Photographer Prevails in Wedding Lawsuit

In November of 2009 we posted Wedding Photography Contracts - A Cautionary Tale - about the risks on assignment, as well as the possibilty of a tarnished reputation when things go south. Photo District News posts today - Blushing Bride Loses Underwear Photos Lawsuit - with the update that the photographer prevailed in court. The problem now, is that "One of the Best 10 Wedding Photographers" (according to his website, ranked by American Photo) has to restore his reputation, tarnished by this brides's suit.

Reading all the links above serve as a good reminder of the risks to our business by clients who feel wronged, even, as decided by the court in this case, the client was wrong.

Thus, ample proof that the client isn't always right. Want more insights into this?

The Client Isn’t Always Right: Dealing with Abuse as a Freelance Writer

Just Say No: Three Reasons the Customer Isn’t Always Right

10 Freelancer Mistakes that Damage Your Success

(Comments, if any, after the Jump)

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Morel v. AFP, AFP v. Morel - Which Way Blows the Wind?

Much has been said critical of Agence France Presse (AFP), and Twitter (and the unrelated yet seemingly related site TwitPic), in the case where, in the early hours following the devastating earthquake in Haiti, photogapher Daniel Morel "tweeted" 13 of his photographs to the outside world via the TwitPic network, and AFP distributed those same photographs to their worldwide network of customers, without compensating Morel for their use of his photographs. To date, much of that criticism has been directed towards AFP and TwitPic/Twitter, admonishing them because they "stole" the photographers work.

To the contrary.

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Morel signed up for a TwitPic account, which is free, and which has a lengthy set of terms and conditions under which he may use the account, and further, what TwitPic may do with material he transmits across their network (text or visuals). He agreed to these terms and conditions. Whether he conveniently forgot what he agreed to, or whether he never read them before clicking the metaphorical "I accept TwitPic's Terms and Conditions" button, the photographer is in the wrong. TwitPic has a network, and the tangent to TwitPic has a network, Twitter, which is bearing the brunt of this suit, and alleged wrong-doing. They both provide the service for free, for reasons that are mostly unknown right now. It may be that they are mining data from tweets about trends in society, age groups, or otherwise taking the pulse of the collective consciousness, and that may be a marketers dream data set. However, the Twitter network spends millions of dollars a year to operate itself, and in exchange for making that multi-million dollar network available to it's users, Twitter gets rights to content it carries over it's proprietary network. Their conveyance of those rights to third parties - in this case AFP, is perfectly within the bounds of their rights, and Morel is out of line.

Jean Francois Leroy, the Director of Visa Pour L'Image has a similar take on this. Over at Duckrabbit, (here) they use similar language - "AFP took Morel’s pictures without the photographer’s permission" and "they thought the photos belonged to somebody else". The operative word in the first quote is "took", and it's wrong. "Took" implies without permission, and they make it clear that's what they meant, when they say just that. The fact is, Twitter's T&C give AFP permission, granted to them by Morel, when he accepted them as a condition of his use of Twitter.

Leroy was quoted as saying:

"Anyone who puts images on Flickr or on Twitter, and then sees them being used, well too bad for him… a photographer should never put his images on a social networking site. If you put your image on Twitter or Flickr and find that it’s been stolen by someone else, well… tough. You can’t ask me to defend you. What I’d like is for all photographers reading this is that they stop putting images on such sites."

The only objection I would have to that quote is that Leroy characterizes the action as "stolen", and, as I have detailed above, AFP did NOT steal them, they have a license (permission) to use them. Otherwise, Leroy is spot on.

What if Morel had been smarter about his images, and used the internet to transmit his images to, say, a service like Photoshelter, where people can access and license images immediately, and which are search-engine friendly so the photos get found easily? They might not have seen the distribution and publication depth and breadth that they did because AFP has thousands of subscribers worldwide, but Morel would have maintained control of the licensing of his images, and likely profited significantly from controlling his rights.

I stand with Leroy, and common sense - don't use free internet services when your own intellectual property is at risk. Not only do you risk losing control of your work, but also, it's just not professional.

For those of you curious, here are the respective Terms of Service (i.e. the terms under which you may use the service, and further, agree to):

From Twitter's TOS:

- You may use the Services only if you can form a binding contract with Twitter

- The Content you submit, post, or display will be able to be viewed by other users of the Services and through third party services and websites...You should only provide Content that you are comfortable sharing with others under these Terms.

- You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).
- You agree that this license includes the right for Twitter to make such Content available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use.

- Such additional uses by Twitter, or other companies, organizations or individuals who partner with Twitter, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services.

- We may modify or adapt your Content in order to transmit, display or distribute it over computer networks and in various media and/or make changes to your Content as are necessary to conform and adapt that Content to any requirements or limitations of any networks, devices, services or media.

From TwitPic's TOS:

- By uploading your photos to Twitpic you give Twitpic permission to use or distribute your photos on Twitpic.com or affiliated sites

- you retain all of your ownership rights in your Content. However, by submitting Content to Twitpic, you hereby grant Twitpic a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and Twitpic's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service.

What part of that's not clear? Photographer “A” delivers images to party ”B” (TwitPic and then Twitter) and in doing so, accepts terms expressly providing that party “B” has the right to sublicense his work to third party/ies “C”, then the photographer must abide by terms to which he/she agreed. As to Party "C" being Lisandro Suaero, who downloaded the images from TwitPic and reposted them on Twitter under his name (see FastCompany article here for this gem of information), nothing in TwitPic's terms require photo credit, let alone, an accurate photo credit. Setting aside Suaero's ethical breach for taking credit for someone elses' work, AFP has obtained their rights from Twitter who legitimately got them from Twitpic who legimiately got them from Morel. AFP did the right thing, as they learned that Morel was in fact the photographer, and not Suaero, so they corrected the photo credit to attribute Morel. Morel is not some newbie, or someone unschooled in how to transmit photographs - he used to be an employee of the Associated Press as a photographer, so any claims of "I didn't know..." will, for me, fall on deaf ears.

