Thursday, September 24, 2009

Don't Pay Lip-Service to Liability

Every day, people calculate what reasonable risk is, from crossing the street, to signing a contract where you agree to pay for the lawsuits that arise when you have indemnified your multi-million dollar corporate clients for their mis-uses of your photos beyond your control. A few weeks into a second year law student's licensing class, this academic (Indemnification, 9/22/09) somehow deigns that they can offer advice in the form of opinion about how you shouldn't have a "hissy fit" over indemnification issues. This is like getting a photographer in their sophomore year in college to shoot your ad job with millions of dollars in an ad buy and tens of thousands of dollars in pre and post-production on the line. Maybe it will work, but should you take the risk?

(Continued after the Jump)

More often than desirable, photographers get KILLED on indemnification, especially where there are people in the photographs and the client's usage of the image, including the text in the ads (which is outside of the control of the photographer, but which nevertheless results in a high level of liability to the photographer if the photographer is dumb enough to follow pay lip-service to issues of liability) results in a lawsuit by the models, even though the photographer obtained signed model releases. Lawyers all too often rip to shreds even signed model releases. Lawsuits will be for millions in lost modeling fees, emotional distress, etc.. Far exceeding the photographer's insurance against such things. Yes, millions.

It is one thing for photographers to indemnify their client against the photographers' actions, or those under the direction of the photographer (like an assistant). However, in the interests of parity, your contract should indemnify you against their mis-use of the images outside of the scope of the license and/or model release, it's only fair.

The bigger problem is that photographers are all to often told that the terms of a contract are non-negotiable. On the point that these are negotiable, we can agree. Everything is negotiable. Heck, the old joke applies - the man who offers a million dollars to sleep with a beautiful woman who agrees, is then asked "well would you take $50k?" She responds "who do you think I am?" To which the man replies "we've already established you are a prostitute, now we're just haggling over the price."

That "hissy-fit" you might have been having will look like you didn't even put up a fight when a judgement that exceeds your business insurance means you have to sell your home to cover the judgement against you. (By the way, this isn't theoretical, it has happened.) Have a real lawyer, one who has graduated, passed the bar, and has some experience under their belt, give you advice that you pay for, and have one skilled AND EXPERIENCED in contracts look at yours to make sure they are lawful for your jurisdiction. Have your lawyer look at indemnification clauses, or compare the ones in your contract against the ones you are being presented with, and negotiate for the terms that are in yours. Really. Not doing this could well mean that the proverbial wheels, doors, and chrome trim will fall off the vehicle that is your business, and there won't be enough auto parts in the world to put humpty dumpty back together again.

Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.


My Camera World said...

Part of work history has been issuing contract for the Canadian Federal government.. Identification is always one of the key issues and when signing any form of contract. Read this carefully and understand the wording.

One issue is where you are required to in simple terms to defend the actions of the contractor and the contractor has the only right to engage in legal actions and therefore you are on the hook for all these cost no matter what course they have taken.

It is especially important when it is 3rd party liability, which means where a 3rd party (not part of the contract) like an ordinary citizen is harm by the use of your image in a publication and they sue the publisher. You may be required to fund the complete legal defence for the company depending on the wording.

There are always 2 clauses that I read carefully and these are Indemnification and Copyright/licensing.

This is why it is important that you have a real lawyer (not internet opinion) that you can talks to. After a few reviews of contracts with a lawyer you will get a better understanding of the meaning of these wordings.


danno said...

any suggestions on lawyers who know their shit for locking down contracts?

thanks, john!


Dale said...


I've been reading your blog for more than two years now, and I rarely comment. Furthermore, I generally am annoyed at those who relentlessly call you out for seemingly egregious fallacies in your arguments.

However, I think this time you've gone a bit too far. It would seem from your bombastic intro that you and BAP have very different takes on the issue of indemnification, that you are setting yourself up to completely blast her opinion.

But, to one's great surprise, if one were to read both her blog entry and yours, one would find there is much more agreement than disagreement, much more harmony than discord. You and the cited author express opinions far closer on the issue than I think you yourself would like to admit.

Your lead-in is misleading at best--at worst, intentionally deceptive and very back-handed to the other author. Please, give her some credit that she ultimately offers up an (amateur, non-legally binding--as she states at the outset) opinion that aligns nicely with your own. All that, and she doesn't even malign anyone in the process.


Dale P.

Gordon Firemark said...

John -

As a lawyer who represents photographers, I couldn't agree more. Indemnification itself isn't a bad thing, provided it's mutual, and the clause is carefully tailored to cover only those things has control and should therefore be responsible.

Also, the fact that many clients demand indemnification should illustrate the absolute need for a good Errors & Omissions insurance policy to cover things.

Good contracts don't just happen. They're MADE by artists and lawyers who who work closely to craft a document for the particular situation.

Photographers who don't have representation can fall prey to tricky concepts like indemnification. It's important to treat your business like a business, and get professional help when it's required.

Walter Dufresne said...

John's rant and Leslie's advice are both pretty darn good, and -- in my humble opinion -- I don't read any substantial contradiction between the two. I write this as nothing more than a working commercial photographer who's re-worked (annotated, edited, emended) dozens of efforts to impose indemnities on me. Maybe it's only my industry (commercial and institutional real estate, few identifiable persons in the photographs) but I find it easy to follow them both without contradiction. And I love the vigor of their prose.

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