MusicPhotographers.net - A Community For Professional Music Photographers

Beware Of Predatory "Rights Grabbing" Photography Contract Language

Walter Rowe — Tue, 15 Apr 2008 11:47:25 +0000

There has been a growing trend over the course of many years now where photographers have been asked to sign contracts that contain predatory terms and conditions. Predatory terms and conditions in this article are any contract language that transfer your intellectual property to another party without fair compensation. In this article, several real-world examples are shown to educate you on what predatory language looks like.

UPDATE (02/2009): Added more attachments.

As photographers, we use license agreements as our means to make a living. We create intellectual property in the form of visual art and we license specific limited rights for others to use it. This is the basis for copyright. When you create an original work of art, you own the right to copy it (copyright). Lawyers representing artists and recording industry entities use predatory language to grab as many of your intellectual property rights as possible (usually all) without compensation. The common term applied to this practice is "rights grabbing".

We see "rights grabbing" language in photography contest entry rules, concert photo pass release forms, editorial client contracts and stock photography license agreements. Some instances are worse than others. Pro-imaging, an international web-based group of independent photographers, has constructed a "Bill of Rights for Photographers" that outline what they consider acceptable and unacceptable terms and conditions in photography contest rules. Some professional photographer organizations retain attorneys to review contracts from well-known publications and provide feedback to their members. One of our missions with MusicPhotographers.net is to advocate sound business practices and educate you about predatory practices.

Each of the following bullets are excerpts from actual contracts and photo release forms that photographers were asked to sign before receiving their photo credentials. These examples are provided to educate you about predatory contract language. Review contracts and photo pass release forms carefully prior to signing them. This is not acceptable language unless you are being paid a large amount of money (i.e. tens of thousands of US dollars) for a complete buyout by the party presenting such a contract to you.

For good and valuable consideration, receipt and sufficiency of which is hereby acknowledged, upon full execution hereof, I <your name> hereby grant, transfer, convey and assign to <ARTIST> [...] all right, title and interest, throughout the universe in perpetuity, in and to the photographs to be taken by me [...] including, without limitation, the worldwide copyrights therein and thereto, and all renewals and extensions thereof.
I hereby acknowledge that you shall own all rights in the Photos, including the copyrights therein and thereto, and accordingly, I hereby grant, transfer, convey and assign to you all right, title and interest throughout the universe in perpetuity, including, without limitation, the worldwide copyrights therein and thereto (and all renewals and extensions thereof), in and to the Photos.
Photographer hereby agrees and understands that the photographs (including the negatives and all derivatives thereof) constitute 'works made for hire' [...] created for artist and that Photographer is rendering his services as an 'employee for hire' [...] and that the Artist shall be the author of the Photographs and shall own all rights [...] in and to the results and proceeds of all such services rendered [...].
This letter serves to conﬁrm that you <your name> may photograph <ARTIST> on the condition that any material arising from the photos/footage taken on <date> at <venue> is OWNED BY <ARTIST's PRODUCTION COMPANY>.
I hereby acknowledge that you shall own all rights in the Photos, including the copyrights therein and thereto, and accordingly, I hereby grant, transfer, convey and assign to you all right, title and interest throughout the universe in perpetuity, including, without limitation, the copyright (and all renewals and extensions thereof), in and to the Photos.
In consideration of the sum of One United States Dollars (U.S. $1.00) [...] you hereby sell, assign and transfer to Company all of your right, title and interest in and to all still photographs that you will take of Artist while Artist is performing music live on stage [...] including, without limitation, all of your right, title and interest in and to the worldwide copyright relating thereto, together with all rights to secure copyright, renewals, reissues, extensions of the copyright, [...].

This is only a handful of examples of predatory language used to steal your intellectual property. There also are examples where the artist does not assert ownership of the images but demands approval prior to any use other than the assignment for which the images were originally created. Some may contain language that imposes significant fines on the photographer if they violate the agreement. While this language may seem more palatable, it is equally restrictive and in my opinion equally objectionable. If you permit me to publish the images once, they images are published. Why then demand prior approval before publishing again?

