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Rights Grab????


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#21 echeng

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Posted 04 April 2010 - 02:05 AM

Hey, guys. I spoke to one of the editors at Scuba Diving about this very issue, and here's what I was told: "[We] won’t use images unless they’ve won –– and only in the August issue and for promoting any future contest –– and [we] won’t condone their use for any other purpose."

So this isn't a promise, but it's a best effort from inside the magazine. There is no way around a big organization getting a contract and photo contest terms worded by anyone other than their attorneys.

Those of you who are Facebook users have been granting similar rights to every image you upload there. It's common language on the web and is mostly there to protect the company. A "massive rights grab" would have really bad repercussions, and they'd be foolish to actually USE the rights you grant them by submitting. For one thing, we'd probably start a protest and boycott!

So entering is probably safe... but there is never a guarantee.
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#22 scorpio_fish

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Posted 04 April 2010 - 02:58 AM

Thanks Eric for taking the effort in obtaining the clarification. Now everyone can make their own decision. We can save store the righteous indignation for the actual rights grab if it really does occur. :)
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#23 JasonDPG

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Posted 04 April 2010 - 06:48 AM

I also contacted the right people at Scuba Diving and asked them to consider changing the terms and conditions of this competition, but before reading Eric's post. So we've most likely bugged the same people.

Often the intention and terms and conditions are not the same. Sometimes the rules are just boiler plates from other contests and the individuals writing and approving the rules do not understand the sensitivity of the usage rights issue. The bigger the company the more this is true. I always give every company this benefit of the doubt and have had many competitions change their rules once pointing out the inconsistency between their intentions and the terms and conditions of the competition. Most contests like this are for the average consumer, not a bunch of photographers who take this stuff seriously. It's not as much of an issue when people are submitting vacation photos - they just don't care about these issues and therefore it never presents and issue. The issue appears when the terms and conditions are carried over to a contest where people (like all of us) do actually care.

As it has been pointed out - we as photographers endorse or detract from the competition via our participation or lack thereof. This is why in the DPG event calendars, for all competitions we request the organizers to provide the usage rights so we can post them claerly and straightforwardly for everyone

Any worthy competition should follow a simple guideline for usage rights:

a) Winners only; and

b) Only to promote future contests and to announce winners of the contest

c) Attribution to the photographers when images are used



I can predict that their intention is not a rights grab. Whether they have the time to change the terms and conditions amid other busy schedules of a big slower moving company I can't predict. Will keep everyone posted on what I hear.

*** UPDATE ***

All of the above is confirmed with SD now. Unfortunately Bonnier is a big company with a boiler plate for these contests that would take time to change. The editors and publisher of SD are aware of the situation and not thrilled, but can reassure us all that there is not intention to use images beyond winning images for the announcement of winners and promotion of the next contest.

Edited by JasonDPG, 04 April 2010 - 07:20 AM.

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#24 Poliwog

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Posted 04 April 2010 - 07:33 AM

A few weeks back, a Wetpixel member posted how excited he/she was about winning a photo competition with Smithsonian Magazine.
I checked the rules for the competition and found essentially the same rules applied to their competition also.

From the rules section of the photo contest:

By entering the contest, entrants grant the Smithsonian Institution a royalty-free, world-wide, perpetual, non-exclusive license to display, distribute, reproduce, and create derivative works of the entries, in whole or in part, in any media now existing or subsequently developed, for any educational, promotional, publicity, exhibition, archival, scholarly, and all other standard Smithsonian purposes. Any photograph reproduced will include a photographer credit as feasible. The Smithsonian Institution will not be required to pay any additional consideration or seek any additional approval in connection with such uses. The italics are mine.

You can read the contest rules HERE

I would have posted my concerns about the rules but did not want to spoil the OP's joy in winning the contest, and was shocked that such a prestigious institution would be so biased against the photographers entering their competition.

So I guess they can put your image on key chains, mouse pads, coffee mugs, posters, greeting cards, dinner place mats, playing cards, and the like, with no additional reimbursement to you above fitting in a photo credit if they can squeeze it in.

