Read the terms and conditions of just about any contract, website and even some venues, and it’s almost inevitable that you’ll find some form of the "rights grab." Even doing something as seemingly innocuous as posting images on social media can result in a "rights grab."
What Is The "Rights Grab"?
At a fundamental level, the “rights grab” is the use of contract language to effect a transfer of rights, usually copyrights, away from the person who created the work. In the context of a photographer, the contract language divests the photographer of the rights to the images that were created (or grants such broad license rights that it effectively obviates any rights). At times, the language that conveys rights is buried in the middle of a lengthy contract containing other terms. However, even when the terms are presented up front, the terms still may be incomprehensible to anyone not trained as a lawyer.
While the language itself may vary, the "rights grab" language often includes certain key terms to which a photographer should be sensitive. For example, a "rights grab" may include words like “transfer” or "assign" when referring to copyrights, with such language intending to convey the photographer’s copyrights. However, the "rights grab" also can manifest under the guise of being a "license," particularly when the license is "perpetual," "irrevocable," "fully paid up" and/or includes the right to "distribute" or "sublicense" and/or "prepare derivative works" of any licensed images or works. If you see these sorts of terms in a contract, or terms of service, or credential agreement, you should run—not walk—to your local attorney or photographers’ association’s legal department for a second (or even third) opinion before committing yourself to the terms.
The terms of a "rights grab" often are presented in a license, or terms of service, or even in contest rules. However, the terms also could be presented in a “credential agreement” or any other document. The fact is the "rights grab" phenomenon manifests itself in a number of ways, ranging from contract terms with clients to terms and conditions applicable to social media and beyond.
Social Media/Unsocial Rights Grab
Over the last several years, photographers—like many other businesses—have embraced various forms of social media, firmly establishing it as a marketing tool. Although the “rights grab” has been a problem for quite some time, a relatively recent development in the social-media context helped bring national attention to the issue.
In early 2009, Facebook announced a new set of terms governing the use of the social-media service. Although certain aspects of those terms didn’t change appreciably, the announcement was enough to cause more than a few people to question what appeared to be an obvious "rights grab." When addressing rights to the content that users post to Facebook, the terms provided that the user granted Facebook "an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense)…[and] to prepare derivative works of" the content posted.
As the controversy unfolded, Facebook cofounder Mark Zuckerberg wrote on The Facebook Blog, explaining: "When a person shares information on Facebook, they first need to grant Facebook a license to use that information so that we can show it to the other people they’ve asked us to share it with. Without this li-cense, we couldn’t help people share that information."
Despite Zuckerberg’s explanation, the controversy continued, and amid the tremendous uproar, Facebook allowed users to participate in the process of developing and ultimately voting on the adoption of a new set of service terms. While the current service terms no longer include an “irrevocable” or “perpetual” license, and don’t include the right to “prepare derivative works,” they do still give Facebook the right to sublicense content. Even today, Facebook’s terms of service include an extremely broad license.
If in doubt as to whether the dollars offered are worth the rights involved in the deal, it may be helpful to think of your business as a business, keeping your eye on the bottom line and the future value of the investment that you’ve made.
While none of the terms of service utilized by the other social-media sites has caused quite the stir as did Facebook, the fact that these services may change their service terms and other policies regularly was enough to catch the attention of the Electronic Frontier Foundation (EFF). The EFF created a website, TOSBack (www.tosback.org), to monitor various website policies, including a number of the major social-media systems, and to track changes in those policies. The website even provides side-by-side comparisons between certain versions of the agreements to make it easier to understand how those agreements have changed.
Rights Going For A Song
Another place where the "rights grab" manifests itself is in credential agreements. Since these sorts of agreements have drawn criticism from a variety of sources, some groups have attempted to use contracts that attempt to conceal the "rights grab."
