client wants to reword contract

[rick_rothwell]

<p>Glad to hear it worked out. I am a quite surprised that someone who owns a videography/media company didn't know what a personal use license is. I have folks sign the regular contract and then provide them with a fairly simple one page 2nd document. The advantage is that when they go to CVS they only present a copy of the personal use license. CVS (etc.) is supposed to keep it 'on file' for their own protect, for now and into the future should any questions arise. And a short one page document is much easier for the photo person at CVS to look at and understand rather than an entire contract. There are examples of a photographic personal use license on the web I believe. Mine was developed from a few photography legal/forms books I bought. Have fun at the party!</p>

[tonybynum]

<p>here I was thinking the contract was changed becuase when you said, "sweet 16" i thought you were talking the trade mark "sweet 16" and therefore the owners of the TM would not allow you to keep the rights to the images therefore it's a work for hire deal, kinda like NG. I'm sorry I missunderstood this, it looks to me like this is a "teeny-bopper" party so of course it's negotiable. . .<br>

Good thread nonetheless.<br>

Tony</p>

[craig_shearman1]

<p>Work for hire is a specific legal situation in which you give up all rights to your work the same as if you were an employee of the person hiring you to shoot the job. The customer then becomes the owner and it's at his discretion whether to let you make any use at all, such as the offer to let you use the shots in your portfolio or promotion. In a perfect world, a photographer should never accept work for hire as a condition of shooting a job. As a practical matter, some clients will hire a photographer only if they agree to work for hire. At the very least, it is standard practice to charge more in exchange for doing work for hire because what you get paid to shoot the job is the only money you will ever see. To ask a photographer who is already shooting the job for half price to agree to work for hire is an absolute insult and should be rejected on its face. With that said, are you really losing anything by doing a job like a Sweet 16 as a work for hire? Porbably not. There's going to be very little market for these pictures other than the people who are in them. It's not like you're going on a far off assignment for National Geographic and coming back with pictures that might have dozens of opportunities for additional sales after they've run in the magazine. But what if one of the 16 year olds turns out to be the next Paris Hilton/Britney Spears/Lindsey Lohan five years from now and People magazine is offering you $1,000 for a picture you don't have the rights to? A long shot, I know. You just never know.</p>

[think27]

<h3>The letter of the law <a name="section101"></a></h3>

<p>Section 101 of the <a href="http://www.copyright.gov/title17/92chap1.html#101" target="_blank">copyright law</a> defines a “work made for hire” as:</p>

<blockquote>

<p>(1) a work prepared by an employee within the scope of his or her employment; or<br>

(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a sound recording, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for a publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes; and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.</p>

</blockquote>

<p><a href="http://www.copyright.gov/circs/circ9.html" target="_blank">Circular 9</a> , a publication of the <a href="http://www.copyright.gov/" target="_blank">Copyright Office</a> , expands on this.</p>

<blockquote>

<p>If a work is created by an employee, part 1 of the statutory definition applies, and generally the work would be considered a work made for hire. IMPORTANT: The term “employee” here is not really the same as the common understanding of the term; for copyright purposes, it means an employee under the general common law of agency.</p>

</blockquote>

<p>Circular 9 goes on to explain in further detail:</p>

<blockquote>

<p>If a work is created by an independent contractor (that is, someone who is not an employee under the general common law of agency), the work is a specially ordered or commissioned work, and part 2 of the statutory definition applies. Such a work can be a work made for hire only if both of the following conditions are met: (1) it comes within one of the ten categories of works listed in part 2 of the definition and (2) there is a written agreement between the parties specifying that the work is a work made for hire.</p>

</blockquote>

[tony_clark]

<p>Let me get this straight, they are in the business and wanted to have a sweet 16 party shot. The signed off on your contract and then after the fact, they want you to rewrite your contract. On top of this, their communication skills were so bad that they went back and forth and finally said they just want to have the files to print for themselves. I would not change a word and make them order prints through you. If this is the way that they conduct business I would not want to do business with them. Wish them luck and tell them that you look forward to filling their print order, prepaid of course.</p>

[bjmarkowitz]

<p>"<strong>The client commissions the work and gives permission to the photographer to display the created work for promotional purposes including print and online materials."</strong><br>

They are giving you the right to use the work for promotional purposes, including print and online materials. Essentially, what you are giving up is the ability to use the work for commercial purposes, i.e., selling the image of the girl for advertising a product (as opposed to using the print to advertise yourself and your services.)<br>

Personally, its not that bad as many families would not want the copyright to rest in the photographer of their 16 year old girl. Who knows what you could do with the picture if you had the full copyright. </p>

[severoon]

<p>I want to point out a couple of things in posts up until now...</p>

<p>1. Photographers typically maintain the copyright to their images.</p>

<p>If you take a picture on the street, that's your art, period. This is the norm. Works for hire are typically contracted for some kind of corporate product shoot where the company has a great deal of concern over controlling thier brand--McDonald's isn't going to hire you to shoot their Big Mac and then have you using the images in a fine art project on how fast food is destroying our kids, for example. In this case, they're willing to avoid the risk by paying the photographer $$$ for the copyright.</p>

<p>Another example: when Annie Liebovitz does a Vogue shoot, they pay her a metric boatload of money for copyright. She has a sweet deal because everyone knows she's doing the work anyway...in that case, it's a situation where she's just so big she gets all the benefits from every direction (except, of course, she can't republish those images in some other venue without Vogue's permission).</p>

<p>In this case, you're actually getting paid *less* money, so why would you operate outside the boundary of what's normal? If your clients in this case got spooked by the language, tell them thanks but no thanks, best of luck finding another photographer that will work for that rate and sacrifice copyright.</p>