It is my opinion that wording is there for a reason, none of it which is just there because they couldn't seem to find the right words to convey what they meant. These organizations are magazines who are in the business of writing. If they can't clearly articulate what they mean by the words they write, then does if follow that the actual articles in their magazines will be anymore factual in content?

After hearing the term "It's my contractual right!" uttered a few times throughout my working career, I have not doubt that those words are there for a reason. And, you should too, if you want to save yourself some grief in the future.
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#25 TheRealDrew

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Posted 04 April 2010 - 08:20 AM

By entering the contest, entrants grant the Smithsonian Institution a royalty-free, world-wide, perpetual, non-exclusive license to display, distribute, reproduce, and create derivative works of the entries, in whole or in part, in any media now existing or subsequently developed, for any educational, promotional, publicity, exhibition, archival, scholarly, and all other standard Smithsonian purposes. Any photograph reproduced will include a photographer credit as feasible. The Smithsonian Institution will not be required to pay any additional consideration or seek any additional approval in connection with such uses. The italics are mine.

You can read the contest rules HERE

I would have posted my concerns about the rules but did not want to spoil the OP's joy in winning the contest, and was shocked that such a prestigious institution would be so biased against the photographers entering their competition.
So I guess they can put your image on key chains, mouse pads, coffee mugs, posters, greeting cards, dinner place mats, playing cards, and the like, with no additional reimbursement to you above fitting in a photo credit if they can squeeze it in.

It is my opinion that wording is there for a reason, none of it which is just there because they couldn't seem to find the right words to convey what they meant. These organizations are magazines who are in the business of writing. If they can't clearly articulate what they mean by the words they write, then does if follow that the actual articles in their magazines will be anymore factual in content?


That is a bit broad of a statement, it is more that legal has nothing to do with reality :goodpost: Also the fact that they have the rules as set forth, it does not mean they are not being factual, it is just that the facts are not what we would normally like to see.

What happens, in the real world, is that someone does something that is either outright outlandish or undertakes actions which vitiate the intent, if not the actual words, of what is written and companies will respond in kind by changing language to stop it from happening again. As mentioned above a couple of times, the legal process, and in fact the effort to try to massage the language to appease everyone, if often not going to be very high on the hit parade in many places, more so when dealing with contests.

Do I think the language is overbroad? Yup. Could it be drafted better to try to adjust to things to what I would like as a photographer? Yup. Is there a rights grab or trying to screw people? Probably not.

Here is an example. Someone submits a photo to a magazine and gets paid $X. The magazine prints Y number of copies, then realizes they underestimated the run because there is a great special feature with someone that is making it fly off the stands, so the photographer comes back when hearing that more copies are printed or being reprinted. Yes, any of us as a photographer could try to limit the number of copies, but the vast majority of the time the right is not going to be given. Or a photographer has a cover shot on a magazine and that cover of the magazine is reprinted later in another issue as a "Subscribe Now." And the photographer comes knocking at the door again. Once again, yeah maybe this is something a company could be willing to discuss depending on circumstances, but when going back to legal the creative people will get an earful and it is really almost impossible to administer later on.

And this is all in a relatively controlled situation among professionals who know the business.

Multiply that by opening up things to the world and every Tom, Dick and Jane who wants exposure in a contest run by a major magazine, there are a million pitfalls. Of course just because language is in the rules, it does not mean that all rights will be exploited and it very well may not happen. And it is also a risk people will take to get exposure. There contests that I think have extremely reasonable rules that I will not hesitate to enter, the ones run by Eric, Jason and Roger immediately come to mind, but many I take a pass on. And it probably means nothing to these companies one way or the other.

Could I write the rules for these places to be better and still protect the companies interest? I think so. Would the rules be a bit longer? Yup, just a bit ;) Is some overworked Director of Business or Legal Affairs break protocol and go through all the channels up to VPs or Sr VPs of legal because of some contest when there are guidelines in place from the higher ups to protect the company? Probably not unless they are otherwise sympathetic to the issues, such as being a photographer or someone Senior from Marketing etc decides to make an issue and bring it up. The bottom line is that it is very simply not worth the time, though it really does not seem like a big deal on its face to correct.

