accept that, delete it and replace it with "Any disclosure of selected photographs by Photographer prior to publication will subject Photographer to such relief as Publisher may seek and may be granted by a court of competent jurisdiction."
This deprives the photographer of the right to a credit. Aside from the advertising and other value of the credit, its absence will help to make these images "orphan works."
Alternative: Delete the phrase "(including without limitation professional credits)" and add this sentence at the end: "Publisher will provide a credit line adjacent to the published Photographs."
Since the photos are embargoed until three months after publication, the client can tie them up indefinitely by not publishing them.
The client has the right to modify the images under another section. When combined with this, the photographer has no idea what the final image will look like and has no right to have any input or to prevent the use of an image from which he would like to be disassociated.
If the client doesn't like the photographs for any reason, the photographer gets stiffed, including his out-of-pocket expenses. Also, neither the photographer's paperwork nor the client's other paperwork can alter or override this provision.
Alternative: Delete this sentence and replace it with "If Publisher does not approve the Photographs, Photographer will nonetheless receive the compensation originally agreed upon and expenses."
If the client cancels the shoot more than one day before, there is no kill fee. If it cancels the day before or on the day of the shoot, the kill fee has to be negotiated, and the maximum possible kill fee is 50% of the photographic fee, without taking into account any expenses that the photographer has already incurred.
Alternative: Delete this sentence and replace it with "If Publisher cancels a photo shoot two or more business days before the shoot date, Publisher is responsible for payment of all expenses incurred up to the time of cancellation of the assignment, plus 50% of the compensation specified in the work order. If notice of cancellation is given less than two business days before the shoot date, Publisher is responsible for all such expenses plus 100% of the compensation specified in the work order."
The photographer is obligated to clear all rights to any material used in the photographs.
Alternative: Delete the first clause and replace it with "Photographer represents and warrants that, to the best of his knowledge, information and belief, each Photograph is: (a):"
The photographer is required to guarantee that the photos do not include "defamatory, obscene, offensive, injurious, unlawful, and/or otherwise inappropriate material." This is impossible. The context of the use, which is controlled by the client and not by the photographer, would probably be what would make the photos defamatory; not even the U.S. Supreme Court can define what is obscene; what is offensive is completely subjective, as is what is inappropriate; and determining what may be injurious or unlawful is completely outside of the photographer's ability.
Alternative: Add at the end of the sentence, "except to the extent that the defamatory, obscene, offensive, injurious, unlawful and/or otherwise inappropriate nature results from acts, decisions or materials in the control of Publisher, its directors, officers, employes, parents, subsidiaries, affiliates, successors, partners, licensees, agents, independent contractors, assigns and designees."
Again, it is impossible for the photographer to know these things, so it is unreasonable for the client, and dangerous for the photographer, to require the photographer to warranty them.
Alternative: Delete this phrase and replace it with "Additionally, Photographer represents and warrants that, to the best of his knowledge, information and belief, that: (d) the creation of each Photograph as permitted by this agreement did not violate any third party right of which photographer has notice,"
Again, the photographer cannot warranty this. It is outside of his knowledge and largely outside of his control.
This conflicts with the provision that says that the photographer owns the copyrights, and perhaps reveals the client's true intentions in writing this contract.
Alternative: Delete "ownership and"
This is unreasonable and unfair. It asks the photographer to insure for things that are within the client's control or outside of the photographer's knowledge and control. The client is the one whose use of the photographs is likely to trigger claims — making photographs almost never does that. If it is reasonable for the photographer to indemnify the client, the indemnification should be limited to clause (b), should be limited to "the best of the Photographer's knowledge," and should be matched with a counter-indemnification of the photographer by the client.
Alternative: Delete this paragraph and replace it with "The parties will indemnify and hold harmless each other and their respecitve directors, officers, employees, parents, subsidiaries, affiliates, successors, partners, licensees, agents, independent contractors, assigns and designees from and against any and all claims, damages costs and expenses (including reasonable attorneys' fees) of any kind arising out of the indemnifying party's negligence and/or willful misconduct."
No matter what, this agreement controls every assignment the photographer does, has done, and will do for the client, unless the photographer can get the client to agree to anything else in writing, signed by the client.
No matter where the photographer is located or what his paperwork says, the laws of NY control the interpretation of this agreement, and the only place where suit can be brought is NYC.