In addition to assignment fees, we count on earning revenue from licensing our stock portfolio of images we have taken over the years. Demanding prior approval for all uses makes it very difficult, if not impossible, to market these images for what are otherwise legally permissible editorial, documentary and artistic purposes. Read all photo pass release forms, license agreements, and assignment contracts carefully. Look for any language that unreasonably restricts how you may use the photographs you create or that transfers your rights to another party. Also look for language that grants anyone the right to continue using your photographs in unrestricted ways and does not compensate you fairly for those rights. This is unfair, predatory language.

Adobe releases Lightroom 2.4 and Camera Raw 5.4

Walter Rowe — Wed, 24 Jun 2009 11:11:19 +0000

This new version of the Camera Raw plug-in replaces the original one that was installed with Adobe® Photoshop® CS4; Adobe Photoshop Elements 7.0; and Adobe Premiere® Elements 7.0 software. Visit the Camera Raw page for a complete list of supported cameras.

The Adobe® Photoshop® Lightroom® 2.4 update includes these enhancements:

Adds support for several new camera models including the Nikon D5000 and Canon EOS 500D (Digital Rebel T1i)
Includes several corrections for issues introduced by previous Lightroom 2 releases

These updates can be downloaded using the following links:

Noted Photographers

Walter Rowe — Tue, 16 Jun 2009 14:03:48 +0000

This page contains links to the web sites or porfolios of legendary music photographers. These sites are packed with terrific photographs, knowledge from years of experience, and nuggets of wisdom you cannot get anywhere else.

UPDATE 3: Added Robert John, a 25+ year veteran and new member of our community. Welcome Robert John!
UPDATE 2: Added half a dozen more photographers. Credits go to Daniel Bedford and Jon Sievert for these.
UPDATE 1: Added more than a dozen photographers. Credit goes to Lyle A. Waisman for providing these additions.

If you would like to see a link here to any specific music photographer, contact Walter or Will. Here's the current list:

North America

Europe

Australia

Matt Booy - TripleJ Radio - Rock Photographer
Kristian Downling - Getty Images AU
Bob King - quite the library & stories, he's been shooting for around 40 years
Tony Mott - Australia's most successful Rock Photographer
David Youdell - Headpress

Designing Websites Image Buyers Will Love

Walter Rowe — Tue, 05 May 2009 13:08:57 +0000

PhotoShelter published a free report from a 2009 survey of 550 photo buyers. The results are interesting. Over 90% of buyers surveyed hated flash-based introductions on websites. Click the link below to read a summary of the survey. They provide a place where you can enter your e-mail address and PhotoShelter will e-mail a free 22-page PDF with all of the results. I know I'm going to be redesigning my website based on this information.

http://pa.photoshelter.com/mkt/photo-buyer-survey-2009

Walter Rowe
www.WalterRowePhotography.com

The DAM Book, Second Edition

Walter Rowe — Mon, 04 May 2009 12:47:23 +0000

Peter Krogh has released the second edition of his enormously popular book, "The DAM Book". According to information in the book's website, the second edition is written almost entirely from scratch and is 492 full-color pages. It adds chapters for tools like Adobe Photoshop® Lightroom, and information on backups and data validation. Click the link to order it directly from Amazon.com.

Wanted: Young European musicphotographers!

Popview — Mon, 20 Apr 2009 08:51:33 +0000

Popview is the European platform for musicphotographers younger than 35. Every year, photo’s of the seven best photographers can be seen in an exhibition. The selection is done by an international team of photographers and curators.
The exhibition will open during the Eurosonic Noorderslag musicfestival (Groningen, Holland) in the Noorderlicht Photogallery (Groningen), and can be seen for a month.
One of the seven selected photographers is rewarded the Lex van Rossen Award; an annual prize for young musicphotographers. The winner receives e2500 and a publication in a photomagazine/newspaper. In a later stadium, the exhibition will travel abroad.

At this moment, we are busy preparing Popview 2010. Therefor, we are looking for young talent. Are you interested and born after 14th of January 1975, then you can send 15 photos, a resume and a motivation to popview2010@gmail.com (until the 1st of September). Participation is for free.

