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|| SportsShooter.com: Member Message Board
Rights
Mike Janes, Photographer
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Attica | NY | USA | Posted: 5:11 PM on 03.26.10 |
->> OK, according to the legal department that wrote this it means means the photographer still owns the rights to the photos and can send them to other outlets - but a judge I know has said otherwise. Talk amongst yourselves..
2. Copyright Ownership. Any copyrighted works created by Contractor in connection with the Services have been specially ordered and commissioned by CLIENT as works made for hire under the U.S. copyright law. Accordingly, CLIENT will forever exclusively own throughout the world all right, title and interest in such works. If a court determines that any such works is not a work made for hire, then as of the date of this Agreement, Contractor irrevocably assigns and transfers exclusively to CLIENT outright and forever all right, title and interest in such works. |
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Matthew Ginn, Photographer
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Portland | OR | USA | Posted: 5:40 PM on 03.26.10 |
| ->> I'm no lawyer, but it looks pretty clear to me: the client owns all the rights, and therefore (absent some other agreement) the contractor owns none. |
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Mark Peters, Photographer
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Highland | IL | USA | Posted: 7:00 PM on 03.26.10 |
| ->> That is as close to plain english as I think I've seen in a contract. Is there really a question here? |
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Clark Brooks, Photo Editor, Photographer
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Urbana | IL | USA | Posted: 7:03 PM on 03.26.10 |
| ->> I'll preface this with I'm not attorney, and without seeing the rest of the agreement, I would agree with the judge. |
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Peter Wine, Photographer, Photo Editor
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Dayton | OH | USA | Posted: 7:30 PM on 03.26.10 |
->> I'd side with the judge.
It appears to me (and I'm not a lawyer, just watched a lot of Perry Mason a number of years ago) that the photographer is the contractor, and is transferring all rights to all the work, either as a work for hire or as part of the agreement, or both.
That's how I'd be billing, too... |
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Jack Howard, Photographer, Photo Editor
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Central Jersey | NJ | USA | Posted: 8:08 PM on 03.26.10 |
->> (You really hardly ever want to take the advice of the legal department representing someone you are working for, unless, by extension, that legal department is working for you. In this case, they are not. This is as clear an all-rights, work for hire with backup clause statement as you'll see short of: You take photos and then give all rights to us. Forever. All ours. Not yours. Forever and ever and ever. Get it? Got it? Good!)
(And if, by chance, they in this legal department really do think this language states what you say they say it states in terms of rights assignments, well, then, I'd ask for payment in cash, on the day of the assignment before taking a single photograph, because I cannot imagine any company working with a legal team offering this kind of misdirected advice in earnest staying in business very long.)
~~~
(To put that another way: they are either misrepresenting what the legal language says because they disrespect your intelligence and think you foolish enough to fall for it, or they truly think this is what this language states, making them unbelievably unqualified to represent anyone for so much as an overdue parking meter.) |
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Mike McLaughlin, Photographer
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Neptune City | NJ | USA | Posted: 8:26 PM on 03.26.10 |
->> Jack - Why so parenthetical today? Are you feeling closed in?
Oh, and yeah, that is insanely in the clients favor and an outright rights grab! |
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Mike Janes, Photographer
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Attica | NY | USA | Posted: 8:27 PM on 03.26.10 |
| ->> Not really much of a question, just the sure astonishment that the legal dept. is saying one thing when it clearly says the other. This business is not going going anywhere any time soon and I removed the name for a reason, kind of amazed it's written this way. I know a few members here have gotten this contract and going to guess at least one sent it in unquestioned and doesn't even realize what it says! |
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Samuel Lewis, Photographer
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Miami | FL | USA | Posted: 9:40 PM on 03.26.10 |
->> Has the "legal department" that wrote the language been willing to put into plain English what they told you the language is supposed to do?
You should consult a local attorney, since what the "legal department" is representing to you is not correct. |
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Mike Janes, Photographer
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Attica | NY | USA | Posted: 11:14 PM on 03.26.10 |
| ->> Monday it's getting brought up again but so far they have refused to re-word or change the contract and the only assurance is them saying what they've said to my knowledge. It was brought to my attention today a little closer than what I looked at it before. See where it goes, but know exactly which way it would go in court if it ever came to that, and that's not on the side of the photographer. |
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Mark Peters, Photographer
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Highland | IL | USA | Posted: 11:36 PM on 03.26.10 |
->> Mike -
The pertinent question here is what does YOUR attorney say, not theirs. |
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John Korduner, Photographer
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Baton Rouge | LA | United States | Posted: 12:29 AM on 03.27.10 |
| ->> What worries me about the clause presented is that I've seen people ask similar no-brainers after their car is repo'd or they're evicted...unfortunately, they leave out the part about how they turned the car was impounded because it was used as a mobile meth lab, or they were caught climbing through the duct work to "check on" the neighbors. |
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Mark Loundy, Photo Editor
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San Jose | CA | USA | Posted: 12:30 AM on 03.27.10 |
->> The phrase "works made for hire" has specific legal meaning. For all legal intents and purposes, the client is the author of the works and owns all rights.
--Mark |
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Mark Loundy, Photo Editor
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San Jose | CA | USA | Posted: 12:30 AM on 03.27.10 |
->> Whoever wrote that passage knew exactly what that phrase meant.
