Friday, April 25, 2008

Conde Nast/CondeNet Contract: Recitals and Term 1


Commentary and analysis begins:

As of {Month}, {Day}, 2008, {publication} owned by CondéNet Inc. (“Company”) and (“Freelancer”) agree as follows:



Version OL1Version OL2
1. Scope of Agreement/Services: This agreement will govern each assignment performed by Freelancer for any current or future service owned or operated by Company and all photographs, illustrations, or other visual works or copyrightable material taken at or created as a result of each assignment or otherwise submitted to Company for a service owned or operated by Company or its affiliates (the “Works”). For purposes of this agreement, an “assignment” is a project agreed upon by Company and Freelancer. Company and Freelancer will separately, on a case-by-case basis, arrange the specifics of each assignment or submission, including fee, due date, and subject matter. The fee for any assignment or Work encompasses all the rights granted herein. Reimbursements for expenseswill be negotiated on a per-assignment basis, are subject to approval in writing in advance by Company, and receipts and proper documentation must be provided within one month of expenditure. The results of each assignment must be satisfactory in form and substance to Company, and must be submitted by the agreed due date. Freelancer must provide a selection of photographs, as determined by Company, from each assignment, from which Company may choose what it wishes to publish, and upon request of Company, Freelancer will provide additional (or all) photographs. Freelancer will retain an original or other high-quality copy of all material submitted to Company.1. Scope of Agreement/Services: This agreement will govern each assignment performed by Freelancer for any current or future service owned or operated by Company and all photographs, illustrations, or other visual works or copyrightable material taken at or created as a result of each assignment or otherwise submitted to Company for a service owned or operated by Company or its affiliates (the “Works”). For purposes of this agreement, an “assignment” is a project agreed upon by Company and Freelancer. Company and Freelancer will separately, on a case-by-case basis, arrange the specifics of each assignment or submission, including fee, due date, and subject matter. The fee for any assignment or Work encompasses all the rights granted herein. Reimbursements for expenses will be negotiated on a per-assignment basis, are subject to approval in writing in advance by Company, and receipts and proper documentation must be provided within one month of expenditure. The results of each assignment must be satisfactory in form and substance to Company, and must be submitted by the agreed due date. Freelancer must provide a selection of photographs, as determined by Company, from each assignment, from which Company may choose what it wishes to publish, and upon request of Company, Freelancer will provide additional (or all) photographs. Freelancer will retain an original or other high-quality copy of all material submitted to Company.

COMMENTS:
These two terms are identical. It is of interest to note that the fees in either contract are not defined. Further, this contract would also cover any type of video (often “behind the scenes” video) that some photographers are producing now, and that appear, as below on the CN family of websites, like here, on the Vanity Fair site.




It is also worth noting that they refer to expenses as reimbursable. In other words, this seems to imply that you are not entitled to any markup. So, if a lighting kit rental costs you $250, you need to account for your 30 minutes arranging the kit and coordinating it’s pickup with the assistant (or courier company), as well as those costs to pick up and return the lighting, including the assistant’s mileage and charges for their time.

Further, they are requiring receipts. There is no tax code regulation that requires Conde Nast to have your receipts. Their receipt is/would be your invoice listing each item. Beware – your supplier base is, and should remain, proprietary. If you know the best assistant/pilot/gear house in off-beat locations, that is of value to you. Sure, it’s one thing to share it with a colleague heading there. However, for Conde Nast to have the receipts gives them supplier names, and that information, properly leveraged, could diminish the value you bring to them in the future. <

Also, there is some confusion here. It says you’ll keep “an original or other high-quality copy of all material submitted to Company”, yet, is that material the receipts, images, or both? If it’s images, and you’re shooting film (i.e. Polaroid transfer, 120mm in a Holga, etc) you are then required, as noted here in the contract, to keep copies, which means scanning. Be certain that your invoice includes the cost to scan everything!

