Exclusive public event contracts - enforcement?

I was contacted by a friend of mine who is in marketing and is hosting a public event. He was questioning about sale of prints etc. taken from a public vantage point. In this particular event is a race, and he had been contacted by a company requesting permission to take photos for "local and national media outlets" and sale of images. I know they bormally hire a race specific company and would likely have an exclusive contract with them, and allowing another company would likely breach that contract.

Afterwards I got to thinking exclusive company A has the contract with the event company. However, if poaching company B locates itself in public, how is the exclusivity contract enforced? Obviously, B will tell A to pound salt. How does the event host prevent poaching and sale of images? I assume it would all have to be litigated? Unlike an arena sport, a race along public highways can't restrict photography can it?

Thoughts?

I just had a thought, would the exclusivity advantage simply be advertisement in race literature and bring provided exclusive vantage points (like the restricted area of the finish line).

My thoughts, and not legal advice:
If you can see it from a public vantage point, you can take pictures and you own the copyright. If they want to stop you, they have to put up fences and make event non-visible from the public space. Contracts between organizers and another company don't stop you taking pictures from a public space.

You could sell the rights and the pictures to a third party.

How the pictures could be used is another story. Editorial use is probably fine. Commercial use probably isn't. If trademarked logos are in pictures, you might get blocked for having them in the picture.

Same as above this is just my thoughts, not legal advice.

If parties a and B Internet into a contract, it does not affect and unmentioned third-party (c). The only way parties a or b can enforce said contract on party c is by not allowing them in a private space, where they can legally restrict access. If the third party is in a public space there is pretty much nothing they can do about it.

Also as mentioned above, beware in licensing the images. The logos on uniforms can be copyrighted and not to mention you would need a model release for commercial use. Chances are if they find out you went behind their backs to take the pictures they are going to be sticklers on everything else they cAn (like their intellectual property being pictured). Just be sure you have all of your ducks in a row.

Buchinger wrote in post #16343706
Afterwards I got to thinking exclusive company A has the contract with the event company. However, if poaching company B locates itself in public, how is the exclusivity contract enforced?

Agree with both the above posters, the answer is they can't. The contract is only binding on the organiser and company A and relates to photographers allowed into the event (and from whom the organisers will accept/buy images). It doesn't have any binding effect on third parties shooting from public property.

So, in conclusion - any photographer/company could show up, and take photos for the goal of selling prints. Also, if I understand correctly, trademarks, model releases, etc have no effect when it comes to selling actual photos, only commercial licensing of photos.

Buchinger wrote in post #16345480
So, in conclusion - any photographer/company could show up, and take photos for the goal of selling prints. Also, if I understand correctly, trademarks, model releases, etc have no effect when it comes to selling actual photos, only commercial licensing of photos.

Model releases - correct. Trademarks - it depends. If you were to photograph a group of runners, who all have a sponsors logo on their shirt, your inclusion of the logo is incidental. Your subject is the runners; the logo just happens to be there. You can sell that photo without the trademark owners permission. Your use of it in no way infringes their trademark.

If however you zoomed right in and took a photo of just the logo on the shirt and tried to sell prints or T shirts with that on it then the subject would be the logo and a court would likely decide that you were trading on the companies name and or "passing off".

So your friend who gives exclusivity to one photo company is seeing if he can go around that exclusivity by letting a 2nd photo company shoot from public lands and sell prints behind the exclusive companies back.

We, as a photography community should respect exclusivity and not even entertain trying to get around it. How would we feel if that shoe was on the other foot. Don't we all complain about that hobbyist with a camera taking and selling photos to parents when you have exclusive photo contract with the event organizer.

Hogloff wrote in post #16347635
We, as a photography community should respect exclusivity and not even entertain trying to get around it. How would we feel if that shoe was on the other foot. Don't we all complain about that hobbyist with a camera taking and selling photos to parents when you have exclusive photo contract with the event organizer.

So, we should censor the talk of shooting events from public spaces and pretend the right to shoot doesn't exist because exclusive access company might lose a buck?

