Monday, October 10, 2011

Contract Analysis: Gannett/US Presswire

Photo Business News has written extensively about the acquisition of US Presswire by Gannett. Recently, Photo Business News was provided this contract that outlines the proposed new contract between US Presswire and their contract photographers. Below is a review and analysis of the contract, as someone who is very familiar with contract language for photographers. As the laws in every state are different, and more importantly, as I am not a lawyer, the analysis and commentary below should not be construed as legal advice, and you should seek competent legal counsel should you need such to consider this contract before signing it.

(Commentary and analysis after the Jump)


This Active Photographer Agreement (“Agreement”) is made effective as of September 1, 2011, by and between US PRESSWIRE, LLC, having offices at 1230 Peachtree Street NE, Suite 1900, Atlanta, Georgia 30309 (on behalf of itself and its affiliates, “Agency”), and {Photographer Name}, a photographer having an address of "{photographer’s address} (“Photographer”).

COMMENTARY & ANALYSIS: This is a standard clause, which sets forth who is actually entering into the contract.
W I T N E S S E T H:

WHEREAS, Agency is in the business of creating, distributing, delivering and licensing the use of photographic images and video images or footage, primarily through its website, www.uspresswire.com, and through various other internet or electronic means;

COMMENTARY & ANALYSIS: While this is a common term, there are several points worth addressing in this clause. The first is that this is not a typical “agency” relationship. They are not “representing” you as much as they are themselves. They are using “Agency” because it has entered into the common parlance as they, and Getty have. However, they are not looking out for your own interests first and benefiting at a percentage, they are looking out for themselves first, with your images (and video) as the value, and you get a percentage. That brings up the next point – they are allowing for the distribution of your video as well, which is new. I would suspect that an organization that is now in the business of licensing video will raise a few eyebrows with the TV rights-holders. Further, they say “through various other internet or electronic means”, which likely refers to a Gannett branded service, or their own proprietary network not accessible to the general public.
WHEREAS, Photographer is in the business of creating photographic images and/or video images or footage; and

COMMENTARY & ANALYSIS: Actually, We are in the business of licensing, not creating. We create in order to license. That said, while this too is a standard clause, again, it includes video. It will only take a few photographers to post video clips from the sidelines of a major league sporting event before the networks take issue. Further, this contract now will preclude you from doing anything with video outside of this contract that might compete with USPW.
WHEREAS, Photographer desires to engage Agency to represent Photographer with respect to certain photographic images owned by Photographer, and Photographer desires to photograph certain events for Agency, all in accordance with the terms and conditions set forth in this Agreement.

COMMENTARY & ANALYSIS: “represent Photographer” here seems to be a perversion of the concept. The Agency is the sole arbiter, and you (and your images) are along for the ride.
NOW, THEREFORE, in consideration of the foregoing premises and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:

COMMENTARY & ANALYSIS: This clause, while standard, essentially causes you to acknowledge that the rates that USPW/Gannett are paying are “good and valuable”, and they meet a “sufficiency” test, neither of which are, in reality and fairness, true. However, this clause will preclude you down the line from bringing a suit with much likeliness of success, with the claim of unreasonable compensation.
1) Grant of Authority. Photographer hereby grants to Agency the exclusive worldwide right to use, copy, perform, display, market, distribute, license, sub-license and negotiate the production rights of all photographic images, digital files, video images or footage and all other photographic materials that are delivered to Agency by Photographer (including Stock Images (as defined below), collectively the “Images”), in any and all media, now known or hereafter developed, whether such Images are created by Photographer while working under credentials issued from or through Agency or otherwise. Notwithstanding the foregoing, Photographer shall retain the copyright to the Images and Photographer shall have a limited right to license the Images to Photographer’s own editorial clients provided that:

