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Archive 2011 · Contract from NBC question

  
 
KURTZ
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p.1 #1 · Contract from NBC question


I was contacted by a buyer for NBC for the purchase of one of my photographs.

I have the "Clearance Agreement" in front of me and am wondering if this line "The undersigned hereby grants to Blah, Blah, LLC (“Producer”) and its successors, licensees and assigns, the full and complete right to use" gives up my copyright, or am I just licensing to them for as long as they want to use it?

This photograph will be displayed on one of the sets of a prime time drama.

Please, any insight will help.

Cheers,
Johnny Kurtz

Johnnykurtz.com



Oct 25, 2011 at 05:35 PM
TJSarchett
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p.1 #2 · Contract from NBC question


If there's no clause for restrictions (time, size, number to be produced, specifics of display, etc.) then yes, you would be giving them free license to reproduce, use and even sell your image. If they want to use it in the set of a certain show, maybe you would want to restrict their use of the image for that purpose only? Or for a certain number of episodes or seasons, and then renegotiate the licensing agreement further if necessary.

What does it say after "... complete right to use"?



Oct 25, 2011 at 05:54 PM
KURTZ
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p.1 #3 · Contract from NBC question


Here is the whole contract. I read as it is for this "series" as long as it plays. They are buying a limited series print that is framed numbered and signed by me.

Thanks again,
Johnny

The undersigned hereby grants to Blah, blah, blah, LLC (“Producer”) and its successors, licensees
and assigns, the full and complete right to use:
Surfer at Golden Gate 2 (See Attached) by Johnny Kurtz (the “Licensed Material”) in and in connection with
Producer’s production currently entitled “blah, blah” (the “Production”), and in and in connection with
advertisements, promotions, publicity and other material relating to the Production.

The rights herein granted shall extend to and include Producer’s use of the Licensed Material in any and all
manner and media whatsoever, whether now known or hereafter devised, throughout the universe in perpetuity,
free and clear of any and all claims for royalties, residuals, or other compensation.

Producer shall have the sole right to determine the manner in which the Licensed Material shall be used pursuant
to this agreement, and Producer shall not be obligated to use the Licensed Material as part of the Production or
otherwise, or to broadcast or otherwise exhibit or exploit the Production.

The undersigned hereby warrants and represents that it is the sole owner or holder (or the authorized
representative of the sole owner or holder) of the rights granted herein, including, but not limited to any and all
copyrights, trademarks, and rights in the likenesses of any people (if any) depicted in the Licensed Material, that
it is authorized to enter into and execute this agreement, that nothing of value apart from the Licensed Material
was given (or was agreed to be given) to Producer or any other person or entity in exchange for use of the
Licensed Material in the Production, that the consent of no other person or entity is required to enable Producer
to use the Licensed Material as described herein, and that such use will not violate the rights of any third parties.
The parties agree to indemnify and hold free and harmless to the fullest extent permitted by law, the other party,
each of their respective parent, subsidiary, and affiliated organizations, and each of their respective agents,
employees, successors, and assigns from and against any and all claims, damages, liabilities, costs and expenses,
including but not limited to reasonable attorneys’ fees, resulting from any breach of any warranty,
representation, or agreement made herein.

This agreement and all matters or issues collateral thereto shall be governed by the internal, substantive law of
California without regard to the conflicts of law provisions thereof. In any action by the undersigned for breach
of any provision hereunder, the undersigned agrees that its exclusive remedy shall be an action at law for
damages and in no event shall the undersigned be entitled to injunctive or any other equitable relief. This
agreement contains the parties’ entire understanding relative to its subject matter. Nothing in this contract shall
limit or restrict any rights otherwise enjoyed by Producer under law or contract.



Oct 25, 2011 at 06:24 PM
wickerprints
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p.1 #4 · Contract from NBC question


It's clearly a licensing agreement, not a transfer of copyright. Thus, the terms of the agreement do not invalidate your authorship of the work nor does it restrict in any way your use of the work under consideration.

