Monday, February 12, 2007

Primer & Refresher: Terms & Conditions: TERM 1

This Term lays out several definitions of words that will be used in the contract. Why is this necessary? Because lawyers love to debate (usually in court, often in settlement agreements) EXACTLY what was meant by a term, who was included (or not included) as a licensee, and such. This helps set forth what things mean.

Below first is the entire term, and then it's broken down piece by piece.

Term #1: "1. DEFINITIONS: This Agreement is by and between John Harrington Photography (“Licensor”) and (“Client”) which includes Client’s representatives . Licensor’s relationship with Client is that of an independent contractor. “Image(s)” means the visual and/or other forms of materials or digital information supplied by Licensor to Client. Licensor is the sole creator of the Image(s). The Image(s) are Licensor’s interpretation, rather than a literal copy of any concepts or layouts provided to Licensor by Client. “Service(s)” means the photography and/or related digital or other services described on the front of this Agreement that Client is specifically commissioning Licensor to perform pursuant to this Agreement. “Transmit” or “Transmission” means distribution by any device or process whereby a copy of an Image is fixed beyond the place from which it was sent. “Copyright Management Information” means the name and other identifying information of Licensor, terms and conditions for uses of the Images, and such other information that Licensor may prescribe."

Here's the breakdown:

"This Agreement" - Meaning this one specifically. Seperate and distinct from other proposed agreements that the other party (or parties) may have offered.

"is by" - Means John Harrington Photography wrote and proposed the Agreement.

"John Harrington Photography (“Licensor”)" - This defines me as the party with the intellectual property available for license, and that the capitalized word "Licensor" refers to me.

"(“Client”) which includes Client’s representatives ." - This defines (and here you would insert the clients company name before the opening parenthesis) the capitalized word "Client" to always be referring not only to the company/organization, but also to anyone whom is their representative (like a PR firm, ad agency, design firm, and so on.)

"Licensor’s relationship with Client is that of an independent contractor." In other words, at no time should I be considered an employee, subject potentially to WMFH, and this also protects them, so that I can't make a workmans' comp claim against them if I am hurt, trying to say I was their employee when that happened. Many many contracts that clients propose also includes this clause.

"“Image(s)” means the visual and/or other forms of materials or digital information supplied by Licensor to Client. " This defines what the capitalized use of the word "Images" is, and is important especially when you include "digital information" because it also then includes a digital photo file and the metadata or digital instructions (like an XMP sidecar for example) about how to process the images.

"Licensor is the sole creator of the Image(s)." This ensures that both parties agree that no joint claim of creation or creativity, and thus copyright ownership can be made. Both parties agree that Licensor is the sole creator. Note the use of capitalized words.

"The Image(s) are Licensor’s interpretation, rather than a literal copy of any concepts or layouts provided to Licensor by Client." In some cases, a claim could be made that such specific direction was given, that a joint authorship claim should be considered. This defines the fact that the images are an intepretation and not a literal copy.

" “Service(s)” means the photography and/or related digital or other services described on the front of this Agreement that Client is specifically commissioning Licensor to perform pursuant to this Agreement." This defines the word services to not just include the actual taking of the photographs, but also pre- and post-production, scouting, and so on. Anything I (or we) do for the client falls into the scope of the word "Services".

"“Transmit” or “Transmission” means distribution by any device or process whereby a copy of an Image is fixed beyond the place from which it was sent." Sets forth exactly what we mean. E-mailing, FTP'ing, CD delivery, use of a thumb drive, and so on.

" “Copyright Management Information” means the name and other identifying information of Licensor, terms and conditions for uses of the Images, and such other information that Licensor may prescribe." Again, sets forth the scope of what Copyright Management Information is, including these T&C, and leaves it open beyond that which "Licensor may prescribe."

With these words and phrases better defined, it makes it easier to have understandable terms through the rest of the agreement. Ask yourself, as you read this, "which of these definitions would I take out?" And also ask "Are there other terms I should be defining that are specific to me?" Once you understand each and every word in this (and the remainder) term will you be not only comfortable with the terms, and explaining to the client what they are, what the mean, and why they are there, but moreover, when you see terms you know are important and they are missing from agreements that a client might present, you can be clear to them as to why your contract is the one that should be signed. However, when you see a client contract that has substantially similar terms, you are in a better position to understand what they've written, why, and how it might just be fine to sign that one..


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1 comments:

Bryan said...

This is a great breakdown of this whole process. I appreciate the detail that you post with.

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