COMMENTARY & ANALYSIS: In this clause there seems to be a problem, because you are granting “the exclusive worldwide right”, which means that everything they get from you can’t be used anywhere else in the world, except for where they permit you to do so. Further, this clause forces you to accept whatever fees they deem appropriate, from free, to, frankly, a situation where you pay to have your work placed somewhere. In other words, if they deem that it’s worthwhile to USPW to pay $100 to have your photo used somewhere, then they could legitimately debit your account that amount, and you would have no recourse. Further, this clause encumbers all of your “stock images” too under this same agreement. They acknowledge the obvious, telling you that you retain copyright, however, they then begin to set forth a very narrow window that you can service only “editorial” clients. So, if you are on the sidelines, and decide to make an image of the goal line marker because it could be used as a nice stock image for advertisers, despite the fact that there are no NFL markers or other branding on it, you can’t do anything with it. A photo of a fan that gets your card and wants to order a print from you? Nope – that’s not editorial, so you can’t do that either.
a. such editorial clients do not compete with the Agency or its customers;

COMMENTARY & ANALYSIS: There are essentially no editorial clients that don’t compete with USPW/Gannett, because both are in the business of licensing stock images, so this essentially kills all editorial clients
b. the Images do not violate the issuer’s credential language or policies or infringe upon the intellectual property rights of any third party;

COMMENTARY & ANALYSIS: This is a reasonable clause, but since your credential was issued to USPW/Gannett, any use by you likely would violate credential language.
c. the Images shall not be distributed on any website, including but not limited to competitors, agencies, photoshelter (where any image can be made for sale) or any other photo service website worldwide;

COMMENTARY & ANALYSIS: With almost all images being displayed on websites, this makes your use of the internet unacceptable to USPW. It’s interesting that they particularly single out Photoshelter. Of specific curiosity is the fact that the business “Photoshelter” (with a capital “P”) is identified as “photoshelter” (with a lower case “p”) and that is either a typographical error, or there was an intention to do so for legal reasons.
d. Photographer has secured all intellectual property rights and clearances to the Images; and

COMMENTARY & ANALYSIS: This is a necessary clause to protect USPW, however, it is fraught with hurdles that make it all but never likely you’ll get past them.
e. Photographer notifies Agency in writing of any intent to license the Images to Photographer’s own editorial clients.

COMMENTARY & ANALYSIS: This is untenable on it’s face that they are asking for this. This means you’ll notify them of EVERY potential licensing opportunity, which makes it easy for them to object to every sale, and then contact them with the same image and sell it themselves, take their cut, and then give you the fraction you are owed.
2) Images Created Under Agency Credentials. Photographer hereby covenants, acknowledges and agrees that with respect to all Images that are created by Photographer while working under credentials issued from or through Agency and while on assignment for Agency, including Images that are taken but not delivered to Agency by Photographer (“Outtakes”):

COMMENTARY & ANALYSIS: This clause closes a loophole that Photo Business News pointed out when analyzing the last USPW contract, whereby even outtakes are encumbered by USPW. In the past contract, anything not delivered to USPW wasn’t governed by the contract.
a. Photographer shall be prohibited from using such Images and Outtakes for any non-editorial and/or commercial purpose, exhibition, reproduction, display, performance, adaptation or publication of any kind (including, without limitation, advertising, sales, marketing, merchandising or resale purposes);

COMMENTARY & ANALYSIS: This means, among other things, that you can’t have a gallery showing, sell your work as art, and, really, as written, it’s confusing if you can even do an editorial sale at all. This clause essentially prohibits you from doing anything with your images not approved by USPW/Gannett.
b. Photographer shall be prohibited from selling or licensing such Images and Outtakes on any website; provided, however, Photographer may use such Images and Outtakes in accordance with the issuer's credential language or policies for self-promotion on Photographer’s personal website;

COMMENTARY & ANALYSIS: This reinforces you can’t do anything with the images, except self-promotion on a personal website. This differentiates from a “professional website”, which would be for your business, which might compete with theirs, and as such, wouldn’t be allowed.
c. Photographer shall not place any such Images and Outtakes on any social media network including, but not limited to Facebook, My Space, Twitter, Linked-In, etc.; provided, however, Photographer is permitted to post a link to the Images and Outtakes to the US PRESSWIRE.com website and/or Photographer’s personal website or blog and will be permitted to place the Images and Outtakes on Sportsshooter.com; provided further that Agency credit accompanies Photographer’s name; and

COMMENTARY & ANALYSIS: This clause will be a problem for many of the hobbyists who shoot for USPW for bragging rights amongst their friends. Again, it’s interesting to see that they’ve identified SportsShooter.com as a venue they want to place some restrictions on.
d. Photographer shall ensure all such Images and Outtakes shall be co-credited to Photographer and Agency when placed in any and all self-promotion campaign including, websites, blogs, print, brochures, galleries, photo contests, etc.

