Conde Nast/CondeNet Contract: - Miscellaneous Rights

Commentary and analysis continues:

Version OL1	Version OL2
5. Miscellaneous Rights: Company has the sole discretion to decide whether, when, and how to publish any Work and the right to crop, retouch and otherwise modify the Works. Upon Company’s request, Freelancer will be available for and will cooperate with Company’s fact checking and will supply Freelancer’s research material relating to the Works. In the event Company returns any original material to Freelancer, Freelancer shall promptly loan them to Company upon Company’s request.	Miscellaneous Rights: Company has the sole discretion to decide whether, when, and how to publish any Work and the right to crop, retouch and otherwise modify the Works. Upon Company’s request, Freelancer will be available for and will cooperate with Company’s fact-checking and will supply Freelancer’s research material relating to the Works. In the event Company returns any original material to Freelancer, Freelancer shall promptly loan them to Company upon Company’s request.
COMMENTS: These two terms are identical, save for the fact that they have different positions within the contract. Here, when referencing that Conde Nast can “: Company has the sole discretion to decide whether, when, and how … retouch and otherwise modify”, your images could very well be leaving the realm of “editorial”, and into a “photo illustration”, where people are added/removed/merged, and faces of celebrities are retouched. What would happen if you licensed that work after the 90 day embargo, unretouched? Tucked into OL1 Term 16/OL2 Term 9, below, is the language “and will indemnify Company against any claims of any nature arising from said agent or representative’s execution of this agreement.” So, when you publish unretouched photos of a celebrity, and someone does a comparison of the Vanity Fair versions compared to the Time Magazine version, and the celebrity sues, you are the one on the hook, not Vanity Fair. This also indemnifies them in Term 9d below “If Freelancer makes any subsequent or other use of any Work, Freelancer is solely responsible for obtaining any necessary releases from any models, persons, or owners of property pictured in the Work. Freelancer will hold Company harmless from and against any claims by any person arising from any subsequent or other use.” In addition, it says “Freelancer shall promptly loan…” but doesn’t say you can’t charge a research fee, loan fee, or other such reasonable fee for your work involved in getting these images to them.

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