The band Cheap Trick has required credentialed photographers to sign a "Photo Release Form." Buried near the end of the form appeared the following language: "[Cheap Trick] shall have the right to use the Photograph(s) for any and all commercial and non-commercial purposes whatsoever…and [Cheap Trick] shall have no obligation to make any payment to Photographer, the Publication, or any third party…." Not only does the language effectively obviate the photographer’s copyrights, it also avoids using the terms identified above that would clearly indicate a "rights grab."
Philadelphia-based concert photographer Michael Alan Goldberg was set to cover a Morrissey concert for Philadelphia Weekly when he received a copy of the credential agreement that would have to be signed at the concert venue. The credential agreement itself included a typical "rights grab," with Goldberg being required to transfer and assign all copyrights to the management company. The credential agreement even gave the management company the right to approve each photograph prior to its first publication in any media.
The terms of the credential agreement left Goldberg fuming, so much so that he wrote about the situation on "Make Major Moves" (blogs.philadelphiaweekly.com/music/), the Philadelphia Weekly music blog: "Now, I am a very reasonable person, and I truly understand the perspective of management and artists in that they don’t want someone else to profit off of their likeness by taking the images they shoot and putting them on merchandise—T-shirts, posters, coffee mugs, whatever—and selling those, or selling the images to a tabloid or some publication that would depict them in a less-than-flattering light…. But to sign away complete and total ownership of my work to someone else who can do as they will with my work? No way. Absolutely not."
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.
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.
The only way to find out why a potential client wants ownership of images is by asking the potential client, and exploring the subject of rights to gain an understanding. In some cases, the potential client will candidly admit that he or she doesn’t know why he or she wants ownership, except for the fact that his or her lawyer indicated that such rights are needed. In other circumstances, the potential client may have a very specific reason for believing he or she needs ownership of the images. By finding out the reasons why the potential client wants ownership of the images that you’ll create, you’ll find out if there’s a way to negotiate a deal that will satisfy the potential client’s concerns without giving up all rights.
Tip #4: Be Creative When Licensing. A one-size-fits-all approach to licensing generally lacks the flexibility and creat
ivity that may allow you to satisfy the potential client’s needs while retaining ownership of the images.
The trick to creative licensing is to view the rights associated with images as a bundle of sticks and to license those sticks separately as needed. If the potential client only needs that one particular right, it can be incorporated into a license that still reserves the rest of the bundle of rights for the photographer.
While creative licensing may prevent you from turning away business, caution needs to be taken since certain terms or compromises may have far-reaching implications. Certain types of arrangements may have both short- and long-term ramifications, and those aspects of the arrangements need to be thoroughly considered before entering into the deal. To have a sense of the ramifications, one should always question: 1) how the deal might impact the ability to license or use the same work again in the future (including an assessment of how the deal may impact the value of the work); and 2) whether the deal will impact the ability to enforce rights in the image if an instance of infringement is discovered. If in doubt as to the impact, consult your attorney.
Tip #5: Decide If The Rights Are Worth The Money, Or Walk. Admittedly, there are times when you won’t be able to find a creative solution, or when the client—rightly or wrongly—will insist upon ownership of the images. When those circumstances arise, the only thing you can do is to make a value judgment as to whether the rights are worth the money involved, or whether it’s time to walk away from the negotiating table.
At times, such as Krist’s situation with Frommer’s, the decision is an easy one. At other times, the decision may be more difficult, involve a myriad of considerations, and ultimately, a value judgment: Do the benefits to be gained from the job outweigh the rights to be given up? The analysis can be anything but trivial.
If in doubt as to whether the dollars offered are worth the rights involved in the deal, it may be helpful to think of your business as a business, keeping your eye on the bottom line and the future value of the investment that you’ve made. If the long-term impact of giving up rights won’t further your business, then sometimes, like Krist, you just have to walk away.
Samuel Lewis is a Board-Certified Intellectual Property law specialist and partner at Feldman Gale, P.A. in Miami, Fla., and a professional photographer who has covered sporting events for a quarter century. He can be reached at [email protected] or [email protected]