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FORUMS Post Processing, Marketing & Presenting Photos The Business of Photography 
Thread started 18 Aug 2014 (Monday) 09:46
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Contract Language from a client

 
a_roadbiker
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Aug 18, 2014 09:46 |  #1

Greetings,

Before I discuss this with an attorney, I thought I would run this by you folks for an opinion...

I recently did some architectural photography in an effort to get work from this (un-named) company. They liked what I showed them and want to purchase my photos. For what I did, the money is pretty good. They have requested my W-9 and certificate of insurance, which I have provided. Now they sent me a contract to review and sign, and there are a few things I take issue with:

1. They listed me by name as the contractor. I will have them change this to my company name, LLC

2. They want digital photos delivered via Dropbox. Not too much of an issue, but I prefer that they download them from my site.

3. They want proof of business auto liability insurance for $1,000,000 per accident. The vehicle that I use for business is not insured as a "private vehicle" and is insured for $500,000 each person-$500,000 each accident / $500,000 each accident. I have no intention of changing my policy

4. They want me to have Workers Comp and Employers Liability Insurance. No way - I am the only employee

5. This is the biggie (copied form their contract):
"Any copyrightable works, ideas, discoveries, inventions, patents, products, or other information (collectively, the “Work Product”) developed in whole or in part by the Subcontractor in connection with the Services shall be the exclusive property of (company name). Upon request, the Subcontractor shall sign all documents necessary to confirm or perfect the exclusive ownership of the Client to Work product."

I prefer to retain copyrights and ownership and grant them unlimited use rights.

What do you think?

Thanks in advance,
Jim


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DunnoWhen
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Aug 18, 2014 09:57 |  #2

Advise them of your concerns and ask them to send you an amended contract for your perusal.


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1000WordsPhotography
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Aug 18, 2014 10:28 |  #3

Specifically,

1. Not really an issue, this is common in this type of contract.

2. Again not so much an issue if the money is decent. Its alike 5 minutes of your time.

3. Just tell them "this is what I have" Because its doubtful they will pay you enough to increase. And for these guys its probably a nonnegotiable point so you may be dead in the water.

4. Again, its probably a nonnegotiable point for them.

5. Sounds like they want work for hire.


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jwhite65
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Aug 18, 2014 12:05 |  #4

As for #5... I would have no problem assigning them copyright - as long as they are willing to pay that premium.


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mikeinctown
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Aug 18, 2014 13:34 |  #5

With #4 they are treating you as a business, which you are. It doesn't matter if you have one employee or 20 employees, if you have a business you should have the required insurance as required by state law. (or better)




  
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joeseph
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Aug 18, 2014 14:53 |  #6

a_roadbiker wrote in post #17103197 (external link)
Any copyrightable works, ideas, discoveries, inventions, patents, products, or other information (collectively, the “Work Product”) developed in whole or in part by the Subcontractor in connection with the Services shall be the exclusive property of (company name). Upon request, the Subcontractor shall sign all documents necessary to confirm or perfect the exclusive ownership of the Client to Work product

interesting that almost exactly the same terms (word for word) can be found on others published on the internet. Either their terms have been copied by others, or more likely, they have cobbled together their terms from various places based on what they think is a good idea.

Best you decide what you're prepared to offer in terms of services, then have a frank discussion with them to set expectations on both sides and go from there.


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i_am_cdn
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Aug 18, 2014 15:01 |  #7

while I am in Canada, many of the basics are the same. Here is how I personally would approach it.

1&2) no issues

3) Tell them what you said here, unless your vehicle is an integral part of the work that you are doing for them, it should not be an issue. They need you to be covered by insurance so that something happens and they are sued, they can come after you. They may not waiver on this, in which case you may have to decline the sale, or you increase the amount to cover the insurance amount. The odd thing here is that you already did the work and even if there were a suit, and they were sued, any new policy would not cover work preceding the new policy.

4) Tell them you have no employees and do not require such insurance. Tell them that in the future if you do get employees, that you would comply. (not a problem if you never plan on having employees, and if the US is the same as Canada, you are required by law to have it if you do get an employee).

5) This one is up to you. it is a work for hire, and only you know if there is other value to the work that you could sell to others. It may be fine to agree to the copyright if you don't want the photos for anything else commercial, and then have them add in a irrecoverable perpetual license back to you for editorial/portfolio use.

Contracts always need to be negotiated, this is probably a standard boilerplate, and you or your lawyer need to black-line it with the changes you are comfortable with and send it back for them to review. a couple passes back and forth will likely be needed.


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sspellman
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Aug 18, 2014 19:08 |  #8

You simply need to offer them 2 proposals with different terms and pricing.
1) Your current terms, licensing, and delivery method, at your current price.
2) New terms that meet the contract at 3X your current price.

Let them choose.


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Fernando
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Aug 19, 2014 11:36 |  #9

a_roadbiker wrote in post #17103197 (external link)
Greetings,

Before I discuss this with an attorney, I thought I would run this by you folks for an opinion...

I recently did some architectural photography in an effort to get work from this (un-named) company. They liked what I showed them and want to purchase my photos. For what I did, the money is pretty good. They have requested my W-9 and certificate of insurance, which I have provided. Now they sent me a contract to review and sign, and there are a few things I take issue with:

1. They listed me by name as the contractor. I will have them change this to my company name, LLC

2. They want digital photos delivered via Dropbox. Not too much of an issue, but I prefer that they download them from my site.

