Client's contract for photographer

[dsphotography]

The topic here concerns the photographer once he signed the client's contract gives up all copyright but that is not all. The photographer has to agree to indemnify and defend the client if it infringes the rights of any party, any cost, damages, liabilities etc.

I wonder how many photographers do really read through their contracts given to them and understand what they are in for. Getting paid for a job is one thing but if the contract doesn't protect the photographer against any indemnity etc, then we will end up in a far worst situation. We might have to cough up money to settle the case.

I have recently started shooting events for a magazine. The type of events varies but some can be high profile public events. I have been given a contract to sign recently. I decided to read through the contract carefully. No one likes to read a contract which is usually written in complex jargons.

I am concerned with two paragraphs in the contract as follow which is reworded as not to reveal too much. The original paragraph is one long paragraph that you need to hold your breathe just to read them. I have broken it up to give clarity.

>----------------------------------
1. When you sign the contract, you assign and transfer all your rights in and to the work exclusively to the client. This include all worldwide copyrights, trademarks and similar rights. Includes all extensions and renewals thereof. The client and its assignees and licensees shall have the right to use the same (in part or whole) by any means, including without limitation publication in the print media and electronic media including websites worldwide, without payment of additional compensation to you or any other party. The photographer further waives his moral rights in and to the work.

2. Photographer agrees to indemnify, defend and hold the client, its parent, affiliate and subsidiary companies, free and harmless from and against any and all claims or demands. Alleging that our exercise of any of the rights purported to be granted herein that infringes any rights of any party. And from and against any costs, expenses, damages or liabilities, including reasonable legal fees, arising from any breach or alleged breach of any representation or warranty given herein.
----------------------------------<

For the first paragraph, the client ask for complete unlimited use of the photographs locally and worldwide indefinitely. I receive only a small fee for the event shoot and they are asking for everything.

How best can I negotiate for this with the client? Can I ever use the images in my portfolios?

The second paragraph is what really worry me. It states that in case of indemnity, damages, liabilities, legal issues, the client will not be at fault. The photographer is responsible. On one hand they want you to transfer all rights to them but they wouldn't be responsible.

My take on this is, the photographer is assigned to cover the event based on information provided by the client. The photographer is on site with instructions from the client. Why shouldn't the client carry any responsibility? The photographer is there to take pictures and not conduct any other business.

Has anyone have this experience before concerning their contract with their client?

I will discuss with the client my concerns. The magazine has other photographers and I would imagine most would have signed the contract. Can I have my own contract as well? I think it is unlikely the client will sign it.

The other option is to have my contract signed by the host or organiser of the event where it protects me in case of any indemnity or legal issues. The contract will go on the line that I have been instructed by so and so to be present on site, to cover the event, with his permission to shoot any body who might be present in the building/venue etc.

What is your opinion on this? I would appreciate anyone's feedback based on your experience. This topic will certainly invite some lively discussion.

 

[Jed]

How best can I negotiate for this with the client?

That unfortunately is down to you and your negotiating skills. Ultimately what you're aiming to do will be to say that they're not paying you a lot, so can they at least concede X, Y and Z.

Can I ever use the images in my portfolios?

As the contract stands, no. That would need to be part of the X, Y and Z as mentioned above. That's not to say that they would be against you using it necessarily, some clients might be quite happy to say, "sure you can." But in the wording of the contract if they wanted to, they could stop you from doing so.

The second paragraph is what really worry me. It states that in case of indemnity, damages, liabilities, legal issues, the client will not be at fault. The photographer is responsible.

This is a not uncommon clause, and it really depends on how you look at it. If you hired a plumber or an electrician, you would expect the same from them, largely speaking. In other words, and let's take the electrician as an example, if they came in and left their tools lying around and you tripped on one or them, or they did a shoddy job and you got electrocuted as a result, you would have a valid legal claim against them. At the same time you would also expect all their work to comply with all legal requirements and standards.

In the same way when you go in to do a job if you can be liable for any damages resulting from that, so if you crashed into someone and sent them tumbling down the stairs then they could sue the organiser because you are there at the organiser's behest, and the organiser is just transferring any such liability back to you. Take it out of it's legal context, from a 3rd party perspective whose fault is it that the person tumbled down the stairs? Yours.