Any questions?

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Related:

AFP sues Morel for defamation (PDF)

BJP - AFP v. Morel: The debate rages on

BJP - AFP v. Morel: The Important Questions

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Property Releases - Not Necessary One Court Rules

For years, it has been espoused that, in order for you to use someone else's property in a commercial way, you needed permission from the owner of that property in the form of a Property Release, much like a Model Release. No so, says the U.S. District Court in Northern California, in a rare case that likely will have far reaching consequences.

In the case of Robinson v. HSBC USA, Mr. Robinson's home, an often-photographed Victorian-era home in San Francisco, was used in advertising for the HSBC bank. (Read the decision here). The case, interestingly enough, was brought against the bank, one can assume, because they had the deep pockets for an award, as opposed to being brought against the photographer, who had far shallower pockets than a multi-national bank.

The front of the brochure, is at right, where Robinson's home is the yellow one.

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With the court's decision, it was dismissed "with prejudice", which barrs Robinson from bringing another case on the same claim. At right is the inside of the brochure - a second use of Robinson's home.

Over at the Property, Intangible blog, there is an excellent dissection of the case by an intellectual property lawyer that's well worth the read. Carolyn Wright, over at A Photo Attorney, discusses that there is almost no need for property releases in the United States, and she writes a bit about it here.

Essentially, there was no libel or defamation, nor even the suggestion that Robinson had a home loan with HSBC. Further, there was no trademark issue (like a logo visible in the image), nor a copyright issue. Further, the image was taken without trespassing on private property.

While I'm not a lawyer, and further, this isn't legal advice, it seems that unless you're going to use an image of someone's home and say "hey, here's a great place to open a brothel", or "this house looks like a crack house", a property release isn't as necessary as we have all been led to believe in the past.

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Wedding Photography Contracts - A Cautionary Tale

As PDNPulse recapped here a New York Post article here, a bride has filed a lawsuit in the Manhattan Supreme Court alleging she instructed her photographer, of the highly regarded wedding photography studio Christian Oth Photography, to refrain from taking photographs of her while getting ready, and in some degree of undress.

The suit also alledges that Oth posted the photographs, according to PDN for "all to see." So the question is - what are the photographers rights and obligations? Let's take a multi-facted look at the circumstances surrounding this issue.

(Continued after the Jump)

First - let's assume, just for the moment, that the allegation of the bride is true, in that photographs of the bride in some state of undress/preparation, are online and viewable to the public. Since Oth no doubt had the bride and groom sign a contract, the contract most likely includes the right granted to the studio for them to be able to use images from the wedding for promotional purposes. The sample contract made available by the Professional Photographers of America (here - membership required) to its' members, includes the clause:

"The Studio/Photographer reserves the right to use negatives and/or reproductions for advertising, display, publication or other purposes. Negatives and previews remain the exclusive property of this Studio/Photographer."

Thus, if the images appeared on Oth's website, and Oth used recommended contract language, they would be legally covered.

The second statement that the bride alledges, is that (according to PDN) the photographer was ordered "...to refrain from taking photos of her in a state of undress but that the photographer kept snapping away anyway." However, there are no stipulations in the contract for this to take place, if Oth used the standard PPA contract. Two terms would cover this:

"It is understood this Studio/Photographer is the exclusive official photographer retained to perform the photographic and/or video services requested on this Contract."

and this term:

This Contract incorporates the entire understanding of the parties. Any modifications of this Contract must be in writing and signed by both parties.

Thus, the bride could not modify the contract verbally with an "order", and this is again, assuming some variation of the PPA recommended contract was used.

Oth has responded to the PDNPulse article, with a statement (in PDF form) here, and makes the point that "We have never posted any images of Mrs. Bostwick on our public website or any other public venue. Client images, such as Mrs. Bostwick's, are posted on our proofing website and are always password protected." Some research shows that Oth uses Pictage, long considered a leader in providing online galleries and proofing/print ordering for wedding couples. Oth's studio page on Pictage is shown here. As someone who has in the past used Pictage for all manner of client deliverables (including weddings), I can say that the back-end ability to limit public viewing is very powerful.

Pictage recommends that the bride and groom be given "owner" status of their galleries. As such, the gallery would be transferred to the owner, and the owner in turn has the right to "make private" images they don't want their guests to see (yet they can still see.) As such, before the owner releases the images to friends and family to browse, they have had the ability to edit their gallery of images. At all times, owners, friends and family either have to log-in, or have a password to establish an account specific to that gallery and then log-in, before being able to see images. In the end, Pictage has the ability to protect client and end-client images very well. While it is possible for a Pictage user like Oth to have granted "public" access to a wedding, it is made very clear that you are choosing this option when you are setting up an account, so I would doubt that this was the case.

As someone who has photographed weddings, (and as a male), my discussions center around "the bride putting the final touches on her gown", which usually refers to primping and the affixing of the veil/train, just before dad comes in to see his daughter. This time is usually where a few candids of the bride with bridesmaids, and so on can be made, and those images are nice for the beginning of the album. For a female photographer (and I am guessing here), it might be normal/more comfortable for her to be in a bit earlier when there might be a bit more being revealed, as could have been the case given that the Oth photographer is Carolyn Monastra, almost certainly a woman.