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Conde Nast/CondeNet Contract: Term 2 - Exclusive/Grant of Rights

Commentary and analysis continues:


Version OL1Version OL2
2. Exclusive Rights:
Freelancer owns the copyright in the Works and hereby grants to Company the exclusive first worldwide right to reproduce, publish, transmit, disseminate, display, perform, or otherwise use each Work, which exclusivity lasts until ninety (90) days after the initial publication or public dissemination of the Work by Company. Freelancer will not publish, disseminate or use or allow
anyone else to publish, disseminate or use any of the Works for any purpose until the exclusivity period has expired. Company’s exclusivity extends to each and every Work taken at the shoot or as a result of the assignment until the exclusivity period has expired.
2. Grant of Rights
Work-Made-For-Hire: It is agreed that the Works shall be works-made-for-hire within the meaning of the U.S. Copyright Act, and Company shall own all rights, including copyright, therein throughout the world. In the event any of the Works are determined not to be works-made-for-hire for any reason, Freelancer hereby transfers and assigns the entire copyright (for the full term of copyright), throughout the world, in any and all media and forms of publication, reproduction, transmission,
distribution, performance, adaptation, enhancement and display now in existence or hereafter developed, in each Work to Company.

COMMENTS:
Here’s where the major difference between the two contracts is. OL2 is a work-made-for-hire contract. OL1 is not, but has many many restrictions on what you can do with the work. What is problematic though, is how they define the exclusivity. For example, OL1 says “Company’s exclusivity extends to each and every Work taken at the shoot…until the exclusivity period has expired.” The problem here is that, suppose I were to take a portrait of Person X, and I made 40 images of Person X in pose 1, and 40 images of Person X in pose 2 in a second location. They are only going to publish one, maybe 2 or 3, throughout the story. This leaves about 78 other images that fall under the “each and every Work” classification, that are still exclusive to Conde Nast, You may not read it this way, and an editor may tell you that’s not what they mean, but Conde Nast’s legal department surely has been clear – “each and every Work.”
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Conde Nast/CondeNet Contract: - Other Rights/Likeness

Commentary and analysis continues:

Version OL1Version OL2
3. Other Rights:
Freelancer also grants Company, for the full term of copyright, the non-exclusive right to reproduce, publish, transmit, disseminate, display, perform, or otherwise use any of the Works, the right to make and authorize the making of reprints or stand-alone copies of the article or feature including the Works for any purpose, the right to authorize the use of the Works as set dressing or otherwise in movies, television shows, and other productions, and in addition, the right to use the Works and/or Freelancer’s name and likeness in publishing, promoting, advertising and publicizing Company and services in which the Works appear, and in merchandising.
Freelancer’s Name/Likeness: Company may use Freelancer’s name and likeness in publishing, promoting, advertising and publicizing the publications and services in which the Works appear, and in merchandising.


COMMENTS:
Conde Nast is grabbing reprint rights here. This is a very valuable package of rights. Further, they can re-publish your work as well. In both cases, you are not entitled to a piece of the pie when the monies for that are collected.

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Conde Nast/CondeNet Contract: - Syndication Rights


Commentary and analysis continues:

Version OL1Version OL2
4. Syndication Rights: Freelancer further grants Company the non-exclusive, unrestricted, royalty-free right, for the full term of copyright, to syndicate and/or license the Work to one or more third parties throughout the world in all languages, to retain third parties to do so and to retain all proceeds therefrom. The Rights, Warranty, and Miscellaneous provisions of this agreement shall apply to all such syndicated or licensed use. This provision does not affect Freelancer’s non-exclusive, unrestricted right to syndicate the Works and retain all proceeds therefrom.{does not apply.}

COMMENTS:
You are granting to Conde Nast the right to take every image you’ve shot for them and set up their own photo agency/syndication service, and you get no additional revenue, as granted by “Freelancer further grants Company the non-exclusive, unrestricted, royalty-free right, for the full term of copyright”. Of course, they try to be nice by saying it does not affect your non-exclusive right to syndicate them yourself. However, in point-of-fact it does, as evidenced by some photo agencies requiring exclusivity clauses in order to represent your work.

Back in 2002 the Illustrators Partnership of America, as the IPA notes in this article, entered into negotatiations, in part, related to
"Condé Nast representatives have written to both the IPA and to the Guild, as well as to various individual members stating that the warnings on our websites are inconsistent with Condé Nast's current intentions not to license work by contemporary contributors. We have relayed Condé Nast's statements to our members. But we must remind everyone that the language of the Condé Nast contract wholly justifies our warnings. For Condé Nast's recent assurances to become binding, the language of the contract itself must be changed."
The language remains essentially the same since that time.