In the same way it's your responsibility to ensure that your product meets all legal requirements, in other words for example you're not delivering an image which impinges on someone else's rights, whether privacy or copyright for example. In much the same way as you'd expect a plumber of electrician to comply with existing requirements within their trade.

The other option is to have my contract signed by the host or organiser of the event where it protects me in case of any indemnity or legal issues.

I am slightly confused as to your exact relationship vis-a-vis the client and the magazine. I'm assuming the client is hiring you, so where does the magazine come in? I thought the host/organiser was the one asking you to sign the contract with the onerous terms?

There are plenty of jobs that have similar type situations; I saw one the other day that insisted on a £2 million public liability insurance or do not bother applying. My work requires me to have £5 million public liability insurance (that might cover me if I accidentally break Wayne Rooney's little finger I guess).

A lot will depend on the exact nature of the work (public/private event, how much control/influence your client has vis-a-vis the event organisers, how much you're getting paid vis-a-vis how much you want the work).

This situation is largely different in Singapore, where I'd be amazed if any part timers charging next to no money have even heard of these issues, and even most pros struggle to get public liability or professional indemnity coverage because the insurance market just doesn't look that way. But I'm guessing this is a Sydney situation based on your profile.

 

[ckuang]

With regards to your contract, there is no way in hell I would sign the contract. My concern is that they have worldwide distribution rights for a small fee which would certainly not cover the cost of legal representation for the duration for the images (which also make me wonder why you would sign away all your rights for a small fee), but the other problem is that there is no statute of limitations geographically and time wise to your liability in clause 2 about defending the copyright of the images on behalf of the client.

What happens if they infringe some sort of copyright agreement with their trade partners in a country such as the USA which has punitive damages which can run in the tens of millions? The way, i would structure the deal is either to find a copyright lawyer for them to hire (of which i would request from the lawyer a 30% finder's fee ) or ask them to strike off clause 2, which is completely unreasonable. Or just not work with them. Or up your fees to include the cost of retaining the services of a law firm dealing with copyright law for 99 years by which the copyright of your images would have expired and your liability should come to an end (i would not be surprised if this will run in the millions).

 

[dsphotography]

In the same way it's your responsibility to ensure that your product meets all legal requirements, in other words for example you're not delivering an image which impinges on someone else's rights, whether privacy or copyright for example. In much the same way as you'd expect a plumber of electrician to comply with existing requirements within their trade.

The examples you have given, in the same context we photographers provide services then wouldn't it help us if we like other service trade have a form that gets signed off when we complete the on location shoot? Like words that say we have completed the shoot, everything in order etc etc. I wonder if this is practiced.

The magazine is the paying client. I am send out on assignment to shoot a public event which could be a public/private function. There will be a host/organiser who is not related to the client. My agreement would then stipulate all the terms and on completion of the shoot gets the host/organiser to sign off to say everything is in order. I will then have some form of protection to use in court if it ever gets ugly.

There are plenty of jobs that have similar type situations; I saw one the other day that insisted on a £2 million public liability insurance or do not bother applying. My work requires me to have £5 million public liability insurance (that might cover me if I accidentally break Wayne Rooney's little finger I guess).

I wonder if any photographers in Singapore has public liability insurance. If ever they have then their rates will be so high and how many jobs are they going to get?

My concern is that they have worldwide distribution rights for a small fee which would certainly not cover the cost of legal representation for the duration for the images (which also make me wonder why you would sign away all your rights for a small fee), but the other problem is that there is no statute of limitations geographically and time wise to your liability in clause 2 about defending the copyright of the images on behalf of the client. What happens if they infringe some sort of copyright agreement with their trade partners in a country such as the USA which has punitive damages which can run in the tens of millions?

Your points really make sense. Their clause 2 is totally unreasonable expecting the photographer to defend them, cover the cost if they use the images and somehow created infringement somewhere around the world when I only received a small fee. This is absurd isn't it? The magazine should be responsible as the photographer was hired to cover the events following their instructions. If they want full copyright, I can transfer full copyright to them and from then it is their responsibility.

I am going to respond to my client using the reasons you guys provided me here, thanks alot. I'll tell them it's for limited publication and will require renewal. I'm also going to ask for permission to use the images for my website and personal use. If they refused to change the clauses then I will give up the job as I am only doing it for exposure being a new photographer in Singapore.

