Amusement

[kneeshooter]

Might go and see Funeral For A Friend (and friends) tonight. I was working through it with the press people and then got sent the photo release...

I'd be interested in the legal basis of this (especially as no-one in similar circumstances has ever been given a pound) but it's frankly hilarious:

---

This letter (“this Agreement”), when signed by you, shall form the agreement between you and us for the mutual benefit of you, us and the Artist, to photograph the above-mentioned artist (“the Artist”) on the terms below mentioned.

1. In consideration of the payment by us to you of the sum of £1 (one pound) (the receipt and sufficiency of which you hereby acknowledge) and in consideration of us allowing you access to the Artist only for the purposes of taking a photograph or photographs of the Artist at the Venue on the Date of Photography (“the Photographs”) you warrant represent and undertake:

1.1 that the Photographs will be reproduced only in the ……………………………… issue of the Authorised Publication / Website;

1.2 that you will not allow any person, firm or company to reproduce the Photographs assign or license the intellectual property rights and any other rights, save as is prescribed in paragraph 1, above without our prior written consent.

1.3 that save for the permitted exploitation referred to in clause 1.1 above you will not exploit the Photographs in any manner without our prior written approval;

1.4 that you have or will bind the proprietors of Authorised Publication / Website and their agents to the terms of paragraph 1.2
above in writing;

1.5 that following our request you shall provide us with 1 (one) copy of each of the Photographs in such format as we shall request.

2. You hereby agree that as between you and us and the Artist you hereby seek not to enforce any of your moral rights as author of the Photographs within the meaning of Chapter IV Copyright Designs and Patents Act 1988. Notwithstanding the foregoing we hereby agree to use our reasonable endeavours to procure that you are credited as the creator of the Photograph(s) provided always that our
failure to do so shall not constitute a breach of this Agreement.

3. You grant to us the exclusive right to exploit the Photographs in any manner without any payment to you.

4. You agree to indemnify and hold us and the Artist and his/her agents harmless from and against all actions, claims, demands and costs suffered or incurred by them as a result of a breach by you of any term of this release form.

5. This Agreement shall be subject to the laws of England and the parties hereto submit to the exclusive jurisdiction of the English courts.

Comments

[gaius-octavian.livejournal.com]

I like 1.5, as it could easily cost you way more than a squid to do.

[kneeshooter]

The way I'm thinking at the moment I'm going to give them the finger. After all, I can't speak for the BBC, I will want to use photos on my portfolio site and I'm not fussed about seeing the band otherwise.

[gaius-octavian.livejournal.com]

Given that I haven't actually heard of this band, they're not big enough even within the tiny goth scene to warrant such a pretentious release...

[toxicpixie.livejournal.com]

FaF are not goth, they're an indie-emo mob. Finest hour is the Burnout soundtrack.

Think generic current not particularly lame but not much good guitar and whining chart style music.

And that waiver looks for to dubious for words!

Nathan, the Toxic Pixie

[rjstra.livejournal.com]

I've seen them before. Not intentionally mind you. They supported Iron Maiden a couple of years back. Not very good.

[toxicpixie.livejournal.com]

Hey, the kids dig them ;)

Not very good, but not objectionable would be my vote.

Nathan, the Toxic Pixie

[kneeshooter]

If I hadn't just cancelled the pass - you could have gone and reviewed it! Do let me know any stuff you want to cover that comes up.

[toxicpixie.livejournal.com]

I think saying want to cover is a bit of a stretch!

The Zodiac Mindwarp gig is about all that springs up atm, tbh. Well, that and the Family Mahone at the Rock Cafe :)

Nathan, the Toxic Pixie

[kneeshooter]

I might be able to get you into ZM. I can't make it myself but I know a man... Shall I enquire?

I might be up for the Family Mahone, sounds like it might be fun.

[toxicpixie.livejournal.com]

I'd be grateful on the mighty 'Zode, yes!

I've seen the Family Mahone before, and they are excellent - really good fun live, so if you fancy it...

Nathan, the Toxic Pixie

[jasontheknight.livejournal.com]

1.5 that following our request you shall provide us with 1 (one) copy of each of the Photographs in such format as we shall request.

I bet they ask for them in some arcane format ;)

[kneeshooter]

It's just the usual "If we like what you do then we'll have it for ourselves thanks very much".

Even Infest has some kind of release, but it's not this restrictive. The Prodigy had something a bit similar for controlling exposure, but didn't have the "we can have your stuff and use it ourselves" clause.

[curlwomble.livejournal.com]

They're buying unrestricted exclusive (except for one website/issue) use of the photographs off you for a pound. You get "credit", but no further payment. Looks enforceable if you sign it and they give you the nugget. Is that unusual?

[kneeshooter]

It's a particularly restrictive one. I wonder what would happen if they don't give the £1. Can they at a future date if they decide they want to keep to the contract?

[curlwomble.livejournal.com]

"...the payment by us to you of the sum of £1 (one pound) (the receipt ...of which you hereby acknowledge..."

