For more than six months, ASMP has been on a mission: to get to the bottom of the widespread changes in contracts that concert photographers are being forced to sign. Today, I can say that the mission continues, and we are closer to meaningful change, but are not there yet. Nevertheless, I wanted to draft this article to let all photographers know exactly what they are signing when they agree to photograph that big, new festival.
In mid-2022 I was approached by ASMP member and noted music photographer Brian Lima with a frustrated plea: why were the contracts he was being asked to sign seemingly bare rights grabs? As Brian told me, his revenue (in part) stems from ongoing sales of images in the market, whether as fine art prints or apparel, or one of a hundred other outlet.
But the recent set of contractual language made these kinds of sales nearly impossible. And that’s when ASMP began to look into this and what could be done. Here, first are some things to watch out for.
Works Made For Hire & Copyright Transfers
All photographers should be concerned with their copyright ownership as it is only the copyright owner that can reproduce and display the work. If you give up your copyright ownership, you give up the ability to even put the work on your website without the copyright owners permission. Sometimes, the dense language of contract clauses can obscure what is actually occurring: a rights grab.
Often this rights grab is cloaked in the idea of “works made for hire”. For example, in one contract I recently read, the clause begins with this sentence:
“The results and proceeds of Contractor’s Services hereunder, including without limitation, all material composed, submitted, added, created, or interpolated by Contractor hereunder … shall be deemed a “work-made-for-hire” specifically ordered by Client.”
Here’s the bottom line. If you sign this, you do not, at any point, own the copyright to your photographs. It is owned by the hiring entity. You cannot do ANYTHING with the works without their permission. No secondary prints, no sales after the fact, no putting it in your portfolio. Nothing.
Sometimes, in rare occasions, a work for hire can make sense given the industry or the circumstance. Most of the time, however, it does not. If you are an ASMP Member, we have a whole course on works made for hire and the implications of that over in the ASMP Academy and ASMP Document Library.
The language does not always need to say the magic words “work for hire”. The same outcome is reached if you are asked to sell, assign, convey, or transfer your rights in the works you create. If you transfer your rights, you don’t own them anymore. And if you don’t own the rights, you can’t display or reproduce the work. For example, see this clause:
“Contractor shall not use, reproduce, display, manufacture, or make derivatives of any goods depicting or displaying Client logos, trademarks, or proprietary marketing materials without Client’s prior written permission in Client’s sole and absolute discretion.”
Rights grab indeed.
The contacts I have reviewed also include a list of “non-’s”: non-competition, non-solicitation, non-disparagement, and no publicity. But what do these mean? Here are the basics, in a nutshell:
This type of contractual clause attempts to prohibit you from working in a certain field or with others if that work would pose direct competition to the original client. You may have heard of these recently; the Federal Trade Commission has proposed a rule to ban them nationwide. There are at least two good reasons for this. First, as the FTC notes: ““Noncompetes block workers from freely switching jobs, depriving them of higher wages and better working conditions, and depriving businesses of a talent pool that they need to build and expand. By ending this practice, the FTC’s proposed rule would promote greater dynamism, innovation, and healthy competition.” Second, non-competes are notoriously hard to enforce, and often amount to a scare tactic made by companies with significantly higher bargaining power in a contractual setting. When the are enforced, they should be limited by time, geography, subject matter, and more.
This clause is often enforceable, and you should take care when signing an agreement that includes this language. You are not allowed to leave the job and then “solicit” for employment or a job any one who was an employee, contractor, vendor, or customer of the client at the time you worked for them. While these are common, here’s the rub: in the contracts I’ve reviewed, these are lasting for 12 or 18 months or even longer! That’s just not ok. That a photographer can be sued if they reach out to someone they met while on a job seventeen and a half months later, something is wrong. Be aware.
Non-Disparagement and No Publicity
You may have also seen these types of clauses in the news lately. These clauses seek to prevent you from making any negative or disparaging contracts about your client. Watch out here… there are often no time limits associated with these clauses. This is another very concerning clauses.
I Could Get My Day In Court, Right?
Finally, many of the contracts I reviewed have a “binding arbitration” provision. Put simply, no matter what happens, you MUST resolve it via arbitration, and not in court. One of the great checks and balances of our judicial system is the ability to have a “jury of your peers” listen to the case and render judgement. These clauses make you agree that you “voluntarily … waive trial by jury” related to any clause in the contract. The only remedy is to have your matter heard by an arbitrator. Now arbitration can be a positive experience, but signing away your rights to an actual jury trial is not something a photo contract should ask for, yet it is becoming more and more common.
Now, we continue to fight.
This is just the tip of the iceberg in the clauses we see that put a heavy burden on the photographer. I understand that it’s not often possible to turn down a job from a large company because of onerous and predatory contract clauses. But at the very least you need to know what your are signing. If you have general questions, I encourage you to make an appointment with the ASMP Business and Legal Clinic which holds one-on-one sessions every Tuesday morning.
In the meantime, we will continue to pursue the conversations we have already started with these companies in order to see if we can help change some of these terms and conditions. We will keep you posted.