PHOTOGRAPHER AGREEMENT

For good and valuable consideration, the receipt and sufficiency of which hereby is acknowledged, _______________ ("Photographer") and ____________ ("Publisher") (together, "Parties") agree that effective _________, 20___ ("Effective Date") and from time to time, Photographer will create and submit to Publisher photographs ("Photographs") intended for publication by Publisher and/or its designees, subject to the following terms and conditions; and the Parties further agree that Photographs that Photographer submitted to Publisher prior to the Effective Date ("Pre-Agreement Material") also will be subject to certain of the following terms and conditions, as further detailed herein:

 

  1. Photographer will create and submit the Photographs in accordance with a written and/or oral work order that identifies, in part, the subject matter, deadlines and compensation for the Photographs ("Work Order"). Photographer will use best efforts to ensure that the Photographs conform to the specifications set forth in the Work Order, and to any other guidelines or requirements for the Photographs provided by Publisher (together, "Specifications'). Photographer will use best efforts to submit all Photographs to Publisher in publishable quality and on or before the applicable deadlines.

     

  2. Photographer will submit all Photographs to Publisher in non-publication form for Publisher's preliminary review and selection. If Publisher reasonably determines, in its sole discretion, that the Photographs do not materially conform to the Specifications then Publisher may reject the Photographs. If Publisher reasonably determines on any other content, form, style, or third party right and/or release-based grounds that the Photographs are not publishable as intended, then Publisher may reject the Photographs.

     

  3. If Publisher approves the Photographs, Publisher will select one or more of the Photographs for potential publication ("Selected Photographs"). Thereupon Photographer will submit the Selected Photographs to Publisher in publication-ready form, as reasonably requested by Publisher. Publisher may require Photographer to retouch, crop and/or otherwise modify the Selected Photographs, or Publisher may undertake such activity itself and/or through a third party and require Photographer to assist. Photographer will use best efforts to cooperate with all such requirements. Photographer will receive no additional compensation for undertaking said activity or providing said assistance.

     

  4. Photographer will own the copyright to the Photographs and hereby irrevocably grants to Publisher a perpetual, worldwide, fully-sublicensable and royalty-free license to use and exploit all Photographs and all Pre-Agreement Material in any and all media and in connection with any and all products, services and/or other purposes, so long as such use and usage is tied to a Publisher magazine. Such license will be non-exclusive except as set forth in Paragraph 5 of this Agreement. For the avoidance of doubt, Publisher's rights will include and are not limited to: (a) unlimited use of any and all Photographs and Pre-Agreement Material accompanied by articles and/or other Publisher magazine editorial content of all kinds, (b) unlimited use of any and all Photographs and Pre-Agreement Material in connection with commercial products branded or co-branded with a Publisher magazine title, (c) unrestricted right to grant to third-party media outlets or companies permission to reproduce, display, distribute and otherwise use the Selected Photographs and Pre-Agreement Material in the context of the Publisher's magazine editorial setting in which they appeared (if any), and (d) unlimited use of any and all Photographs and Pre-Agreement Material for Publisher magazine editorial purposes in print, online, electronic and/or digital media, including without limitation for a database, archive and/or compilation of Publisher print and online magazines, to accompany new editorial content, for Publisher-generated e-mail newsletters, for Publisher-generated blogs, and/or for a RSS or other format news feed.

     

  5. Photographer additionally irrevocably grants to Publisher the following exclusivity rights: for the period running from Publisher's approval of the Photographs, through three (3) months from the date of first publication in any Publisher's print magazine of one or more associated Selected Photographs, if any, ("Exclusivity Period"), the exclusive worldwide right to reproduce, publish, republish, display, transmit and otherwise use all associated Selected Photographs. For the avoidance of doubt, the end of the Exclusivity Period will be measured from the date of publication of a Selected Photograph in a Publisher print magazine, if any, and not from the date of publication of a Selected Photograph in any other media and/or for any other purpose.