Make sure they do give you the pound before you sign... :-) I think you're right to tell them to stuff it, or at least require that they cover your material costs in providing the photos.

[sapphrine.livejournal.com]

'Notwithstanding the foregoing we hereby
agree to use our reasonable endeavours to procure that you are credited as the creator of the Photograph(s) provided always that our
failure to do so shall not constitute a breach of this Agreement.'

i like the way they can simply not bother crediting you and it doesn't really matter.

[davefish.livejournal.com]

Certainly the word "Exploit" in clause 3 is correct.

[kneeshooter]

You know - I think you might be onto something there...

[load-of-flannel.livejournal.com]

That looks fairly standard...

It's legal

They have to give you a pound before you sign. I would insist that as they are essentially buying your rights here they will be paying expenses for the film and the photograph printing.

Oh look and they get to use your photos for anything without checking. Personally I'd sat NO to them unless yo need a portfolio filler. I would also suggest that the reason for you saying no is that you are not in the business of suipplting people with freee promotional materials.

On the other hand you can say you have been paid (comissioned) by the company if you do do it.

[kneeshooter]

But it's not even a portfolio filler is it? I can't actually use shots for my portfolio (which is on the web as well as in print) without specific written permission.

[load-of-flannel.livejournal.com]

I presumed that was what the blank was for... on the other hand I would be sorely tempted to fill in the blank with the words "any purpose I might choose" and sign it and send it back. If they are deeply dim they may not read it.

[kneeshooter]

And yes - some of it is "standard" but the granting them rights is not something I've signed away on any other release.

[load-of-flannel.livejournal.com]

Ye be lucky then...

[frozen-wishes.livejournal.com]

So... they get exclusive use of your photos, prints on demand (presumably at your expense) and they can get away with not crediting you. You get £1.

Do many photographers actually agree to this???

[kneeshooter]

I'm not really sure. I've raised it on a photographers forum and very few seem predisposed to do it - unless it's on a "paid job" which in this case it isn't.

Does seem a little one-sided doesn't it :-)

[frozen-wishes.livejournal.com]

I suppose that you'll get publicity (that's if they remember to credit you of course).

[november-girl.livejournal.com]

Renegotiate it or substitute your own terms.

[kneeshooter]

What do you mean? Scrub it out and send it in with different terms on it? One story I got of a photographers site was this:

"this is just like the Queen release. When I signed it (yes, don't shoot me), I asterisked the £1 bit. On the back, at the bottom in small handwriting I put '* £1 not received by xxxxx' and signed it. This was sent back to Queen's solicitor, let alone the record co. and actually had cr4p in it about handing over my negatives, which even the PR guy agreed was stupid.

Anyway, to this day I have never received my £1, and if I received a cheque I'd not cash it nor acknowledge its receipt (that's the legal bit). I've never been chased by anyone for anything and frankly never expect to. If they can't prove you've got your £1, then the contract isn't worth the paper its on and that's legal fact. "

Becuase, let's face it, they're not going to be handing £1 coins or cheques out.

[november-girl.livejournal.com]

Either write back to them saying that you require amendments and stating what they are, or amend the form itself (and initial the amendments). At worst it'll meant that the terms of the contract aren't enforceable because there was no agreement between you on them.

[kneeshooter]

Got it - so effectively by "opening negotiations" you start a process. So it is better to do that than "ignore it and implicitly accept"?

[november-girl.livejournal.com]

That depends on whether you want to accept!

[kneeshooter]

It's pretty academic now anyway as I'm not going to go; but in that situation I wouldn't ~want~ to accept... Not sure anyone would! :-)

[prosperine.livejournal.com]

had a quick fiddle on ef& p and pratcial commercial precedents and cant find a lot of the above anywhere... dont sign it - then your not bound. frankly moral rights arent worth crap - but you know this anyway. I wouldnt sign it.

[november-girl.livejournal.com]

dont sign it - then your not bound

Not necessarily true - the court could find that you accepted by conduct i.e. taking the pictures. It'd be arguable as to whether that included the terms and conditions that they put on the paper, but generally speaking if there are terms and conditions and you are aware of their existence their offer of contract will include those terms and conditions, and any acceptance by conduct will be taken as acceptance of those terms and conditions. Non-incorpation of the terms is one of those arguments that's enough of a runner to be worth litigating if it comes to it, but generally one that gets settled because there's a high risk that the judge will find in favour of incorporation if it goes to trial.

[blackvelvetmag.livejournal.com]

I don't think you should actually print their contract here, for starters.

Some other bands have had press release forms. I know FFAF also did it on their NME Tour the other year. I can't remember if it said the same thing about £1 - but really, what's a £1? They liked my photo of Ryan Richards and asked if they could use that to go in another magazine and then they used it on their DVD sleeve and I got credited. I'm happy if they like my work and want to use it.