So, with the assumptions regarding legalities and likelihoods out of the way, what remains? Reputation. The Knot has a forum post here with praise for Oth, but as this lawsuit makes the rounds, it could show up on the boards. With the article on the New York Post, it wouldn't surprise me if more than one bride/groom who was considering Oth has opted for another photographer. For those who have already signed a contract, they could well be contacting Oth for assurances, or making attempts to get out of their contracts. With Pictage listing Oth weddings in the $3,001-$5,000 range, this will likely have an economic impact on them even if the suit is dismissed in short order.

Could it be that the bride was unhappy with the results, or wants more for free? Of course - both of those things happen frequently. Thus, this could just be a way for an unhappy bride to get back at the photographer. We won't know, of course, until this is settled, one way or another.

In the end, it is imperative in this world where clients are expecting white-glove treatment at every turn, and reputations are on the line, that contracts clearly spell out what's allowed and what's expected. Further, with Oth, who was likely sub-contracting photographer Carolyn Monastra making sure that vendors are customer-service focused is key. It may be that Monastra and the bride were just being light-hearted about it, or perhaps all was well in the beginning and Monastra did not get direction as the bride suggested, but later the bride decided to revise history. Either way, it is imperative to listen to what the bride is - and is not - telling you. I submit that scantily-clad images of a bride are likely of little use for a wedding album that you'll be showing the parents/in-laws, and eventually your children, so don't bother shooting them until it's all about the "final touches" and the makeup check in the mirror.

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Conde Nast/CondeNet Contract: Introduction

More and more, Conde Nast is growing their universe, and family of publications and online editions. Previous Conde Nast contracts are now being used in the CondeNet contracts. Here below is the CondeNet version, but it's essentially the same as the Conde Nast versions. In fact, the CondeNet version is essentially a drive-by rewrite of the Conde Nast edition, because of concepts like "Foreign Editions", which would be printed editions as well. These designators are OL1 and OL2, and I am making the educated guess that the "OL" designator, is short for "OnLine."

Recognize that in these contracts, you're not being compensated for your work appearing in online editions when the print-side commissioned you, and conversely, you're also not being compensated for your work that appears online when the online-side commissioned you. Yet, advertisers must pay if they wish to appear online and in the print editions, seperately.

There's a great deal wrong with both versions, and we'll go in an dissect each section.

Up Next: Conde Nast/CondeNet Contract: Recitals and Term 1

(Comments, if any, after the Jump)

Technical note: Since I don't want to bump every other post off the first few pages of the blog, I am posting this Introduction post with today's date, and I am posting the remaining comments, and conclusions with a date several weeks back - essentially so far back that you wouldn't be drilling in, page by page and see them. This allows for the other posts from previous days to remain on the front page. At some point, I will fix that and they all will be one after another. If you are getting this on RSS feed, my apologies since I know you will end up getting them all, despite the date adjustment.

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The 2008 AP Contract Analysis - Introduction

Most assuredly, the AP has a new contract. We first reported about it here (A New AP Contract Emerging? - 5/14/08), and more than one copy came our way from several readers. Of note in their paperwork, was the disparity between pay from bureau to bureau.

You have until June 1, or about 2 weeks, to indicate your intent to object to this or sign it. If you don't sign by June 1, you won't be getting any more AP assignments.

(Continued after the Jump)

Interestingly, the AP notes in their cover letter "We urge you to read the agreement closely and to seek expert guidance before signing if you desire." Yes, be sure to talk to a lawyer, and your insurance agent (regarding indemnification, if for nothing else), before signing.

I've consolidated sections 7, 8 and 9, because they have some fairly standard language in them, and my comments/suggestions in those sections are somewhat limited.

In the end, there clearly was an attempt at doing more for the photographers. Perhaps it was because the AP was competing with Reuters for freelancers, who already pays royalties. Perhaps it was because there was ambiguous, or aged language in the last contract that needed updating. Perhaps it was because they just couldn't get consistent image quality from their freelancers (setting aside competition from Reuters) with the previous low rates. Perhaps it was the AP making an effort to be more thoughtful about the realities of being a photographer. Likely, it was a combination of all of the above.

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Continue Reading:

• The 2008 AP Contract Analysis - Introduction
• The 2008 AP Contract Analysis - Opening Recitations
• The 2008 AP Contract Analysis - Section 1
• The 2008 AP Contract Analysis - Section 2
• The AP 2008 Contract Analysis - Section 3
• The AP 2008 Contract Analysis - Section 4
• The AP 2008 Contract Analysis - Section 5
• The AP 2008 Contract Analysis - Section 6
• The AP 2008 Contract Analysis - Sections 7,8 & 9
• The AP 2008 Contract Analysis - Rates

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Conde Nast/CondeNet Contract: Recitals and Term 1

Commentary and analysis begins:

As of {Month}, {Day}, 2008, {publication} owned by CondéNet Inc. (“Company”) and (“Freelancer”) agree as follows:

