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|| News Item: Posted 2000-11-21

The Fine Print: read your credentials
By Richard Curtis, USA TODAY

Photo by Robert Hanashiro

Photo by Robert Hanashiro
Photographers for years have been signing their names to releases at athletic events and accepting credentials without much thought to what the small print says. Up until recently, that hasn't been important.

Now, you better start paying attention to what you're signing. By signing your name to a seemingly harmless form that you think you've seen hundreds of times before, or sometimes even merely accepting credentials, you might be giving up certain rights that -- in the light of another day -- you would never, ever agree with.

Here's just one example:

Back in the spring, we assigned a freelance photographer to cover a motor sports event in South Florida. Luckily, he did read the small print and called us when he spied some tricky language that had not been there the previous year.

Here's what the "Release of Liability" said, in part:

"(I) hereby assume full responsibility for and risk of bodily injury, death or property damage due to the negligence or gross negligence of 'releasees' or otherwise while in or upon the restricted areas and/or while competing, officiating, observing, or working for, or for any purpose participating in the event. Each of the undersigned also expressly acknowledges that injuries received may be compounded or increased by negligent rescue operations or procedures of the 'releasees." (emphasis added)

Notice closely what that phrase says: In effect, the track can kill you (or the ambulance attendants, even while trying to save your life) and you've signed an agreement that says it's okay for them to do that. It's also a minor point that they can jerk the Nikon off your neck and slam it into the ground. You've agreed to let them do that also.

Luckily, our attorneys say that clause would never hold up in court, though they would not want to have to fight it if you signed the form. Better to cross through that clause when you sign the Release of Liability form (and initial it and then have the attendant initial it also, plus keep a copy of it for yourself). That's a bit cumbersome, even the attorneys admit, so they strongly suggest short-circuiting this sort of thing beforehand. Like most people, you've waited until the last minute to check on things such as this or else didn't give it a second thought. More on this later.

If that clause wasn't bad enough, there was this. Same sanctioning body, same event. Each photographer had to sign a "Photographer's Agreement" in which was the following clause:

"(The Photos) are the intellectual property of the (sanctioning body) and any other use other than as specified herein must be approved in advance in writing by (sanctioning body)."

The photographer, of course, refused to sign this agreement and called us. Needless to say, the phone lines started humming. We contacted the head public relations person at the sanctioning body and said we were pulling our photographer from the event and would not return until the objectionable clauses in both the Release of Liability form and the Photographer's Agreement form were removed. Luckily, they backed down claiming it was all "just a misunderstanding." But several weeks later, we ran into it again and had to go through the entire process all over.

Photo by
But these were just another in a long, long line of sanctioning bodies reaching deeper into the rights issue. Each year, sanctioning bodies (the NBA, NHL, the Olympics, Major League Baseball, NFL, etc.) are inserting these types of clauses either into the forms we sign, or print them in small type on the backs of the credentials we accept. One especially onerous trick is to print on the back of the credential that by accepting the credential the bearer agrees to these clauses, whether the photographer has signed anything to that effect or not. One major athletic sanctioning body has even floated the idea that they may begin selling credentials and still photography rights. How popular do you think that will be? (Here's food for thought: No one raises Cain when sanctioning organizations sell exclusive television rights. Why couldn't they sell still photography rights? Or a seat in the press box?)

Here are some other examples of how sanctioning organizations are changing the wording in their credentialling process:

One West Coast hockey team includes this little jewel: "(We) shall the right to purchase any photographs taken by the Bearer and published in a newspaper and news or sporting new periodical at a cost not to exceed Bearer's lab charges, if any, for reproducing such photographs to be purchased." In other words, free.

Another one, this from a major basketball organization: "any photograph taken or made by the Bearer or his or her assigning news organization shall be limited to news coverage of that Game by the assigning news organization to which this credential is issued." In other words, no reuse without the sanctioning body's permission.

Our attorneys give this advice:

-- Read everything before signing or accepting anything.
-- Once you sign an agreement, it is a contract. And regardless of the language, whether you agree with the language or not, it is most likely binding.
-- For a contract to be valid, both sides must agree to the contract. If you, as one of the parties, don't agree to all the clauses, simply don't sign it or
-- simply cross out the clauses to which you do not agree, initial them, and have the attendant initial them also. They also suggest keeping a copy of that form for your own files.
-- Better yet, they say, have your assigning editor do some groundwork before you show up. When requesting credentials, the assigning editor should make known to the sanctioning body what exactly your understanding is that you or your newspaper/magazine/etc., owns the copyright and that by accepting the credential you are not agreeing to transfer that copyright.

Keep copies of these letters also. Don't send them FedEx, or special delivery, or do anything that would call extraordinary attention to them. Just stick them in the mail. Even better would be a letter written by the chief editor or publisher to the sanctioning body outlining exactly what are your company's understanding of rights, ownership, etc., and it would be advisable to do this at the beginning of each season. (This would be classified as "we're-doing-business-as-usual.") Even better yet, get your attorneys to write the letter for your editor's signature.

Over recent months and years, we have noted that all manners of organizations are trying for these restrictions of use. Colleges, athletic conferences, the Academy Awards, and others are seeking copyright ownership and/or trying for clauses that would restrict publication of photographs only with regards to that particular event. So diligence is the key.

(Richard Curtis is the Managing Editor for Graphics and Photography at USA TODAY.)

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