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Archive 2015 · Intillectual Rights - Contract query

  
 
leethecam
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p.1 #1 · p.1 #1 · Intillectual Rights - Contract query


I've been asked to sign a contract by a magazine company.

Apart from the usual "we own the rights" annoyances (there'd be nothing worth arguing about), there is one line that causes me a little concern.

Essentially is says I indemnify the publisher against any infringement or alleged infringement of any Intellectual Property Rights caused by the use of supply of goods (ie my pictures).

This sounds like I am held responsible in the event that a logo / trademark is in the image (maybe someone is wearing a Nike logo'd shirt) then I am responsible for any costs / legal action if the IPR owner takes issue.

So my question is - am I reading this right, or am I worrying about nothing?

Obviously I'm not going to be photographing anyone holding a Coke bottle to their face wearing a T-shirt with "sugary drinks companies are evil..." but the fact that I am relinquishing control over the images does make me think.

Of course I can get advice from a lawyer, but they seem to want too many £££ to answer this simple question - so I'm coming here first for words of wisdom.



Jun 30, 2015 at 09:22 AM
Z_man
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p.1 #2 · p.1 #2 · Intillectual Rights - Contract query


If the publisher gets sued for infringement, you pay whatever damages the publisher is hit for. Pretty tough clause for the photographer.


Jun 30, 2015 at 07:40 PM
sjms
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p.1 #3 · p.1 #3 · Intillectual Rights - Contract query


or you could go to the library and look it up too.


Jun 30, 2015 at 10:15 PM
mdude85
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p.1 #4 · p.1 #4 · Intillectual Rights - Contract query


You are more or less reading it right. This is a standard clause in most contracts...


Jul 02, 2015 at 07:05 AM
martines34
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p.1 #5 · p.1 #5 · Intillectual Rights - Contract query


This organization has some wonderful books that will be of help to you:

American Society of Media Photographers
www.asmp.org

About ASMP:

The American Society of Media Photographers is the premier trade association for the world’s most respected photographers. ASMP is the leader in promoting photographs’ rights, providing education in better business practices, producing business publications for photographers and helping to connect purchases with professional photographers. For more information, visit www.asmp.org

About CCC:

Representing copyright holders from nearly every country in the world, CCC is a global rights broker for millions of the world’s most sought after materials, including in- and out-of-print books, journals, newspapers, magazines, images, blogs and ebooks. For more information, visit www.copyright.com.

Also:

Copyright at the Digital Media Licensing Association (DMLA)

Here is an excerpt from one of their documents on registration, also linked underneath:

"Registration is not required for copyright protection, but is a prerequisite before United States authors can bring an action for infringement in federal court. While foreign authors may bring an action in federal court without securing a registration certificate, registration of the work before an infringement occurs will affect the type of damages available to the author.

If registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages or profits will be available to the copyright owner. When the infringement is a use of an unregistered photographed, the measurement of actual damages is a license fee or a multiple thereof."

From this document:
http://www.pacaoffice.org/registerImage.shtml



Jul 02, 2015 at 07:12 AM
leethecam
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p.1 #6 · p.1 #6 · Intillectual Rights - Contract query


To be honest, in 20 years I've never seen a clause that dumps editorial responsibility on me whilst also taking editorial control away from me.

I could be asked to take images of equipment or in locations that I have no control over, shooting specific subjects according to clients' wishes without recourse to call the office if I have a concern.

And then after all that I have to assume any permissions we have to feature subjects photographed will not break any IPR agreements or restrictions, even though I have no control over how the images are used or whether they'll be sold to unrelated 3rd parties...

And with all that - if there is an issue with IPR which editorial could have picked up on, I am still responsible for any problems... mmm, no thanks.

I've suggested a simple amendment which still protects them in all areas of their operation but requires they take responsibility for content and it's use on transfer of rights. So far no answer from the head of creative, (although the team's 1st response was no), so we'll see how it goes.

The contract is clearly a cut-and-paste job, and I doubt if anyone knows what it actually says. I was tempted to scan, photoshop and tweak the contract before signing it. I doubt anyone would have noticed or understood any differences.

I'm guessing any photographers who have signed the agreement haven't actually read it - let's face it, how many of us read the pages and pages of small print when work is offered.

Hopefully I won't have to turn this one down.



Jul 02, 2015 at 11:24 AM
Littleguy
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p.1 #7 · p.1 #7 · Intillectual Rights - Contract query


The origins of this clause was to protect the publisher against someone else coming out of the woodwork and claiming ownership of the image. In the digital age - its not hard for someone to copy and paste an image and sell it as their own.

Of course, the way its worded brings in a whole bunch of other possible lawsuits that can happen.

I usually reword it to offer protection against claims of copyright violations for the image in question as I know I own the copyrights of my images and haven't sold them to anyone else. Any other types of IP violations - I cannot be held responsible for.



Jul 02, 2015 at 12:28 PM
leethecam
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p.1 #8 · p.1 #8 · Intillectual Rights - Contract query


Yes I'm aiming to rewrite it to a similar effect.

"Indemnification to The Company against infringement or alleged infringement pf IPR would not apply to visual content in supplied images or Goods originated by the Seller."

This would cover my client and assure them my images were genuine and not copied.

Let's see how it goes.



Jul 02, 2015 at 03:31 PM





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