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Conde Nast/CondeNet Contract: - Miscellaneous Rights


Commentary and analysis continues:


Version OL1Version 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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Conde Nast/CondeNet Contract: - Exercise of Rights



Commentary and Analysis continues:


Version OL1Version OL2
6. Exercise of Rights: Company may exercise the rights granted herein in any media now in existence or hereafter developed, throughout the world. In doing so, Company may arrange with third parties for distribution, transmittal, publication, promotion or other dissemination of its service(s) containing the Work(s) or portions thereof, or material from Company or its service(s), in a collection, section, manner, or area identified as being associated with or containing material from Company, including with any database operator or other service (e.g., Nexis), and may provide links and other enhancements to the Work(s).{Does not apply}

COMMENTS:
Again, no mention of additional monies due you for these rights. Recognize that every time a Conde Nast publication has it’s content re-purposed, they are generating additional revenue from them. Yet they seem to not care that you are not a part of that equation.
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Conde Nast/CondeNet Contract: - Foreign Rights


Commentary and Analysis continues:

Version OL1Version OL2
7. Foreign Rights: Company may allow any of Company’s or its affiliates’ owned or licensed services outside of the United States, and/or foreign language services in the United States (in each case “foreign service”) to acquire publication and dissemination rights to each Work in that service’s country and/or language of publication. The foreign service may acquire the rights by giving notice thereof within one (1) month of the initial publication or public dissemination of the Work by Company and by agreeing to pay a fee to Freelancer upon publication that is twenty percent (20%) of the fee paid to Freelancer for the Work. The other Rights (not including exclusivity), Warranty and Miscellaneous provisions of this agreement shall apply to such use by the foreign service.{Does not Apply}

COMMENTS:
Here’s where that breakdown of photo fees and expenses gets you. If you’re paid $400 as your fee, a Euro-edition of the article, for example, need only pat you $80USD to use the work, and that well could be a full page photo.
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Conde Nast/CondeNet Contract: - Reservation of Rights



Commentary and Analysis continues:

Version OL1Version OL2
8. Reservation of Rights: All rights not granted herein are retained by Freelancer.{Does not apply}

COMMENTS:
This is, to a degree, stating the obvious. However, it’s appearance is much more likely to be an attempt to make it look like they’re not taking everything, and are somehow compassionate to the creators of the works.

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Conde Nast/CondeNet Contract: - Releases/Restrictions

Commentary and Analysis continues:

Version OL1Version OL2
9. Releases/Restrictions:
a. Releases: Freelancer will obtain releases, on a form to be obtained from Company, from all persons and owners of property pictured in any of the Works. Freelancer may not agree to any restrictions, limitations, or right to review requested or imposed by any persons, including models, owners of property pictured in the Works, or others. Freelancer will immediately advise Company of any such request or attempted imposition.

b. Borrowing Property: Freelancer may not obtain or borrow any objects or property having an aggregate value in excess of $1500, or lease any location, or enter into a legally binding commitment to a third party, on behalf of Company without first obtaining Company’s express written consent.

c. Commercial/Advertising Use: Freelancer will not allow any of the Works to be used at any time for any commercial or advertising purpose, whether or not Company’s period of exclusivity has passed, unless Freelancer first obtains Company’s express written consent, which Company may withhold in its sole discretion.

d. Subsequent Use: 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.
2. Releases/Restrictions:
Releases: Freelancer will obtain releases, on a form to be obtained from Company, from all persons and owners of property pictured in any of the Works. Freelancer may not agree to any restrictions, limitations, or right to review requested or imposed by any persons, including models, owners of property pictured in the Works, or others. Freelancer will immediately advise Company of any such request or attempted imposition.

Borrowing Property: Freelancer may not obtain or borrow any objects or property having an aggregate value in excess of $1500, or lease any location, or enter into a legally binding commitment to a third party, on behalf of Company without first obtaining Company’s express written consent.


COMMENTS:
Here you are required to secure releases that are Conde Nast specific. There are many times where this will be problematic. Most people that they would want photographed have lawyers, and the releases you present to them would need to be read by lawyers, and they’d say as much when you presented the release to them. When the release doesn’t get signed, is that going to be satisfactory to Conde Nast? You can bet not. Thus, pursuant to Term 1 “…The results of each assignment must be satisfactory in form and substance to Company…” you are likely to not be paid. Further, in order for you to leverage the images yourself, you'll need to get your own releases signed. It is good that they specify that you can’t enter into any agreements to pre-approve the images, or any property ownership demands.

The “Borrowing Property” term is probably in large part, in response to photographers borrowing clothing and jewelry for shots, and the problems that might result. It also may be a limit for contracts in New York State, however, this term inadvertently applies to renting lighting equipment, since they are not specific about what they mean by property.

