OL2 is just downright not acceptable. However, it’s the contract that always gets sent out first. That’s what the instructions from “on high” have been given. Then, when you (and by you, I mean probably 70% of photographers) objects, you are told something like “oh, we sent you the wrong contract. We’ll send you the right one…”, and then you get OL1, that, on it’s surface, seems fair. However, upon closer inspection, there are so many onerous clauses, and clauses which engage you in significant liability, that I suspect that if you ran the contract past your insurance company, they would specifically preclude coverage for your work for Conde Nast, if atleast, your re-use of the photos from the assignments.
I suspect that there are only OL1 and OL2 floating around, and that these contracts cover 98% of those they contract with to do the work they need. For the remaining 2%, they actually spend the time having their legal department work with your lawyer to come to a fair and equitable contract, and there’s no OL0 or OL3 designator.
From the re-use fees (Foreign only), to indemnification, to receipt requirements, to rights grabs for both, neither contract is fair. That doesn’t mean that there are not photographers lined up around the block willing to work under these unfair terms, it’s just, for OL2, the PT Barnum phrase “There’s a sucker born every minute” applies, and for OL1, well, maybe people just aren’t reading what they’re signing away. Hopefully this will give some insights.
Understand, I am not a lawyer, I just read a lot of contracts, and I write a lot as well. Once you’ve read what I wrote, and understand it, take the contract you’ve already signed, or are about to sign, and send your lawyer the document, and what I wrote. Your lawyer might see things differently, but be sure they’re a contract or intellectual property lawyer. I can’t tell you the number of times I have spoken with photographers who’s lawyers have told them things like “if you don’t register your work, it falls into the public domain…”. If you’re in a situation where you’ve already signed it, ask your lawyer to review Term 14/Term 7, and consider Termination, unless you can re-negotiate the terms so as to have them more equitable.
In fact, if you’ve done a few assignments under OL1, what I suspect will happen is that your lawyer will call their legal department, and they will call the photo department and say “hey, we’re talking with John Smith’s lawyer, he’s done several assignments for us, and his lawyer wants to renegotiate the contract. Are you going to use this photographer ever again, or should we spend some time re-doing the contract?” If the photo department likes your past work, perhaps you’ll get a re-done contract that’s fair. This past work does give you some leverage over the process.
Revisit a section of commentary and analysis:
- Conde Nast/CondeNet Contract: Introduction
- Conde Nast/CondeNet Contract: Recitals and Term 1
- Conde Nast/CondeNet Contract: Term 2 - Exclusive/Grant of Rights
- Conde Nast/CondeNet Contract: - Other Rights/Likeness
- Conde Nast/CondeNet Contract: - Syndication Rights
- Conde Nast/CondeNet Contract: - Miscellaneous Rights
- Conde Nast/CondeNet Contract: - Exercise of Rights
- Conde Nast/CondeNet Contract: - Foreign Rights
- Conde Nast/CondeNet Contract: - Reservation of Rights
- Conde Nast/CondeNet Contract: - Releases/Restrictions
- Conde Nast/CondeNet Contract: - Confidentiality & Non-Compete
- Conde Nast/CondeNet Contract: - Warranty & Independent Contractor
- Conde Nast/CondeNet Contract: - Termination & Miscellaneous
- Conde Nast/CondeNet Contract: - Power of Attorney
- Conde Nast/CondeNet Contract: - Conclusions
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