Does anyone know of any legal adviser that I could use? Being new in the photography business, I certainly look to start drafting out different contracts to use for different shoots.

 

[Kit]

The examples you have given, in the same context we photographers provide services then wouldn't it help us if we like other service trade have a form that gets signed off when we complete the on location shoot? Like words that say we have completed the shoot, everything in order etc etc. I wonder if this is practiced.

The magazine is the paying client. I am send out on assignment to shoot a public event which could be a public/private function. There will be a host/organiser who is not related to the client. My agreement would then stipulate all the terms and on completion of the shoot gets the host/organiser to sign off to say everything is in order. I will then have some form of protection to use in court if it ever gets ugly.

I wonder if any photographers in Singapore has public liability insurance. If ever they have then their rates will be so high and how many jobs are they going to get?

Your points really make sense. Their clause 2 is totally unreasonable expecting the photographer to defend them, cover the cost if they use the images and somehow created infringement somewhere around the world when I only received a small fee. This is absurd isn't it? The magazine should be responsible as the photographer was hired to cover the events following their instructions. If they want full copyright, I can transfer full copyright to them and from then it is their responsibility.

I am going to respond to my client using the reasons you guys provided me here, thanks alot. I'll tell them it's for limited publication and will require renewal. I'm also going to ask for permission to use the images for my website and personal use. If they refused to change the clauses then I will give up the job as I am only doing it for exposure being a new photographer in Singapore.

Does anyone know of any legal adviser that I could use? Being new in the photography business, I certainly look to start drafting out different contracts to use for different shoots.

Good luck and god bless if you think they are going to change anything for someone just starting out, especially when there are 20,000 camera clickers waiting in line for the job.....

 

[Ian]

Does anyone know of any legal adviser that I could use? Being new in the photography business, I certainly look to start drafting out different contracts to use for different shoots.

Any competent commercial contract lawyer should be able to do this standing on his or her own head.

Clause 2 is pretty standard commercial fare, but clause 1 is loathesome. If they want unlimited copyright and no restrictions on use then they should damn well pay for it. Any client of mine who wants an unlimited with no restrictions is going to be paying big dollars per image. The reality in Singapore is if you don't do it, then some spotty 18yr old student with more gear than ability will sign for peanuts. Geeze don't the monkeys look well dressed tonight :devil:

Jed -> Good points raised mate. The Clauses reek like some of the ones Getty Images tried to pull over photographers a few years ago. It resulted in the only strike by commercial photographers in the past 50 odd years in NYC. The last set of strikes broke the power of the old photography studios and their stranglehold on the industry and gave rise to the freelance market we now have.

 

[whattokingu]

Too bad, photographers do not have much power in hand as they are not 'professional' as in accountants, engineers, doctors and lawyers does, which have accreditation organisations. Even a labour union would have some bargaining power....

 

[sjackal]

2. Photographer agrees to indemnify, defend and hold the client, its parent, affiliate and subsidiary companies, free and harmless from and against any and all claims or demands. Alleging that our exercise of any of the rights purported to be granted herein that infringes any rights of any party. And from and against any costs, expenses, damages or liabilities, including reasonable legal fees, arising from any breach or alleged breach of any representation or warranty given herein.
----------------------------------<

I am no lawyer sir, nor well versed on this subject, but researching into contracts lately (building my business) I came to know that contract must be fair or it might not be valid. Of course, that might mean a court case and we all know who has more financial might, photographer or a publication company?

Nonethelessly, may I draw your attention to the Unfair Contract Terms Act; about disclaiming liability, and reasonableness test.

http://statutes.agc.gov.sg/non_vers...e.pl?&actno=Reved-396&date=latest&method=part

 

[Jed]

The examples you have given, in the same context we photographers provide services then wouldn't it help us if we like other service trade have a form that gets signed off when we complete the on location shoot? Like words that say we have completed the shoot, everything in order etc etc. I wonder if this is practiced.

Not frequently, but I believe it has been done. You're back into the same situation whereby, is the client going to sign it? It's no different than having the terms amended prior to the job.

Also plenty of legal liability wouldn't immediately be apparent at the end on location; if you shot a picture of XYZ celebrity appearing to take drugs for example, and they had an expectation of privacy, then litigation could arise at a date in the future.