The Commercial/Advertising restriction is a really bad one. It would surely apply to an author who wants to use the portrait you made on the cover of their next book. As a poster, post card, or ad campaign. This is such a significantly onerous restriction, that it essentially restricts all future uses to “editorial”.

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Conde Nast/CondeNet Contract: - Confidentiality & Non-Compete



Commentary and Analysis continues:

Version OL1Version OL2
10. Confidentiality: The subject of Freelancer’s assignments and Work(s) under this agreement and all details relating to them will be held confidential by Freelancer and may be discussed by Freelancer only with those individuals necessary for the preparation of the Work(s). Freelancer will not allow anyone outside of the applicable publication or service (including but not limited to the subjects and the subjects’ representatives) to view the Work(s) or portions thereof before publication.3. Confidentiality: The subject of Freelancer’s assignments and Work(s) under this agreement and all details relating to them will be held confidential by Freelancer and may be discussed by Freelancer only with those individuals necessary for the preparation of the Work(s). Freelancer will not allow anyone outside of Company (including but not limited to the subjects and the subjects’ representatives) to view the Work(s) or portions thereof before publication.


COMMENTS:
These two terms are identical, save for the fact that they have different positions within the contract. This is a fair clause. The phrase “Freelancer will not allow” should better be changed to “Freelancer will take reasonable precautions to not allow”, since they can’t be held responsible for the actions of third parties with access to the images (couriers, retouchers, post-production houses, and so forth).

11. Non-Compete: Freelancer will not, until ninety (90) days after the initial publication or dissemination of a Work, photograph, submit, publish or cooperate in the publication or dissemination of, in any form, works on the same or similar subject or similar in appearance as the Works, unless Freelancer has received written consent to do so by Company.4. Non-Compete: Freelancer will not, until ninety (90) days after the initial publication or dissemination of a Work, photograph, submit, publish or cooperate in the publication or dissemination of, in any form, works on the same or similar subject or similar in appearance as the Works, unless Freelancer has received written consent to do so by Company.


COMMENTS:
These two terms are identical, save for the fact that they have different positions within the contract. A non-compete clause is pretty fair. 90 days is fairly onerous, but on the outskirts of the realm of reason. The problem that exists here, is that “a Work” is very much considered any of the images that were not chosen to be published by Conde Nast, as outlined in the comments about Term 2.
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Conde Nast/CondeNet Contract: - Warranty & Independent Contractor

Commentary and Analysis continues:

Version OL1Version OL2
12. Warranty: Freelancer represents and warrants that the Work(s) will be original work by Freelancer, will not have been previously published in any form, and will not infringe upon the personal or proprietary rights of or give rise to any claim by any third party. In addition, in the event any complaint relating to any Work is made by any third party at any time, whether by a formal legal claim or otherwise, Freelancer will fully cooperate with Company in responding to and defending against such complaint or claim.5. Warranty: Freelancer represents and warrants that the Work(s) will be original work by Freelancer, will not have been previously published in any form, and will not infringe upon the personal or proprietary rights of or give rise to any claim by any third party. In addition, in the event any complaint relating to any Work is made by any third party at any time, whether by a formal legal claim or otherwise, Freelancer will fully cooperate with Company in responding to and defending against such complaint or claim.


COMMENTS:
These two terms are identical, save for the fact that they have different positions within the contract. These are reasonable warranties to require. However, it’s not unreasonable to expect to be paid for your time when you are asked to “fully cooperate”. In some instances, this could involve a fair amount of time.
13. Independent Contractor: Freelancer is an independent contractor and will not be treated as an employee of Company for any purpose, including but not limited to employee benefits, the Federal Insurance Contribution Act, unemployment taxes and income tax withholding at the source. Freelancer is responsible in all respects for any assistants Freelancer may retain.6. Independent Contractor: Freelancer is an independent contractor and will not be treated as an employee of Company for any purpose, including but not limited to employee benefits, the Federal Insurance Contribution Act, unemployment taxes and income tax withholding at the source. Freelancer is responsible in all respects for any assistants Freelancer may retain.