I don't want to be part of that community. It's a tad too monopolistic, entitled and willing to censor free speech, and trample the rights of others.

If the shoe was on the other foot, I'd feel that people can shoot from public spaces.

DocFrankenstein wrote in post #16348028
So, we should censor the talk of shooting events from public spaces and pretend the right to shoot doesn't exist because exclusive access company might lose a buck?

I don't want to be part of that community. It's a tad too monopolistic, entitled and willing to censor free speech, and trample the rights of others.

If the shoe was on the other foot, I'd feel that people can shoot from public spaces.

But we can't have it both ways. I see plenty of threads here complaining about amatuers taking photos at events and either giving them away or selling them for cheap...basically undermining the person who has the exclusive to shoot the event. We cry about it when the shoe is one foot, yet we put the shoe onto the other foot and feel we have the right to shoot the event from public property and then undermine the exclusivity a photog has and be OK with selling photos, basicaly competing with the exclusive photographer.

Hogloff wrote in post #16348039
But we can't have it both ways. I see plenty of threads here complaining about amatuers taking photos at events and either giving them away or selling them for cheap...basically undermining the person who has the exclusive to shoot the event. We cry about it when the shoe is one foot, yet we put the shoe onto the other foot and feel we have the right to shoot the event from public property and then undermine the exclusivity a photog has and be OK with selling photos, basicaly competing with the exclusive photographer.

I'm not having it both ways. I've stated many times before that the pros who can't compete with amateurs have a flawed business model and will have to find something else to do. World does not owe them a living.

I respect their freedom to make barriers to entry into their market. They can enter into exclusive agreements, restrict cameras, kick people out for taking pictures with their cellphones... etc. People pay for access to the event and agree to the conditions.

But the exclusive photographer needs to respect freedom to shoot from a public space. If the pro can't generate good images with full access to event when compared to some guy with a telephoto - they should find another job.

Hogloff wrote in post #16347635
So your friend who gives exclusivity to one photo company is seeing if he can go around that exclusivity by letting a 2nd photo company shoot from public lands and sell prints behind the exclusive companies back.

We, as a photography community should respect exclusivity and not even entertain trying to get around it. How would we feel if that shoe was on the other foot. Don't we all complain about that hobbyist with a camera taking and selling photos to parents when you have exclusive photo contract with the event organizer.

No!!! Not even close.

He had been contacted by the non-contract company asking permission to shoot & sell. He denied the permission, and contacted me because he was just curious if a random company could just show up, take pictures and sell the images - and if he did if there was anything he could do.

Hogloff wrote in post #16347635
We, as a photography community should respect exclusivity and not even entertain trying to get around it. How would we feel if that shoe was on the other foot. Don't we all complain about that hobbyist with a camera taking and selling photos to parents when you have exclusive photo contract with the event organizer.

If we were talking about entering a closed venue that cannot be seen from a public and reasonable vantage point, then there would be some merit to what you are saying here.

However, if a photographer accepts an 'exclusivity' clause over an event that is entirely open to the public, and can be observed and witnessed from non-controllable public spaces, then in my view that photographer was an idiot and should have known better.

As one who has been the exclusive photographer for an event, here are my points.

First, the exclusivity is to protect me by ensuring that the event organizer does not bring in a second photographer to compete against me. That is, the exclusivity protects the photographer against competition brought in by the organizer. An independent third party, neither being part of the exclusivity agreement nor being brought in by the organizer can be held to the agreement.

That said, the organizer does have an obligation to restrict professional photography that is not under agreement. If a photographer is selling photos at the event, the organizer must remove photographer from the premises or enforce a restriction on selling. If the organizer does not, they are not upholding their part of the exclusivity agreement, the penalties of which are either stated in the contract or cause the contract to become void.

John

NetJohn wrote in post #16354218
An independent third party, neither being part of the exclusivity agreement nor being brought in by the organizer can be held to the agreement.

I assume you mean "can't"

Good succinct description. This is exactly what such contracts are for. They are to protect the photographer by preventing the organiser from allowing other pros to work the event.