4.07.2019

A Note to Prospective Clients: Please don't consider handing me a contract that has:

"The agreement that we are entering into is a work-made-for-hire agreement. You agree that we (Satan Productions) are the sole copyright holder, sole owner and soul owner of any work you create while even just in close proximity to us. You also agree that our exclusive and total ownership of the work strips you completely of all rights of authorship."

 No. We would never agree to that. I create the work and I own the creative work. You and I would be entering into a usage licensing agreement. As part of the agreement I would only convey to your company specific usage rights for use of the material I create on the project. I am happy to negotiate and make sure you get the rights you need for your project; potentially even future projects, but you don't get "ownership." And, as if I have to tell you, paying a one time fee doesn't mean you now own the camera we shot the project with or the lenses, or the lights, or the car we used to bring all the gear and staff to your location. It doesn't. Although I'm sure your accountant would love to grab for $50,000 or $60,000 worth of gear in exchange for one small day fee and a reasonable usage fee. Right? Not gonna happen.

(note to the person who proffered the contract to me):
I know your strip mall attorney wrote all this stuff and you've probably never read it but you should. And if you did you'd be embarrassed.

Back the meat...

When we come to your project we're not just trading some working time for some money. As I wrote above we're generally bringing along gear which we use to do the project that has value far in excess of what we charge for most projects. I'm also bringing along my ten thousand hours(+) of expert experience in doing photography, or video, or writing. This means you are not directly paying for a long and productive learning curve, six years of higher education, 30+ years of hands on experience, a valued perspective, a practiced approach. Those are intangibles that are part of the value we bring to every project; no matter how small.

You are also not purchasing outright, for small change, my point of view, taste and cultural understanding. You'll get it in each shot but judging by the rights grab agreement form you might want to have people sign you desperately need to get this from an outside supplier because your contract makes it clear that you have a very limited perspective, a winner take all attitude, and very little in the way of good people skills. In fact, I would say the proffering of any such contract points to a diminished capacity to understand negotiation and effective agreements, which should benefit both sides in any business deal.

Your contract should also never have this:

"You will indemnify our production company and our client in all matters arising from the use, or mis-use, or negligent use, of the intellectual property we are trying to grab from you. This will include your commitment to legally battling on our behalf should anything ever go wrong with our often misguided use of materials over which you now have no control, no stake, and no ownership. And Satan just whispered in our collective ears that we'd also like you to cover our attorneys fees in perpetuity." 

Sure, I use hyperbole a lot in my writing but I swear I got an "agreement form" last week that had the above indemnification clause in it, almost verbatim (note to their attorney: that's Latin for, "as spoken."). I would have laughed if I hadn't wasted time discussing a project with the company previous to receiving this form. At that point I just wanted to pick up the phone and scream for a while....

Essentially this means I could go on location and work under the direction of this client to make a photo of "Chip." Chip might be a willing subject. Chip is happy to be involved; he was, after all, employee of the month. He might even sign a model release. I turn over the images to the client. They decide, a few months down the road, that Chip is a dick and they fire him without severance. Then Wendy in accounting, who had a bad break up with Chip takes the photo from wherever client keeps the photos and gives the image away for free to the Russian mafia who use it in a series of seriously nasty ad campaigns which picture Chip in a "bad light." Chip in a choke chain. In an savory threesome. In ads for erectile dysfunction. And then they run a series of joke posts about Chip's political beliefs for an American politician.

Chip gets a lawyer and sues his former employer who turns around and sues the production company who comes back to me waving their indemnification clause in their agreement form. All hell breaks loose.

Signing an agreement to legally cover anything that arises out of the mis-use, or negligent use, of photos which you no longer even own is like selling someone your used Dodge Charger and then signing a lifetime agreement stipulating that you'll be responsible for any and all repairs. Or accidents. No matter who is at fault. Forever. For a car you no longer own. What client would not love a warranty like this? But it doesn't make it right.

Finally, when dealing with a reputable photographer, videographer or other artist, your contract should never have a part that reads something like this:

"We are only responsible for paying the artist after we inspect each and every image and find each and every image to pass our inspection for quality, usability and general coolness."  

Yes. I've actually seen this as well (without the "general coolness" clause....)