<p>2. "If, you agree to the change in contract, you would still be wise to have each kid's parent or guardian sign a release, or you take the chance of legal challenge to the use of any image to promote your photography business."</p>

<p>If you keep copyright, and if you think you could possibly maybe someday have a remote chance of perhaps making money off of prints made from this event in the future--say you do a book 20 years from now and one of the shots you take during the session would work brilliantly--you could do so without a release provided the use does not imply that the subject is promoting a product, service, or enterprise. You shouldn't, but you could.</p>

<p>You shouldn't because without a release you're more likely to be sued if the subject discovers the usage--even though it's ok, the cost of settling or defending a suit would almost certainly outweigh any benefit you get from their use. This is why photographers usually secure model and location releases for anything (also, once the release is signed it *does* allow you to use it for promotional purposes).</p>

<p>In this case, "promotional purposes" means implying that the subject supports some brand or product,as in: "Buy Floobajigs! This girl thinks they're great!" If the usage does not imply to a reasonable person that the subject in the photo (or the location owner, in the case of a location) is not promoting a product or service, and you're just using it as an example of your work or to make an artistic statement, you're ok. Again, it's still smart to get that release...but in principle you're in the right. You just don't want to put words in the subject's mouth without that release.</p>

<p>3. "Section 101 of the <a rel="nofollow" href="http://www.copyright.gov/title17/92chap1.html#101" target="_blank">copyright law</a> defines a 'work made for hire' as..."</p>

<p>This is interesting info and relevant, but reading statute law is definitely not sufficient. Statute law and case law are totally different animals, and case law is what you really want. Statute law is law that's passed by a legislative body; case law is an actual interpretation of statute law in a court. Courts rule based on precedent, and precedent is set by case law.</p>

<p>Most of the statutes relevant to situations involving photography simply have no case law behind them, and the examples that do exist show that statute law is often adjudicated in subtle ways with surprising outcomes (to us laypeople, anyway). Complicating things considerably is that, because there is so little case law in these areas, courts have ruled on laws concerning photography in the past by citing precedent from higher courts *in other states*. The impact of this: if you ever do end up in court, you may find you've taken great pains to understand and comply with statute law for your state only to discover that another state's laws have been interpreted in a way that is more relevant to your case. In the absence of relevant case law in your state...you're on shaky ground.</p>

<p>This is why photographers pretty much always get releases for everything. Even when you think you're in the right, you may not be. Even when you actually *are* in the right, the cost of proving it is not feasible. A release allows you get a case kicked on summary judgment before it even goes to trial, or at the very least gives you superior bargaining power in a settlement, which is where you want to be.</p>

<p>(Disclaimer: I am not a lawyer and have no special knowledge of the law. Having said that, I can recommend the Legal Handbook for Photographers, The Rights and Liabilities of Making Images, 2nd Ed. by Bert Krages...this is the source of what little knowledge I'm posting here.)</p>

<p>The way I would approach this situation is to explain that as a photographer it is industry standard to maintain copyright over your own creative works. Ask them specifically why they want to operate outside the norm--they may have a good reason for doing so that you can easily address without having to change your contract (99% of the time simply assuring them you don't plan on using the images in any inappropriate way is all it takes, especially considering their options--they're unlikely to find any other photographer worth his/her salt that will agree to these terms, *especially* at half their normal rate).</p>

[charleseagan]

<p>They are rewording the contract to obtain more than you offered. You should re-nogotiate the sales price to include releasing all rights to the work.</p>

[summerleif]

<p>Kristina, I would decline to do business with anyone who wants me to create a work for hire. Without copyright ownership, it isn't worth your while to get involved with the event.</p>

 

[david_henderson]

<p>Would someone please explain what copyright ownership for this sort of job is actually worth? Half the respondents to this thread have trotted out the old saw (and I paraphrase) that keeping the copyright is of paramount importance. Is this just repeating "common wisdom" that turns out to be less wise than it appears, or is there a reason for it that transcends photographers' egos and a desire to impose conditions on customers. </p>

<p>I have tried to explain why I don't think its important here, starting really with the point that customers seem to be in shorter supply than photographers, and that the important thing is to reach an agreement on the total price for a specified delivery that keeps both parties happy. I'm not a particularly young person, but I can grasp the fact that the old paradigms are changing and that most photographers either have or will need to re-examine the way they do business. Interestingly, I even earn more (per image, per year) from Royalty Free stock than from Rights Managed, and if I listened to some of the hard- liners on here I wouldn't touch RF at all. </p>

 

[aimee_pieters]

<p>Kristina,<br>

From my experience, this is not the last issue you'll have with this client. You've already lowered your price, now you're changing the terms? What's next? If you don't put a stop to this, it may be your worst nightmare client. If a client doesn't love your work, style and personality enough to do business with you YOUR way, I'd walk away. Also, your best clients come from referrals. People love to brag. So these people may begin spreading the word that you'll do anything they ask. Just my 2 cents.....-Aimee</p>

[jj_sterling]

<p>My 2c<br />A lot of great information here.<br />I think that rewording it as you appear to be doing (as suggested by Tim) by allowing the client to print for personal use is the way to go. As long as you retain total ownership for your desired uses; including commercial.<br />Otherwise you can make a financial proposal that properly compensates you for giving up your ownership to the images including any future benefits that may come. And if that doesn't work out for them; consider it as a negotiation lesson that you will benefit from with future clients. <br />Either way <strong>you WIN</strong>; if you have the <strong>right attitude</strong>.<br />Love to hear about the final contract.<br>

<em>Silly me - I just noticed that this as last years thread. Sorry folks</em></p>

<p> </p>