Working Through (And Around) WMFH

Everyone's complaining about how clients are demanding WMFH contracts, and legal departments seem everywhere to want that language in their contracts. Ok, put it in, and have it apply when you are paid an appropriate fee (as deemed by you), and you agree, specifically, to it in writing.

I have the good fortune of having a few clients for whom I am on a retainer. I am blessed that they call often enough that they don't want to have to sign off on fees and expenses and rights packages every time. So, we set forth an Agreement for all work performed for them.

This is essentially the same way a magazine handles assignments you do for them -- they present the contract, you sign once, and everything completed for them after that is under those terms. Here's how I have handled WMFH in my corporate contracts:

Term X: Rights In Work.

Licenses or permissions not expressly stated in this agreement shall not be implied, and all rights not expressly granted to Client are reserved to Photographer. Except in the case of work made for hire, or where provided for in a written agreement between Client and Photographer, licenses and permissions expressly exclude derivative rights. Except in the case of work made for hire or as expressly authorized in writing by the Photographer, work may not be archived or placed in any electronic catalog or electronic delivery service. Work which is to be created as and priced as “work made for hire,” if any, shall be specified in writing signed by the Photographer. As to all work, Photographer specifically retains the right to use and display Photographer’s work for portfolio purposes.

Photographer grants Client the non-exclusive permission to use, display and reproduce “day to day” photography and “major projects photography” with respect to any image, for one year from the date of the image's initial delivery, as follows: 1) on Client’s Web Site, 2) in Client’s newsletter as the newsletter appears in both electronic and printed form, 3) in trade publications, 4) for press kit handouts, and 5) to wire services for their use and that of their subscribers within the terms of their applicable and in effect written subscriber service agreements.

Photographer grants Client the non-exclusive permission to use, display and reproduce “portrait photography” with respect to any image, for three years from the date of the image's initial delivery, as follows: 1) on Client’s Web Site, 2) in Client’s newsletter as the newsletter appears in both electronic and printed form, 3) in trade publications, 4) for press kit handouts, and 5) to wire services for their use and that of their subscribers within the terms of their applicable and in effect written subscriber service agreements.

Permissions not expressly granted herein shall be licensed at Photographer’s current rates in effect at the time of license.

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How about, however, the client who wants to preclude your work from appearing in a competing publication, or for a competing business. Since you own the rights, you can do that, unless you agree to preclude that, and that certainly is a fair request to be made. Here's how you might tweak it. You could add, above the sentence "Permissions not expressly granted...":

Photographer states that no licenses or permissions of any images made under the terms of this contract shall be offerred, licensed, or otherwise made available to competitors of Client. A list of parties Client believes and photographers agrees constitute a competitor shall be listed in Appendix X of this Agreement, which may, from time to time, be amended and agreed to, by both parties, as new organizations, media outlets, or businesses come into existence.

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Ok, so what about the possibility that the client will put you within the organizations inner sanctum, where you might be in a position to make images that would make them look bad, and they want to preclude that. You could then add:

Photographer states that it is not his intent to grant a license or permission to use an image produced under the terms of this Agreement which would cast Client in a negative light. As such, Photographer agrees to seek approval by Client in circumstances which the license or granting of permission to an image produced under this Agreement may cause such negative publicity to occur, and Client shall hold the right to preclude a license or permission which would result in negative publicity to Client. Photographer shall make requests where a concern for negative publicity may exist, in writing (via e-mail, or fax, or other instrument), to their principal contact for Client, prior to the offering of any license or permission. This contact shall have the authority to approve or decline these written requests.

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In the initial language above, you have stipulated that "Except in the case of...", and more importantly, "Work which is to be created as and priced as “work made for hire,” if any, shall be specified in writing signed by the Photographer." Note the stipulations:

• created as and priced as
• if any
• shall be specified in writing and signed by the photographer

These are some fairly specific conditions that must be met, and if you ever recieved a request for that manner of work, it's stipulated that it's priced differently and you'll surely know you committed to that in the "if any" circumstances arose.

This would allow for you to account for the possibility in the contract. Further, you have granted a clients rights package that meets their needs, and can, elsewhere in the contract, stipulate the common types of photography you provide for this client. For me, I provide "day to day", "major projects", and "portrait" photography, all priced differently, and stipulated as such. This way, when the client calls, it's easy to know which type of work they are requesting, and they have already agreed to the fees. An e-mail request is all that is necessary to secure your services, because those requests are under the terms of the agreement. Since your primary contact at the company, (once legal is through with you), won't be writing to you saying "this one's going to be WMFH...", there will be no opportunity for a WMFH agreement to exist, and certainly nothing signed by you to that effect. The client will have the rights they want, the safety from competition using the work you did for them (if that's a concern, then add that paragraph), and no possibility for negative publicity as a result of your access they have given you (again, if that's a concern they've expressed, then add that paragraph too).

Of course, an editorial contract would look different - it would contain "first world", or "one time use", as/or other variations of those terms, rather than the one year, or three year terms detailed above, so modify them, or better yet, ask an attorney to help you on this.

This is one way in which, because I always present my paperwork, and we negotiate from there, I have been able to succesfully navigate the "WMFH" waters, satisfy clients who initially were demanding that type of work, yet retain my rights, and convey to them their needed rights package at a fair price. If you're operating from the client's paperwork, modifying and inserting a lot of text will become cumbersome and problematic. Use your paperwork and your language.

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