Version OL1	Version OL2
1. Scope of Agreement/Services: This agreement will govern each assignment performed by Freelancer for any current or future service owned or operated by Company and all photographs, illustrations, or other visual works or copyrightable material taken at or created as a result of each assignment or otherwise submitted to Company for a service owned or operated by Company or its affiliates (the “Works”). For purposes of this agreement, an “assignment” is a project agreed upon by Company and Freelancer. Company and Freelancer will separately, on a case-by-case basis, arrange the specifics of each assignment or submission, including fee, due date, and subject matter. The fee for any assignment or Work encompasses all the rights granted herein. Reimbursements for expenseswill be negotiated on a per-assignment basis, are subject to approval in writing in advance by Company, and receipts and proper documentation must be provided within one month of expenditure. The results of each assignment must be satisfactory in form and substance to Company, and must be submitted by the agreed due date. Freelancer must provide a selection of photographs, as determined by Company, from each assignment, from which Company may choose what it wishes to publish, and upon request of Company, Freelancer will provide additional (or all) photographs. Freelancer will retain an original or other high-quality copy of all material submitted to Company.	1. Scope of Agreement/Services: This agreement will govern each assignment performed by Freelancer for any current or future service owned or operated by Company and all photographs, illustrations, or other visual works or copyrightable material taken at or created as a result of each assignment or otherwise submitted to Company for a service owned or operated by Company or its affiliates (the “Works”). For purposes of this agreement, an “assignment” is a project agreed upon by Company and Freelancer. Company and Freelancer will separately, on a case-by-case basis, arrange the specifics of each assignment or submission, including fee, due date, and subject matter. The fee for any assignment or Work encompasses all the rights granted herein. Reimbursements for expenses will be negotiated on a per-assignment basis, are subject to approval in writing in advance by Company, and receipts and proper documentation must be provided within one month of expenditure. The results of each assignment must be satisfactory in form and substance to Company, and must be submitted by the agreed due date. Freelancer must provide a selection of photographs, as determined by Company, from each assignment, from which Company may choose what it wishes to publish, and upon request of Company, Freelancer will provide additional (or all) photographs. Freelancer will retain an original or other high-quality copy of all material submitted to Company.
COMMENTS: These two terms are identical. It is of interest to note that the fees in either contract are not defined. Further, this contract would also cover any type of video (often “behind the scenes” video) that some photographers are producing now, and that appear, as below on the CN family of websites, like here, on the Vanity Fair site. It is also worth noting that they refer to expenses as reimbursable. In other words, this seems to imply that you are not entitled to any markup. So, if a lighting kit rental costs you $250, you need to account for your 30 minutes arranging the kit and coordinating it’s pickup with the assistant (or courier company), as well as those costs to pick up and return the lighting, including the assistant’s mileage and charges for their time. Further, they are requiring receipts. There is no tax code regulation that requires Conde Nast to have your receipts. Their receipt is/would be your invoice listing each item. Beware – your supplier base is, and should remain, proprietary. If you know the best assistant/pilot/gear house in off-beat locations, that is of value to you. Sure, it’s one thing to share it with a colleague heading there. However, for Conde Nast to have the receipts gives them supplier names, and that information, properly leveraged, could diminish the value you bring to them in the future. < Also, there is some confusion here. It says you’ll keep “an original or other high-quality copy of all material submitted to Company”, yet, is that material the receipts, images, or both? If it’s images, and you’re shooting film (i.e. Polaroid transfer, 120mm in a Holga, etc) you are then required, as noted here in the contract, to keep copies, which means scanning. Be certain that your invoice includes the cost to scan everything!

Previous: Conde Nast/CondeNet Contract: Introduction

Up Next: Conde Nast/CondeNet Contract: Term 2 - Exclusive/Grant of Rights

(Comments, if any, after the Jump)

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Conde Nast/CondeNet Contract: Term 2 - Exclusive/Grant of Rights

Commentary and analysis continues:

Version OL1	Version OL2
2. Exclusive Rights: Freelancer owns the copyright in the Works and hereby grants to Company the exclusive first worldwide right to reproduce, publish, transmit, disseminate, display, perform, or otherwise use each Work, which exclusivity lasts until ninety (90) days after the initial publication or public dissemination of the Work by Company. Freelancer will not publish, disseminate or use or allow anyone else to publish, disseminate or use any of the Works for any purpose until the exclusivity period has expired. Company’s exclusivity extends to each and every Work taken at the shoot or as a result of the assignment until the exclusivity period has expired.	2. Grant of Rights Work-Made-For-Hire: It is agreed that the Works shall be works-made-for-hire within the meaning of the U.S. Copyright Act, and Company shall own all rights, including copyright, therein throughout the world. In the event any of the Works are determined not to be works-made-for-hire for any reason, Freelancer hereby transfers and assigns the entire copyright (for the full term of copyright), throughout the world, in any and all media and forms of publication, reproduction, transmission, distribution, performance, adaptation, enhancement and display now in existence or hereafter developed, in each Work to Company.
COMMENTS: Here’s where the major difference between the two contracts is. OL2 is a work-made-for-hire contract. OL1 is not, but has many many restrictions on what you can do with the work. What is problematic though, is how they define the exclusivity. For example, OL1 says “Company’s exclusivity extends to each and every Work taken at the shoot…until the exclusivity period has expired.” The problem here is that, suppose I were to take a portrait of Person X, and I made 40 images of Person X in pose 1, and 40 images of Person X in pose 2 in a second location. They are only going to publish one, maybe 2 or 3, throughout the story. This leaves about 78 other images that fall under the “each and every Work” classification, that are still exclusive to Conde Nast, You may not read it this way, and an editor may tell you that’s not what they mean, but Conde Nast’s legal department surely has been clear – “each and every Work.”

Previous: Conde Nast/CondeNet Contract: Recitals and Term 1

Up Next: Conde Nast/CondeNet Contract: - Other Rights/Likeness

(Comments, if any, after the Jump)

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Conde Nast/CondeNet Contract: - Other Rights/Likeness

Commentary and analysis continues:

Version OL1

Version OL2

3. Other Rights: Freelancer also grants Company, for the full term of copyright, the non-exclusive right to reproduce, publish, transmit, disseminate, display, perform, or otherwise use any of the Works, the right to make and authorize the making of reprints or stand-alone copies of the article or feature including the Works for any purpose, the right to authorize the use of the Works as set dressing or otherwise in movies, television shows, and other productions, and in addition, the right to use the Works and/or Freelancer’s name and likeness in publishing, promoting, advertising and publicizing Company and services in which the Works appear, and in merchandising.

