Being specific- and the definition of “public relations use”

9 11 2009

I don’t know if I have mentioned it before, but a contract can’t conceivably have all of the possible terms available in the universe (although some try). So if a term is missing from a contract, or if it is ambiguous, the court will try to fill in the blanks. In other words, the court will interpret any part of your contract that is unclear. For that reason, you should be clear about the important parts- like usage.

In my research, I came upon a  case which is a good example of how clear usage terms can make all the difference in a lawsuit. The case is Steve Altman Photography v. United States, 18 Cl. Ct. 267 (Cl. Ct. 1989)

Basically what happened was that the photographer and his client, a government agency, had an ongoing relationship and a subsequent dispute over a couple of different uses. Two parts of the case interested me. The photographer claimed that the agency violated his copyright twice, once by releasing an image to a magazine and again by using a (separate) photo in an annual report. Both allegations combine to make a good lesson.

“PR Use” and Release to a Magazine

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I simply hate pages with lots of text and no photos. So here. Enjoy. © 2008 Alicia Wagner Calzada

For the first allegation, the photographer had granted “public relations use” for an assignment. The agency gave a copy of a photo from the assignment to a magazine. Was the copyright violated?

First, the court, without more specific indications of the intentions of the parties (at the time of the contract), interpreted “public relations” based on the dictionary definition:

“”Public relations” refers to the “business of inducing the public to have understanding for and goodwill toward an . . . . institution.” Webster’s New Collegiate Dictionary, 932 (1975).” Id.

Second, because the photographer came up with the terms, the court construed the contract most favorably to the other party- basically, as the person drafting the terms, you have a responsibility to be clear, and you don’t get to benefit from being vague. Thus the court found that releasing the photos to the magazine fell under “public relations” use.

More Specific Usage Terms– “1982 annual report”

In the same case the same photographer had also licensed some photos for an annual report, specifically “to be used in 1982 annual report and for P.R. release.

Because these terms were more specific, when the agency use the images in the annual report for a different year (1983), the court ruled that there was a copyright infringement.

So you see how being specific made all of the difference. Imagine if the client had used one of the photos from the first instance in an annual report. The court could have used the second contract as proof that annual report use was not included in public relations use. Or it could have decided that the absence of a specific limitation meant that there was no limitation.

Moral of the story, be specific, lest someone else is left to read your mind. After all, if you end up having a judge interpret your contract, you have lost the client.

If you use a general license, list the possible uses. If you need help filling in the blanks, a great resource is PLUS (Picture Licensing Universal System). They have an awesome feature called the “License Generator” which you can use to fill in the usage section of your contract. Try It!

Happy Shooting.

-A

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Wedding photography disaster- protect yourself

6 10 2009

This story about a wedding photographer in England who was sued for providing “shoddy” photography holds a few lessons, for both photographers and brides to be. For brides, do your homework and get a decent, and professional photographer. These photos, and the video as well, make me wonder if the couple looked at any examples of the photographer’s work before they hired him. Was this just a bad day? I can’t imagine.

For photographers, the lesson is that an important element of your contract is a determination of what happens if something goes wrong.  Disasters happen. Car accidents and family emergencies happen. Even good equipment, on rare occasion, fails. My contract, regardless of the client, has a limitation of liability that says if something does go wrong, my liability is only the amount paid to me. I guarantee my work, but I am not willing to foot the bill for a second wedding if someone doesn’t like my style. To have such a guarantee would force me to raise my prices significantly.

This is important, not because I expect my client to be unhappy- on the contrary, I have very happy clients. But photography is subjective. For example, the judge in the above article found that the photography was bad based in part on the fact that some heads were cut off, and some horizons were crooked. Some photos were out of focus. From a stylistic perspective, you might have award-winning images with heads cut off, crooked horizons and soft focus.

This brings up another point. I don’t know whether the photographer in the above case gave all his images to the bride, or only a selection, but as a rule, I ALWAYS provided only an edited selection. I learned the hard way to never provide my entire take to someone who is not a photography professional. Doing so is an invitation to be judged by your outtakes, which by definition, stink.

You could certainly take my worst outtakes from any event I have photographed, haul me before a judge, and get a judgment that I am a bad photographer. But that will never happen, because my job is not to make every frame I shoot perfect. My job is to to provide a selection of wonderful, unique images. That is what the client wants, and that is what the client gets.





