June 29, 2015

Daniel Foster

5 Terrible Photography Contract Terms to Avoid

Our team has seen a number of bad photography contracts over the years. From our experience, it's always best to read the terms of any photography contract carefully and when possible, supply your own contract.Here are a few examples of some of the worst contract terms we've encountered, and what to do if you encounter them (whilst not getting screwed over the in the process):

1. Transfer of copyright

Example: "The undersigned parties hereby agree that all rights, copyrights, titles and interest in any photographs taken by Photographer for the Company belong solely and exclusively to Company free from any claims whatsoever by the Photographer."

Why it's bad: There is almost never a valid reason to give up your copyright. There are some bad photography contracts that force an artist to give up all their rights, even for the photos not selected or published by the company.What to suggest instead: In this situation, the hiring company simply wanted to ensure an easy transfer of assets should it be sold in the future. An exclusive license would more than suffice for this purpose.Make sure you keep the right to use the photos in portfolios and for your own promotional work. The exclusive license should preferably only cover photos selected by the company, and should not grant a license to other entities or the right to sublicense.

2. Aggregated licensing

Example (from the Getty Contributor Agreement): "Getty Images may offer license models and price agreements that will make Content available for use by Clients on a high-volume or other aggregated basis... the amount due to you will be determined, in Getty Images’ sole discretion..."

Why it's bad: This clause is common in stock photo agreements and bad photography contracts. It gives the agency carte-blanche to circulate your work all over the Internet -- at rates that would make Taylor Swift embrace Spotify! Many Pixsy members have been surprised to see their work sold on T-shirts or posted on large content sites with no prior notification or royalty reporting. In these situations, it was always the result of a stock photo agency entering into an aggregated licensing agreement that did not put the photographer's interests first.What to suggest instead: Photographers have no room to negotiate with big agencies in these situations. We recommend reading stock photo agreements carefully and only uploading your least valuable work if you have to accept terms like the above.

3. A requirement to hand over RAW files

Example: "Photographer agrees to deliver all negatives, RAW images, and edited images."

Why it's bad: This clause is a sign of trouble. Just as an architect would not unveil a half-finished work, you should not ruin the integrity of your art by handing over the files straight from your camera. Clients may not understand that many of these files are rejects or that some level of post-processing is almost necessary. Even worse, they might try to do the post-processing themselves!What to suggest instead: Bad photography contracts won't specify the number of edited photos to be delivered. Never deliver high-resolution images prior to payment.

4. Waiving moral rights without compensation

Example (from Bigstock): "You expressly waive any artists' authorship rights or any droit moral that Contributors would otherwise have under the laws of the State of New York, United States Copyright Act or similar laws of any jurisdiction."

Why it's bad: Nearly every country of the world has some sort of moral rights protection. Generally, an artist should be credited for their work. This is often not attractive when the work is used for commercial purposes or advertising, however.What to suggest instead: Your credit line should be included with every publication of your work. Savvy photographers can also request a link back to their site. If credit is not possible, you should request additional compensation-- at least 25- 100% of the standard license fee.

5. Unclearly defined use

Example: "Photographer shall be permitted to photograph the event and Company shall be granted limited rights to the use of all photographs taken at the event for online or offline use."

Why it's bad: The above clause does not clearly define the scope of use and could lead to misunderstandings down the road. We've run into a number of situations where clients incorrectly believed they had the right to distribute an image to other websites, for example.What to suggest instead: Be as precise as possible when defining use. For example, does advertising and promotional use include publications on third-party websites if the purpose is to advertise the client? Always define a time, place, and scope of use. For print use, limit the number of times an image may be reproduced. Instead of saying, "Use for marketing purposes online," for instance, say, "Use by Company on its website at https://www.company.com and associated social media profiles."

Other points to watch out for in photography contracts

-- Think twice before entering a free photo contest, especially when sponsored by a major company. You may very well give up the rights to your work.-- Don't agree to unrestricted use unless the client pays for it.-- Always make agreements in writing. Never rely on verbal agreements. Even a quick email with a statement of understanding summarizing verbal negotiations is enough.-- If you have any doubts, walk away. Clients who try to screw you over will just cause more trouble later. Bad photography contracts aren't worth your time.-- Never be afraid to charge more.

Daniel Foster

As the entrepreneur and professional photographer who founded Pixsy in 2014. Daniel is an expert on topics relating to intellectual property and copyright law. Daniel is proud to have helped so many creatives in the fight against image theft.

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