COMMENTARY & ANALYSIS: This clause really makes clear that they’re not your “agent”, and that whatever marketing or promotion you do for yourself (obviously at your expense) is also marketing for USPW/Gannett.
3) Representations of Photographer. Photographer hereby represents, warrants, covenants, acknowledges and agrees that:

a. Photographer is and shall at all times be the sole and exclusive owner of the Images, or if Photographer is not the owner of any Images, Photographer has the right to provide such Images to Agency, and Photographer will acquire the copyright owner's permission for Agency to use the Images;

COMMENTARY & ANALYSIS: While this is standard, it could create some problems. If you set up a remote, for example, and have an assistant trigger the camera, that’s could be a problem depending upon your contractual arrangement with the assistant. Further, as Photographer is warranting they are the sole and exclusive owner, and further, that this contract is an exclusive contract, whomever photographer gets the copyright owner’s permission from also is covered by all the restrictions of this contract.
b. The Images are original;

COMMENTARY & ANALYSIS: This is a normal clause.
c. The Images do not and will not infringe upon any copyright, trademark, right of privacy, right of publicity, proprietary right, intellectual property right or any other right of any third party anywhere in the world;

COMMENTARY & ANALYSIS: This is a wholly unworkable clause, as the infringing they are detailing often takes place in the final use of the photo. So, a photograph taken of an athlete wearing an NFL Jersey and a Nike swoosh could be used editorially and fit into this clause, however, if the image was used commercially, it could be a violation of this clause, and the photographer could be at fault for not securing those rights. Further, anyone in a photo could sue for any reason. Photographer's liability should be limited to providing model releases, and where they are absent, the agency takes the sole risk, and the photographer does not warrant anything.
d. Agency reserves the right, in its sole and absolute discretion, to refuse to accept any Images;

COMMENTARY & ANALYSIS: This is, to a certain degree fair, however, if you have a body of work you wanted to submit, and an editor objected, you couldn’t submit it, and further, if you covered a game/event, and USPW/Gannett didn’t take the images, you couldn’t submit them to anyone else.
e. Photographer has the right to enter in this Agreement with Agency and to perform the obligations set forth herein;

COMMENTARY & ANALYSIS: Standard clause which sets forth that you aren’t encumbered by a contract with someone else
f. Photographer has the exclusive right, power and authority to make the grant of rights to Agency in this Agreement;

COMMENTARY & ANALYSIS: Standard clause which sets forth that you aren’t encumbered by a contract with someone else
g. Photographer shall obtain any and all releases necessary to allow Agency to license the Images;

COMMENTARY & ANALYSIS: This is a potentially huge problem – you’ll be required to get model releases – and as such compensate the persons you get releases from. This is because you are granting agency the right to license commercially, exclusively, and the way this clause is written it could be you that would be liable if an image of an athlete was licensed by USPW/Gannett for commercial purposes – the would merely point out that you were required to get the releases, and did not. If it said “….for any non-editorial uses…” but even still, you’re now the one required to chase down every recognizable subject, and every trademark holder, as this clause is written.
h. Images created by Photographer while working under credentials issued from or through Agency shall not be used by Photographer for any commercial purposes whatsoever anywhere in the world;

COMMENTARY & ANALYSIS: As such, even if a player saw an image you took and wanted to use the image on his sports drink line, you couldn’t do it. It is understandable that most credentials preclude commercial use, however, it could be argued that an Agency license is a commercial use, and it could also be argued that having a photo on a blog alongside ads is a commercial use.
i. While on assignment and working under credentials issued to Photographer by or through Agency, Photographer will conduct themselves in a professional manner at all times in accordance with the highest industry standards and code of ethics, within the rules set forth at any venue, league, team, sport, or any person or organization having authority and Photographer shall not violate the terms of the issuer's credential language or policies;