Freelancer’s Name/Likeness: Company may use Freelancer’s name and likeness in publishing, promoting, advertising and publicizing the publications and services in which the Works appear, and in merchandising.

COMMENTS: Conde Nast is grabbing reprint rights here. This is a very valuable package of rights. Further, they can re-publish your work as well. In both cases, you are not entitled to a piece of the pie when the monies for that are collected.

Previous: Conde Nast/CondeNet Contract: Term 2 - Exclusive/Grant of Rights

Up Next: Conde Nast/CondeNet Contract: - Syndication Rights

(Comments, if any, after the Jump)

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Conde Nast/CondeNet Contract: - Syndication Rights

Commentary and analysis continues:

Version OL1	Version OL2
4. Syndication Rights: Freelancer further grants Company the non-exclusive, unrestricted, royalty-free right, for the full term of copyright, to syndicate and/or license the Work to one or more third parties throughout the world in all languages, to retain third parties to do so and to retain all proceeds therefrom. The Rights, Warranty, and Miscellaneous provisions of this agreement shall apply to all such syndicated or licensed use. This provision does not affect Freelancer’s non-exclusive, unrestricted right to syndicate the Works and retain all proceeds therefrom.	{does not apply.}
COMMENTS: You are granting to Conde Nast the right to take every image you’ve shot for them and set up their own photo agency/syndication service, and you get no additional revenue, as granted by “Freelancer further grants Company the non-exclusive, unrestricted, royalty-free right, for the full term of copyright”. Of course, they try to be nice by saying it does not affect your non-exclusive right to syndicate them yourself. However, in point-of-fact it does, as evidenced by some photo agencies requiring exclusivity clauses in order to represent your work. Back in 2002 the Illustrators Partnership of America, as the IPA notes in this article, entered into negotatiations, in part, related to "Condé Nast representatives have written to both the IPA and to the Guild, as well as to various individual members stating that the warnings on our websites are inconsistent with Condé Nast's current intentions not to license work by contemporary contributors. We have relayed Condé Nast's statements to our members. But we must remind everyone that the language of the Condé Nast contract wholly justifies our warnings. For Condé Nast's recent assurances to become binding, the language of the contract itself must be changed." The language remains essentially the same since that time.

Previous: Conde Nast/CondeNet Contract: - Other Rights/Likeness

Up Next: Conde Nast/CondeNet Contract: - Miscellaneous Rights

(Comments, if any, after the Jump)

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Conde Nast/CondeNet Contract: - Miscellaneous Rights

Commentary and analysis continues:

Version OL1	Version OL2
5. Miscellaneous Rights: Company has the sole discretion to decide whether, when, and how to publish any Work and the right to crop, retouch and otherwise modify the Works. Upon Company’s request, Freelancer will be available for and will cooperate with Company’s fact checking and will supply Freelancer’s research material relating to the Works. In the event Company returns any original material to Freelancer, Freelancer shall promptly loan them to Company upon Company’s request.	Miscellaneous Rights: Company has the sole discretion to decide whether, when, and how to publish any Work and the right to crop, retouch and otherwise modify the Works. Upon Company’s request, Freelancer will be available for and will cooperate with Company’s fact-checking and will supply Freelancer’s research material relating to the Works. In the event Company returns any original material to Freelancer, Freelancer shall promptly loan them to Company upon Company’s request.
COMMENTS: These two terms are identical, save for the fact that they have different positions within the contract. Here, when referencing that Conde Nast can “: Company has the sole discretion to decide whether, when, and how … retouch and otherwise modify”, your images could very well be leaving the realm of “editorial”, and into a “photo illustration”, where people are added/removed/merged, and faces of celebrities are retouched. What would happen if you licensed that work after the 90 day embargo, unretouched? Tucked into OL1 Term 16/OL2 Term 9, below, is the language “and will indemnify Company against any claims of any nature arising from said agent or representative’s execution of this agreement.” So, when you publish unretouched photos of a celebrity, and someone does a comparison of the Vanity Fair versions compared to the Time Magazine version, and the celebrity sues, you are the one on the hook, not Vanity Fair. This also indemnifies them in Term 9d below “If Freelancer makes any subsequent or other use of any Work, Freelancer is solely responsible for obtaining any necessary releases from any models, persons, or owners of property pictured in the Work. Freelancer will hold Company harmless from and against any claims by any person arising from any subsequent or other use.” In addition, it says “Freelancer shall promptly loan…” but doesn’t say you can’t charge a research fee, loan fee, or other such reasonable fee for your work involved in getting these images to them.

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Conde Nast/CondeNet Contract: - Exercise of Rights

Commentary and Analysis continues:

Version OL1	Version OL2
6. Exercise of Rights: Company may exercise the rights granted herein in any media now in existence or hereafter developed, throughout the world. In doing so, Company may arrange with third parties for distribution, transmittal, publication, promotion or other dissemination of its service(s) containing the Work(s) or portions thereof, or material from Company or its service(s), in a collection, section, manner, or area identified as being associated with or containing material from Company, including with any database operator or other service (e.g., Nexis), and may provide links and other enhancements to the Work(s).	{Does not apply}
COMMENTS: Again, no mention of additional monies due you for these rights. Recognize that every time a Conde Nast publication has it’s content re-purposed, they are generating additional revenue from them. Yet they seem to not care that you are not a part of that equation.

