Question about "Use of Copyright"

<p>I was commissioned by a residential real estate firm in November of 2011 to photograph a series of architectural details that were used in a marketing campaign.<br>

I wanted to be sure that after the campaign was over, I retained the copyright so I could sell individual prints of the work.<br />I have just been contacted by a major home furnishings company that sells nationally through catalogs and in-store galleries as well. I will be providing the furnishings company's print vendor with digital files from which they will make the prints, then sell the finished prints through in-store galleries and through the catalog. They will purchase the prints in lots of 25 at a time.<br>

After re-reading the Agreement between myself and the real estate company, I keep getting stuck on the following terms of 'ownership':<br />3. Ownership and Exclusivity: Vendor retains copyrights and acknowledges and agrees that all materials, including but not limited to photographs, negatives, and related files produced by Vendor for Company shall provided to Company with unlimited and unrestricted use. Furthermore, Vendor acknowledges and agrees that the use of the copyrights to all photographs, negatives, and related files produced pursuant to this Agreement will not be sold to or granted to any company, partnership, sole proprietorship or individual other than Company and Vendor. <br>

My question is with the last sentence that begins with the word 'Furthermore'. I clearly get to retain the copyrights to the images which was my intent because I knew that someday I would want to sell prints. Later in the sentence - To my non-legal mind, I am not "selling or granting" the copyrights to anybody else. Just allowing the Furnishings Company to make and to sell prints of work in which I have the copyright. Consequently, my arrangement with the Furnishings Company should not be in conflict with my Agreement with the real estate company.<br>

Am I interpreting this correctly?<br>

Thanks,</p>

 

<p>To my also non-legal mind, it seems that retention of copyright won't have much practical value. Get a lawyer. You can be sure the real estate firm has at least one...</p>

<p>The quick read tells me that you granted them an unrestricted exclusive license to the Photos taken on that assignment.</p>

<p>In other words, you own them, but cannot do anything with them</p>

<p>"the use of the copyrights" is what you are doing by selling a print to someone else. Only yhe real estate company and yourself can make use of the copyright, you can use them for self promotion etc but cannot allow anyone else other than the Real Estate company use of the images.</p>

<p>You might want to to have that contract vetted by a lawyer familiar with copyright in your jusrisdiction. Maybe have all your contracts vetted, preferably before you sign them.</p>

<p>You're probably interpreting this completely wrong, however, as others have suggested, you will need a lawyer in your area to help determine exactly what you can and cannot do.</p>

<p>Yes, get a lawyer involved. But: there's a big difference between retaining the copyrights, and honoring a formal agreement about how they'll be used (especially, in this case, you going off to make money selling images that someone else paid you to make). </p>

<p>Another case of a poorly written contract creating confusion - more work for lawyers which could have been avoided for less coast by involving them before signing the document. Like the Fram Oil Filter commercials used to say "You can pay me now, or pay me later"</p>

<p>Yeah. I know from experience that the Furnishings company will require that I have sole, unencumbered ownership of the images so I actually reached out to the attorney I worked with at the Real Estate company to ask specifically if this arrangement with the Furnishing Company is allowed. He and I had a very collaborative relationship when drafting the original Agreement so I think this is safest and most prudent tack to take. If I have to pass on the opportunity, then so be it. Can't get in a position of having lawyers sort this out.<br>

Thanks all,</p>

<p>If it was cordial and collaborative, ask if they'll sign another short agreement specifically giving you the right to do what you want to do.</p>

 

<p>You gave your client unlimited and unrestricted use. You didn't give them exclusive use.</p>

<p>I think you own the copyright and you can sell rights to others, as long as you do not restrict the rights of your original client. I think you did a good job with the original contract.</p>

<p>But, I'm not a lawyer.</p>

<p>The last sentence that the OP points out clearly gives them exclusive rights except for the photographer's use.</p>

<p>My read is that you'll lose. You agreed that only the company and you shall get to use the photos. You are licensing the further distribution of copyrighted material when you "sell or grant" a copyright license. If it goes in front of a judge, and the decision is a toss up, the favor will almost always go to the client when something is vague. Even before that point is reached, if the client finds out that you've done this, (a) are you willing to lose the client, and (b) are you willing to pay the costs needed to defend yourself if the client decides to sue you over the matter. I don't think your non-legal mind should have signed off on that last sentence if you wanted to do anything other than use the photos for your own promotional purposes, which is what I'm sure your client was interpreting the sentence to mean.</p>

<p>I think you're right. I'm meeting with the real estate company legal and marketing people tomorrow because although they tell me the wording of the agreement is intended to prohibit a third party to sell images that they (the real estate company) paid for, they see a marketing/branding opportunity here. Interestingly, the Furnishings company came back with their image selection and only 4 of the 9 images they want to work with are from the real estate company. I might just inform them that 4 of the images they selected are not available but then I can give them a large selection of other images to find another four that work for them. All and all, this might have been a very costly lesson but now I feel it will work out for the best without having to 'lawyer up'. <br>

Lesson learned.<br>

Thanks everybody.</p>

<p>just a note ... you are much better off with your own lawyer to draft a contract rather than using the client's lawyer. The client's lawyer usually HAS to draft contracts that favour their client.</p>

"I think you're right. I'm meeting with the real estate company legal and marketing people tomorrow..."

 

Just remember: the lawyers are not representing you, they are representing their client. Unless you hire them (which

creates a possible conflict of interest) whatever advice they give you is as valuable as any words spoken across a table.

As a Hollywood mogul in the '30s said, "a verbal contract isn't worth the paper it's printed on."

<p>Well, parse it out. "The use of the copyrights . . . will not be sold to or granted to [anyone] other than Company and Vendor." In plain English, no one but the Company and the Vendor can "use" the copyright. If a third party's sale of prints is a "use" of the copyright, then you're out of luck. The question for your lawyer to answer is what constitutes a "use." </p>