In other words I think it is a good thing to raise questionable rules here for people to have a head's up on, discuss whether to submit to a contest, but to think entities are particularly going for a rights grab or that the rules somehow are indicative of whether the publication is good or bad, or factually correct, is a bit off. IMHO at least.

#26 Tim of the Deep

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Posted 04 April 2010 - 04:31 PM

Folks,

A good many of us know the editors at Bonnier and know they are good people and their intent is, no doubt, good. That doesn't make a hoot of difference. By entering, a person agrees to the rules. That means some higher up with less than good intent might have other ideas. And this simply allows bad intent to take place.

From the Nature's Best Contest:

THE WINNING PHOTOGRAPHS WILL BE PUBLISHED IN NATURE’S BEST PHOTOGRAPHY MAGAZINE AND MAY BE SELECTED FOR GALLERY
EXHIBITIONS AND OTHER NATURE’S BEST PHOTOGRAPHY WINDLAND SMITH RICE INTERNATIONAL AWARDS (NBPWSRIA) COMPETITION
PROMOTION OPPORTUNITIES, INCLUDING, BUT NOT LIMITED TO, A COMPILATION BOOK OR CALENDAR, ELECTRONIC COLLECTION OF
WINNERS AND WEB PAGES PROVIDING NBPWSRIA INFORMATION, UPDATES, RULES AND ONGOING PHOTOGRAPHY TIPS.
THE NBPWSRIA COMPETITION IS OPEN TO ALL PHOTOGRAPHERS EXCEPT EMPLOYEES OF NATURE’S BEST PHOTOGRAPHY MAGAZINE.
YOUR ENTRY TO THIS CONTEST CONSTITUTES YOUR AGREEMENT TO ALLOW YOUR PHOTOGRAPHS, YOUR NAME, OCCUPATION, CITY AND
STATE OF RESIDENCE TO BE PUBLISHED AS SELECTED AWARD WINNERS IN NATURE’S BEST PHOTOGRAPHY MAGAZINES, PRINT AND DIGITAL
EXHIBITIONS, EVENTS, AND OTHER PUBLIC VENUES, PUBLISHED ON WEBSITES OWNED BY OR IN ALLIANCE WITH NBPWSRIA AS AWARD
WINNERS; AND USED FOR PROMOTIONS OF THE NBPWSRIA.
ENTRANTS RETAIN OWNERSHIP AND ALL OTHER RIGHTS TO FUTURE USE OF THEIR PHOTOGRAPHS. (this previous sentence was in caps and in color on the form) NATURE’S BEST PHOTOGRAPHY SHALL HAVE THE RIGHT TO VERIFY, IN THEIR SOLE JUDGMENT, WINNER ELIGIBILITY.

While not perfect, this is much more favorable and respectful to photographers entering their contest. And this use is only for winners.

I am guessing that Bonnier's attorneys are reacting to ruling made against NY Times and Nat Geo quite a few years ago that went in favor of photographers. Many big corporations have this kind of wording in their contracts now as a result of that litigation.

I am just pointing out that an entrant to the Bonnier contest is putting him or herself in a precarious situation.

Timbo

#27 decosnapper

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Posted 05 April 2010 - 12:45 AM

Folks,
A good many of us know the editors at Bonnier and know they are good people and their intent is, no doubt, good. That doesn't make a hoot of difference. By entering, a person agrees to the rules. That means some higher up with less than good intent might have other ideas. And this simply allows bad intent to take place.


Having spoken to one staffer at SD, I would agree that their intentions are entirely honourable. But there are risks if the rules remain unchanged and entrants submit their work under the current terms:-

1. The current rules endorse terms that secure wide-ranging rights that go far beyond promoting a future competition. When the next magazine/corporate sponsor/whoever wants to run a "competition" they look to "industry practice" and yet another rights grab contest appears with the same terms and conditions.