     

  6. Except as expressly permitted by Publisher in writing, all photographs with the same subject matter specified in a Work Order that Photographer creates pursuant to an opportunity obtained through that Work Order will be deemed Photographs and will be subject to the exclusivity and all other provisions of this Agreement.

     

  7. Should Publisher seek to use the Photographs and/or the Pre-Agreement Material in a matter not set forth in this Agreement, the Parties agree to negotiate such usage, including without limitation any fee for such usage, in good faith.

     

  8. Any disclosure of Selected Photographs by Photographer, by anyone working for or with Photographer, and/or by any other person for the benefit of Photographer, during the Exclusivity Period will cause Photographer to forfeit in full the compensation specified in the associated Work Order, in addition to any other relief that Publisher may seek. Further, in such instance, and notwithstanding its lack of any payment obligation to Photographer, Publisher still will receive all rights to the Photographs set forth in this Agreement.

     

  9. Publisher may, but will have no obligation to, use Photographer's name, likeness, actual or paraphrased statements and biography (including without limitation professional credits) to identify Photographer as the creator of a Photograph, Selected Photograph and/or Pre-Agreement Material, and/or as a photographer published by Publisher.   Notwithstanding anything otherwise set forth in this Agreement, and except as otherwise separately agreed to by Publisher and Photographer in writing, Publisher will have no obligation to publish or otherwise use any Photograph, Selected Photograph and/or Pre-Agreement Material in any way.   Photographer waives any right to inspect and/or approve any use by Publisher or its designees of a Photograph, Selected Photograph, and/or Pre-Agreement Material.

     

  10. If Publisher does not approve the Photographs, and notwithstanding anything otherwise set forth in the Work Order, Photographer will receive no compensation, including without limitation fees or expenses, for the Photographs.   If Publisher cancels a photo shoot the day before or the day of a photo shoot, the Parties will negotiate a kill fee which is not to exceed 50% of the compensation specified in the Work Order.

     

  11. Photographer represents and warrants that each Photograph and all Pre-Agreement Material, in whole and in part, is and will be: (a) the original work product of Photographer alone, except for third party material to which Photographer has secured all necessary rights, and/or material in the public domain, (b) not previously published and/or provided to any third party for publication, except for Pre-Agreement Material, and except for third party material to which Photographer has secured all necessary rights and/or material in the public domain; and (c) free from defamatory, obscene, offensive, injurious, unlawful and/or otherwise inappropriate material. Additionally, Photographer represents and warrants that: (d) the use of each Photograph and all Pre-Agreement Material as permitted by this Agreement does not and will not violate or infringe any third party right, including without limitation any copyright, moral right, trademark, right of privacy or publicity, other intellectual property and/or contract right, (e) Photographer has the right to enter into this Agreement and all Work Orders, and to provide the services, grant the rights and assume the obligations set forth in this Agreement and all Work Orders, and that the same will not violate the rights of any third party, and (f) Photographer has not made and will not make any disposition of any copyright or other interest in any Photograph or Pre-Agreement Material, in whole or in part, that would interfere with the rights granted and obligations assumed by Photographer under this Agreement, and with the full ownership and enjoyment thereof by Publisher and/or its designees.

     

  12. Photographer will indemnify and hold harmless Publisher and its directors, officers, employees, parents, subsidiaries, affiliates, successors, partners, licensees, agents, independent contractors, assigns and designees from and against all claims, actions, liabilities, damages, costs and expenses (including without limitation reasonable attorneys fees) of any kind arising out of (a) Photographer's breach of any representation, warranty and/or other provision of this Agreement and/or any Work Orders; (b) Photographer's negligence and/or willful misconduct; and/or (c) Publisher's use of any Photograph and/or Pre-Agreement Material as permitted by this Agreement.

