Tuesday, August 24, 2010
5 Tips For Avoiding The Rights Grab
Get exposure for your work without losing ownership of it
Tip #2: Ignore Verbal Representations. During the course of negotiating agreements with potential clients, it’s not unusual to have the client express his or her intent behind a contract provision. However, while it’s useful and even important to understand the client’s intent when negotiating, one shouldn’t rely upon the client’s verbal representations, as those are generally excluded from the contract and are generally impossible to prove after the fact.
Most contracts include what lawyers refer to as an "integration clause." Such a clause, which may appear under the heading "Entire Agreement," generally provides that the terms of the contract represent the entire agreement between the parties, and that the contract supersedes all prior understandings, whether written or oral. When such a provision is used, the terms of the final, written agreement will take precedence over any statements that the potential client or client’s lawyer/legal department made about the contract terms.
Attica, N.Y.-based sports photographer Mike Janes, cofounder of Four Seams Images LLC, encountered just such a situation when negotiating contract terms with a client’s legal department. The client’s legal department verbally represented that the contract would permit the photographer to retain the rights to the images, and thus, would be able to provide the images to other media outlets. However, the actual contract language was very different, providing that "[a]ny copyrighted works created by Contractor in connection with the Services have been specially ordered by [the client] as works made for hire under the U.S. copyright law. Accordingly, [the client] will forever exclusively own throughout the world all right, title and interest in such works." Not only did the agreement include this work-for-hire language, but it also included an outright assignment of rights in the event a court determined that the images weren’t works made for hire. The agreement also included an integration clause. Thus, had Janes signed the agreement, the work-for-hire contract terms would have superseded the client’s legal department’s oral representations to the contrary.
Even where a contract doesn’t include an integration clause, it may be impossible to prove what was represented during the course of negotiations. And, of course, the cost of proving what representations were made may far exceed the amount of money involved in the agreement or that the images might otherwise be expected to realize.
Tip #3: Attempt To Ascertain What Rights The Client Really Needs. Photographers routinely share war stories about negotiating jobs with potential clients, only to discover that the potential client wants the photographers to sign away all rights. The lesson that such photographers share is that we all have a choice, and we can either forfeit our rights and sign the agreement, or we can view the agreement as an affront and walk away from the job. Unfortunately, that sort of all-or-nothing approach is incomplete.
While it’s true that you may ultimately be faced with a take-it-or-leave-it decision, a good negotiator won’t accept that the options are limited. Instead, a good negotiator will attempt to ascertain what rights the potential client really needs, and perhaps even explore the reasons why the potential client believes they need those rights.
It’s not unusual to encounter potential clients who use work-for-hire agreements simply because their legal department drafted the simplest possible agreement that provides the widest variety of rights one could ever need. From the lawyer’s point of view, the only safe way to cover all of the bases is to have his or her clients acquire ownership. More often than not, however, the potential client doesn’t need such expansive or all-encompassing rights.
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