November 22, 2017 at 7:21 am #128043
I am a hospitality photographer based in South East Asia and am currently negotiating a contract with a major hotel brand. One of the items I have requested with the estimate and factored into the pricing is the option to be able to use the resulting images in my printed and online portfolios.
One one side the hotel itself is stating that this is not an issue and I will be able to use images, yet they are requesting that a Copyright Agreement from their head office be signed.
Two points in the agreement are:
“As consideration for invoice no XXXX attached hereto, I hereby sell to XXXX all of my rights to the photographs identified on said invoice and protected by copyright pursuant to the provisions…..”
“I also acknowledge that XXX is the exclusive owner of the brands that I have been required to photograph. As a result, I warrant that I will not make any use in the future, for any reason whatsoever, of the images of said trademarks.”
To me, this sounds like I am transferring all my right to the images and I will not be allowed to use them in any way or form?
Am I correct in the way I am reading this? If this is the case then I would want my pricing to reflect that.
Thank in advance for any input.
Phnom Penh, CambodiaNovember 22, 2017 at 11:39 pm #128062
Point 1 seems to suggest you will agree to transfer copyright, which, unless you’re being really well compensated, may mean you’re leaving money on the table. However, the language is sloppy, which suggests the writer – possibly in-house counsel – does not really know their IP very well, at least vis-a-vis standard photo contracts. (Or they know those contracts very well…).
Point 2 states pretty clearly that you will not be able to use the photos for your own marketing (such as a portfolio). However, it also seems to conflate the “brand” with the “trademark”, as though they are the same (they are not), and so muddies the waters further. My guess is that they don’t want you to license the images to any other similar business, perfectly reasonable, but that’s a sloppy way of putting it. Going back to my earlier comment: the writer may not be conversant in standard IP contractual phrasing for hiring a photographer.
For myself, unless there is no other option, I generally don’t sign my client’s agreement, but have them sign my own. I have signed both in the past, but it takes a bit of work to make sure the contracts agree with one another by inserting identical clauses – assuming the clauses don’t contradict other items in each contract.
So at this point, it’s your people skills that will have to come into play, to find out who has the final word among your client contacts; but if it was me faced with those clauses, I would ask them to agree to changes, whether it’s your contract or theirs, or I would want to charge enough money to make up for the fact that I would not even be able to use the images to show how I do my stuff.
Let us know how this goes!
Barry SchwartzNovember 23, 2017 at 8:09 am #128063
thank you for your quick and informative reply. The initial estimate was not based on the transfer of copyright and had the option for me to use the final images in my portfolio. So this is a completely different scenario.
Looks like back to the negotiating table then.
Barry (or anyone else) I would also appreciate your thoughts on this clause which I have never come across before.
“..and have ensured that any third party(ies) included in these photographs have, prior to the photo, signed an authorization to use photographic reproduction of their image, a signed original which will be provided to XXXXX. I agree that I am personally liable for any recourse or claim that may be by a third party based on infringement on his copyrights or the rights to his image, as well as for any penalties, including financial penalties, that may be levied, based on any use made pursuant hereto….”
The proposed shot list includes many lifestyles images of hotel staff and models organized by the hotel. This sound like I would be leaving myself open to potential problems and hassles that could arise at a later date.
Thank again for your input Barry.
Bruce DevincentiisDecember 5, 2017 at 7:27 pm #128644
Now we’re into a legal area where you might want to consult with an actual attorney. Having written that, however, if it was myself, I would translate that clause into meaning that everyone in a shot that could possibly be identified by any means would have to have signed a model release, which would cover the majority of the issues in that clause. It’s always the best policy to get your own model release signed, even if the client says it’s not necessary. If you can’t get an individual to sign the release, well, there’s always Photoshop for removing them.
The last part of the clause seems to suggest you’re indemnifying the client – my contracts all contain a clause that states that my client and myself are indemnifying each other – it has to go both ways.December 20, 2017 at 5:34 pm #129466
Even when client and photographer are indemnifying each other, need to be careful. I have seen some indemnification language that might lead to the interpretation that the photographer is potentially liable for any usage the client might make of the images. I would never agree to something like this.
Also, when being asked for exclusive rights or transfer of copyright, need to factor the potential loss of relicensing income into your fee. I have the impression that many photographers do not sufficiently consider the potential for additional licensing sales in their fees.
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