Contracts: The Law and Your Rights
We want to talk a little bit about these things, and we're going to go through them relatively quickly but I want to be pretty clear about a few points on this. When you're reading a contract when they talk about the work, that's you. That's what you're producing for them. What is a copyright and what is a shared copyright? A copyright is the fact that you own the image and it's really that simple, and a shared copyright means you and someone else own that image. That's a really important understanding. Usage is if you own your image, which you should, you will offer a client usage and that usage means they have a right to use it in a certain way for a certain amount of time for a certain amount of money and that is usage, and that's important to understand when you are building pricing for a client because you are not to do work for hire. And if they want you to do work for hire, they need to pay you more which means you're working for me and I own the copyright on anything you shoot.
And it is a bad arrangement for photographers and so many of us get involved in those situations and we do not have or retain control of our imagery which means we can't resell them in the other market and we can't charge more for them if the usage runs out. So, I encourage everybody to do more and more research on this. Research what work for hire really means, because really what it is is that you are no longer in control and it's a really bad way to work and so many of you are being asked to do it and unless there's a massive pushback by the industry at large and say to people we will not do that work for hire, we want a shared copyright on the imagery and if you want those images to keep, it costs X amount of dollars. And at X amount of dollars starts at $10,000 an image and if that sounds absolutely outrageous to you, just think about it. If somebody owns your image and they want to put it on the side of a bus, they can put it on the side of a bus. If they want to resell it to someone else, they can resell it to someone else and you do not want that. You don't want somebody being able to control your imagery and because if one of those things hits big and you don't get paid, you're going to really be sad like the cauliflower. (laughing) If you're having trouble reading legalese which most of us do, or you don't understand the language in a contract, don't sign it. Don't sign it 'cause you want the work. Get somebody who knows how to read that contract. It doesn't have to be a lawyer, it just has to be another photographer who has more experience than you do. It could be another photographer, it could be a producer, it could be somebody on a creative agency. As long as they pick out some real key phrases when it comes to who owns the work, that's the real important part of it and I've entered into work for hire contracts but I get paid a lot of money to do it. You know like if I'm going to surrender my imagery and I know most likely I'm not going to ever make that amount of money on the imagery in resale, then I'm willing to do it but if I'm going to do it for a day rate and I'm just gonna come in like a staff photographer, I'm sorry that's not what I do. I'm not your staff photographer and I'm not giving you my work. And I think you have to be able to stand up for yourself in that regard because if it's like oh well, come in all day for $200 and shoot 75 dishes at my restaurant and I own the images, well you need to go pound sand. I'm not doing that, you know and you need to say no to those jobs, you really do. As much as you want them, you need to say no to them. I had recently, when I was involved in a contract situation with an entity that I didn't understand a lot of what was the norm, I understood how to read the contract but in this venue I didn't know what the norm was. Like what do other photographers do with a contract like this? Is this contract normal, or am I being taken advantage of? And I sought out a friend who is a very very experienced photographer in many venues and ran a really successful photography blog for a really long time addressing the issues that photographers have in the industry. And I gave him the contract, and I sat with him and we had a beer and we talked about it, and he enlightened me so much on this particular contract and how it was normal, where it wasn't normal, where I had room for negotiation, and where it was locked in stone. And it was so helpful, and again I've been in the business for 15 years, but he's been in the business for and he has different experiences than I have, and he was able to help me immensely in that negotiation so I encourage you, not everybody is equipped to read these contracts and understand what they're about. Get help, because I've helped other photographers and then sometimes I helped a photographer and then a mistake was made and it just got, because I guess I wasn't communicating clearly enough as to what I was saying, so I'm saying it very clearly now. Don't do work for hire contracts, and if you do, get paid for them and know that you don't want the images afterwards, period that's it. Drop the thing. The law about copyright is this other thing. It's that if you enter into a contract where you are not doing a work for hire, and they want your imagery to own and you want to sell it to them, you can and you can write it on the contract and essentially you're saying I'm not going to use the imagery anymore but you're technically not signing away your copyright. You're offering them an indefinite usage package. In perpetuity is the terminology you will hear in those kind of contracts. So you're technically not signing away your rights to the image, which means you could use them on your website. You can promote them, use them to promote yourself. In order for you to completely give up the copyright to something, that is a legal document that you sign over your rights to something so it's very rare that this ever happens because it's very rare that these things end up in court but understand what that means. It's that if you're offering somebody an indefinite usage package, or in perpetuity usage package it still doesn't mean that you don't own any rights to the photo. You can still use them to promote yourself on your website, in your social media accounts. What you can't do is sell them to someone else. That's what those things mean. I think I kind of... I kind of went over all this with the copyright and the rights and I say it 500 times about work for hire and about control and I really would like if there's anybody who has a question or wants to share a story about those situations, I mean anecdotally I could probably tell you seven or eight stories of horror stories about people giving up their contract and not knowing it, and here's one anecdote that I want to share is I was helping somebody through a negotiation and she went online and found a contract and she didn't understand the language in the contract and had done so much great work in the negotiation for somebody who had never negotiated with a big client before on her own. She did a lot of really great work, and she made that one critical error is trusting something she downloaded off the internet, presented that to the client as a contract, and ended up signing away all her rights 'cause she didn't know it was a work for hire contract and that is exactly the problem is that if you've never heard the terminology before and you don't understand what it means and you're just blindly trying really hard to be your own representation without all that knowledge in the bank, you make one critical error and you put in all this work and you've done all this great negotiating and then all of a sudden you don't own your images. And you can't resell them back to the client. That's heartbreaking right? And that's what these kind of conversations have to guard against when we're here learning together, sharing that knowledge, making you understand where I'm coming from and trust me, I get it. You want the jobs. You want to work for the clients, you want to put it on your website, you want to be able to promote yourself, but you have to understand that certain things are stacked against you as an artist and if you don't protect yourself or are at least aware of what you're getting yourself into, then you don't want to be blindsided. If you're going to a work for hire contract you need to know what you're getting yourself into 'cause you understand what you're going to get on the back end of it whether it be money or something for your website or whatever, good, fine, I get it but the reality is don't come in and get blindsided and then all of a sudden lose a bunch of money because of it. That's just not acceptable in business, so.