COMMENTS:
These two terms are identical, save for the fact that they have different positions within the contract. Again, this is a pretty fair and standard term. It’s of value to note that they are defining you, the photographer, as “responsible in all respects for any assistants”. So, an assistant can’t make a claim against Conde Nast if they’re injured, without that claim coming back around to your being liable.
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Conde Nast/CondeNet Contract: - Termination & Miscellaneous


Commentary and Analysis continues:


Version OL1Version OL2
14. Termination/Breach: Either party may terminate this agreement by giving thirty (30) days written notice to the other party. If Freelancer breaches this agreement or fails to fulfill Freelancer’s responsibilities Company may, in addition to its other remedies, immediately terminate this agreement and/or cease making payments. The Rights, Warranty, Confidentiality, Subsequent Use and Miscellaneous provisions shall survive any termination or expiration of this agreement.7. Termination/Breach: Either party may terminate this agreement by giving thirty (30) days written notice to the other party. If Freelancer breaches this agreement or fails to fulfill Freelancer’s responsibilities Company may, in addition to its other remedies, immediately terminate this agreement and/or cease making payments. The Rights, Warranty, Confidentiality, Subsequent Use and Miscellaneous provisions shall survive any termination or expiration of this agreement.


COMMENTS:
These two terms are identical, save for the fact that they have different positions within the contract. This is also a fairly standard term. One problem is the conflict between the phrase “may…cease making payments…” and “subsequent use” terms are an issue. This means, that the 20% of payments due you for any foreign uses are no longer due you. Further, there’s no “subsequent use” sub-item in OL2.
15. Miscellaneous: This agreement sets forth the entire agreement of the parties, supersedes all prior agreements between the parties with respect to the subject matter hereof, will not be binding on either party until fully executed by both parties and may not be altered except in a document signed by the party to be bound thereby. No contrary or inconsistent terms, conditions, restrictions, or other provisions in delivery memos, invoices, letters, or other documents will be binding on a party unless expressly agreed to in writing by that party. This agreement and any rights hereunder are assignable in whole or in part by Company as part of a transfer or reorganization of any part of the business to which it relates. Any notice to Company must be sent by Certified Mail, Return Receipt Requested, or delivered personally, and must be addressed to the attention of Contract Department. This agreement will be governed by the laws of the State of New York applicable to contracts to be wholly performed therein; any action based on or alleging a breach of this agreement must be brought in the state or federal courts in New York, New York, and the parties hereby consent to the exclusive jurisdiction of such courts.8. Miscellaneous: This agreement sets forth the entire agreement of the parties, supersedes all prior agreements between the parties with respect to the subject matter hereof, will not be binding on either party until fully executed by both parties and may not be altered except in a document signed by the party to be bound thereby. No contrary or inconsistent terms, conditions, restrictions, or other provisions in delivery memos, invoices, letters, or other documents will be binding on a party unless expressly agreed to in writing by that party. This agreement and any rights hereunder are assignable in whole or in part by Company as part of a transfer or reorganization of any part of the business to which it relates. Any notice to Company must be sent by Certified Mail, Return Receipt Requested, or delivered personally, and must be addressed to the attention of Contract Department. This agreement will be governed by the laws of the State of New York applicable to contracts to be wholly performed therein; any action based on or alleging a breach of this agreement must be brought in the state or federal courts in New York, New York, and the parties hereby consent to the exclusive jurisdiction of such courts.

COMMENTS:
These two terms are identical, save for the fact that they have different positions within the contract. This is a fairly standard term, except the laws of New York should not govern. The assignment takes place in many cases in your state, and your business is in your state, so it’s unfair to apply laws from a foreign state. Also, if you’re in a foreign country, certain terms of this agreement may not be applicable. In any case, I understand that they would like it to be convenient for them if they have to go to court, but it’s better handled in a court near you, and also where the assignment took place.
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Conde Nast/CondeNet Contract: - Power of Attorney


Commentary and Analysis continues:

Version OL1Version OL2
16. Power of Attorney: If this agreement is executed by an agent or representative on Freelancer’s behalf, said agent or representative represents and warrants that it has full right and authority, pursuant to a currently valid Power of Attorney from Freelancer, to make this agreement on behalf of and to bind Freelancer, including the grant of rights and warranties and representations specified herein, and will indemnify Company against any claims of any nature arising from said agent or representative’s execution of this agreement. Upon Company’s request, said agent or representative will provide to Company the above-specified Power of Attorney.9. Power of Attorney: If this agreement is executed by an agent or representative on Freelancer’s behalf, said agent or representative represents and warrants that it has full right and authority, pursuant to a currently valid Power of Attorney from Freelancer, to make this agreement on behalf of and to bind Freelancer, including the grant of rights and warranties and representations specified herein, and will indemnify Company against any claims of any nature arising from said agent or representative’s execution of this agreement. Upon Company’s request, said agent or representative will provide to Company the above-specified Power of Attorney.