You’ll find more information on www.popview.eu

You’ll Never Work in this Town Again

Walter Rowe — Wed, 15 Apr 2009 19:00:51 +0000

[ The following text was written by Ed Greenberg, P.C., and is reproduced verbatim and with permission. ]

Google the above phrase or any of its permutations, e.g. “You’ll never shoot another job”, ”Now no one will ever hire you” and so on and you will get thousands of hits. The cliché, in one form or another, manifests when a creator, whose work has been infringed or whose bills have not been paid, has the temerity to express the intent to hire a lawyer. Obviously the "threat" of losing a non-paying client (especially in this economy) has been an effective deterrent when used on creatives. Yes, it is counterintuitive. Yes, it is illogical. And yes, clients know that it often works to prevent claims or lawsuits.

Some lawyers for media companies and publishers use the very same threat when speaking to us. They are spoon fed the phrase by their clients who have over the years effectively employed it against photographers and illustrators. Typically, it is used to scare creatives from pursuing monies due or prosecuting their legal rights under the Copyright Law.

Essentially, creatives are told that suing or even aggressively pursuing that to which they are entitled will "black list" them. If such were indeed the case, most of our clients would have long since closed up shop. We have never seen any evidence of a creative who successfully pursued a valid claim being blacklisted by any legitimate business. If any potential client is in fact deterred from retaining your services for such a reason, consider yourself lucky for having failed to make their acquaintance.

Anyone who threatens you because you seek what is yours by "putting the word out", disparaging or defaming you within the industry or similarly threatening your livelihood, is exposing themselves to a potentially large civil law suit and in some cases, criminal charges.

Do you think that contractors, car mechanics, or ad agencies, if told by a deadbeat client that if sued, their services won't be used again, then curl up into the fetal position? Photographers, illustrators, artists and graphic designers are, however, non-confrontational by nature. They scare easily and their clients know it.

Real life examples:

A. Model sues for unauthorized use of his/her image by consumer company. Model wins at trial. Model has been hired by company on ½ dozen occasions in the post litigation years.

B. Photographer keeps asking for return of his analogue images shot on assignment (perfect for stock). Client stalls for months. Photographer (a really understanding, sweet guy) gives client a year to find pictures. Finally, client admits under modest pressure that the pictures from the shoot are lost. Photographer asks, "Why didn't you just tell me a year ago and make things right?” Client's sarcastic reply, "Whaddaya gonna do, sue me?!" Photographer does. Photographer is awarded about $160,000 by the Court. Most compelling testimony is client accurately recounting the aforementioned "dare" in open court to an appalled judge.

C. Models complain to their modeling agency that advertisers have paid the modeling agency but modeling agency has not paid models. Models told by bookers that complaining will assure that they will not be sent out for go-sees or otherwise get work. Threats work. Models stop complaining. Model agency closes up in the middle of the night after spending models' money.

D. Same as "C" above - just substitute the words "photographer" and "agent" for those of "model" and “model agency”.

---
Whether and to what extent you assert your legal rights ought to be dictated by the veracity of your claims and the economics of pursuing them. Such decisions should be made in consultation with your accountant, your spouse and your lawyer. Threats that suing will prevent you from working are akin to those threats made to us in our youth that our transgressions "will go on our permanent record".
--
Edward C. Greenberg, P.C.
570 Lexington Avenue
17th Floor
New York, NY 10022
(212) 697-8777
ecglaw@gmail.com

Blender Magazine Folding

Walter Rowe — Mon, 30 Mar 2009 21:55:37 +0000

Photo District News Online reports that Blender Magazine is folding. It is yet another victim of the down-turn in ad revenue due to the current economic conditions.

Walter Rowe Photography
www.WalterRowePhotography.com

FotoQuote Pro 6 Coming

Walter Rowe — Thu, 26 Mar 2009 23:59:24 +0000

As a user of FotoQuote Pro 5, I get periodic newsletters from the author at Cradoc Software. It has been some time since FotoQuote Pro was updated to include new pricing tables, new categories, new coaching, etc. I received the following newsletter recently and it got me excited to see what is in store for FotoQuote Pro 6.

The following letter is reprinted with the express permission of Cradoc Software ...

-------------------------

I started writing fotoQuote in the early 90's, in the middle of a recession. Articles in photo magazines said stock photography was dead. Photographers were undercutting each other, and prices were spiraling down. I decided to do something about it, and I spent a year creating the best pricing and negotiating program I could. I feel good that the release of fotoQuote helped shore up stock photography prices and got photographers talking to each other about good business practices.