--Mark |
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Mike Janes, Photographer
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Attica | NY | USA | Posted: 1:13 AM on 03.27.10 |
->> Mark Peters - have not given it to him as I already know what he would say! I'm not the one signing this and would never sign something like it unless the price tag reflected it...which it does not come close in this case.
Mark Loundy - You're right and thinking it was backed on hoping those getting the contract don't know what it means. Like I said I know some members here got it and probably didn't read it or think twice, just signed away and sent it in not realizing what any of it meant. |
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Samuel Lewis, Photographer
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Miami | FL | USA | Posted: 9:44 AM on 03.27.10 |
->> Mike,
Forgive my sarcastic comment about having the legal department put their intent in writing. The point I was trying to make is that the language doesn't match the intent, and that obtaining their intent in writing (and in plain, simple English), it would make it easy for your lawyer to address the discrepancy.
When it comes to contracts, separate writings--even a writing from the legal department explaining the intent--can be excluded through the use of what's called an integration clause (such clauses may also appear under the heading of "Entire Agreement"). These clauses generally provide that the contract supersedes all prior writings and understandings with regard to the subject matter of the contract. Thus, even if the legal department provided you with something in writing, it would have no impact on the final agreement if the agreement includes an integration clause.
Mark,
The way the "work made for hire" language was written, it may not have the impact that you suggest unless Mike is an employee (or depending upon the type of work at issue). However, the assignment provision will accomplish what you suggest. |
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Mike Janes, Photographer
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Attica | NY | USA | Posted: 11:27 AM on 03.27.10 |
->> Samuel, you are correct and been told it has been sent in plain English but they're refusing to change the wording even though the intent and wording are completely polar opposites.
As for how it meets the criteria for independent contractors under the work for hire language, it does either way. |
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Mark Loundy, Photo Editor
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San Jose | CA | USA | Posted: 4:32 PM on 03.27.10 |
->> Samuel,
The legal phrase "work made for hire" is intended to make freelance agreements operate like conventional employment relationships. It is the essence of all rights-grabbing contracts. All of the other language is simply verbal "piling on."
The phrase is actually irrelevant in an employee relationship because the employer is already legally presumed to be the copyright owner.
--Mark |
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Samuel Lewis, Photographer
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Miami | FL | USA | Posted: 5:36 PM on 03.27.10 |
->> Mark,
For better or worse, the Copyright Act provides a definition of a "work made for hire," and defines it as either "a word prepared by an employee within the scope of his or her employment," or "a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire." See 17 U.S.C. Sec. 101.
The problem with the language prepared by the legal department is that it provides the work has been specially commissioned as a work made for hire under U.S. Copyright Law. Thus, the language begs the question of whether the work falls within the second part of the definition above. If the work doesn't, then that extra language you refer to as piling on may actually be the more critical language if the CLIENT wants to ensure that it will own the rights.
I agree with you that the phrase is irrelevant in an employer-employee relationship. |
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Robert Seale, Photographer
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Houston | TX | USA | Posted: 6:37 PM on 03.27.10 |
->> Why is this even a discussion?
Looks like pretty obvious language to me. |
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Michael Fischer, Photographer
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Spencer | Ia | USA | Posted: 11:20 PM on 03.27.10 |
| ->> As Mike and Mark have clearly written, and Robert has added the proverbial exclamation point, this is a obvious rights grab. Consult your attorney since if you're trying to win on this point, you're totally outgunned without legal representation. |
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Jack Howard, Photographer, Photo Editor
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Central Jersey | NJ | USA | Posted: 8:27 AM on 03.28.10 |
| ->> FWIW, given a "must-choose-one" situation, I'd probably rather work with a company that was up-front about a total rights grab than a company whose legal team was obfuscating and acting duplicitously, or acting downright cluelessly. |
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Mike Janes, Photographer
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Attica | NY | USA | Posted: 11:00 AM on 03.28.10 |
->> Worst part is a few members here may have returned it without realizing what it says, hopefully they see this thread and try to void it. In emails the league keeps saying the intent is to let photographers keep their rights, however, as everyone has noted this is an obvious rights grab. If it was more straight forward like Jack mentions it still wouldn't be worth it to sign it, but at least they would not be saying one thing but have a contract that says the exact opposite.
See what happens this upcoming week but this thing needs to be re-worded heavily to have it match the intentions, along with voiding any contracts that may have been sent in by those who don't know what it means and were basically lied to, even if not intentionally, by the legal team saying it meant something it didn't. |
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Clark Brooks, Photo Editor, Photographer
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Urbana | IL | USA | Posted: 11:12 AM on 03.28.10 |
->> "Why is this even a discussion?"
I agree. The paragraph is clearly conveys a rights transfer upon completion of the work. The CLIENT is not willing to negotiate the terms of the agreement nor pay a fee commensurate of the requested terms specifically as it relates to the transfer of the rights. The legal department of the CLIENT is under no duty to represent the interest of the CONTRACTOR. It is a take it or leave it opportunity. Accept the assignment, terms and payment or move on to the next opportunity. |
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Alan Look, Photographer
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Bloomington/Normal | IL | United States | Posted: 1:39 PM on 03.28.10 |
->> OK, I'll ask the question the rest of us are dying to know, What league is the perpetrator?
Certainly looks and smells like a rights grab.... |
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