COMMENTARY & ANALYSIS: While it would seem obvious to some, this clause is important so that it is clear that photographers don’t, for example, decide it’s appropriate to clap/cheer and/or participate in the jubilation. The contents of this clause should go without saying, yet it’s being stipulated.
j. Photographer shall use all reasonable means to become familiar with the rules set forth by any organization, governing body, venue, sport, team, league, security personnel, etc., while on location working an event or assignment;

COMMENTARY & ANALYSIS: Reasonable given that there is a continually revolving door of photographers that are new to the profession and likely unaware of the rules and nuances of covering important sports events. This clause allows for USPW/Gannett to, for example, discontinue their relationship with a photographer that forgets (or never new) that they can’t click a shutter when a pro golfer is about to (or is in mid-) swing.
k. When Photographer accepts an event or assignment from Agency, Photographer shall photograph the event or assignment and transmit the Images either during or immediately after the event or assignment as specified by Agency in accordance with the policies in the stylebook guidelines or specified by Agency editors, managers or personnel. Images shall be fully captioned with Photographer's name in the caption field as set forth in Agency's guidelines for captioning and transmitting in the Agency stylebook;

COMMENTARY & ANALYSIS: This would be standard for any professional accepting an assignment. New photographers may not understand the timely nature of the news business, and may not recognize the importance of delivering images in a timely manner.
l. Photographer shall not cancel any accepted event or assignment within 72 hours (3 days) before the start time of the event or assignment provided such cancellation is not a medical, family, or other unforeseen emergency acceptable to Agency;

COMMENTARY & ANALYSIS: Interesting that the Agency deems itself the sole arbiter of the nature of an emergency, and not the person with the emergency.
m. Because Agency is a news organization, Photographer shall not crop, modify, alter or manipulate the Images in a manner that alters the fundamental nature of the Images;

COMMENTARY & ANALYSIS: Sadly, this clause is necessary as there may be some photographers who did not formally study photography and may not realize the ethical considerations that go into delivering images that are not manipulated into something that didn’t happen, or is re-created because the moment was missed.
n. Photographer shall use Photographer’s best efforts to promote Agency's name and good reputation throughout the world at all times, and Photographer shall not make any disparaging remarks about Agency or its affiliates; and

COMMENTARY & ANALYSIS: This means that when USPW/Gannett is late to pay, or a USPW photographer gets criticized at a sporting event, you’ll defend USPW/Gannett. Further, if someone criticizes USPW/Gannett in an online forum – even if it’s a justified criticism, you not only can’t say “I see your point”, you must use your “best efforts” to promote USPW/Gannett, which means posting a positive comment.
o. Photographer shall use its best efforts to submit a second edit of Images while working under a credential and on assignment by Agency (“Stock Images”) within ten (10) days following the event or assignment in accordance with the policy guidelines set forth in the Agency stylebook.

COMMENTARY & ANALYSIS: This means that not only are you doing the $100 assignment for 4-6 hours, and spending 2-4 hours doing your first edit, but you also are doing another 4 or so hours on a second edit – not to earn you much more money, but rather, to expand the library of images.
4) Indemnification. Photographer hereby agrees to indemnify, defend and hold Agency, its affiliates, successors and assigns, and their respective officers, directors, employees, representatives and agents, harmless from and against any and all claims, demands, actions, causes of action, settlements, damages and expenses (including reasonable attorney's fees and court costs) arising directly or indirectly from: (i) the breach or alleged breach by Photographer of any representations, warranties, covenants or agreements made by Photographer hereunder; (ii) any erroneous or inaccurate information supplied to Agency regarding the Images; and (iii) personal injury (including death) or property damage caused by Photographer while working under credentials issued from or through Agency and while on assignment for Agency.

COMMENTARY & ANALYSIS: This is indemnification without parity. You are not indemnified if Agency does something wrong. However, if you mis-credit an image, have a football player crash into your 400mm 2.8 and crush it, or the Agency gets sued for your actions, you’re on the hook for everything. Further, clause "(i)" may be okay provided that the other terms that require photographer to warrant that no 3rd party rights have been violated, be revised.
5) Use of Images. Agency and its affiliates, successors and assigns shall have the right, in their sole and absolute discretion, to: (i) determine how the Images will be marketed, displayed and distributed to Agency's customers; (ii) edit, crop or modify the Images, including the captions and metadata that accompanies the Images; (iii) establish the terms and conditions, including the fees, for the license of the Images to Agency's customers; and (iv) perform its services without Photographer's further approval. Photographer agrees that any Image or Stock Image given to Agency for distribution shall remain available for distribution by Agency for a minimum of five (5) years from the date of receipt by Agency.

