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That Local Newspaper again.....was sent the 'contractual agreement'

Discussion in 'General Discussion' started by jStat, Aug 29, 2008.

  1. jStat


    Dec 11, 2007
    Janesville, WI
    Okay, guys. If you're reading this, you more than likely should know about the shenanigans a local(Well, it's in Burlington; about 20 miles away) paper has been pulling.

    Well, they had finally emailed me the paperwork that they say I have to sign before I get paid for the photo.
    I could show you the entire contract, if you wished, but I'm going to just copy and paste the portion that deals with copyrights.

    I DECLARE 'SHENANIGANS'!!(See South Park)

    I was thinking of issuing a expletive-laden email colorfully explaining why I will not sign such a document, but I thought I'd ask all you fine folks on what you think I should do.
    Now, keep in mind, they already have the picture published, and I have not signed anything that pertains to my rights to the photo. And again, they maintain that I have to sign this joke in order to get paid my $15, which sounds like an even worse deal now than it ever did.
  2. fivegrand

    fivegrand Guest

    If I were you, I would reply to their email asking for their CONTRACTOR/SUBMITTOR agreement, rather than their WMFH agreement, which they erroneously sent you.

    The next thing I would do is consult with my IP attorney.
  3. iLLMaCK

    iLLMaCK Guest

    seems like an awful lot of blah for $15
    i'd just end it all and not even reply
  4. I agree...
  5. jStat


    Dec 11, 2007
    Janesville, WI

    What's an IP attorney?

    BTW: That came from their "INDEPENDENT CONTRACTOR
  6. jStat


    Dec 11, 2007
    Janesville, WI
    I also agree. I won't reply unless pressed.

    By the way, here is the entire document, directly copied and pasted from Microsoft Word.

  7. kiwi


    Jan 1, 2008
    Auckland, NZ
    Pretty standard actually
  8. AlanG


    May 6, 2008
    Virginia, USA
    Personally, I would not sign that contract. 2 things I can think of, that you might like to try.
    1. Have your attorney draft an agreement that is acceptable to you, sign and send it to them requesting their signature.
    2. Draft a letter stating explicitly that you you do not agree with their contractual terms and consider your business relationship at an end, and that any further publication or use of that photo could result in legal action. You might want to have your attorney draft this as well.
  9. Don't sign an indemnity contract.

    When they say, "Contractor agrees to indemnify and defend the Company and its agents and employees against any such claims and against costs, loss or damage, including attorney’s fees and legal expenses, in any way connected therewith." it means you will be paying all the costs associated with any legal action connected in any way to your work not only when some sues you, but also when they sue the NEWSPAPER or any of their agents or employees.

    Chances are that will quickly eat up your fifteen dollar fee, unless attorneys work cheap in your neck of the woods.

    Are you prepared to do pay their lawyers? Goofy law suits are filed all the time, but usually they don't go after the little guy (that's you) and that's why most of us are prepared in one way or the other to deal with our modern legal system when it comes to what we do ourselves, either by buying insurance or conducting ourselves appropriately.

    However, taking on the responsibility to pay for what happens to the newspaper, is something entirely different and it's usually not in your control.

    I either line out any indemnity clauses or if absolutely necessary, rewrite them to say that I agree to pay legal costs associated with successful claims against the company in question when the harm was caused by my actions.

    If they argue, ask them if they'll indemnify and defend YOU against any claims or legal proceedings against you caused by THEIR actions. I'll bet they say no.
  10. VoidRaven


    Jul 13, 2006
    Lagrange, OH
    Wow...I wouldn't sign. I'd just let it die and never work with them again.

    "Well, that settles it! Everybody grab a broom, it's Shenanigans!"
  11. Lurker


    Jul 21, 2007
    Intellectual property.

    John Harrington would have a field day over a contract like this. Maybe they're trying to see what they can get away with? Buying the property of your pictures for $15 each seems, even for a local newspaper, awfully low.
  12. John, first off, sorry to hear about this turn of events, second first impressions are often right. This all started with a rude journalist if I remember correctly. Just walk away but get your money first without signing that agreement.

    I have to agree with this...

    Yet they want you to sign away your copyrights to them... This reminds me of the Movie "Super Trooper" ... a screen shot is in order :biggrin: I sold pictures to major newspapers and never had to even sign such an agreement or any agreement, go figure.

    Subscribe to see EXIF info for this image (if available)
  13. Did they use the image yet?

    If they already used the image and they NOW want you to sign something to get paid, I'd tell them to shove it and get an attorney.