2. As Tim says, those further up the corporate ladder may take a different view with rights cleared material. Changes of staff are not unheard of either. There may not be the intention to use and statements on this thread to that effect, but the road to hell is paved with good intentions


So for the current and future, the terms should be changed to reflect the magazines actual "needs", rather than the lawyers "wants". There are plenty of photographer-friendly terms out there that equally protect the liability of the publisher. Here's an example, taken from Pro-Imaging Photo Rights:-

4.1 By entering this contest You agree agree that any (winning or shortlisted) image You submit may be used by Organisation Name (and its partners) solely for marketing and promotional purposes of this contest or future contests and no other purpose, these uses include;

judging the competition,
displaying the entries on the competition website (and websites of partners),
displaying the entries at public exhibitions to promote the competition,
displaying the entries in a book, magazine or similar,
publishing the entries on posters to promote the competition,
publishing the entries on postcards to promote the competition,
publishing the entries on a calendar to promote the competition,
cropping and re-sizing the image as necessary to fit pre-defined formats to promote the competition,
sub-licensing the entries to the press for reproduction in connection with the competition and any related exhibition,
inclusion within any materials promoting the competition or any exhibition of images from this competition organized by Organization Name

There is much more available, including the responsibilities of entrants (we cannot have it both ways......) Guidelines for Organisers
Simon Brown

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#28 TheRealDrew

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Posted 05 April 2010 - 08:32 AM

SCREEN PLAY FOR YET UNTITLED MOVIE, TENTIVELY TITLED “A LAWYER”

FILMING TO START SUMMER 2010

HIGHLY CONFIDENTIAL AND TO BE DISTRIBUTED ON A NEED TO KNOW BASIS.

--------------------------------------------

[Initial Shot]

The following is a fictional story, not based on actual event and any resemblance to any person or place is coincidental. The names have been changed to protect the innocent. Make sure to read in a well-ventilated room with good lighting. Do not take candy from strangers. Check oncoming traffic both ways before crossing the street.

[Fade To Scene]


[Scene: Small office, small desk, camera rolls in front of doorway. Person behind desk reading papers to his left, periodically typing on the laptop to his right. Another person crosses the doorway and knocks.]

Person: Hi Mr. Lawyer.

Lawyer: Hi Promotions Person. (We see the lawyer cringe ever so slightly, he is experienced enough to know that when Promotions actually comes to his office, it is going to be one of those "I got a brilliant idea and I need to do it, regardless of whether you can say for sure, but I need you for sure to sign off legally" questions.)

Promotions: We want to use a short listed image from the contest.

Lawyer: Okay, let me see what you are talking about. (Promotions Person puts down a sheet of paper)

Promotions: These are the rules.

Lawyer starts looking at the sheet and looks up almost instantly. Cut shot to the following:

4.1 By entering this contest You agree that any (winning or short listed) image


Lawyer: What does a shortlist mean?

Promotions: Oh the shortlist is the list of images that the judges thought could win the contest, even though some of them did not win.

Lawyer: Got it. The winning image, then the ones that would have otherwise won. So if we had a second and third place, they would have placed second and third.

Promotions: No silly, we had a second and third place, they are winners also.

(Direction: Cut to lawyer typing a note on laptop as follows "What is a winning image may not be clear, make sure to double check this later.")

Lawyer: Ah, okay, the one that would have been in fourth place then.

Promotions: No, we also award an Honorable Mention.

Lawyer (realizing where this is heading): I assume you meant Honorable Mentions, plural, right?

Promotions: Of course.

Lawyer: Got it.

Promotions: Good, we are talking about short listed. The ones that were narrowed down by the judges along the way.

Lawyer: I am with you; from the entries the entire pool is narrowed down to a more specific pool from which the winning images and honorable mentions are selected.

Promotions: YES!! Exactly!!! Can I use this short listed image? (Places photo in front of lawyer.)

Lawyer: (Looks at the image, taken by Joe Smith.) Okay, please let me see the letter or an email from Joe Smith acknowledging he knows that he is on the short list.

Promotions: Ummm, we don't have one.

Lawyer: Okay, we can work around that. How about the certified receipt and copy of the letter you sent to him?

Promotions: Oh, we don't have a copy of the certified receipt.

Lawyer: You really should be sending these things certified, but a copy of the letter itself may work.