3. They want proof of business auto liability insurance for $1,000,000 per accident. The vehicle that I use for business is not insured as a "private vehicle" and is insured for $500,000 each person-$500,000 each accident / $500,000 each accident. I have no intention of changing my policy

4. They want me to have Workers Comp and Employers Liability Insurance. No way - I am the only employee

5. This is the biggie (copied form their contract):
"Any copyrightable works, ideas, discoveries, inventions, patents, products, or other information (collectively, the “Work Product”) developed in whole or in part by the Subcontractor in connection with the Services shall be the exclusive property of (company name). Upon request, the Subcontractor shall sign all documents necessary to confirm or perfect the exclusive ownership of the Client to Work product."

I prefer to retain copyrights and ownership and grant them unlimited use rights.

What do you think?

Thanks in advance,
Jim

Basically wither red-line their contract or counter with yours.

As to their requirements.
1 & 2 are non-issues.

3 - $1M is a pretty standard amount from my experience. Occasionally, when the vehicle itself is required for the contract the customer may ask for a higher level of coverage. Highest I've seen "required" is $5M. We simply counter with our standard COI ($1M) and they either accept or don't. Only customers who don't tend to be Universities.

4 - In Texas you have the option of having or not having WC. The only real requirement differences are in the reporting to the State. You do, BTW, have an employee, You.

5 - Your call. Not uncommon in Commercial work. They're not even looking at it as a work-for-hire situation. It's their boilerplate and takes into account that they may have a subcontractor who comes up with an idea or a product while working with them and they want to ensure they get their cut.


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Jeff ­ Colburn
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Aug 19, 2014 13:38 |  #10

Referring to you as "the contractor" is setting you up as Work For Hire.

Selling them the copyright may not be a problem as long as there really isn't another market for the photos and they pay you 3-5 times the normal fee.

Have Fun,
Jeff


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Traci_Ann
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Aug 19, 2014 13:43 |  #11

Fernando wrote in post #17105479 (external link)
4 - In Texas you have the option of having or not having WC. The only real requirement differences are in the reporting to the State. You do, BTW, have an employee, You.

He may not be defined as an employee, all depends on the state and how the business is set up. My business (not photography related) is a sole proprietorship, I am not considered an employee and neither is any immediate family members working for me. So when it was just me and my wifey working we didn't have to pay Workers Comp and Employers Liability Insurance.


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Road ­ Dog
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Aug 20, 2014 23:25 |  #12

They want all of this to purchase photos you've already taken, or photos you're going to take?


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tickerguy
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Aug 21, 2014 11:17 |  #13

In many states WC is not required (nor can you obtain benefits if you don't have it) for a one-man show, proprietorship, LLC or Sub-S.

The reason #4 is in the contract is that if you hire an outfit to do a job and one of their people gets hurt doing it on your property they (the injured party) can and will sue YOU (the property owner) and has a decent probability of winning as well. This happens all the time with "fly by night" places that do roofs on houses and similar. Your counter is that under state and federal law you are not required to carry it as a one-man band but their potential exposure is real, thus their demand. You might be able to substitute a waiver (by yourself) in their favor but be careful; that is a potential mine field (for you!)

#3 is a fairly typical demand; even more than a decade ago we had most places we did work where our people were on their site want to see $1m in commercial liability coverage whether vehicles were involved or not. There are were a few places that wanted even higher limits (like the aforementioned $5m) -- some would move on that, some would not and we declined to work with them on their terms. The issue is the same here as with WC; they're concerned about you doing something in the process of conducting the work that gets them sued.

As for the work-for-hire clause ("it's all ours and you will assign anything necessary to do so") that's a business decision - whether it makes sense or not entirely depends on how much money they're throwing your way.


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Aug 21, 2014 11:30 |  #14

Being that I work for Construction managers and contractors I see this exact wording weekly, this is all boiler plate contract/ sub contractor language. They are not trying to get your work or keep the copyrights. You just need to strike it out with a red pen and write in the way you want it worded and send it back for amendment.

1. Non Issue - Just Red line it and put the name of your LLC
2. Deliver per there requests not worth the time, they are the customer and paying you to deliver a product.
3. Very Standard - As far as the vehicle insurance check that you buisness insurance doesn't cover that, Mine applies to anything im driving in business operation no matter what vehicle it is.
4. Red line this item. you are not obligated to have Workmen Comp on yourself. This is standard wording and it will not be an issue to remove.
5. This is also a standard line in a sub contract agreement. you can strike it through and word it as you please, offer them terms to buy the copyright, they will most likely take it.

Have you done the work before the contract or is this for future work?




  
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Road ­ Dog
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Aug 21, 2014 11:45 |  #15

The OP hasn't been back in three days. I wonder if he's really interested in getting input on this.

If these are for photos he's already taken, and that's the sense I get, I don't see a need for workman's comp, business auto liability or even a contract, simply because the photos have already been taken. The company is simply purchasing an already existing product. Why would I need to have liability insurance and workman's comp to sell someone a photograph?

For future shoots, of course, the rules would change. The OP isn't clear on whether or not he's selling existing photos, or is getting hired for future shoots, or both.

In Florida, I have to carry $1,000,000.00 in liability insurance, which runs just about $300.00 a year...


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