COMMENTS:
These two terms are identical, save for the fact that they have different positions within the contract. This is to cover Conde Nast in the event they assign a photographer from a photo agency, or Photo Rep. I submit that Conde Nast should exercise the requirement of producing the Power of Attorney, since I can’t say I’ve ever seen the Power of Attorney language in contracts from Getty, or other agency contracts I have reviewed. They may be in some problematic waters on this.
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Conde Nast/CondeNet Contract: - Conclusions

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.

Good luck.



Revisit a section of commentary and analysis:

(Comments, if any, after the Jump)


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Thursday, April 24, 2008

Sports Coverage Blackout - It's About Time

Do the sports leagues need the press, or does the press need the sports leagues? My guess is that, say, 15 years ago, the leagues needed the press, but now, I'm not so sure. I think that the sports fan knows where to go to get in-depth coverage, and it's not a press outlet.

The argument for the rights of the press to report on news that is of a sporting nature are somewhat valid. And, while the leagues have held forth that they are "entertainment", a potentially valid counter is that these entertainers have garnered tax relief and public funding for their stadiums, and anti-trust exemptions for their leagues' negotiations with players.

With all this in mind, a unified front has appeared, blacking-out coverage of one event.

(Continued after the Jump)

This toehold comes in the form of coverage of the Indian Premier League Cricket Tournament (Agencies pull stumps on cricket, 4/24/08) where AP, Reuters, and Getty have opted to not cover the event. The article reports, in part:
Although the IPL scrapped the most onerous restrictions in its initial accreditation terms, including a ban on newspapers using pictures on their websites and a demand that it be given all photographic copyright, it kept a ban on agencies supplying pictures to standalone specialised websites.
This is a broader blackout than what happened back in February of 2006, when the AP canceled their coverage of an LPGA event (PDNOnline: AP Cancels Photo Coverage Of LPGA, 2/22/06), for comparable onerous demands - "The LPGA gets unlimited, perpetual, non-exclusive rights to use any photograph taken at an LPGA event for 'non-commercial promotion' worldwide at no cost"; and "A photographer or news organization must promptly supply the LPGA with any photo or digital file it requests at no cost."

On a more upbeat note, (NPPA: Illinois Press Association, IHSA, Settle Photography Dispute, 4/8/08):
"The Illinois Press Association and the Illinois High School Association announced today they have reached a settlement agreement in a lawsuit filed over IHSA's attempt to control access to high school championship events and the secondary use by newspapers of images from those tournaments."

"It's over. They can't control how we do business. End of story," IPA executive director Dave Bennett said announcing today's agreement. The court settlement is a binding agreement that is not subject to political or administrative changes, and the court where the case was filed will retain the authority to enforce the settlement agreement."
Now, let's see what the next front will be. I suspect though, that if the AP, Reuters, AFP, and Getty all decide - each on their own, of course - to not cover something in the US of a major league, that the body that oversees the sport will bring allegations of an anti-trust nature against them. We won't have to worry about that for the NFL, NBA, NHL, and others, where Getty is obligated to provide coverage, because they are being paid to do so, but what of other leagues and sports?

It's remarkable that media outlets haven't been more on the ball on this sooner, but, well, better now, than never, maybe.

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ABC, AIDA, Coffee is for Closers, and other memorable thoughts

Glengarry Glen Ross is an excellent movie, and a surprisingly exceptional performance by Alec Baldwin, who is the newbie in the movie. So too, and I can't believe I am going to say this, is Ben Affleck, in the post-jump clips, and yes, a awesome dose of Robbins.

Always Be Closing.



Another video or two after the jump.

(Continued after the Jump)


Here, Ben Affleck kicks out Schleprock, Skippy, and admonishes, "don't be a piker."



Affleck, on closing - "You have to be closing all the time...if you can't learn how to close, you better be thinking about another career."

He then goes on....

"There is no such thing as a 'no sale call'. A sale is made on every call you make. Either you sell the client some stock, or he sells you on a reason he can't. Either way, a sale is made. The only question is, who's going to close - you or him."

Note that Boiler Room isn't the best example of how to run a business, but the message points - and the delivery, make it worth a watch.




Lastly, is An amazing 22 minutes from TED, with Tony Robbins. Don't laugh, just watch!




