Contract Drafting tips

The ABA e-newsletter has an interesting article about contract drafting. Even though as a photographer you probably aren’t drafting your own contract, you should be aware of the concepts of contract drafting and differing views on it.

The perspective of this author is a wise one. A couple of things he says that ring true to me: “much litigation has its roots in defective drafting” and, “you should use standard English.” He talks about useless phrases that are part of contract legacy, but are completely useless.

Note what he says about indemnification clauses. He writes that using the phrase, “indemnify and hold harmless” is bad drafting language because “hold harmless” is vague. A better choice of words: “indemnify against all losses and liabilities”

An important point for all photographers to remember- fancy language doesn’t make it a good contract. Clear language that can be clearly interpreted makes it a good contract. That doesn’t mean that you can’t use big words or complicated concepts, but don’t hide behind what you think is legalese and expect that will make the contract more effective.

Think about this. One of the goals of having the agreement in writing is so that the agreement is clear. Any person, confused about their responsibilities under a contract can refer to the contract and get the answer.  When a contract is not clear, the parties do not understand their responsibilities. Two people might even interpret the same phrase differently. Your worst case scenario is that a judge will have to sort out the difference in opinion.

Reminder: this should not be considered legal advice. See disclaimer.

Orphan Works Alert: If you thought the Senate was busy saving the economy….

Think again.

Yesterday the Senate passed the Shawn Bentley Orphan Works Act. In a time when our nation is in financial crisis, this bill is a threat to small business owners (photographers and artists). A similar bill was pending in the House of Representatives that had more protections for creators, but the Senate has forwarded their version to the House.

What now?

Now we have to target the House of Representatives. We don’t want the House to adopt the Senate version, and we don’t want the House to pass a version that doesn’t have better protections for photographers.

A REALLY easy way to help let your representative know how you feel about this bill is to use this automatic letter generator.

In addition, there is a letter designed for photojournalists (although it is not updated to reflect the news of today). And other letters that you can choose from, if you want to be picky.

It is really urgent for photographers to do this if we want to have an effect. A strong pro-orphan works lobby is hard at work sending faxes, phone calls and emails to their representatives. We must do the same.

Finally, keep an eye on what the House is considering by following the Daily Leader (its a long list, but you can search “orphan” within the page). If you see an orphan works bill on the calendar, call everyone you know.

I wrote an extensive article explaining Orphan Works for the August News Photographer magazine. A pdf of the article is in the previous post.

Orphan Works article

I recently wrote an article for News Photographer magazine about orphan works. I am provided a pdf of the article here for you to download if you are interested. I would love to hear comments about the issue and the article. The issue is complex, but the article tries to make it understandable for all of us because it is important for photographers to think about and keep informed about.

http://www.nppa.org/news_and_events/news/2008/09/images/orphan_works_article.pdf

New law about e-waste (okay new word too)

I am not sure I have ever heard the word “e-waste” before. It conjurs up visions in my mind of what Rosie, the robot maid on the Jetson’s might expel, or perhaps, all of the outtakes from my various photo shoots. You know, the accidental shots of the floor, that might qualify as “art” in some circles.

We all knew that when we went digital, we were improving the environment. No chemicals, no film made of gelatin (which is made from cows). But it turns out we still have an environmental challenge. When your computer becomes out of date every 3 years, what to do with the old ones?

A law went into effect today in Texas that requires computer manufacturers to accept and recycle old computers that are of their own brand. “The law requires manufacturers offering to sell new computer equipment in or into Texas to provide a program for collecting and recycling of consumers’ used computer equipment.”

A quick look to Apple shows that they will accept any brand for recycling IF you buy a new Mac. But their website doesn’t mention anything about accepting old Apples.

According to the Texas law, they will have to adapt their policy and begin accepting old Macs (in Texas).

More specifically,

• Manufacturers are only required to collect and recycle computer equipment purchased by individuals primarily for personal or home-business use.
• Manufacturers are only required to collect and recycle their own brands of computer equipment, not brands owned by other manufacturers.

Aaah, so for the lawyer in all of us, what “is” a computer?

According to the laws, it includes:

• a monitor,
• a desktop computer or laptop, and
• an accompanying keyboard and mouse made by the same manufacturer.

Noticeably absent- cameras and all the computer chips in them.

Also, don’t forget to wipe your computer clean- I mean really clean. A famous basketball player that I photographed told me a story about how he traded in his old computer, and someone called him with the news that all of his personal data was still on the used computer that they bought. Nice that they were honest. I don’t expect all people will be so lucky.

Happy Recycling.

More about the Arrests

More details about the photographers arrest, including some additional photographers who were arrested, go to the NPPA report.

RNC/ DNC arrests

It was not a good first day for journalists at the RNC, and hopefully not a taste of the week to come.

There were many arrests at the Republican National Convention during protests yesterday, but the ones that concern me are the arrests of two photographers, Matthew Rourke of the AP and another photographer, a freelancer whose arrest has not been widely reported.

Rourke has been released as has Amy Goodman, of Democracy Now who was arrested when she inquired about the arrest of two of her producers and asked to speak to a supervisor.

Here is the AP story.

These charges must be dropped, obviously. But more importantly, the police need to be more careful.

If police can’t tell the difference between a violent protester/rioter, and a journalist who is covering breaking news, they need to be re-trained. If there was violence or vandalism, those guilty of it should absolutely be arrested. But arrests of clearly identifiable journalists who are not participating in the activity, but documenting it, is unconstitutional and absurd in this country.

How clear was it that Rourke was a journalist, you might ask? Well, considering the fact that he was loaded down with camera gear, which he passed off to a colleague before he was take in, as shown here in these photos on the RCFP website I would think it would be obvious.

To be fair there was also an outrageous arrest during the DNC of an ABC reporter who was on the sidewalk in front of a hotel. He was working on a story about lobbyists and VIP donors, on a public sidewalk when a cop pushed him into traffic, then arrested him. The video is almost unbelievable.

If you are at the RNC, please see my post below about important information in case of arrest.