I wonder if any photographers in Singapore has public liability insurance. If ever they have then their rates will be so high and how many jobs are they going to get?

I have limited knowledge of the Singapore market but what I have gathered is that this isn't normal no. But costs like these are why professionals have to charge more, and cannot compete toe to toe with weekend warriors.

I'll tell them it's for limited publication and will require renewal. I'm also going to ask for permission to use the images for my website and personal use.

That contradicts itself. If you are only assigning them rights for a limited duration then you are keeping the copyright, in which case you will not need permission to use the images unless there is sensitive content.

I'm surprised to hear this is a Singapore issue rather than a Sydney one, but then thinking about it maybe not quite so surprising, because my one recent exposure to an agreement in Singapore had a term that was so onerous it was funny. Until you needed to sign it anyway.

 

[Jed]

Good luck and god bless if you think they are going to change anything for someone just starting out, especially when there are 20,000 camera clickers waiting in line for the job.....

Therein lies the neverending problem.

Does he bow in to the pressure (bad), or does he move aside for one of the other 20,000 to happily sign away, letting the magazine continue its undesireable practice and setting back the photographic profession as a whole (similarly bad if not worse but not his fault).

That's where having 19999 weekend warriors (the ones who do not conduct themselves professionally) in Singapore is just murdering the industry.

 

[Jed]

I am no lawyer sir, nor well versed on this subject, but researching into contracts lately (building my business) I came to know that contract must be fair or it might not be valid. Of course, that might mean a court case and we all know who has more financial might, photographer or a publication company?

Nonethelessly, may I draw your attention to the Unfair Contract Terms Act; about disclaiming liability, and reasonableness test.

http://statutes.agc.gov.sg/non_vers...e.pl?&actno=Reved-396&date=latest&method=part

Speaking as someone who has studied law but never practiced, I personally do not feel that either term will be classed as onerous within unfair contract terms legislation. They are not pleasant terms certainly, but not grossly unfair.

Those are just my personal views, rely on them at your peril. This is why lawyers have professional liability insurance (and photographers should too).

 

[dsphotography]

Good luck and god bless if you think they are going to change anything for someone just starting out, especially when there are 20,000 camera clickers waiting in line for the job.....

If there are 20,000 camera clickers out there, not all of them will shoot as well as you and me. The way we differentiate from the "weekend warriors" as described by Jed is we have to guarantee quality, give top service and professionalism. Not all of them carry $20k camera gears...

When I say I am new in the photography business I don't mean I am new to photography. I am taking the job full time and new to the Singapore market.

Also plenty of legal liability wouldn't immediately be apparent at the end on location; if you shot a picture of XYZ celebrity appearing to take drugs for example, and they had an expectation of privacy, then litigation could arise at a date in the future.

An interesting point to note. Shooting an event that is not under our control (unlike studio/commercial work) especially if it's a private function, we would then have to thoroughly vet through and filter the images before handing them over to the client to limit our exposure for any possible future litigation if it ever arises.

Does he bow in to the pressure (bad), or does he move aside for one of the other 20,000 to happily sign away, letting the magazine continue its undesireable practice and setting back the photographic profession as a whole (similarly bad if not worse but not his fault). That's where having 19999 weekend warriors (the ones who do not conduct themselves professionally) in Singapore is just murdering the industry.

Before I make the decision to bow to the pressure or move aside, the least I could do is voice my concern to the magazine that their clauses are unfair and unreasonable. I don't think the magazine would be quick to go out there to pick any of the 19999 weekend warriors. The events are high profile, some hosted by the rich and famous, some by ministers and foreign dignities. They do have a reputation to upheld I would think.

 

[Jed]

If there are 20,000 camera clickers out there, not all of them will shoot as well as you and me. The way we differentiate from the "weekend warriors" as described by Jed is we have to guarantee quality, give top service and professionalism. Not all of them carry $20k camera gears...

Yes, but top service and professionalism goes far beyond $20k camera gear. I would say it includes things like professional liability insurance, but that's me and what I've come to expect from the market over here.

Good luck in your negotiations!