COMMENTARY & ANALYSIS: This is where USPW/Gannett licenses all the photos under a subscription where you earn nothing, or next to nothing. You have no say whatsoever in anything having to do with your image and how it gets used.
6) Compensation.

a. Assignment Fees

i. Agency will pay to Photographer an assignment fee in the amount of One Hundred Dollars ($100.00) per day per assignment for the remainder of the 2011 calendar year. Commencing January 1, 2012, Agency will pay to Photographer an assignment fee in the amount of One Hundred Twenty-Five Dollars ($125.00) per day per assignment. Photographer shall receive an Agency code for each event or assignment. Assignment fees will be paid by Agency on a monthly basis based on such Agency codes. The assignment fees include basic expenses for local area assignments. For clarity, Agency will pay to Photographer one (1) assignment fee for any assignments that have multiple events in the same day, such as a baseball double header or basketball tournament.

COMMENTARY & ANALYSIS: This is basically an allotment of $100 to cover your parking and mileage as well as a meal, as all of this is a part of the $100. Further, unlike most other organizations, if there is more than one sporting event you get paid extra, USPW/Gannett will not. This seems unreasonable on it’s face, but I am sure that there will always be someone who will say yes, no matter how bad the deal is.


ii. Photographer acknowledges and agrees that the assignment fees shall be paid to Photographer in lieu of any compensation for the use of Images or Stock Images by Agency’s editorial subscription based customers worldwide where applicable and in the Agency’s sole discretion. This does not include licensing proceeds for any commercial use or editorial a la carte sales.

COMMENTARY & ANALYSIS: This means, as it is written, that anything you have had in the USPW archives may well not generate income for you, as this “new deal” where they pay you for assignments, covers whatever you might have earned off stock licensing. Of course, for the rare commercial or a la carte sale, you still generate revenue, however those are few and far between, at best.
iii. In the event any additional expenses are required, reimbursement must be pre-approved in writing by assigning editor and agreed to in advance by the Photographer. The pre-approved expenses must be submitted on an Agency expense reimbursement form and submitted to the assigning editor for review and approval within 30 days after they are incurred.

COMMENTARY & ANALYSIS: This is a reasonable clause to have in.
b. Editorial and Commercial Licensing Fees.

i. Agency shall retain a commission from the fees collected from the licensing of any editorial or commercial a la carte Images and Stock Images, in accordance with the Commissions Schedule set forth on Exhibit A attached hereto and incorporated herein by reference. Agency shall deliver to Photographer the net balance of the fees collected from the Images and Stock Images in accordance with Exhibit A, along with a report listing the origin, description, and amount of sales. Agency will deliver all reports and make all payments to Photographer on a quarterly basis, during the month following the quarter and only after Agency receives the fees from its customers for the Images and Stock Images.

COMMENTARY & ANALYSIS: Aside from the ridiculous notion that a “commission” is a figure is in excess of 50%, this concept is reasonable. The challenge will be how they define “net balance”, because they can attribute all manner of expense to the marketing of an image.
ii. Photographer's share of any fees collected from the Images or Stock Images will not be paid until Photographer’s account equals at least One Hundred dollars ($100.00); provided, however, if there is a lesser amount in the Photographer account and Photographer makes a written request to have the lesser amount paid, Agency will pay the amount currently due Photographer. In the event that no fees have been collected from the Images or Stock Images, Agency will not deliver a report or make a payment to Photographer. In the event that Photographer is no longer submitting Images or Stock Images to Agency on a regular basis, or the Agreement is terminated for any reason, Agency will pay Photographer's share of any fees collected from the Images on an annual basis, commencing on the first anniversary of the last date that Photographer submitted any Images to Agency.