[kneeshooter]

There's nothing confidential about a contract like this in my opinion - it's not commercially sensitive and is the type of thing that is regularly discussed. Unless I'm missing a reason? I took care to take off all the address information (which is equally public domain) and the phone numbers (which I wouldn't want to publish). Happy to take opinions though...

I know where you're coming from in the second half of your post. The difference between this and the example you give is that they "asked". Under the terms of this contract you have to give them your material. You effectively lose any control or choice in the matter. You can't use it for your own portfolio. If they want to make it into a poster and it sells thousands they do not even have to credit you.

It is flattering to be asked and pretty much every band that has asked me for stuff I send without a second thought - but this is plain rude. It's not even good business - after all they make unreasonable demands - and don't get coverage. Their choice.

Photographers, like all artists, should in my opinion have a right to have some control over their work and not be strong-armed into giving up that control.

Just to caveat - I think my stuff is good, but I know it's nothing special. I can't imagine they would want to use my stuff but there is a principle.

I've signed, as you have, releases in the past - but none of them have asked for the same conditions as this one. In fact, I've shot Sanctuary artists before without similar problems.

[blackvelvetmag.livejournal.com]

Hm, ok. Well I just personally wouldn't print a full contract out for others to read when it's between you and someone else.

Do you definitely have to send them all photos regardless of whether they ask for them or not? I was under the impression that 1.5 meant that if they request pix then you'd send them to them. Although I think last time I emailed them the 20 photos I had used on my page, for them to see and check they were ok with those being on the site, and that was all. I didn't send them every photo I'd taken and I wasn't asked to send more.

[kneeshooter]

First point taken.

You're reading all I've been sent. They do have to "ask" for them; and of course they probably never would. But, as has been pointed out above, they might ask for them as "A4 prints" or something equally silly that is actually within the terms of the contract.

It's really 2 and 3 that annoy me the most though. Sending jpegs by email is hardly a chore and I would have done anyway.

I would hate that this kind of contract become normal though - that thought terrifies me. Of course each photographer is happy to work under whatever conditions they wish - and many will no doubt be happy with this.

[davefish.livejournal.com]

but really, what's a £1?

Some might say that its a rather low rate for several hours work from a pro or semi-pro photographer, who is then giving over all rights to the work that he has just carried out.

[blackvelvetmag.livejournal.com]

But if you don't want to do it for nothing then you just don't. Simple as. If you're into being paid a decent wage for photos then just go to a different gig where you'll be paid. If you do get paid a wage for the photos then this won't come into it as you'll be being paid by who you're taking the photos for anyway. Giving the photos over to a band's management once in a blue moon is not really going to make much difference, I don't think. If you're a pro photographer then surely one gig - that you were only considering anyway - is not going to really make much difference.

[kneeshooter]

I'll let Dave come back if he wants - and yes - you're right. In this case the decision was made for me. The contract needed to be signed by the publication, not by me, and they declined to do so because of the content.

We've got slightly different attitudes still - and yours is probably more sensible - over giving photos to management - you're happy to; I'm happy to when I have a choice. But I often get stuck on points of principle. It's a defining characteristic.

You're in a special situation in some ways too - your fine magazine is your portfolio; my portfolio and any publications are separate.

[blackvelvetmag.livejournal.com]

Oh well that's a bummer that you didn't end up going. Didn't realise you wouldn't have the choice yourself and the publication would have to sign. There were quite a lot of us in the photopit. I didn't count but I'd say at least 8. I can see your point about your portfolio being separate. I guess you don't get to show off too much of your work when working for someone else, so that's where your own site comes in handy.

[kneeshooter]

C'est la vie. Glad to read it sounded like fun anyway.

I wasn't terribly worried as it gave me a chance to play catch-up and I wasn't especially worried about seeing the bands.

Look forward to seeing your pics, as ever!

[davefish.livejournal.com]

I've done plenty of shots essentially for free. Giving stuff over to people. Giving stuff over to some big buisness however, I don't think much of that as a plan.

If I was a taxi driver and took some people to a party, and then I am not likely to take some people coming out of the party home for free (It might not be that far out of my way even)

What if I am being paid, and just like the reply below I lose that evenings pay because my publisher doesn't like those conditions (Which I wouldn't be suprised at.)

As for that pound for sending them images, if you look at the National Union of Journalists recommended digital fees, that should be more like 20 quid for up to 10 images.

Contracts such as those, if they do become commonplace, will be massively bad news for professional photographers, and the only way to stop that would be to say no.

[sixtine.livejournal.com]

Blimey. Too many responses to read.

The exchange of money is what makes it a contract. I pay you money, you give me services/stuff. It's just like any other binding contract. The amount of money is irrelevant; it's just what binds it. If you ignore it and don't sign it you may still be bound by it by implicit acceptance if you take photos. I'd send it back with my own amendments and point out clearly where amendments to the suggested terms have been made. If you want to photograph 'The Artist' then it would seem you need to start negotiating.

[sixtine.livejournal.com]

and now I see it was yesterday anyway. Sighs.