    They should have divulged this contract before the use of your image.
  14. Baywing


    Feb 22, 2005
    CT USA
    I haven't been following along, so I'll ask. It appears that they used one (or more) of your photos for publication. Did you know about it in advance (ie, did you give them permission to use them) or did you find out about it after the fact? If the latter, I think you have very good ground to stand on. I would send them a reply that I will not be signing their agreement and had that been presented in advance, I would have denied them permission to use the photo(s). I've been in that situation before, refused to sign their agreement and told them until they came up with an agreement suitable to me, they weren't using the shots. Depends on how bad they want them. In this case, they've already used them, so it seems that you have them over a barrel.
    Even if you did agree in principle to let them use the shot(s), you can still make a case that they failed to notify you of the details and possibly mis-represented things in order to obtain the shots. I would send them a strongly worded letter pointing out their mistakes, the potential consequences (local TV might like to do a story about how a newspaper screwed a little guy) and insist on payment.
  15. kays


    Aug 9, 2008
    to the op...
    Just tell them to not publish the picture. Be businesslike. No need to flame them.

    Someone asked what an IP attorney was - Intellectual Property - music, arts, photography, copyrights, etc. There are many IP attorneys that may be well versed in music copyrighting, but know nothing about photography rights.

    Look at the site - http://www.photoattorney.com/ - one can glean a lot of information about the law, contracts and photography in general terms - and I'd highly recommend her book Photographer's Legal Guide.

    Also - for the rest of you reading - read her posts about some of the contests you may have been entering. Some contain language that will have you paying the companies legal bills and awards shoulf your photo be challenged in a lawsuit.
  16. Obviously, you are not going to sign that agreement. A local paper, that has published several of my shots, has a similar release that gives them the right to sell copies of the image and keep the entire sale price. Each time that they have wanted to use one of my photos I have ignored their release form and e-mailed them a release that simply grants a one-time publication in their paper. They have never complained.
  17. FWIW,

    I'm similar to CliffB.

    When I submit to my local paper, on the CD and in the ITPC info are a brief copyright statement: "©2008 Mark Brown. One time editorial use only, no sale or further reproduction without written permission". So far it's worked.

    As to the contract presented, you can amend it, for a contract to be binding it has to be mutually agreed to, sign it and send it back, if you understand the rest of the terms.
  18. This agreement isn't as horrible as the ones from larger publications. It doesn't steal your copyright. It doesn't claim "work made for hire". It does have some problems - indemnity, sales, reprints, etc. You are under no obligation to sign the agreement. They published your photograph. If they do not pay you, they are in violation of copyright law. They did not have a written license agreement to use your photograph. Don't accept any argument that "everyone signs this agreement".

    Send an invoice for a fair market license fee. The paltry $15 they offered is crap. Include YOUR license terms (one time, editorial, print only, North America). Specify the edition, date and story title in which your photograph appeared. Tell them if they refuse to pay your license fee, you will consult your attorney regarding next steps.

    Have you registered the image with the US Copyright office? You have 90 days from the date of publication to register it and still receive full benefits of the remedies under US Copyright law. If the image hasn't been registered, do it NOW. Don't wait.

    I agree with Cliff and Mark. You can alter the objectionable terms of their agreement. Strike sales and reprints. Specify terms of one-time, editorial, print only, North America. Modify the indemnity clause to only indemnify them in the event that you knowingly did something inappropriate. Add indemnity of yourself should they use the photograph in any way other than what was specified in the original license agreement.

    Also modify the statement about modifying the original image to only permit cropping and sizing for layout purposes. If they do further modifications, it could distort the truth in your original image. You don't want to be responsible for permitting that. They could also claim the modified version as a derivative work for which THEY own the copyright to do with what they please. Now they never have to pay you another dime if they use their modified version.

    A fellow photographer on Editorial Photographers recently posted a warning that some photo retouching services in Asia are starting to register copyrights to retouched images they produce for clients, and then market the retouched work as their own.
  19. I agree with you Cliff. I remember my dad (A professional photographer who also taught Commercial/Industrial Photography for 30 yrs) always would tell his students to only grant "One Time Use" for any photography sold to newspapaers, magazines etc.

    But as a side note....How would you know if they ever sold any of your images to anyone else unless you tested them with a mystery shopper?
  20. jStat


    Dec 11, 2007
    Janesville, WI
    Okay, here are a few details since some are not aware of them.

    1) I allowed them, verbally, over the phone, to run the photo in the issue in question. She(the Sports Editor), promised to send me some "Stringer" paperwork in an email. This was on Tuesday, Aug. 19th.

    2) The photo was run in the August 21st Edition. It is a weekly publication. I received the paperwork on Monday, Aug. 25th. A little late from the time of the photo submission, no?

    3) During the initial phone conversation, she had said something about 'pulling them(the pics I had up) "off the website"(The Blue Devils' website), but they "were too small". Not sure what she had intended to do with the other picture that had been up at the time, but I certainly have my suspicions.

    4) While the original story was published on their website, the photo has yet to appear. Perhaps this is a sign that they are not brave enough to try something that stupid unless I send in that agreement. I have also yet to hear from either her, the editor, or anyone else involved with that paper.
    I also have not seen the shot in their photo gallery(where you can order reprints).
    Good signs?
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