COMMENTARY & ANALYSIS: This is a reasonable clause.
iii. A la carte fees licensing fees and quarterly reports of Images or Stock Images shall be paid in addition to the assignment fees set forth above.

COMMENTARY & ANALYSIS: This is a reasonable clause.
7) Unauthorized Use of Images. In case of damage, destruction, loss or unauthorized use of any Images by any customer who lawfully obtained Images from Agency, Photographer hereby grants Agency full and complete authority to make claims or to institute proceedings in Photographer's name to prosecute such unauthorized use. In no event, however, shall Agency be liable for such unauthorized use nor shall Agency be required to take any action to prosecute such unauthorized use. Any recoveries shall be divided between Photographer and Agency 50/50, after deduction for the costs of any such actions incurred by Agency, including, without limitation, legal fees or other expenses. All settlements shall be made in Agency's sole and absolute discretion. If Agency chooses not to pursue any legal action, Photographer reserves the right to do so after notification from Agency.

COMMENTARY & ANALYSIS: So, if a publication infringes your copyright, you are not allowed to sue – only the Agency – if they decide to, at their sole discretion. However, if they do, and win, they get half . So, all the legal fees get paid (or attributed by in house counsel at out-of-house rates) and then whatever is left over, you have to split with Agency. Only after Agency opts not to pursue a matter, can you – if you notify them. That said, you would still be required to split whatever you won, as this clause is written. What would be fair instead would be that agency has the first option to sue, and as long as they don't exercise that option within X months of the notification, you then have the right to sue and keep 100%.
8) Term. This Agreement shall commence as of the date first set forth herein above and shall continue for an initial term of five (5) years, unless sooner terminated by Agency, or otherwise terminated as provided herein. Upon the expiration of the initial term, this Agreement shall automatically renew for a term of five (5) years, unless written notification is given by either party to the other at least sixty (60) days prior to the termination date. Agency may terminate this Agreement at any time, with or without cause and for any reason or for no reason at all, upon ten (10) days prior written notice to Photographer. Agency will pay Photographer's share of any fees collected from the Images or Stock Images after the termination date on an annual basis, commencing on the first anniversary of the termination date.

COMMENTARY & ANALYSIS: This is a lengthy term, and it should be a year, at most two.
9) Return of Original Images. Upon the expiration or termination of this Agreement, if requested by Photographer in writing, and provided the Images have been in Agency's custody for at least five (5) years, the original Images and Stock Images will be returned by Agency to Photographer, and digital formats will be removed from Agency's database within one (1) year from the date of the written request. If Photographer requests faster retrieval, Photographer agrees to pay Agency its cost of labor necessary to perform the removal, retrieval and return of analog Images or Stock Images. Agency is not obligated to return any digital formats to the photographer. Notwithstanding the foregoing or anything to the contrary herein, nothing in this Agreement will require any of Agency’s third-party customers that license use of the Images from Agency to remove the Images, at any time, from any archived editions of the media properties through which such customers had the right to distribute the Images pursuant to a valid license from Agency.

COMMENTARY & ANALYSIS: The notion that you could produce 4 years of images and then have your relationship end, and then the Agency not be liable for the return of your Original Images is unreasonable, at best.
10) Confidentiality. The contents of this Agreement are confidential in nature and shall not to be shared, copied, distributed, discussed, either whole or in part to any third party by Photographer during the term of this Agreement or after the expiration or termination hereof. At any time any other information, proprietary technology or any company business or operational information, including but not limited to discussions with Agency management or personnel is made available to Photographer, be treated as “Confidential Information” and shall not be shared with or to any third party anywhere in the world. Furthermore it is acknowledged by the parties that any violation of this provision will do irreparable harm to Agency and its affiliates.

COMMENTARY & ANALYSIS: This type of clause has often been struck down by courts. Further, when you get some “amendment” document, the original contract, and the amendment, become confidential. As such, it will be no problem for USPW/Gannett to say “oh, we’ve made changes to the contract for the better…” and they can’t comment on it to anyone (publically or privately).
11) Miscellaneous.

a. Independent Contractor. This Agreement is not an employment agreement between Agency and Photographer. Photographer is acting as an independent contractor. This Agreement does not constitute a joint venture or partnership. Neither Photographer nor Agency shall hold themselves out to any third party contrary to this understanding. Photographer possesses Photographer’s own medical, life and liability insurance at all times or agrees to be self-insured.