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Tuesday, April 22, 2008

...and then they were free

Back in February of 2007 (Free photos (and $13 Superbowl ads), 2/1/07) we wrote about the (at the time) latest hair-brained idea - free photos. The idea was that if a photo hadn't sold for many months, it would get tossed into the "free" file, in hopes of driving other sales.

A Google search for "free stock photos" (here), revealing just who wants to give photos away for free. In fact, those top Google postions are, in fact, paying for the opportunity to market free photos. Just how much does it cost to place those ads, and what does it cost them whenever you click on them?

(Continued after the Jump)

Well, we did a little research, and here's what we found:
What does all that mean? Well, to appear in that search term's results, knowing we want to appear in the top three positions, we're paying a minimum of $2.47, and a maximum of $3.58 - PER CLICK-THROUGH, to appear in the top 3. When we set a maximum per-click cost of $5, we learned that $3.58 was the most we'd probably pay. Although once we started the ad, the auto-adjusters for those three would likely auto-increase their per-click payment maximums, and the cost would go higher. Setting a budget of $500 a day (just to get a cieling), and with Google looking at the estimated clicks per day, we can expect to pay up to about $310 per day, all for the privledge of giving away free photos, hopefully as a loss-leader to get you to buy one or two. If we were to adjust downwards to $1.50, then we plummet to the bottom 4-6 listings, meaning we lose a ton of traffic because of our placement:

Thus, not only are the photos free, several hundred people a day are clicking on those top three ads (combined) and the advertisers are hoping you'll come for free, and stay over time for a few $1 photos. Considering that not everyone that clicks buys, let's assume that every 3rd click opts for a free photo. That's roughly $10 paid to Google to get one customer come to you so you can give them a free photo. Then, you earn $0.80 per $1 photo sold, should that customer come back to make a purchase. So, if they come back, or buy others, they need to buy 12 photos, just to break even on that $10. But, how many of those, after they get their free photo, don't come back? Even 1 of 3? If so, you have to sell 36 photos to break even on all those click-throughs. Now it's just getting silly.

Next up is iStockphoto, (for now, a subsidiary of Getty Images - NYSE: GYI) giving free photos to the Microsoft Office community (press release) , and of course there's PicApp, critisized by some as illegal. A search for the word "dog" on their site turned up a pink-dressed dog closeup, with a sourcing/credit of "Getty Images". The idea - the photo carries an ad at the bottom.

Lastly, is the silly wabbit that is Free-Stock-Photos.co.uk, who is out Livingstoning Bruce Livingstone. A designer with a snazzy new camera, looking to share his work. Come now, that idea is so played out! Only this time, it's just free - but you have to give us a link!

Just how hard is it to out-stupid oneself these days? I am beginning to wonder. We already have a ton of "shoot for our magazine, we'll give you photo credit" (woo hoo!) offerings. I guess this is just the online version. Next up? Paying for placement of photos in certain uses, provided there's a credit line/link.

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Monday, April 21, 2008

Kenny Rogers Had A Point

One of my daily reads is Rob Haggart's A Photo Editor. ( As an interesting aside, googling photo editor turns Rob up 5th. Not bad Rob!) One of the things that Rob wrote about today (Single Most Annoying Web 2.0 Feature for Photographers, 4/20/08) was that he was annoyed by those that are "Tracking my movements on your email promos and website."

Rob then goes on to report on a photographer who...

(Continued after the Jump)

wrote to him and said “I see you’ve been checking out my book”. Rob then wrote "Then I realized they had tracked me from an email promo I clicked on and suddenly I felt duped."

As Kenny sings, in his song 'The Gambler', "you've got to know when to fold 'em, know when to show 'em, know when to walk away, and know when to run. You never count your money, when you're sittin' at the table..." and he has a point. What this photographer did was not only ensure that Rob won't book them, but by revealing he knew Rob had been there, he essentially killed his source. The way this photographer revealed this, was creepy.

Instead, the photographer should have either added Rob to a targeted e-mail list for future use, knowing that Rob was interested in him, or, if the photographer really wanted to call, he should have called and said "hey Rob, I wanted to call and follow up with you. I'd sent an e-mail with some images and my site link, and would love to continue to send those if they're of interest to you, and also, when there's a good fit, work with you on a project." And then shut up and say no more.

