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Tuesday, August 24, 2010

5 Tips For Avoiding The Rights Grab

Get exposure for your work without losing ownership of it


The Negotiated "Rights Grab"
Another way that the "rights grab" manifests itself is when a potential client seeks to use contract language to convey sufficiently broad rights so that the client might as well be deemed the owner of the images being licensed. For example, some companies will require the license grant to include the right to republish the images in related publications, while others may include the right to sublicense the images. The value of being an owner is seriously compromised when a license includes perpetual rights; adding the right to sublicense the image further erodes whatever value may have been associated with ownership.

An instance of a company seeking overly broad license rights was brought to light earlier this year by New Hope, Penn.-based travel photographer Bob Krist on his Photo Traveler blog. Krist was approached by an agency representing Frommer’s seeking photographs of Philadelphia for a guidebook. While Krist had the images that Frommer’s wanted, the stumbling block was the issue of rights. In a nutshell, Frommer’s wanted the right to use the images in a variety of publications, and to license the images to others, in perpetuity. It didn’t help that Frommer’s wanted those rights for what Krist might have accepted for one-time usage. As Krist wrote on his blog, "I told them it was ‘one-time use’ at those rates, or nothing. [Frommer’s] decided that they couldn’t live with that, and I walked."

Krist’s comments prompted a response from Frommer’s Senior Online Editor, Jason Clampet. As Clampet wrote, "[l]ike all travel publishers, we pay for comprehensive rights when we commission photos, but we do not ask for assignation of copyright or prevent photographers from selling their images elsewhere." Apparently, Clampet’s comments about not asking for assignation of copyright struck a chord with Krist, who followed the response with "[y]es, you don’t ask for the copyright, you just take all the rights of reproduction that the copyright protects. So what’s the difference?"

How To Avoid The "Rights Grab"
While there’s no surefire way to avoid the "rights grab," there are some relatively simple things you can do in an effort to ensure that you retain your rights to the greatest extent possible.

Tip #1: Read The Contract (Or Better Yet, Have A Lawyer Read It). As obvious as this may seem, the fact remains that most people don’t scrutinize the contract terms or the fine print. This especially is true when dealing with social media and other websites where photographers can display their work and promote their businesses. The only way to make an informed decision regarding posting photographs to such websites is to read all of the terms and conditions for each site, and then decide if you can live with those terms.

One of the drawbacks to certain websites—Facebook, for example—is that the user has no ability to negotiate the terms and conditions. Thus, photographers must decide for themselves whether they can live with the terms and conditions applicable to websites where they promote their business; if not, the only option is to refrain from posting their work on those websites (there are, of course, ways to use such sites effectively even if you limit the work that may be posted).

While there’s more flexibility when it comes to dealing with clients, it’s also important to realize that even where a customer contract was written by the customer’s lawyer or legal department, the contract terms may still be susceptible to multiple interpretations. This is one place where it can be especially useful to have your lawyer review the contract.

 

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