Case Study: Agency Contract Bait and Switch

Article by David Robin

The Summary

We've all glanced over a seemingly benign document an art buyer or client has asked us to sign as a "formality", prior to beginning a project. Let's face it, it's becoming second nature to "agree" to wordy Terms of Use Agreements without reading them (think Facebook, Instagram and Tumblr). In fact many corporations, especially in the tech industry, are inappropriately utilizing the very same language found in their public online Terms of Use Agreement, in their assignment contracts as well. This case study might get you to think twice before placing your name on the dotted line without first reading and understanding what you're being asked to agree to.

I was recently presented with an interesting situation that unfortunately seems to be getting more common as corporations attempt to usurp ever-increasing rights while paying less in licensing fees and shifting all legal risks to the photographer.

An agency's art buyer sprung a last-minute legal document on me that, if put into effect, would have undermined all previously negotiated stipulations and left me relinquishing all rights to my images without compensation. It also required me to never bring a lawsuit against the client - a Fortune 500 global corporation - for any cause including negligence, infringement or defamation.

The Details

An art buyer whose agency represents a Fortune 500 global tech corporation had approached me to shoot several environmental portraits on location throughout the country. The art buyer indicated that they needed to license the images solely for their client's website on an exclusive, unlimited basis in perpetuity.

Production costs, nominal fees and terms were agreed upon and the shoot was set to begin the following week (as the deadline was tight). All that remained was for both of us to formally execute (sign) the contract.

Later that same day, however, the art buyer sent me a form to sign (indicating it was "just a formality") entitled: "Photographer’s License, Release, and Waiver".

Upon reading the first paragraph of the document, I found language that seemed to be pulled directly from the corporation's public online Terms of Use Agreement and was inappropriate for the project I was being assigned. I was surprised to learn that their Waiver actually undermined every stipulation (pertaining to licensing and indemnification) that all parties had agreed to in prior negotiations. The document went on to supplant the agreed licensing with an 'all rights, including sub-licensing, in-perpetuity' clause as follows: "I grant to and its subsidiaries, affiliates, licensees, successors, and assigns an unrestricted, sublicensable, assignable, irrevocable, perpetual, worldwide, royalty-free license to photographs, digital images, taken by me on behalf of (the “Content”).

By signing the agreement I would be handing over all rights to my images to this global corporation allowing it to re-sell licenses for profit without any further compensation to me. More over, the Waiver would have prevented me from approving how my images could be used or altered and from seeking legal remedies against the corporation as a result of any misuse. This was clearly an inappropriate over-reach and well outside of what we had agreed to or was needed for this assignment.

In response to and in consideration for their tight deadline, I sent the art buyer my contract as we had discussed and agreed along with a list of questions regarding the Waiver I was being asked to sign. I did this with the expectation that there typically is a dialog between the photographer and art buyer, especially when the parameters of a project have changed.

Unfortunately, this time things did not go as expected. Within a couple of hours, I received a note from the art buyer indicating that she was seeking another photographer for the project, as the Waiver was "non-negotiable" and she didn't have the time nor the inclination to discuss legal matters further.

There are many take-aways from this story. It instructs us first that it's imperative to read any and all contracts you are being asked to sign. And if you don't understand something in the contract, contact an attorney (APA has a great one). Be honest, straightforward and respectful in your dealings with clients. And if you need to have something clarified or need to ask a question of the person hiring you, do so respectfully and in the spirit of ensuring everyone is on the same page and expectations are managed on all sides.

Even if you do all these things with the best intentions, however, there may be times when, for reasons unknown, there is a lack of reciprocity from the person hiring you, such as in this case study. But remember that if a relationship starts out on the wrong foot and you are not feeling right about how you are being treated, it might be time to walk away as it usually only gets worse.

Now more than ever, it is important for all of us to hold the line on ethics in our industry to ensure our livelihood into the future.

I've provided a PDF of the Waiver I was asked to sign. Please pay special attention to the highlighted language as it is appearing more and more in contracts and should raise a red flag in your negotiations.

Downloads

• Agency Release Redacted • 279 KB pdf file