For those of you photo editors who think that clicking around a photographer's site, there's a little thing called Google Analytics, and this is how it looks on Rob's blog (under the hood):
<script src="http://www.google-analytics.com/urchin.js" type="text/javascript">
</script>
<script type="text/javascript">
_uacct = "UA-2938384-1";
urchinTracker();
</script>
So, whenever you come to his blog, he can track it, and rightfully so. There is a degree to which Google does not share information on that. In other words, Google is not revealing exactly who is coming to your site, but through some triangulation, they know the exact names (and a whole lot of other information) about who's going where.

For you photo editors who are getting e-mails from vendors, every e-mailer tracks clicks! At right is an example of a piece of a report I can get. I can drill down and see when you received the e-mail, when you opened it, if you loaded the graphics, and if you clicked through to my site. This is not unusual data mining.AgencyAccess, Adbase, and Vertical Response are among those that not only launch these campaigns for you (for pennies per-e-mail), but also track the effectiveness of each campaign, allow you to compare them to other campaigns, and so forth. Further, they maintain robust "opt out" options, so you will not only never get another e-mail from that photographer, but you can elect to never receive an e-mail again from any client of that list provider. Interestingly enough, a search for "agencyaccess", as noted above, shows adbase coming up in the paid listings above the search result that the searcher wanted, and I'd caution Adbase, as there are lawsuits ongoing now about the legality of doing this (Trademark lawsuit could put the squeeze on Google AdWords, 4/7/08)). But I digress....

This ability to track and observe the surfing habits of site visitors is not only not new, but will get more and more invasive. Further, it is this ability to target, with laser-like precision, the interests of surfers, that will, while taking away our privacy, at the same time deliver us more of what we've demonstrated we're looking for. What do we want, spam for everything from medical offerings to watches, or just spam about photography? It's an interesting question.

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Sunday, April 20, 2008

This Joker of a Photographer

Leave it to DC Comics (Batman: The Killing Joke) to depict the Joker as a photographer.

Yet, how many photographers are jokers?

(Continued after the Jump)

I don't mean practical jokes like muttering "please be seated" in an authoritative tone in the East Room of the White House at a Presidential event, only to see the entire room actually sit, on cue. Thank you Mr. D, for years of entertainment from this.

I don't mean grabbing a photographer's camera who inadvertently left their camera unattended, and taking images of your colleagues' backsides, or slipping a wide-angle lens down the front of one's pants to make a few images, and then standing behind them as they review their cards in the pressroom. Ye who shall remain nameless, I still laugh at your hijinx on this.

And I surely don't mean the juvenile attempt at humor by putting nose grease on the front of someone's lens. I see enough smudges on the front of photographers' lenses (including my own) that they probably won't even notice that it was an intentional joke, and more than once just blamed themselves.

Instead, what I am referring to are photographers who just aren't professional. These jokers:

- Turn up at events incorrectly dressed. For photojournalists, I don't care if you were just out on an outdoor assignment in the hot sun, carry atleast a blazer/jacket (and, preferrably a tie for the boys) in your car so you can turn up at an event where everyone else is in business attire and not stand out like a sore thumb. For editorial photographers - dress like you respect the office location you are entering - t-shirts are not acceptable. For corporate/commercial photographers - dress like your client - they will have so much more respect for you. One of the things I see all too often is videographers dresses in jeans when everyone else in the room is in business suits, a nd then they wonder why they don't get respect they deserve.

- Comport yourself in a professional manner. This means not slinging your bag against guests at an event (both PJ's and event photographers). This means don't make inappropriate remarks or comments you haven't fully thought through on a shoot (both editorial and corporate photographers). If what you are thinking of saying does not contribute to the image you're trying to make, or does not contribute to the client's positive opinion of you, then don't say it. This also means turning your cell phone on silent - or off - whenever you are actually working, or in the presence of others "on site".

- Treat others with respect and due consideration. This means, when you're at a news event, don't be the ass who goes in with a 14mm lens while everyone else is respecting their colleagues and staying back where a 35mm lens works so everyone can get the shot. Doing this means you just may get a monopod across your skull - I've seen it happen. Further, respect TV. I can't tell you the number of times I have seen still photographers just walk through a videographer's shot, or stand up at a press conference infront of a video camera on sticks - which results in the "down in front" or "stills move" burst of a loud voice from the back of the room. Additionally, while I can throw an elbow just as well in a press scrum as the next guy, I'd much rather work with my colleagues to get the shot, or better yet, when everyone else is getting the same shot, look at things from a different angle.

Respect your profession, those whom you are working for, and those who you are photographing. Doing so ensures that same respect is returned to you.

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