Now they want to own our photos!

The whole idea of only being allowed to sell photos to one magazine, one time only, put a damper on the business in the late 1980’s. Then more restrictions started appearing in the contracts. The first one was that the artist wanted to co-own the copyright with the photographer. While this in itself is perfectly legal, the thought behind it came into question. The answer I was given several times was that in the case of a violation of the copyright and the rights of an artist to his or her visual image, the artist wanted to co-own to be able to sue for damages. As this would be something I would vigorously go after myself, I welcomed the thought that someone with an equal share (and a much bigger bank account) would be  working with me in the process. I gladly agreed to sign a contract with anyone giving me that explanation.
That was then and this is what has transpired:
Today, there is now a new kind of contract being issued. The term that photographers are using for it is “Rights grab.” On top of all that has come before, (years of learning our craft, thousands of dollars invested in equipment to pursue our profession, etc.) the artists are now asking for unlimited use of our photographs, free of charge!

Sample language:
Photographer hereby acknowledges and agrees that the Photographs to be used hereunder are subject to the prior approval of BAND NAME HERE.  In addition, in consideration for the rights being granted to Photographer hereunder, Photographer agrees to provide, at no charge, to BAND NAME HERE, duplicate negatives and/or transparencies (as designated by BAND NAME HERE of the Photograph(s)). BAND NAME HERE shall have the right to use the Photograph(s) for any and all commercial and non-commercial purposes whatsoever relating to BAND NAME HERE and BAND NAME HERE activities and BAND NAME HERE shall have no obligation to make any payment to Photographer, the Publication or any other third party in connection with any of such uses.
Sorry to not use the band’s name here, as they are friends of mine, and I think will remove this paragraph from their contract if logic prevails!

Here are a few from bands who recently played at Bonnoroo:

Beastie Boys:

1,_________________, hereby grant, transfer, convey and assign to BEASTIE BOYS, a partnership, (“you”), and your successors, licensee, and assigns, all right, title and interest, throughout the universe in perpetuity, in and to the photographs to be taken by me of the members of BEASTIE BOYS (either as a group or as individuals) on or about _________, 2009 (the “Photos”), including, without limitation, the worldwide copyrights therein and thereto, and all renewals and extensions thereof.
Without limiting the foregoing, I agree that you and your successors, licensees and assigns shall have the exclusive right to exploit all or a part of the Photos in any and all media, now known or hereafter devised, throughout the universe, in perpetuity, in all configurations as you determine, without obtaining my consent and without any payment or consideration therefor. I understand that you will use reasonable efforts to give me appropriate “photo credit” where possible. I understand further that all aspects of said “photo credit” shall be determined by you in your sole discretion and that failure to accord said “photo credit” shall not be deemed a breach of any obligation, express or implied. I will, upon request, execute, acknowledge and deliver to you such additional documents as you may deem necessary to evidence and effectuate your rights hereunder, and I hereby grant to you the right as attorney-in-fact to execute, acknowledge, deliver and record in the U.S. Copyright Office or elsewhere any and all such documents if I shall fail to execute same within five (5) days after so requested by you.

Mars Volta:

I, __________________________________ (name of photographer) hereby agree to the following with respect to the photographs that I will take, or cause to be taken,  of the musical group collectively known as The Mars Volta(“you”) on the date ______________, 2009 (the “Photos”):
1. I have the limited right and permission to use certain Photos that have been approved by you solely in connection with one (1) article about you contained in ________________________[State name of publication].
The Photos may be used only in an article, publication or other medium initially disseminated to the public within one year of the date of this agreement.  I shall have no right to otherwise use or re-use the Photos in whole or in part, in any medium or for any purpose whatsoever, including, without limitation, promotion, advertising, and trade, without your written consent therefor.
2. I hereby acknowledge that you shall own all rights in the Photos, including the copyrights therein and thereto, and accordingly, I hereby grant, transfer, convey and assign to you all right, title and interest throughout the universe in perpetuity, including, without limitation, the copyright (and all renewals and extensions thereof), in and to the Photos.  I agree that you shall have the right to exploit all or a part of the Photos in any and all media, now known or hereafter devised, throughout the universe, in perpetuity, in all configurations as you determine, without obtaining my consent and without any payment or consideration therefor.  I understand that you will give me appropriate “photo credit” where possible.  I understand further that all aspects of said “photo credit” shall be determined by you in your sole discretion and that failure to accord said “photo credit” shall not be deemed a breach of any obligation, express or implied.  I further grant to you the right to use my name, likeness and biographical data in connection with the distribution, exhibition, advertising and exploitation of the Photos.  I will, upon request, execute, acknowledge and deliver to you such additional documents as you may deem necessary to evidence and effectuate your rights hereunder, and I hereby grant to you the right as attorney-in-fact to execute, acknowledge, deliver and record in the U.S. Copyright Office or elsewhere any and all such documents if I shall fail to execute same within five (5) days after so requested by you.

These two contracts were emailed to all photographers that requested photo passes to the Bonnoroo festival a week before the festival. So they knew before they left home that they either had to agree to them, or tell the editors of the publication they were working with that they wouldn’t have photos of two of the hottest bands at the festival for inclusion in their coverage (hopefully the latter)

More contract talk next week!

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