The AP 2008 Contract Analysis - Section 3

Here's Section 3, followed by commentary:

Section 3. The Photographs. For purposes of this Agreement, the term "Photograph" shall mean any reproduction , negative, transparency, digital file or reproduction of a still image in any form.

Comments:
This is a very important distinction here – the definition of “Photograph”. This section specifically delineates what you are required to deliver, and it does NOT include any audio you capture, nor video. That content is not covered by this agreement, and your capturing of it can allow you to significantly enhance your portfolio use of the assignment images, and moreover, produce video content from the same event for your sole use/licensing, without being in breach.

(Continued after the Jump)

Section 3.1:

3.1. In connection with any Assignment for AP, Freelance Photographer shall promptly select in good faith and transmit, using reasonable, professional judgment, the best Photographs created by Freelance Photographer during the Assignment ("Best Cut Photos"), whether such Photographs relate directly (e.g., Photographs pertaining to an entertainment event that is the subject matter of the Assignment) or indirectly (e.g., Photographs pertaining to a fire that breaks out during that entertainment event) to the subject matter of the Assignment. An Assignment may specify a minimum number of Best Cut Photos to be submitted; however, Freelance Photographer shall continue to submit Photographs until AP affirmatively tells the Freelance Photographer that AP has received a sufficient number of Best Cut Photos. Freelance Photographer shall caption each of the Best Cut Photos and provide accompanying metadata as provided in the Assignment. Freelance Photographer shall supply such Best Cut Photos to AP in a timely manner, or as directed by AP during the Assignment.

Comments:
Herein lies the distinction of the value of a laptop, versus a home computer. The use of the word “promptly”. If I do not bring my laptop – something that I pay upwards of $3k every two or so years for – then the AP is at a disadvantage as it relates to time if “promptly” means “when I get back home”. And further, it “promptly” means using my dialup connection, instead of the investment in a cable modem, if it’s even available. Even though many of you reading this may be in metropolitan areas, the fact remains that there is a significant percentage of Americans who don’t have high-speed internet access.The AP is expecting a great deal of additional infrastructure for you to have at your disposal, and the fees, regardless of region/bureau, just are not commensurate with that.

Also, do not underestimate the additional amounts of time necessary for captioning multiple images. Also, be sure to save any correspondence (whether e-mail, or instant message) which proves the affirmation that the Best Cut Photos delivery requirement has been met.

Could be changed to:
The phrase “An Assignment may specify a minimum number of Best Cut Photos to be submitted;” could be more fairly noted to read “An Assignment will specify a minimum number (or range) of Best Cut Photos to be submitted;”

Section 3.2 is below:

3.2. Within five (5) days of the end of the Assignment or as otherwise specified in the Assignment, Freelance Photographer shall provide to AP all Photographs taken during the Assignment in electronic form, along with caption information and metadata necessary to document the Photographs created during the Assignment according to AP's requirements (collectively with the Best Cut Photos, the "Assignment Photos").

Comments:
This is an interesting clause. In my conversations, it was indicated to me that the submission of other images from the assignment was optional, and that it was intended to generate additional images that wouldn’t be sent on the wire, but go directly to the AP archive, and that part of the reason for the royalty was to incentivize photographers to do this work. However, the language here requires “all Photographs taken”, which is an excessively burdensome phrase, and, I believe, not the intent of those who drafted the contract.

Further, this clause is ambiguous; as it could be that you deliver a CD to them, with a shot list, and simply be done with it.

Could be changed to:
This phrase “Freelance Photographer shall provide to AP all Photographs taken during the Assignment” could be changed to “Freelance Photographer may, at their own discretion, provide to AP all Photographs taken during the Assignment for placement in the AP archives.”

Section 3.3 begins below:

3.3. Freelance Photographer represents, warrants and covenants, as applicable, that: (i) Freelance Photographer has all necessary authority to enter into this Agreement and all necessary rights to provide the Assignment Photos to AP under this Agreement; (ii) Freelance Photographer has the necessary equipment and ability to process and transmit Photographs to AP; (iii) the Assignment Photos are original works created by Freelance Photographer; (iv) the Assignment Photos have not been altered in any manner beyond the methods normally used to prepare an image for transmission, which include color correction , cropping , burning, dodging and spotting for dust or other technical imperfections in the image; (v) the Assignment Photos (excluding the contents depicted therein , which Freelance Photographer does not give any representation and warranty with respect to unless otherwise required in the Assignment) do not infringe any third party copyright; and (vi) all moral rights pertaining to the Assignment Photos have been waived .

Comments:
The distinction in clause “v” is new, and appropriate. Many times, a clause like this reads “the Assignment Photos do not infringe any third party copyright;”, and you just can’t sign something like that without taking on substantial risk and potential liability. The AP has done a fair job here of delineating what you are warranting.

Clause “iv” is important, and it’s just worth re-stating. Don’t alter your photos. Don’t dodge or burn so significantly that it’s no longer a real and true representation of the scene, as it appeared. This is news, and not the opportunity for a photo illustration.

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Continue Reading:

• The 2008 AP Contract Analysis - Introduction
• The 2008 AP Contract Analysis - Opening Recitations
• The 2008 AP Contract Analysis - Section 1
• The 2008 AP Contract Analysis - Section 2
• The AP 2008 Contract Analysis - Section 3
• The AP 2008 Contract Analysis - Section 4
• The AP 2008 Contract Analysis - Section 5
• The AP 2008 Contract Analysis - Section 6
• The AP 2008 Contract Analysis - Sections 7,8 & 9
• The AP 2008 Contract Analysis - Rates

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