Promotions: Sorry, didn't mean to be unclear, the reason we do not have a copy of the certified receipt is because we did not send any letters out.

(Lawyer grabs a couple of aspirin, pops them then a small smile develops and a slight chuckle)

Lawyer: Yeah, guess sometimes I am old school, so can I see the email you sent to Joe Smith letting him know he is on the short list?

Promotions: Didn't send those either.

Lawyer: Well since short listed is a rather broad term and not really clarified, it is risky using the image.

Promotions: But even a 3 year old knows what short listed means, c'mon you went to law school, you have to be smarter than that.

(Lawyer, internal monologue that we can hear "If I was smarter than that I would have gone to medical school." Lawyer sighs.)

Promotions: Sometimes you are just seem a bit dense and picky. Take a look, here is a copy of the email and attachments that were sent to the judges with the short listed images.

Lawyer: Good, at least there is an internal document showing that there is a shortlist of some kind. (Looks at the email and short listed images, starts frowning.) Um, the images are stunning, but I do not see the picture Joe Smith took. Maybe I missed it because I am not an expert in underwater photography, and some of these images look very similar, almost like duplicates (cue foreshadowing music, subtle, more of a feel and unobtrusive), but I am pretty sure I would be able to spot it - I would assume a Great White Shark in Coats and Tails would jump out at me, particularly with the seal playing the piano to accompany it.

Promotions: Whoops, sorry wrong email. The was the last round of short listed images. Joe Smith made it to one of the earlier rounds of short listed images.

Lawyer: ROUNDS of short listed images?!

Promotions: Yes. It takes a couple of passes to go through them all.

(Lawyer grabs another two aspirin and a quick shot of bourbon to chase them, which is in his coffee cup. It is almost 9:30AM, no need to let the headache get too far out of control.)

Lawyer: Okay, do you have anything at all showing the shortlist?

Promotions: Of course, here you go. The email for the first of the four short listed emails.

Lawyer: It is kind of tenuous.

Promotions: We MUST be able to do this or we cannot do our job properly.

Lawyer: It is a lawsuit waiting to happen.

Promotions: The Senior VP of Promotions is insisting we get this done and will talk to your boss.

Lawyer Picks Up The Phone and Calls VP of Legal for the Caribbean Company, the company he works for and which is owned by Holding Company.

Lawyer: Yeah Joe, I have an issue about short listed images in a contest (explains what short listed images are to the best of his ability based on the conversation.) Yeah, Humhum. It is not clear, but Promotions is insisting and the said the SVP of Promotions wants it done. (Pause) Yeah, it is risky and unclear, but it is real important to them (Pause) Okay. (Hangs up)

Lawyer: The VP was not too happy with me and that call, but I plead your case. He is going to check with the Sr VP of Legal for the Caribbean Company and get back to me. I'll give you a call when I hear.

(Lawyer gets call every 15 minutes from Promotions to see if there is any news, finally 3 hours later, record time, Lawyer gets the answer and calls Promotions)

Lawyer: The Senior VP of Legal called the VP of Legal who called me. Good news - since it is so important to you, might as well try it. Come to my office and bring the rest of the rules, the sooner the better. You'll be right over? Good.

(Cut to clock showing 8:00PM and pan to Lawyer is putting on his coat. Promotions bursts through the door.)

Promotions: Hey there. What a great day, was just in a limo with Superstar who took me all over the place, had a great lunch, met the media, went to that great new music club for early afternoon drinks. Just great. Here are the rules, take a look at them and get back to me in the morning. No time to chat, I need to get to the world premiere of Superstar's movie. The after party is going to be killer. See you in the morning.

(Lawyer takes off his jacket, picks up the phone, calls the local deli for a delivery, starts looking at the rules and reaches for the bottle. Passage of time, flipping of papers, clock shows almost midnight, lawyer gets up, puts on jacket and heads out.)

(Scene: Light coming through office window. Clock shows 9:00AM. Lawyer picks up phone, cut to empty office of Promotions, phone ringing on desk, no one in office. Lawyer places phone down. Similar sequence an hour later. Clock on Lawyer's Desk shows a little after 1:00PM and lawyer is opening up a dish with what looks to be warm pasta - steam is the tell tale. Picks up fork, Promotions walks in, looking slightly the worse for wear.)

