MusicPhotographers.net - A Community For Professional Music Photographers

Predatory "Rights Grabbing" Photography Contract Language

Walter Rowe — Thu, 23 Jul 2009 23:58:10 +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 (07/2009): Added more attachments (accessible only when logged in).

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 practice

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 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 an artist permits you to publish the images once, they 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.

Selecting Monobloc Lights (from Strobist's David Hobby)

Walter Rowe — Mon, 09 Nov 2009 17:25:08 +0000

Strobist editor and ace lighting guru David Hobby has written the first in what will be a series of blog posts detailing his personal experience in selecting a new set of monobloc lights. Read the first installment titled "Mono Monday: Choosing the Right Big Lights" over on strobist.blogspot.com and keep looking back there every Monday for the next article in the series.

As an adjunct to David's articles, I would also like to hear your personal experience in selecting "big lights". I too am in the process of selecting lighting. I'd like to hear what criteria you used, what brands and models you have personal experience using, and what pros and cons you can offer based on your personal experiences. Include information regarding available modifiers and accessories, consistency, control, reliability, durablilty, quality of light, etc.

I look forward to reading David's articles, the reponses to those articles, and to your responses here. Post comments to this blog entry. Let's hear what advice and experience you can offer others in selecting "big lights".

Lifecycle of a Freelance Photography Job

Walter Rowe — Mon, 20 Jul 2009 13:06:28 +0000

Tony Luna has written a multi-part business series on Photo.net that discusses in detail the lifecycle stages of a freelance photography job. The link below takes you to the introduction where you will find links to the remainder of the series. Each part is presented as a stand-alone article. The entire series is a great read, whether you are new to photography or a seasoned pro.

http://photo.net/learn/photography-business/freelance-photography-advice/

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