 

[Kit]

If there are 20,000 camera clickers out there, not all of them will shoot as well as you and me. The way we differentiate from the "weekend warriors" as described by Jed is we have to guarantee quality, give top service and professionalism. Not all of them carry $20k camera gears...

Whether if we can differentiate them here is of secondary importance. What really counts is if the pay masters can differentiate and subsequently appreciate quality service and professionalism and pay accordingly.

 

[Ian]

What really counts is if the pay masters can differentiate and subsequently appreciate quality service and professionalism and pay accordingly.

In Singapore (for most companies).. ROTFLMAO ... Methinks there's a better chance of Hell Freezing over this morning.

 

[YSLee]

Singapore is the home of low standards and cheap labour, indeed.

 

[phazed1]

Just for the sake of argument, if you sign this - "2. Photographer agrees to indemnify, defend and hold the client, its parent, affiliate and subsidiary companies, free and harmless from and against any and all claims or demands. Alleging that our exercise of any of the rights purported to be granted herein that infringes any rights of any party. And from and against any costs, expenses, damages or liabilities, including reasonable legal fees, arising from any breach or alleged breach of any representation or warranty given herein." - and then at the event you were tasked to photograph, you capture a VIP and submit the photos to the magazine, and then then magazine publishes them, and the VIP protests because it shows him in a way that he feels is damaging to his image. The VIP wants all issues pulled off the shelves + retraction/ apology + lawyers fees. So if they magazine is co-operative, then after everything is done, they will send a bill to the photographer? I know the magazine is not that stupid not to practice common sense in their self 'censorship' (for lack of a better term ... editing maybe). But I am thinking that even though this is not spelt out in the contract, it is implied that being a publication you ought to uphold some standards in terms of what you put out for public consumption. It's more for the magazine's protection against images that may be illegal in some way (copyrights, plagarism, misrepresentation) that they are not aware of, and which subsequently cause them to be sued.

Comments?

 

[ckuang]

If the magazine has worries about the images being obtained illegally by the photographer, then the contract should specifically address this issue with a clause that states that the photographer has the legal right to sign over the copyright to the magazine and that he is the original creator of the work and the copyright owner.

Unfortunately IMO, the way in which clause 2 is worded is too broadly defined with no statute of limitations on the legal liability of the photographer, which makes the photographer legally liable for any copyright violations whether it is the fault of the photographer or the magazine.

Will professional liability insurance take care of the situation in the case of a lawsuit? perhaps, but it's important to note that the professional liability insurance isn't going to cover a lawsuit of the wrongdoing of a third party, the magazine in this case. Or at least, my insurance wont. They may pay for the legal defense of the photographer... but ymmv.

 

[ckuang]

and then at the event you were tasked to photograph, you capture a VIP and submit the photos to the magazine, and then then magazine publishes them, and the VIP protests because it shows him in a way that he feels is damaging to his image. The VIP wants all issues pulled off the shelves + retraction/ apology + lawyers fees. So if they magazine is co-operative, then after everything is done, they will send a bill to the photographer? I know the magazine is not that stupid not to practice common sense in their self 'censorship' (for lack of a better term ... editing maybe). But I am thinking that even though this is not spelt out in the contract, it is implied that being a publication you ought to uphold some standards in terms of what you put out for public consumption.
Comments?

Actually, in the case of the VIP, this is one good example where the clause is too broad and unfair for the photographer. for a start self censorship is highly variable. What is unflattering to one person means nothing to another and i am pretty certain is it not beyond some magazines an newspapers to publish unflattering images. Furthermore, with clause 2, why the hell would the magazine care? they are protected all the way to the bank.

So consider this. if the magazine is distributed in the USA, and the party was held on private premises, the VIP can sue if a model release was not obtained for using the likeness of being for advertising. Of course, the magazine (or with clause 2, the photographer) would then have to hire a lawyer to argue oh no, it was for editorial use only because it's a magazine. of course then the VIP's lawyer would argue, no, this magazine does not fall under the context of editorial use because it's a fashion magazine or this person is so well known that it sells the magazine and therefore it falls under commercial usage. At any rate, this will ping back and forth for many years, and by that time the photographer would have shelled out tens of thousands of dollars in lawyer fees, all of which he is responsible for because of clause 2 which has no limitations on the obligations of the photographer.

 

[phazed1]

Precisely, the legal fees can kill you if the issue drags on.