morganb4
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 p.4 #5 · Client contract rewrite! | |
I have learned not to be as immediately scared of working for a lawyer as I used to be. The fact is that looking at legal documents is what they do, you cant seriously expect them to look at a legal document without analysing it from the perspective of their interests. Its what they do.
I love how everyone is focussing on the copyright thing here, its actually the least scary part of a contract that essentially is doing nothing more than jamming holes into your contract that they can drive a bus through later on. It has nothing to do with fairness and everything to do with making litigation by them, much much easier. The changes they propose are highly defensive.
So, two parts to my answer:
I'll do Copyright first as its on everyones mind.
I had a situation like this where a client was concerned about privacy and wanted copyright. I said no, I need to be able to show my work in order to sell my experience and flexibility to future clients. His main concern was that they did not want any images published electronically - (i.e web). He said "Ok I understand, there needs to be some quid pro quo here" he rewrote that part for me to basically say web not good, private viewings ok. He then went on to correct a bunch of other small things in the document.
The point is that we talked and got to the specifics of his concern and addressed those specifically.
Don't agree with what I did? Don't think I should have caved at any point? Well, your possibly right. Financial circumstance dictated that decision and I would never do it again. Just afterwards, a thread on this topic appeared and the consensus was that if you want to shed control over your images, even for advertising purposes, you need to get the client to pay a significant amount for it.
At the time I needed to get that job to get me over the line tax wise.
So, to sum up:
Negotiate from a position of attempting to resolve problems for client, not one of fear or resentment.
If you can not get them to be reasonable and see the necessity for quid pro quo then you need to look at the nature of any other changes that they are making and decide if they are actually a problem client. I would suggest that the inability to be reasonable and the need to make extensive and constant changes suggests a problem.
If you feel they are ok on the whole but the issue of copyright is a deal breaker for them and you want the deal, then they need to compensate you for the loss that it represents.
Also, how does the client feel about this? What is more important to them good photos or a good contract. If the client cant have the photos she wants because of a contractual issue then its a bit self defeating,
The real red flags for me are:
"D. Section 20, 21, 22 and 24 contains subjective/ambiguous/possibly confusing terms such as “other emergencies”, “conditions beyond its control”, etc. These are subjective/unclear and can create unforseen disputes. Every individual interprets the same situation differently. I know of one photographer who was pregnant at near term during a wedding event; I am sure that clients appreciated her. What if a photographer does not shown up due to a personal relationship crisis/event? It would be much simpler/easier to include a method of resolving potential conflicts in the contract. Such method is an arbitration. With the arbitration clause, no one will be capitalizing on an unfair advantage."
Its not that ambiguous. If client feels xyz mishap was not beyond your control, you will be in court regardles. Arbitration essentially makes it much easier for THEM to win, it has stuff all with protecting both parties and only makes it easier to litigate.
also
"E. The section 28 is vague/not clearly defined/excessively broad.
For a hypothetical example, what if someone from Brian Virts Photography falls and gets injured, Client cannot assume the liability for other’s fault. What if someone at the Musket Ridge destroys your expensive equipment? These are within a domain of liability insurance; this is why businesses such as Brian Virts Photography and Musket Ridge have business/professional liability insurances."
Again, entirely client centric he is basically proposingB to sue you if Musket Ridge have prevented you from doing your job. The only reason for the existence of this device is it makes it easier for him to sue someone because your are owning all responsibility for the photos. Its just an easy way out for the client - its less easy for him to sue the reception venue over a photographic mishap than it is to go for the softest target, the low hanging fruit i.e. you.
One of the things a skilled lawyer is good at is giving a veneer of fairness to reason to any clause that essentially benefits their clients interest. Dont get trapped into this conversation, these are your terms, the terms of doing business with you, fair is not a relevant issue here. They are your terms. Never forget that.
Edited on Feb 02, 2012 at 07:50 PM · View previous versions
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