Promotions: Hey, good morning!! What a great party last night.

Lawyer: Good afternoon, glad you had a good time. (Sighs and pushes the hot meal off to the side.) Well I went through the rules and there are some things, well many many things, we should discuss. Who drafted this?

Promotions: We did with the help of all the other companies owned by Holding Company. It gives us everything we need to do our jobs.

Lawyer: Okay. Anyway, let's go through this, shall we? The first line says

You submit may be used by Organisation Name (and its partners)


Lawyer (continuing): So where is this being used?

Promotions: Holding Company has a new magazine about diving in Indonesia. Caribbean Company specializes in Caribbean diving, so the short listed image will be used by the Indonesia Company – if you knew anything Great White Sharks and Seals are only found in Indonesia.

Lawyer: Ummm, the Indonesia Company is not a partner of Caribbean Company.

Promotions: Of course it is.

Lawyer: Technically, it is not.

Promotions: You are doing it again.

Lawyer: If someone wants to sue us because of the use of the short listed image in the Indonesia Company magazine they are going to want proof that they are a partner. There is no partnership agreement and truthfully, we do not want to be partners with Indonesia Company. If the Indonesia Company goes under, if we are a partner with them, we can be liable as Caribbean Company. That will not make us, or more importantly, Holding Company, very happy. And if we get sued and claim they are a partner and win, that opens up a whole can of worms.

Promotions: You really have a tendency to be a real pain in the neck. Do I have to call the SR VP Of Promotions about this? They want it done. Now.

Lawyer (looking at the plate of food and the last bit of steam coming off it and the chances of a hot meal disappear): "Okay, you know what? Fine. In this case I will let it go. But the language should be changed to partners, affiliates, subsidiaries and recognized legal entities. Actually, there is more to it, but let’s move on. Now this next bit."

solely for marketing and promotions purposes of this contest or future contests and no other purpose,


Lawyer: Okay so we are giving Joe Smith's image away.

Promotions: That would be kind of stupid, don't you think? We are going to be selling things that include the image.

Lawyer: But it says solely for Marketing and Promotionsal purposes. Caribbean Company, wait I mean Indonesia Company, PAYS for marketing and promotions. Companies do not get income from Promotions or promoting something they have. Well, other than people buying things due to such marketing and promotions.

Promotions: I am really beginning to think you are the south end of a horse heading north. You know what? Scratch that analogy, you are what comes out of the south end of a horse heading north and I am just going to have the Sr VP of Promotions talk to people. Here is a list of the things we are going to do (slams down sheets of paper) and if you can't sign off on this, I will find someone who will. (Door slam as Promotions heads out of office.)

Lawyer picks of the phone and shoots off an email to VP of Legal for Caribbean Company, better let them know what is coming......

-------------------------------------

Flash Forward, 10 months later, Lawyer's phone rings:

Lawyer: Hello?

VP of Legal: You really got us into a bad situation, we lost the lawsuit.

Lawyer: What?

VP of Legal: The Caribbean Company photo contest, that's what. You signed off on what they wanted to do with the images!!!!

Lawyer: But I sent out the email describing what they wanted and my concerns with it. The Sr VP of Promotions really wanted it done and you and the Sr. VP of Legal said to just do it.

VP: Are you brain dead or something? When we said just do it, we did not mean to leave our backsides hanging out in the wind. Didn't you go to law school? That is what is says on your resume, right?

Lawyer: But, Promotions wanted....

VP: I do not need to hear your buts. Who cares what Promotions wants? It is our job to help as much as possible, but need to protect the Caribbean Company. A first year law student could see the holes in what you signed off on. Who cares if it seems that the rules could only mean one thing. You KNOW how contracts work, correct? That things are construed against the drafter, that specific controls over the general, that all words must be given meaning? Again, I ask, did you really go to law school?!