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Conde Nast/CondeNet Contract: - Foreign Rights

Commentary and Analysis continues:

Version OL1	Version OL2
7. Foreign Rights: Company may allow any of Company’s or its affiliates’ owned or licensed services outside of the United States, and/or foreign language services in the United States (in each case “foreign service”) to acquire publication and dissemination rights to each Work in that service’s country and/or language of publication. The foreign service may acquire the rights by giving notice thereof within one (1) month of the initial publication or public dissemination of the Work by Company and by agreeing to pay a fee to Freelancer upon publication that is twenty percent (20%) of the fee paid to Freelancer for the Work. The other Rights (not including exclusivity), Warranty and Miscellaneous provisions of this agreement shall apply to such use by the foreign service.	{Does not Apply}
COMMENTS: Here’s where that breakdown of photo fees and expenses gets you. If you’re paid $400 as your fee, a Euro-edition of the article, for example, need only pat you $80USD to use the work, and that well could be a full page photo.

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Conde Nast/CondeNet Contract: - Reservation of Rights

Commentary and Analysis continues:

Version OL1	Version OL2
8. Reservation of Rights: All rights not granted herein are retained by Freelancer.	{Does not apply}
COMMENTS: This is, to a degree, stating the obvious. However, it’s appearance is much more likely to be an attempt to make it look like they’re not taking everything, and are somehow compassionate to the creators of the works.

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Conde Nast/CondeNet Contract: - Releases/Restrictions

Commentary and Analysis continues:

Version OL1	Version OL2
9. Releases/Restrictions: a. Releases: Freelancer will obtain releases, on a form to be obtained from Company, from all persons and owners of property pictured in any of the Works. Freelancer may not agree to any restrictions, limitations, or right to review requested or imposed by any persons, including models, owners of property pictured in the Works, or others. Freelancer will immediately advise Company of any such request or attempted imposition. b. Borrowing Property: Freelancer may not obtain or borrow any objects or property having an aggregate value in excess of $1500, or lease any location, or enter into a legally binding commitment to a third party, on behalf of Company without first obtaining Company’s express written consent. c. Commercial/Advertising Use: Freelancer will not allow any of the Works to be used at any time for any commercial or advertising purpose, whether or not Company’s period of exclusivity has passed, unless Freelancer first obtains Company’s express written consent, which Company may withhold in its sole discretion. d. Subsequent Use: If Freelancer makes any subsequent or other use of any Work, Freelancer is solely responsible for obtaining any necessary releases from any models, persons, or owners of property pictured in the Work. Freelancer will hold Company harmless from and against any claims by any person arising from any subsequent or other use.	2. Releases/Restrictions: Releases: Freelancer will obtain releases, on a form to be obtained from Company, from all persons and owners of property pictured in any of the Works. Freelancer may not agree to any restrictions, limitations, or right to review requested or imposed by any persons, including models, owners of property pictured in the Works, or others. Freelancer will immediately advise Company of any such request or attempted imposition. Borrowing Property: Freelancer may not obtain or borrow any objects or property having an aggregate value in excess of $1500, or lease any location, or enter into a legally binding commitment to a third party, on behalf of Company without first obtaining Company’s express written consent.
COMMENTS: Here you are required to secure releases that are Conde Nast specific. There are many times where this will be problematic. Most people that they would want photographed have lawyers, and the releases you present to them would need to be read by lawyers, and they’d say as much when you presented the release to them. When the release doesn’t get signed, is that going to be satisfactory to Conde Nast? You can bet not. Thus, pursuant to Term 1 “…The results of each assignment must be satisfactory in form and substance to Company…” you are likely to not be paid. Further, in order for you to leverage the images yourself, you'll need to get your own releases signed. It is good that they specify that you can’t enter into any agreements to pre-approve the images, or any property ownership demands. The “Borrowing Property” term is probably in large part, in response to photographers borrowing clothing and jewelry for shots, and the problems that might result. It also may be a limit for contracts in New York State, however, this term inadvertently applies to renting lighting equipment, since they are not specific about what they mean by property. The Commercial/Advertising restriction is a really bad one. It would surely apply to an author who wants to use the portrait you made on the cover of their next book. As a poster, post card, or ad campaign. This is such a significantly onerous restriction, that it essentially restricts all future uses to “editorial”.

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Conde Nast/CondeNet Contract: - Confidentiality & Non-Compete

Commentary and Analysis continues:

Version OL1	Version OL2
10. Confidentiality: The subject of Freelancer’s assignments and Work(s) under this agreement and all details relating to them will be held confidential by Freelancer and may be discussed by Freelancer only with those individuals necessary for the preparation of the Work(s). Freelancer will not allow anyone outside of the applicable publication or service (including but not limited to the subjects and the subjects’ representatives) to view the Work(s) or portions thereof before publication.	3. Confidentiality: The subject of Freelancer’s assignments and Work(s) under this agreement and all details relating to them will be held confidential by Freelancer and may be discussed by Freelancer only with those individuals necessary for the preparation of the Work(s). Freelancer will not allow anyone outside of Company (including but not limited to the subjects and the subjects’ representatives) to view the Work(s) or portions thereof before publication.
COMMENTS: These two terms are identical, save for the fact that they have different positions within the contract. This is a fair clause. The phrase “Freelancer will not allow” should better be changed to “Freelancer will take reasonable precautions to not allow”, since they can’t be held responsible for the actions of third parties with access to the images (couriers, retouchers, post-production houses, and so forth).
11. Non-Compete: Freelancer will not, until ninety (90) days after the initial publication or dissemination of a Work, photograph, submit, publish or cooperate in the publication or dissemination of, in any form, works on the same or similar subject or similar in appearance as the Works, unless Freelancer has received written consent to do so by Company.	4. Non-Compete: Freelancer will not, until ninety (90) days after the initial publication or dissemination of a Work, photograph, submit, publish or cooperate in the publication or dissemination of, in any form, works on the same or similar subject or similar in appearance as the Works, unless Freelancer has received written consent to do so by Company.
COMMENTS: These two terms are identical, save for the fact that they have different positions within the contract. A non-compete clause is pretty fair. 90 days is fairly onerous, but on the outskirts of the realm of reason. The problem that exists here, is that “a Work” is very much considered any of the images that were not chosen to be published by Conde Nast, as outlined in the comments about Term 2.