Magazines on Google

8 02 2009

“A Photo Editor” blogger Rob Haggart reports that Rodale, which is a magazine publisher,  is publishing back issues of the magazine on Google. They are available through Google Book Search. Here is a post about it on Google as well.

Haggart brings up the amusing point of what to do with magazines that basically write the same articles every month.

But he also brings up the question of whether the magazine is violating copyright a/la New York Times v. Tasini, which ruled that publishers did not have a right to relicense content to database without the contributor’s consent. (If in fact this is an arrangement between the publishers and google, and not an independent act by google)

googlemags

Google Book search- includes magazines now

My opinion (as a student of the law, not as a judge or lawyer) is that this is permissible, based on the Tasini opinion, which by coincidence, we read last week in my copyright course.

The big difference between Google magazines and Tasini is that Tasini involved a large database where the articles could appear along with completely unrelated articles or alone. They didn’t appear in context, and so they didn’t qualify as permissible revisions.

In the current situation, the articles and photographs appear in context and I think they would be considered permissible revisions. Which is not to say that Google can post them without the magazine’s consent, but only that the magazines can authorize Google to post them without the photographer’s consent.

From Tasini:

“A newspaper or magazine publisher is thus privileged to reproduce or distribute an article contributed by a freelance author, absent a contract otherwise providing, only “as part of” any (or all) of three categories of collective works:

(a) “that collective work” to which the author contributed her work,

(b) “any revision of that collective work,” or

(c) “any later collective work in the same series.”

In accord with Congress’ prescription, a “publishing company could reprint a contribution from one issue in a later issue of its magazine, and could reprint an article from a 1980 edition of an encyclopedia in a 1990 revision of it; the publisher could not revise the contribution itself or include it in a new anthology or an entirely different magazine or other collective work.” H. R. Rep. 122-123″

I think if a photographer took this case to court, it would look more like Greenberg v. National Geographic. In that case, a court ruled in favor of the publisher’s right to republish a digital “revision” of the magazine without permission of the photographer. The magazine pages on the CD ROMs in the NGS case were presented in their original context, whereas the Tasini articles in the Lexis and other databases were not. Seems like a small difference, but it makes all the difference.

A good way to distinguish the two is to think about the good old microfilm days. If it looks like microfilm (you have to look at the entire page in context) then it is more like the Greenberg case. The Google Magazine search looks more like microfilm.

Keep in mind that each case has the potential to be different based on the facts, and a contractual agreement between a magazine and a photographer may change the equation. Also, if this is not an arrangement with the publishers, but is instead google going out on it’s own, it is a different kind of trouble.

Ironically, this google magazine search could be a major blow to Lexis Nexis. Why pay LN fees to search magazines when you can do it for free on Google.

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





Bankruptcy and Copyright

30 12 2008

Seeing as how one of my clients has filed for bankruptcy, I plan to be researching the issue of bankruptcy more and more.

It is a dense issue. Here is something I have found

Although the bankrupt company’s assets can be re-distributed, intellectual property is different in that the IP rights cannot be assigned to another party unless the IP owner has consented, according to In The Red business bankruptcy blog, (to make the information in this link more understandable, replace the word licensor with photographer and licensee with client/newspaper/magazine):

Also, this discussion on Patry Copyright blog about bankruptcy and patent. (be sure to read the follow-up comments)

Definitely this is complicated. My guess is that this will develop more over the next few years.

As an aside, I think this means we need to watch out for terms in our contracts that would allow IP rights to be assigned to a third party in bankruptcy.





Deconstructing a Bad Contract

7 11 2008

After taking two semester of Contract Law in law school, I feel much more confident negotiating contracts with publishers and other clients. But perhaps you don’t have that kind of time.

Luckily for you, ASMP has a great new feature it just added. It is basically a look at a really bad contract, an explanation of what the legalese really means, and suggestions for alternatives.

toyota01_aliciacalzada

Be sure to wave your cursor over the highlighted areas, to take advantage of the pop-ups.

Some confusing terms that are explained: royalty-free, in perpetuity, sublicensable, pre-agreement, exclusivity, liability, indemnification, embargo.

This is a great educational tool for photographers. I highly recommend taking a look at it.

Learning what these clauses means helps you to recognize them and make good decisions about whether you can live with them. Furthermore, having alternative suggestions for your clients eases the negotiation process.

Just don’t get too depressed. ;o)





Contract Drafting tips

30 09 2008

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.