COMMENTARY & ANALYSIS: This is a standard contract term, however the addition of the sentence about agreeing to be self-insured if you don’t have coverage is interesting.


b. Arbitration; Governing Law. Any dispute arising under this Agreement shall be determined and settled by arbitration in the Commonwealth of Virginia, pursuant to the rules of the American Arbitration Association. Any award rendered will be final and conclusive upon the parties hereto and judgment thereon may be entered in any court having jurisdiction over the parties and subject matter. This Agreement shall be governed by, and construed and interpreted in accordance with, the substantive laws of the State of New York, without regard to the conflicts of law principles thereof.

COMMENTARY & ANALYSIS: Submitting – and being required to submit – to arbitration – is a bad deal in most instances.
c. Notices. Any notice relating to this Agreement shall be in writing and delivered in person, by registered or certified mail or overnight courier. Notices shall be addressed to the parties at the addresses set forth in this Agreement. Either party may designate a new address by notice to that effect given to the other party. Notices shall be deemed given (i) if by registered or certified mail, three days after mailing, (ii) if by overnight courier, the day after delivery by such courier service to the proper address and (iii) if delivered in person, the day of delivery.

COMMENTARY & ANALYSIS: Standard clause.
d. Successors and Assigns. Photographer may not assign or otherwise transfer this Agreement without Agency’s prior written approval. Agency may freely assign or transfer this Agreement. Subject to the foregoing, this Agreement shall be binding upon Agency and Photographer and their respective heirs, executives, administrators, representatives, successors and permitted assigns.

COMMENTARY & ANALYSIS: Standard clause.
e. Entire Agreement. This Agreement constitutes the entire understanding between Agency and Photographer and supersedes any prior understandings or agreements, oral or written, including, without limitation any existing photographer agreement between Agency and Photographer (“Existing Agreement”), which such Existing Agreement is hereby terminated. Notwithstanding the foregoing, any Images delivered by Photographer to Agency under the Existing Agreement prior to the date hereof shall become subject to the terms and conditions of this Agreement; provided however:

COMMENTARY & ANALYSIS: While the top of this clause is standard, the clause also folds in all previous images into the subscriptions and pay models.
i. Prior Use. Photographer shall be compensated for any such Images licensed by Agency prior to the date hereof in accordance with the Commissions Schedule attached to the Existing Agreement; and

COMMENTARY & ANALYSIS: This should be expected.
ii. Future Use. Photographer shall be compensated for any such Images licensed by Agency on and after the date hereof in accordance with the Commissions Schedule attached to this Agreement.

COMMENTARY & ANALYSIS: This is a problem if you had a contract you were happy with before, as now it’s governed by this one.
f. Exhibits and Schedules. Each Exhibit and schedule referred to herein is incorporated into this Agreement by such reference. Agency reserves the right to change, adjust or modify such Exhibits and schedules with the prior written consent of Photographer, which shall not be unreasonably withheld or delayed.

COMMENTARY & ANALYSIS: Standard clause.
g. Severability. If any provision of this Agreement is held illegal, invalid or unenforceable such illegal, invalid or unenforceable provision will not affect any other provision hereof. This Agreement shall, in such circumstances be deemed modified to the extent necessary to render enforceable the provisions hereof.

COMMENTARY & ANALYSIS: Standard clause.
h. Waiver. The failure of either party to insist upon strict performance of any of the terms or conditions of this Agreement will not constitute a waiver of any of its rights hereunder.

COMMENTARY & ANALYSIS: Standard clause. However, if say USPW/Gannett don’t insist on you doing, for example, a second edit, you can’t decide on your own on the next assignment to not do one.
i. Amendments. This Agreement may be amended only by a written instrument duly executed by Agency and Photographer.

COMMENTARY & ANALYSIS: Standard clause.
j. Counterparts; Facsimiles. This Agreement may be executed in any number of original or facsimile counterparts, each of which when executed and delivered shall be deemed to be an original and all of which counterparts taken together shall constitute but one and the same instrument.