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Conde Nast/CondeNet Contract: - Warranty & Independent Contractor

Commentary and Analysis continues:

Version OL1	Version OL2
12. Warranty: Freelancer represents and warrants that the Work(s) will be original work by Freelancer, will not have been previously published in any form, and will not infringe upon the personal or proprietary rights of or give rise to any claim by any third party. In addition, in the event any complaint relating to any Work is made by any third party at any time, whether by a formal legal claim or otherwise, Freelancer will fully cooperate with Company in responding to and defending against such complaint or claim.	5. Warranty: Freelancer represents and warrants that the Work(s) will be original work by Freelancer, will not have been previously published in any form, and will not infringe upon the personal or proprietary rights of or give rise to any claim by any third party. In addition, in the event any complaint relating to any Work is made by any third party at any time, whether by a formal legal claim or otherwise, Freelancer will fully cooperate with Company in responding to and defending against such complaint or claim.
COMMENTS: These two terms are identical, save for the fact that they have different positions within the contract. These are reasonable warranties to require. However, it’s not unreasonable to expect to be paid for your time when you are asked to “fully cooperate”. In some instances, this could involve a fair amount of time.
13. Independent Contractor: Freelancer is an independent contractor and will not be treated as an employee of Company for any purpose, including but not limited to employee benefits, the Federal Insurance Contribution Act, unemployment taxes and income tax withholding at the source. Freelancer is responsible in all respects for any assistants Freelancer may retain.	6. Independent Contractor: Freelancer is an independent contractor and will not be treated as an employee of Company for any purpose, including but not limited to employee benefits, the Federal Insurance Contribution Act, unemployment taxes and income tax withholding at the source. Freelancer is responsible in all respects for any assistants Freelancer may retain.
COMMENTS: These two terms are identical, save for the fact that they have different positions within the contract. Again, this is a pretty fair and standard term. It’s of value to note that they are defining you, the photographer, as “responsible in all respects for any assistants”. So, an assistant can’t make a claim against Conde Nast if they’re injured, without that claim coming back around to your being liable.

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Conde Nast/CondeNet Contract: - Termination & Miscellaneous

Commentary and Analysis continues:

Version OL1	Version OL2
14. Termination/Breach: Either party may terminate this agreement by giving thirty (30) days written notice to the other party. If Freelancer breaches this agreement or fails to fulfill Freelancer’s responsibilities Company may, in addition to its other remedies, immediately terminate this agreement and/or cease making payments. The Rights, Warranty, Confidentiality, Subsequent Use and Miscellaneous provisions shall survive any termination or expiration of this agreement.	7. Termination/Breach: Either party may terminate this agreement by giving thirty (30) days written notice to the other party. If Freelancer breaches this agreement or fails to fulfill Freelancer’s responsibilities Company may, in addition to its other remedies, immediately terminate this agreement and/or cease making payments. The Rights, Warranty, Confidentiality, Subsequent Use and Miscellaneous provisions shall survive any termination or expiration of this agreement.
COMMENTS: These two terms are identical, save for the fact that they have different positions within the contract. This is also a fairly standard term. One problem is the conflict between the phrase “may…cease making payments…” and “subsequent use” terms are an issue. This means, that the 20% of payments due you for any foreign uses are no longer due you. Further, there’s no “subsequent use” sub-item in OL2.
15. Miscellaneous: This agreement sets forth the entire agreement of the parties, supersedes all prior agreements between the parties with respect to the subject matter hereof, will not be binding on either party until fully executed by both parties and may not be altered except in a document signed by the party to be bound thereby. No contrary or inconsistent terms, conditions, restrictions, or other provisions in delivery memos, invoices, letters, or other documents will be binding on a party unless expressly agreed to in writing by that party. This agreement and any rights hereunder are assignable in whole or in part by Company as part of a transfer or reorganization of any part of the business to which it relates. Any notice to Company must be sent by Certified Mail, Return Receipt Requested, or delivered personally, and must be addressed to the attention of Contract Department. This agreement will be governed by the laws of the State of New York applicable to contracts to be wholly performed therein; any action based on or alleging a breach of this agreement must be brought in the state or federal courts in New York, New York, and the parties hereby consent to the exclusive jurisdiction of such courts.	8. Miscellaneous: This agreement sets forth the entire agreement of the parties, supersedes all prior agreements between the parties with respect to the subject matter hereof, will not be binding on either party until fully executed by both parties and may not be altered except in a document signed by the party to be bound thereby. No contrary or inconsistent terms, conditions, restrictions, or other provisions in delivery memos, invoices, letters, or other documents will be binding on a party unless expressly agreed to in writing by that party. This agreement and any rights hereunder are assignable in whole or in part by Company as part of a transfer or reorganization of any part of the business to which it relates. Any notice to Company must be sent by Certified Mail, Return Receipt Requested, or delivered personally, and must be addressed to the attention of Contract Department. This agreement will be governed by the laws of the State of New York applicable to contracts to be wholly performed therein; any action based on or alleging a breach of this agreement must be brought in the state or federal courts in New York, New York, and the parties hereby consent to the exclusive jurisdiction of such courts.
COMMENTS: These two terms are identical, save for the fact that they have different positions within the contract. This is a fairly standard term, except the laws of New York should not govern. The assignment takes place in many cases in your state, and your business is in your state, so it’s unfair to apply laws from a foreign state. Also, if you’re in a foreign country, certain terms of this agreement may not be applicable. In any case, I understand that they would like it to be convenient for them if they have to go to court, but it’s better handled in a court near you, and also where the assignment took place.