     

  13. This Agreement, together with all Work Orders, sets forth the entire understanding and agreement of the Parties, and supersedes any and all prior agreements, relating to the subject matter hereof; except, however, that this Agreement will supersede any inconsistent, conflicting and/or irreconcilable terms, and supplement any missing terms, of any and all prior agreements to the limited extent that such terms relate to Pre-Agreement Material, but any and all other terms of such prior agreements that relate to Pre-Agreement Material will remain unchanged and in full effect. All projects entered into by Photographer for Publisher after the Effective Date, including without limitation all projects entered into by Photographer pursuant to a Publisher-issued Work Order, are expressly governed by and limited to the provisions of this Agreement, and Publisher hereby objects to any different and/or additional terms and/or conditions contained in any invoice or other proposal offered by Photographer, unless expressly agreed to by Publisher in signed writing. Publisher's failure to object to such different and/or additional terms and/or conditions hereafter, or payment to Photographer upon their submission of an invoice, will not be deemed an acceptance of such terms and/or conditions and/or a waiver of this provision.

     

  14. Photographer may not assign any of its rights and/or obligations under this Agreement and/or any Work Order without the prior express written approval of Publisher. This Agreement and/or any Work Order may not be modified except in a writing signed by both Parties. A Party's delay or failure to exercise all or part of any of its rights under this Agreement will not constitute a waiver of that right or of any other right. No waiver of any provision of this Agreement will be valid except in a writing signed by both Parties. This Agreement and all Work Orders are binding upon and will inure to the benefit of the Parties, respective successors and permitted assigns. This Agreement and all Work Orders, and all issues related thereto, will be governed by and construed in accordance with the laws of the State of New York, without regard to its choice and conflict of law principles. Any litigation or other legal action between the Parties arising out of this Agreement and/or any Work Order may be maintained only in a federal or state court located in New York County, New York, and the Parties hereby each consent to the personal jurisdiction of and venue in such courts. At all times Photographer will be acting as an independent contractor and not as an employee of Publisher and/or its designees.

     

 

The replacement phrases

The popup tooltips above are fine until you try to cut-and-paste their text into another document. To save you some frustration, here are the suggested replacements, formatted as plain text.

 

Clause 2: In that event, Publisher may not use any of the Photographs and shall pay Photographer all expenses and one-half the original fee.

 

Clause 3: Photographer will use reasonable efforts to cooperate with all reasonable requirements. Photographer will receive compensation for such additional services in accordance with Photographer's regular schedule of fees for such services.

 

Clause 5: However, in no event shall the exclusivity period last more than nine (9) months from the day on which Photographs are submitted to Publisher.

 

Clause 6: Except as expressly permitted by Publisher in writing, all photographs with the same subject matter specified in a work order that Photographer creates while working on the assignment obtained through that work order will be deemed Photographs and will be subject to the exclusivity and all other provisions of this agreement.

 

Clause 8: Any disclosure of selected photographs by Photographer prior to publication will subject Photographer to such relief as Publisher may seek and may be granted by a court of competent jurisdiction.

 

Clause 9: Publisher will provide a credit line adjacent to the published Photographs.

 

Clause 10, first note: If Publisher does not approve the Photographs, Photographer will nonetheless receive the compensation originally agreed upon and expenses.

 

Clause 10, second note: If Publisher cancels a photo shoot two or more business days before the shoot date, Publisher is responsible for payment of all expenses incurred up to the time of cancellation of the assignment, plus 50% of the compensation specified in the work order. If notice of cancellation is given less than two business days before the shoot date, Publisher is responsible for all such expenses plus 100% of the compensation specified in the work order.

 

Clause 11, first note: Photographer represents and warrants that, to the best of his knowledge, information and belief, each Photograph is:

 

Clause 11, second note: except to the extent that the defamatory, obscene, offensive, injurious, unlawful and/or otherwise inappropriate nature results from acts, decisions or materials in the control of Publisher, its directors, officers, employes, parents, subsidiaries, affiliates, successors, partners, licensees, agents, independent contractors, assigns and designees.

 

Clause 11, third note: Additionally, Photographer represents and warrants that, to the best of his knowledge, information and belief, that: (d) the creation of each Photograph as permitted by this agreement did not violate any third party right of which photographer has notice,

 

Clause 12: The parties will indemnify and hold harmless each other and their respecitve directors, officers, employees, parents, subsidiaries, affiliates, successors, partners, licensees, agents, independent contractors, assigns and designees from and against any and all claims, damages costs and expenses (including reasonable attorneys' fees) of any kind arising out of the indemnifying party's negligence and/or willful misconduct.