I recently worked on a Contract Review with a photographer who had a conflict with a client. The photographer was commissioned by a production company to create publicity stills of a documentary film for a television network. The price quote the photographer sent the production company specified that the photographer would deliver up to 30 images with a “full buyout.”
Once the production had wrapped, however, and the photographer invoiced the job, it became clear that both parties had a different understanding of the term. The photographer thought that a buyout meant that they would retain copyright of the images, whereas the production company thought that buyout meant that they would own the copyright. The photographer came to me to see if I could help resolve the misunderstanding and clarify the image licensing language.
An assignment contract should address the concerns of both the photographer and the client. At a minimum, it should include the following:
Our Contract Review service helps photographers fine-tune a contract they’ve written, or understand a contract that someone else has written. Ideally, a photographer will bring us in before they’ve signed on the dotted line. However, it’s not uncommon for us to help photographers understand a contract they’ve signed once a problem arises. We also coach photographers on how to negotiate with their client, or like in this situation, we can talk directly to the client.
Contracts can be challenging for photographers at all levels of experience, but it’s a simple fact that all independent freelance photographers must learn how to read, write, and negotiate contracts if they’re going to survive in this business. On any given project, a photographer may need to negotiate contracts with multiple vendors, a creative agency, and/or the client. As they say, the devil is in the details, so it’s important to learn how to use words to convey a complete, clear, and precise meaning.
Any time you use terminology that isn’t universally understood, it’s important to define those terms to minimize any potential misunderstanding. A contract will have plain English terms, like “perpetual” or “North America,” that won’t require any further explanation. However, contracts often utilize technical terminology because these terms mean something very specific. For example, the terms “collateral,” “advertising,” and “out-of-home” are useful and commonly used for image licensing agreements. However, because their definition isn’t universally understood, they should be defined in the Terms & Conditions section of your estimate.
In this case, the client was left to interpret the term ‘Full Buyout’ because it wasn’t defined in the initial contract. As a term, ‘buyout’ is particularly problematic because, even though we hear people use it all the time, its actual meaning is vague. It’s like saying that you’re giving the client a lot of rights, without specifying exactly which rights you’re conveying. It would be better to write out a sentence that covers all the components of an image license. Something like this:
Upon payment in full, the Creator grants to the Client: perpetual, exclusive, worldwide, publicity, collateral, and advertising use of up to 30 images.
To understand the whole situation, I reviewed all the email correspondence between the photographer and the production company, the program deliverables document describing the images the client needed, the original cost estimate, and the invoice. I couldn’t find anything in that correspondence showing that the client asked for Work For Hire (WFH), nor the photographer promising it. So even though the photographer could have been more clear in their contract, it was also evident that they hadn’t agreed to WFH. Through a series of detailed emails, I explained these points to our contact at the production company, who was, at this point, taking counsel from their legal team.
Sometimes people use the terms Work for Hire (or work made for hire) and Transfer of Copyright interchangeably. Effectively, it might seem like they mean the same thing, but legally speaking there is a crucial difference. If, before the shoot, the photographer agrees to ‘Work for Hire’ in their contract, then the client owns the images outright. On the other hand, once an image has been created, the term ‘Transfer of Copyright’ is used to relinquish ownership to the client. In the absence of an explicit WFH agreement, the photographer and client needed to agree on a ‘Transfer of Copyright’ to resolve their conflict.
In my correspondence with the production team, I apologized for the confusion, but explained that copyright law states that unless a photographer agrees to a ‘Work Made For Hire,’ in advance of the shoot, the photographer owns the copyright. None the less, I said that the photographer was agreeable to the usage rights specified in their Program Deliverables document. In the end, clarifying WFH and assuring their usage rights was enough to satisfy the client.
Once we clarified these terms, we then needed to update licensing and usage rights. The initial contract didn’t make clear who was getting rights to the images, nor the extent of the license. In cases like this, where a creative agency hires a photographer on behalf of an end client, the agency may want to use the images in their portfolio. Contracts with this structure, however, should convey the main reproduction rights for the images to the end client rather than the agency.
I worked with the photographer to revise the invoice, clarifying that “Full Buyout,” meant “Perpetual Worldwide Unlimited use of up to 30 selected images,” for the end-client. This meant they could use the images in any media, for any purpose, forever, but the photographer would retain the copyright. At the production company’s request, I also included a separate and more limited license. This permitted collateral and publicity use, but no advertising use for their own promotional efforts.
In the end, the photographer sent out a revised invoice and retained their copyright, the client and the agency got the licensing they needed, the photographer got paid, and in spite of the curfuffle, the relationship appears to remain intact. The photographer was grateful for my help and said that the experience was a valuable learning opportunity that prepared them for future contract negotiations with greater confidence. Learning how to “talk pretty” takes time and effort upfront, but it pays dividends in the long run.
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Further Reading
Case Studies: Pricing & Negotiating
Expert Advice: Terms & Conditions
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