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Conde Nast/CondeNet Contract: - Power of Attorney

Commentary and Analysis continues:

Version OL1	Version OL2
16. Power of Attorney: If this agreement is executed by an agent or representative on Freelancer’s behalf, said agent or representative represents and warrants that it has full right and authority, pursuant to a currently valid Power of Attorney from Freelancer, to make this agreement on behalf of and to bind Freelancer, including the grant of rights and warranties and representations specified herein, and will indemnify Company against any claims of any nature arising from said agent or representative’s execution of this agreement. Upon Company’s request, said agent or representative will provide to Company the above-specified Power of Attorney.	9. Power of Attorney: If this agreement is executed by an agent or representative on Freelancer’s behalf, said agent or representative represents and warrants that it has full right and authority, pursuant to a currently valid Power of Attorney from Freelancer, to make this agreement on behalf of and to bind Freelancer, including the grant of rights and warranties and representations specified herein, and will indemnify Company against any claims of any nature arising from said agent or representative’s execution of this agreement. Upon Company’s request, said agent or representative will provide to Company the above-specified Power of Attorney.
COMMENTS: These two terms are identical, save for the fact that they have different positions within the contract. This is to cover Conde Nast in the event they assign a photographer from a photo agency, or Photo Rep. I submit that Conde Nast should exercise the requirement of producing the Power of Attorney, since I can’t say I’ve ever seen the Power of Attorney language in contracts from Getty, or other agency contracts I have reviewed. They may be in some problematic waters on this.

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Conde Nast/CondeNet Contract: - Conclusions

OL2 is just downright not acceptable. However, it’s the contract that always gets sent out first. That’s what the instructions from “on high” have been given. Then, when you (and by you, I mean probably 70% of photographers) objects, you are told something like “oh, we sent you the wrong contract. We’ll send you the right one…”, and then you get OL1, that, on it’s surface, seems fair. However, upon closer inspection, there are so many onerous clauses, and clauses which engage you in significant liability, that I suspect that if you ran the contract past your insurance company, they would specifically preclude coverage for your work for Conde Nast, if atleast, your re-use of the photos from the assignments.

I suspect that there are only OL1 and OL2 floating around, and that these contracts cover 98% of those they contract with to do the work they need. For the remaining 2%, they actually spend the time having their legal department work with your lawyer to come to a fair and equitable contract, and there’s no OL0 or OL3 designator.

From the re-use fees (Foreign only), to indemnification, to receipt requirements, to rights grabs for both, neither contract is fair. That doesn’t mean that there are not photographers lined up around the block willing to work under these unfair terms, it’s just, for OL2, the PT Barnum phrase “There’s a sucker born every minute” applies, and for OL1, well, maybe people just aren’t reading what they’re signing away. Hopefully this will give some insights.

Understand, I am not a lawyer, I just read a lot of contracts, and I write a lot as well. Once you’ve read what I wrote, and understand it, take the contract you’ve already signed, or are about to sign, and send your lawyer the document, and what I wrote. Your lawyer might see things differently, but be sure they’re a contract or intellectual property lawyer. I can’t tell you the number of times I have spoken with photographers who’s lawyers have told them things like “if you don’t register your work, it falls into the public domain…”. If you’re in a situation where you’ve already signed it, ask your lawyer to review Term 14/Term 7, and consider Termination, unless you can re-negotiate the terms so as to have them more equitable.

In fact, if you’ve done a few assignments under OL1, what I suspect will happen is that your lawyer will call their legal department, and they will call the photo department and say “hey, we’re talking with John Smith’s lawyer, he’s done several assignments for us, and his lawyer wants to renegotiate the contract. Are you going to use this photographer ever again, or should we spend some time re-doing the contract?” If the photo department likes your past work, perhaps you’ll get a re-done contract that’s fair. This past work does give you some leverage over the process.

Good luck.

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Revisit a section of commentary and analysis:

• Conde Nast/CondeNet Contract: Introduction
• Conde Nast/CondeNet Contract: Recitals and Term 1
• Conde Nast/CondeNet Contract: Term 2 - Exclusive/Grant of Rights
• Conde Nast/CondeNet Contract: - Other Rights/Likeness
• Conde Nast/CondeNet Contract: - Syndication Rights
• Conde Nast/CondeNet Contract: - Miscellaneous Rights
• Conde Nast/CondeNet Contract: - Exercise of Rights
• Conde Nast/CondeNet Contract: - Foreign Rights
• Conde Nast/CondeNet Contract: - Reservation of Rights
• Conde Nast/CondeNet Contract: - Releases/Restrictions
• Conde Nast/CondeNet Contract: - Confidentiality & Non-Compete
• Conde Nast/CondeNet Contract: - Warranty & Independent Contractor
• Conde Nast/CondeNet Contract: - Termination & Miscellaneous
• Conde Nast/CondeNet Contract: - Power of Attorney
• Conde Nast/CondeNet Contract: - Conclusions

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