Indonesia Company gave away mouse pads that have a calendar at the Amazing Underwater Trade Show Held In Boise, you know the one where you pay $100 a day to walk around and see things, and the mouse pad includes Joe Smith's image. We also lost all the other suits. Do I really need to go through all the holes that are in the rules? Anyway, Indonesia Company is out of business because of this and since we were determined to be their partner, we are on the hook. Start brushing up on more partnership law to see how much of a bath we are going to take on this. Unreal that we had to devote so much time to a photo contest of all things. You really need to get a sense of priorities.

Lawyer hangs up the phone. Grabs the bottle of aspirin and bourbon bottle from the drawer. Heads out the door and leaves pass key at security desk.

-------------------------------------

(Scene: Flash Forward, 6 months later, Lawyer on a beach, sipping a rum drink and picks up newest copy of a diving magazine. Flips through the magazine and sees an announcement for a photo contest, quickly scans the rules, and starts to smile as he picks up his laptop. He selects a couple of images and emails them to the contest. He then picks up a copy of a local real estate magazine and camera cuts to a advertisement of a beachfront home with a hefty price tag. Camera pans up and an evil look crosses over Lawyer’s face. Focus on his hand reaching for his drink, then slow focus to the ocean in the background as the drink loses focus.)

[Fade to Black]

#29 decosnapper

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Posted 05 April 2010 - 12:18 PM

SCREEN PLAY FOR YET UNTITLED MOVIE, TENTIVELY TITLED “A LAWYER”

FILMING TO START SUMMER 2010

HIGHLY CONFIDENTIAL AND TO BE DISTRIBUTED ON A NEED TO KNOW BASIS.

......
[Fade to Black]



Can we have a summary please?
Simon Brown

www.simonbrownimages.com

#30 JasonDPG

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Posted 05 April 2010 - 12:20 PM

SCREEN PLAY FOR YET UNTITLED MOVIE, TENTIVELY TITLED "A LAWYER"


dude you got way too much time on your hands! :goodpost:
**************************************************************************************
Jason Heller
www.DivePhotoGuide.com | www.JasonHeller.com
| www.UnderwaterCompetition.com | www.NYUPS.org

#31 TheRealDrew

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Posted 05 April 2010 - 12:29 PM

Can we have a summary please?


It is a tale of anger, hope and frustration, laced with conflict and tension, which provides what I would assume is a wild guess as what possibly could happen during a conversation while going over agreements in a company.

Sadly though (spolier alert), the Lawyer is not rendered into bits and pieces at the end.

And it may be just be a bit tounge-in-cheek throughout ;)

dude you got way too much time on your hands! :goodpost:


Coffee. Lots of it.

#32 JasonDPG

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Posted 05 April 2010 - 12:30 PM

Coffee. Lots of it.


ok no excuse not to be at NYUPS tomorrow night then :goodpost:
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#33 TheRealDrew

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Posted 05 April 2010 - 12:39 PM

ok no excuse not to be at NYUPS tomorrow night then :goodpost:


Barring unforeseen circumstances, I will be there. (I remembered to clear the day properly and there looks to be no snow coming) ;)

#34 Poliwog

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Posted 05 April 2010 - 04:26 PM

Yes, any of us as a photographer could try to limit the number of copies, but the vast majority of the time the right is not going to be given.


I'm having a bit of trouble with this statement. It is the photographer and not the company that grants the rights to reproduce his/her image. Any further use of the image above and beyond what was originally negotiated would require further compensation.

Or a photographer has a cover shot on a magazine and that cover of the magazine is reprinted later in another issue as a "Subscribe Now." And the photographer comes knocking at the door again. Once again, yeah maybe this is something a company could be willing to discuss depending on circumstances, but when going back to legal the creative people will get an earful and it is really almost impossible to administer later on.


Are you saying that it's all right to leave out one of the stakeholders in the creative process due to corporate expediency?

And this is all in a relatively controlled situation among professionals who know the business.


If they are professionals "who know the business" and are administering the process, then they should be quite use to dealing with photographers, their agents, and/or stock photo agencies on a routine basis. I see no difference between the photographer who submits one photograph in a contest settings and a photographer who submits images for publication and payment and the abilities of the users of said images to keep the facts straight.



Since we are now entered the world of scenarios....