Now we are in another recession, and I want to pass on the same advice that I've given every time the economy has slowed down:

Don't lower your prices to make a sale!

Give discounts if you have to, but always make sure to stipulate that a discount is being given. Be creative; come up with a reason for the discount. Maintain a price that will keep you in business during the recession and after it is over. It will be much easier to eliminate a discount than it will be to "raise" your prices again once the economy opens up. You can find a list of suggestions on reasons for giving a discount in the fotoQuote Coach.

When you know exactly what is going on in the photo industry you will be in the strongest negotiating position. To that end:

I'm putting the finishing touches on fotoQuote Pro 6, and the project has been huge. The upgrade should be released soon, and I will send you an email to let you when you can order.

There are some big changes happening in the photo industry right now. I've spent the last year researching prices and looking for trends that might help you cope with some of the problems that exist, and also help you take advantage of some new opportunities that have emerged.

As your clients shift their presence and promotion from print to the web, they need additional media for their web pages; using more multi-media on their website.

One of the fastest growing needs right now is for video, both shot specifically for your client, or for stock clips. Corporate photographers are being asked for video, as are editorial photographers who shoot stills for magazine stories. Often the need for video is simple, and does not require a full production expense. With 35 new film and video footage categories this may be way for you to make more money, and we explain how to get started in the new fotoQuote Coach categories.

There are some problem trends too, but I feel with good information you can still work in these areas and continue to make a profit. What are some of problem trends that we are finding?

Obviously the markets are tightening in some areas because of the economy. There is also a shift from print to web, and web prices are often weaker than comparable print prices, but potentially more photos will be used on the web than in print.

There is a huge rights grab happening right now in the publishing industry, especially in the textbook segment. The biggest agencies are smashing around in the photo industry like bulls in a china shop, without much apparent concern for anything but themselves. Their behavior may be having an affect on the weakening of web and textbook prices and licensing terms; including caving into the insistence of the textbook industry to increase the license duration terms from five years to ten years as a standard time frame, without much, or any, increase in the license fee.

Textbook publishers are also trying to change how a book revision is handled. It used to be if a book was revised more than 5% the photographer could charge for the re-use of the image. Then publishers got photographers to agree to a 10% change. Now the publishers are trying to get photographers to agree to a 25% change before they can charge a re-use fee. This is being resisted but if it is accepted by too many photographers it may become a fact, and that source of income would disappear. Not many books are revised more than 25%.

You may get calls from clients who say that X agency is charging X dollars for a specific usage and they want you to match that price. There are some good reasons why you may not want to. The big agencies are cutting deals right and left. Discounts and special package prices are offered to clients to encourage repeat business. Images are often sold for less than the cost of production, and that is a business model that you, the producer can't afford. Your business losses are not being propped up by investors. If the client has come to you to license an image, they've probably already tried the big agencies, and you deserve to be compensated fairly for having what they want.

Also, from my research, the pricing in some of the larger agencies can be inconsistent, and it changes constantly; at times with major price shifts that defy logic.

An example of the inconsistency is one agency currently has two rights packages that are essentially identical, listed in two different parts of their website, one is priced at $1,300 and the other at $7,000.

In another example, changes were made recently to the rights packages an agency offers. Two packages, had their prices reversed, we think in error, with the package offering the fewer uses costing more than the other, by several thousand dollars.

So, I have taken my time with the fotoQuote upgrade, and I have again created a tool that you can continue to rely on to give you an accurate view of what is currently happening in the photo industry. Information is power and being informed will help you during tough times, and tough negotiations.

Some of the new features in fotoQuote Pro 6 are:

NEW STOCK CATEGORIES

FotoQuote Pro 6 has 86 new categories, bringing the total to 304; that's 86 new opportunities to sell your work. Every category has a Usage Tip to help with your negotiations. All categories can be easily chosen from the main screen.

FotoQuote Pro 6 has 35 new video clip stock categories. There is also a video pre-production worksheet that you can print. As more still cameras come with video capability and more clients request video clips for their websites, these new video clip categories are a potential way to make more money.

There are also over 30 dedicated web categories. This too is a fast-growing segment in the industry.