Suppose the client is hiring a photographer to document a day in the life of their service staff. Any good photographer will shoot more than one image per set up. Given a tightly scheduled day hundreds or even thousands of images will be made. In some a client provided talent might blink, fart or look melancholy in such a way as improving said photograph is beyond the skills of even a world class retouching team. Suppose the product to be photographed has rampant defects and is the only one available. Perhaps the room the client insists you take photos in desperately needs to have the walls painted. The graffiti removed. This contract would give the rights grabbing client an easy out to not pay the photographer. Even if there are similar photos that are perfect, and many other variants available as well.

What passes for advertising strategy these days seems to change at the drop of a hat. Consider that the client could hire the production company to hire and supervise the photographer; all working under a very, very specific brief or scope of work. While the production company and photographer are creating content the client's ad agency gets cold feet about their (worn and sad)  concept and decides to have a "focus session." In the focus session it's discovered that the idea they sold to the client totally sucks. It's almost as bad and useless as an all rights/indemnify me for everything contract. The client and agency decide to change gears entirely. Now all the images that the photographer has created for the campaign are useless to the client-- even with all rights and a nice insurance policy against legal disasters --- but now the client doesn't feel like they should have to pay for work they no longer have a use for.

The production company has a rare "Aha!" moment and realizes that the nasty contract the artist signed has a convenient escape clause. They get to inspect and approve the photographs. They decide not to like them. They use the contract in order to not pay for any of the photos, or the time it took to create them. They never bother to tell the artist that the project was killed before they even looked at the work....

Imagine how hard life would be for restauranteurs if they offered the same sort of agreement for their customers. One could order a nice, gigantic Waygu steak, a caviar and lobster appetizer, a 1964 Bordeaux wine from the cellar, and then some vanilla ice cream for dessert. Upon assessing the bill, and having already stuffed themselves with wonderful food the customer decides that the ice cream is different from what he is used to getting from the local convenience store and that he does not like the taste as well as that of the ice cream to which he is accustomed. He calls over the waiter and tells him, "the ice cream isn't pleasing me. I'm declining to pay for this meal. Maybe we can try again in the future..." 

Insanity. And not a business model I'm putting to work in my business. I'd rather garden and read on the couch.

In the end it's the actual clients that get hurt when their intermediaries vastly over reach and try to force a bad contract on a quality provider. Any artist or writer who understands the value of their own work will walk away (or run quickly from the smell of brimstone, etc.) from a bad or totally one sided agreement. Why would they accept such bad terms? Why bend over for a rights grab?

The rights grab essentially means that the person signing over their rights can't use the images they created in their own marketing or in their portfolio. Can't enter it in an awards show. Can't use the work to get more work. Can't use the work as an example of their abilities. Why essentially donate valuable tools and valuable skills for the meanest, almost token cash exchange?

The indemnification clause puts the artist in legal peril for a long time and from every angle. Not an issue you say? Slow down and remember that in America anyone can sue for any reason. Happens all the time. You might not even be safe from being sued by your own client ---- remember, they were spiteful enough to hand you that nasty contract --- right? Is a fee of a couple thousand dollars (if you can get paid!!!!) worth the potential of months of even years of legal hassles and lawyer fees? You get to pay the lawyers even if you win!!!! Lucky you.

And the final clause, the inspection before payment clause. That's the capper. After the job is cancelled for whatever reason (the company spokesperson kills a bus full of nuns...) someone will leave it to a junior staffer to field your call (you know, where you ask for the money you are owed) and tell you, with phony regrets, that the work just didn't pass their stringent sniff test. "Sorry! We look forward to working with you again soon."

So, when the client's agency, production company, or in-house legal department run off/piss off all the good and capable independent artists they will be left with the people willing to take the smelliest contracts. These are bottom feeders and someone at or near the top of the client organization will realize they are no longer getting the "A" talent for their projects. Heads will roll but it may be too late to undo the damage of bad work used, and the worse damage which is to the client's reputation, painting said client as an unsavory and unreliable collaborator.

It's sad. The people who push contracts like this act like those agreements are the industry standard. They aren't. Bad rights grab contracts are like payday loan contracts. They are not illegal but they only benefit the finance company and lead the vast majority of people on the other side of the contract into financial ruin. Let's not let that happen in our industries. Fair contracts for fair use of good, solid intellectual property.

Oh, and the thing that triggered all this, beside actually getting one of the worst contracts I've ever seen? The nasty contract had a blaring typo/grammatical error in the first paragraph. That's just so embarrassing. Would you accept a contract that was almost guaranteed to screw you over even after you saw a double negative show up in the second sentence? I didn't think so. Me either.

All material ©2019 Kirk Tuck.