The scope of the agreement is necessarily broad, because its intended use as part of their own creative work needs to be unrestricted as part of their ability to sell and distribute their own work. For example, your photo is prominently featured in a television show. They need the right to broadcast the image, to create a digital download or DVD, and sell that content. They might want to use a still image that incidentally contains your photograph in the background for advertising purposes.

I can tell you right away that if you counter with any kind of time limitation, they will rescind the offer and look elsewhere. Don't even bother suggesting that they only hold licensing rights for a limited period of time--that would be tantamount to simply declining.

What is very unlikely to occur, though it could possibly be legally covered by the agreement, is the reproduction of your work in whole for the purpose of advertising, or the individual sale of reproductions of your work. Under the indemnification clause, you agree to be held liable for any model releases that may be required if the image is used for advertising.

If you have questions, you need to clarify the matter with one of their legal representatives, because if there is a person in the photograph whose face is visible, and you did not secure a model release from them that covers this broad license, there may be a conflict that prevents you from agreeing to the terms set forth in Paragraph 4.



Oct 25, 2011 at 06:49 PM
KURTZ
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p.1 #5 · Contract from NBC question


Wickerprints,

Thank you very much for your insightful, educated reply. I feel at ease now, and you have allayed my apprehension. Now I can move on to a nice Grüner Veltliner and prep the prints for shipping.

BTW, I was not planning an addendum to their contract, but wanted some outside clarity. Thank you, Wikerprints.

--
Tschüss,
Johnny Kurtz




Oct 25, 2011 at 07:22 PM
thedruid
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p.1 #6 · Contract from NBC question


Good to see someone getting paid!
A few years ago a HBO producer called and said they had been looking for me? Turns out they used one of my photos in poster form for a new series. The good thing for me was most of the first season was in the can, they assumed I'd be happy just to know HBO used one of my images, but I asked for payment. The contract drawn up by their layer however (similar to yours above) failed to mention the fee we agreed on. I refused to sign it until they included the fee in writing in a new contract, as you know getting paid is the toughest part in this business.



Oct 26, 2011 at 09:13 AM
KURTZ
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p.1 #7 · Contract from NBC question


Yes, very lucky in that I was paid first then asked about licensing. A happy day!

--
Tschüss,
Johnny Kurtz

johnnykurtz.com/blog



Oct 26, 2011 at 09:40 AM
TT1000
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p.1 #8 · Contract from NBC question


@wickerprints

"It's clearly a licensing agreement, not a transfer of copyright."

The two are not mutually exclusive. You mean to say it is clearly a non-exclusive licensing agreement.








Oct 27, 2011 at 10:52 PM
FredBGG
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p.1 #9 · Contract from NBC question


KURTZ wrote:
Wickerprints,

Thank you very much for your insightful, educated reply. I feel at ease now, and you have allayed my apprehension. Now I can move on to a nice Grüner Veltliner and prep the prints for shipping.

BTW, I was not planning an addendum to their contract, but wanted some outside clarity. Thank you, Wikerprints.

--
Tschüss,
Johnny Kurtz



Not so quick...
Do you have a model's release for the surfer in the image.
If he or she is recognizable they could make a claim against NBC. How ever they would then send the surfer off to you. IF they use the image in the background or whatever you may be OK, but the licence you are giving them is very vast. The image could be used for just about anything.

This is the problem part of the release:

"The undersigned hereby warrants and represents that it is the sole owner ....... and rights in the likenesses of any people (if any) depicted in the Licensed Material"

In signing this you are claiming to own the rights regarding the likeness of the depicted and above all FEATURED surfer.

If you can't get a models release for the surfer do not sell them the image... you could end up owing much more than you are making off this image.

Actually NBC could be sued by the subject of the photo and then NBC could come after you.



Oct 30, 2011 at 02:00 AM
thedruid
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p.1 #10 · Contract from NBC question


I'm assuming he has the release, if not then there could be an issue...I don't do any spec people shooting today, it's all model released set ups, with MR signed as soon as the model gets on location.


Oct 30, 2011 at 08:46 PM
DougDolde
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p.1 #11 · Contract from NBC question


I can see why they want to use one your photos...you have a unique view on the world...well rare anyway


Nov 04, 2011 at 03:51 PM





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