NEW COACH INFORMATION

There are 38 Assignment Coach topics, including helpful tips on how to break into the video market. The Stock and Rights Granted Coach topics have been updated and new topics added; including new information on the current issues with the publishing industry, especially the textbook segment.

REDESIGNED INTERFACE ENHANCEMENTS

A new SUPER streamlined interface makes this the easiest to use fotoQuote ever.

All 304 of fotoQuote's Usage Tips are now visible on the main fotoQuote screen as you click new categories, so you can quickly decide if you have the category that matches your request. All the categories are easily selected from a list on the main screen.

You can also select Geographic Pricing Factors from the main screen that define the geographic area of your license and adjust the prices accordingly.

NEW QUOTE PACKS

In fotoQuote Pro 5 we suggested you group together various rights and offer them to your client as a package of rights for a specific time in response to their request for all rights to your images.

FotoQuote Pro 6 now includes several different Quote Packs. The included usages, time limits and prices for each pack are broken down for you. A special chart lets you quickly see what is included in each pack. When you select a Quote Pack the detail of the included usages is automatically added as a text block to your quote.

EASY QUOTE CREATION WITH THUMBNAILS, LICENSE BY IMAGE, AND MORE

The whole process of creating a quote has been simplified, and you can now include a thumbnail of each image on the quote.

The RightsWriter now creates a license description for each image. Previously your license applied to all images in the quote. This is no longer practical in many situations because of the varied way in which images are being used.

The license for each image can easily be copied so that you can embed it into the metadata for your image, illustration, or video clip. The license can also be pasted into an external invoice or document. It will look like this:

Usage: Magazine Editorial.Consumer
Circulation: 25k to 50k
Size: Cover
License Duration: 1 Year
Territory: US Only
Industry: Publishing-Periodicals
Rights/Exclusivity: One-Time Non-Exclusive
Release Information: No model release

NEW INTERNATIONAL FEATURES

There is now a dual tax ability for users in Canada, Europe and other areas with double tax needs. There is also a field to enter a discount amount or additional charges to the quote, such as shipping, CD burning, special handling, etc. This has been a much requested feature.

There is now correct handling of many international currencies. You select the currency when you create a new quote, and all items added to the quote will be converted to the selected currency.

###

Thanks again for being such loyal customers. It keeps me going. I love the independent marketplace photographers like you create, and I will continue to do what I can to help you succeed in your business.

You can expect an email announcing the fotoQuote 6 upgrade soon (anyone who has purchased fotoQuote since January 1, 2009 will receive a fotoQuote upgrade at no cost).

All the best,
Cradoc

Cradoc Software - http://www.cradocfotosoftware.com/index.html

Bent Brother/Twisted Sister photos Live from 2-27-09 on rockstarpix.com

rockstarpix — Tue, 03 Mar 2009 22:52:24 +0000

Hello friends and rockers.
On Friday 2-27-09 BENT BROTHER (which is TWISTED SISTER without the make up and costumes) stormed into The Crazy Donkey in Farmingdale, NY and http://rockstarpix.com/ was front and center to capture all the action! Twisted Sister is celebrating the 25th Anniversary of their STAY HUNGRY album. This June, TS will release a special version of the album, with 17 bonus tracks. On this night, BB played the entire STAY HUNGRY album, along with other TS classics such as "You Can't Stop Rock n Roll", "Under The Blade", "Shoot 'em Down", and an old staple from the club days, a version of the ROLLING STONES "It's Only Rock n Roll". Thanks to tour manager Danny Stanton, who by the way pulled double duty this night by fronting his new super group AMERICAN BEAUTY ([Takashi, Wild August, Ninja - Danny Stanton] [Alice Cooper - Keri Kelli] [Ratt - Robbie Crane] & [Skid Row - Davee G]), I was in the camera pit all night to give you all a up close, intense look at this amazing, energetic performance. At http://rockstarpix.com/ you can also see pix of AMERICAN BEAUTY and another band from this night of rock n roll, a NY band called WILD STREET. So, we urge you to head on over to http://rockstarpix.com/ because you can't stop rock n roll, you can't stop rockstarpix and you will never be able to stop TWISTED F***ING SISTER!
Thanks to all for your support!

Dalila Kriheli
www.rockstarpix.com
rockstarpix@aol.com