Wednesday, December 23, 2009

Bad Contracts are Bad Business

I started this blog to share my photography with other people, not to be political or post news about photography equipment. There are other blogs that do that better than I can. Most of my posts are simply images and maybe a few words about the people or places I shoot. Since I am a board member of ASMP-North Carolina, I do occasionally make an ASMP announcement or talk about the business of photography. This is one of these posts.

Professional photographers are often requested to sign contracts when they accept new assignments, and over the years I have seen my share, some good, and some not so good. An art director for a large US book and magazine publisher contacted me yesterday with a request to license an image he had seen on this blog for use on a book cover. He sent me a PDF of a layout with my image on it. Evidently he didn’t see my notice that no use of my images is allowed without express permission. Nonetheless, I gladly quoted him a very fair figure for very specific use and terms for the image, and he said everything sounded fine. He said he would forward a contract to me. I questioned the need for me to sign a contract, since the image was a stock image of mine, and my invoice and usage forms act as a contract by themselves. He said the publisher was required to have a contract and that their’s was very simple and would reflect my terms. I told him I would take a look at the contract and if everything were in order, I would then forward a high rez file.

Today I received the contract and it was the most heinous document I have ever seen in my 30 years of business. First of all, the contract read as if I was doing an assignment. My image is a personal image, shot on my time, and already totally my property (The shot had no people in it, so model releases were not involved.). I had offered the art director non-exclusive rights for a book cover first run plus reprints, period, with my terms being payment due upon receipt of my invoice. The contract I received required me to give the publisher exclusive world-wide rights to the image for the life of the work. Editorial use of the image was allowed in any of the publisher’s subsidiary publications for 15% of the original fee plus advertising use was allowed for 20%. They also claimed a six-month option to buy my copyright for an additional 100% of the fee and there was a clause stating that I would be required to reshoot the image if they found it inadequate (Remember, this was for a stock image I had already produced.). Payment for any invoice would be on their “normal” schedule, for which they did not define what normal is .

I immediately called the art director and told him that there is no possible way I will ever sign such a contract. He told me I could cross out any offending language, and I told him I would have to cross out the entire document. I then told him I would be happy to license the image for my original usage terms. He said he would get back to me.

The photography business is rough these days, and none of us can afford to miss a sale, least of all me. However, a bad business climate is not an excuse to give away your work through bad contracts, nor is it an excuse for publishers to try to take advantage of innocent and gullible artists. I still have hope in negotiating a sale, however, a bad deal is a bad deal, especially when it jumps up and slaps you in the face.


Angel Valentin said...

Thanks for the entry Dan. I've only been freelancing for one year and I'm already fed up with these tactics. I've turned down so many gigs due to these abusive tactics. Still trying to survive but you know it's bad when even close personal friends with pic editing jobs try to screw you with crappy deals.

Lingering Light Photography said...

Nice post. Drives you nuts doesn't it? I am dealing with the opposite problem. A University that doesn't feel that a contract is important. I have been trying to get one for over a year ( I have been shooting for them for almost 2). They can't grasp that as it stands, I am the sole copyright holder of those images...
All the best.

Anonymous said...

Again, good job of standing up to a bad contract and being a good example for all the rest of us!