COMMENTARY & ANALYSIS: Standard clause.
k. Survival. The provisions of this Agreement that by their nature or as specified hereunder are intended to continue beyond the expiration or termination of this Agreement, shall survive the expiration or termination hereof.

COMMENTARY & ANALYSIS: Standard clause.


(signatures)

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EXHIBIT A

COMMISSIONS SCHEDULE
This Commissions Schedule is made an addendum to that certain Active Photographer Agreement (“Agreement”) by and between US PRESSWIRE, LLC (hereinafter referred to as “Agency” and {Photographer Name} (hereinafter referred to as “Photographer”.)

COMMENTARY & ANALYSIS: Standard clause.
WHEREAS, Pursuant to Section 6(b) of the Agreement, Agency has agreed to remit certain payments to Photographer for fees collected by Agency for the licensing of Images and Stock Images (as defined Agreement) on an a la carte basis, and Agency is entitled to retain a commission for the fees collected by Agency for the Images.

COMMENTARY & ANALYSIS: Standard clause modifying original agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:

1) Third Party Fees. Photographer agrees and understands that Agency has entered into certain agreements with third party agencies (hereinafter referred to as the “Third Parties”) pursuant to which such Third Parties have been granted the authority to distribute the Images and or Stock Images on their respective websites and via other electronic means. The Third Parties will remit commissions to Agency from sales made by the Third Parties of the Images (“Third Party Fees”), in accordance with such Third Party agreements. Thereafter, Agency will remit to Photographer fifty percent (50%) of the net Third Party Fees, and Agency will retain a commission of fifty percent (50%) of the net Third Party Fees. Agency will remit Photographer's portion of the Third Party Fees pursuant to Paragraph 6 of the Agreement.

COMMENTARY & ANALYSIS: This is horrible, because essentially, if USPW uses Gannett’s wire service to distribute a $50 photo, then USPW would only get 50%, and then you would only get 50%, or $12.50. Yet, Gannett would, through the revenues of it’s wire service and USPW, as two separate corporate entities under the one parent company, get 75%.
2) Agency Fees. Agency will remit to Photographer fifty percent (50%) of the net fees collected by Agency from editorial and commercial sales made by Agency of the Images and Stock Images (“Agency Fees”), and Agency will retain a commission of fifty percent (50%) of the net Agency Fees. Agency will remit Photographer's portion of Agency Fees pursuant to Paragraph 6 of the Agreement. Agency reserves the right to change, adjust or modify Agency Fees with the prior written consent of Photographer, which shall not be unreasonably withheld or delayed.

COMMENTARY & ANALYSIS: Standard clause.
3) Uncompensated Use. Photographer agrees and understands that Agency may, from time to time, allow Agency's customers to use certain Images and Stock Images without compensation. As a result, Photographer may not be compensated for the use and distribution of certain Images and Stock Images. This will be for, among other reasons, the purpose of revenue generating usage commitments or for promotional trials for the customer. Photographer agrees this action can be performed in Agency's sole and absolute discretion and without further compensation to or consent from Photographer.

COMMENTARY & ANALYSIS: This is a horrible deal where the photographer gets the short end of the stick while the Agency benefits. For example – a prospective client says they want their first month free, and your images are a part of that, and then on the second month, when the Agency got a check, none of your images were a part of that, and so you get nothing. Or, if some other USPW/Gannett photographer screws up, and in order to make it up to the client they say that the next assignment is a freebie, clearly they won’t use the one who screwed up, so you could end up getting the call, and there would be no compensation for the customer to use your images. Further, they have the right to use your images for barter arrangements, where they collect "in kind" compensation without collecting any money, and the photographer gets nothing. The examples of how this can be exploited to the photographer’s severe disadvantage are seemingly endless.


(Signatures)



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3 comments:

Anonymous said...

Thanks for the detailed analysis John.

Jack Megaw said...

I wouldn't sign this contract if I had a gun to my head.

Thanks for going through and explaining all of this.

-Jack Megaw

www.jackmegaw.com

John Reinan said...

This is so f**ked up I don't know where to begin. And I'm not even a photographer.

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