What's the solution to pulling something, a contract off the internet? Do you pull something off and then make sure you send it to a lawyer and like what's the procedure there?
I don't necessarily feel like you have to send it to a lawyer. I mean if you have a lawyer at your disposal, absolutely do it but I think as long as you present it to somebody who's familiar with contracts, somebody you know in the industry, a producer, an agent, even if they're not your agent or somebody who's used to reading contracts and you say, you tell them what your concerns are which are basically if I do this work who owns the copyright? Who's liable if there's a problem on set? You know like all those things, because they slip in a lot of stuff into those contracts that if anything ever happens, everybody's indemnified but you, you know? And that is you have to be very careful. I entered into a negotiation with a big client which I will not name publicly and we were using stylists that belonged to the client, yet we were working in a different venue than their space and this posed so many legal issues that I ended up having to take the job and move it to my studio so it would be under my umbrella with the exception of saying if these stylists cut their hand off in my kitchen or burn themselves on my stove, I'm not liable right? So it was this huge labyrinth of complicated liability that in order just to get the job done because the bigger the client you're using, the more broad strokes their contracts are and the more you have to be aware that if anything goes wrong, they're going to try to put it on you, 'cause they need to guard against liability because they are worth billions or millions or whatever and you're just a small fish that's working for them for one time or two times. So you gotta be very very careful about how you read and enter into these contracts because you don't want to be responsible for people that aren't your people, or be liable for the most dangerous part of the job. The kitchen is the most dangerous part of the job, and if those people aren't being hired by you, you have no control over that situation and somebody ends up losing a finger, and it happens in your space or on your set, you need to know who's responsible for that and you don't want it to be you, so it's important to understand that those things as your rights to enter into a contract, and if I'm reading a contract and this is very standard. I'll read the contract, I'll see something objectionable, cross it out. Go to the next line, see something objectionable? Cross it out. Hand it back, say I'll sign that but I ain't signing it with those things in it, and then they'll go okay well let's talk about it and it becomes a negotiation. It's like I don't want to be responsible for that, I don't like the idea that that's work for hire, my images are going to be shared copyright blah blah blah blah blah and go through the lines and scratch out all the things I don't like and I've read a thousand of these things and I know what I'm looking for at this point, and I think you'll find that other people in the industry feel the same way. They know what they're looking for. There's a whole lot of blah blah blah blah in a legal contract, and most of it is just blah blah blah but then there's those words that pop up and you're like oh, I know what that means, scratch that out. And hopefully that when you give them back the redacted contract, you're still working with them but you know.
Why is it important to ask the right questions when you're negotiating with a client?
Well I mean, the most important thing that you need to understand is that throughout a negotiation you need to basically tell your client what your needs are and what their needs are on a particular job and by asking the right questions, you don't leave any holes in the umbrella. You hold the umbrella up, if it has one hole in it you're getting wet no matter how much, you know, preparation you do if you forget one thing in a negotiation it can end up costing you lots of money. I went and negotiated a cookbook one time and I thought I was dealing with a client that understood cookbooks, so we gave them a price based on all the stuff that we had, and they said oh yeah great, terrific. Great price, love it. Came shoot day, who's paying for the food? They didn't know that they were responsible for the food cost, even though it was pretty obvious whose responsibility that was and it was well communicated ahead of time, but it wasn't, it just it went over somebody's head, it got missed, and it ended up costing them money that time, not me. You know what I mean? So it's not just you that's responsible for those things. You also want to guard your client against that problem right? You don't want them to enter into a contract and then all of a sudden there are back end expenses that they didn't expect and then you look bad because you didn't communicate it to them.