Ted, Senior President of xyz corp: "Welcome to the second quarter financial review of our promotional products. As you all know, the last quarter has seen a drop in sales of 12% on an annualized basis. I called this meeting to see if there is a viable way of stemming our losses and returning ourselves to a state of positive cash flow and profitability. A good many of our jobs ride on the our ability to meet the 6% annual projected sales increase for this fiscal year on top of our 12% setback. Bill what does accounting have to say for itself."

Bill, President of accounting services for xyz corp.: "Well as you know, prior to holding the xyz Corp photo contest, our sales from our promotional products were languishing versus our competitor, abc ltd, and our own information had us sliding back the 12% mentioned earlier. We decided to hold the contest as we identified a need to refresh our product lines with a view to increasing our sales potential and felt the contest was the most inexpensive way to do it. We asked a few big name creative types to judge the contest and offered them a small honorarium to do it, a mere pittance really, if you consider what it would cost to buy similar images from a stock photo agency, hell, it even beats microstock prices. Unfortunately we haven't made up the extra 6% corporate edict increase in sales for the year yet.

Ted, Senior President of xyz corp:"Al, has marketing got any kind of ideas about how we can get the extra 6% sales by the end of the year?"

Al, President of Marketing of xyz corp.: "Well as you know we have been giving this problem our complete undivided attention for last couple of weeks, and we think we might be on to something that just might help us reach our corporate goals for the current fiscal year. We've been poring over the statistics from the our very successful Photo Contest campaign and have found a way to get a little more leverage from all the entries we received. Apparently, the judges were pretty good at picking the winners but not as good as you would think! While the judges' picks did boost our sales the 12% overall for the year, we found that by monitoring the number of hits from all the entries we received in the contest, that the judges seventh and eighth pick was actually the most popular images in the whole damn contest by about 15%. So the marketing department is proposing a redesign of all our promotional products as quickly as possible so we can meet our corporate objectives as soon as possible and still end up with a small marginal increase above our 6% target."

Ted, Senior President of xyz corp: "But isn't this going to cost us a lot to renegotiate with the photographers once they find out what we're planning to do, that is, assuming we know who took these photographs in the first place?"

Al, President of Marketing of xyz corp.: " Oh, none of that's a problem for us, as we had the rules for contest entry written in such a way that for photographers to enter our contest, they would have to give up all their rights to their images for a chance to win. We own the images submitted to our photo contest lock, stock, and barrel, and we didn't have to pay anybody to get them. Boy, what some people won't do to get a little bit of fame."

Ted, Senior President of xyz corp: "That's brilliant Al, this strategy will effectively allow us to meet our corporate sales quota and still give us a little breathing room to boot. Son, I knew there was a reason why I hired you. All this talk about sales has gotten me thirsty, lets pass on the back nine and head back to the clubhouse and celebrate our new sales strategy with a few drinks."

Al, President of Marketing of xyz corp.: "Whatever you say, Dad!"
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#35 decosnapper

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Posted 06 April 2010 - 12:57 AM

It is a tale of anger, hope and frustration, laced with conflict and tension, which provides what I would assume is a wild guess as what possibly could happen during a conversation while going over agreements in a company.


Right. I must have been a bit slow of thinking and missed the point of the script. Thanks for clearing that up.

Just out of interest - It's not clear if there is an alternative idea in the script. I was looking something that would help the magazine run a competition and secure the rights they need as well as keep photographers happy but perhaps I have missed it. If I did, then many apologies in advance. What terms do you think would work for both parties?

Edited by decosnapper, 06 April 2010 - 01:07 AM.

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#36 photovan

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Posted 06 April 2010 - 03:20 AM

Seems that everyone is feeling warm and fuzzy after talking to the editorial guys at SD.

My problem with this is that the editors today won't necessarily be the editors tomorrow; and in the end the agreement is with Bonnier, not with SD.

And the "they are too big to do it properly" excuse is lame. As a micro-business I'm expected to do things properly; spend time and money getting my commercial photography permits; pay handsomely for public liability insurance etc etc all to the letter of some law or other. Why is suddenly OK for a 350 million dollar company to skimp a few lowsy bucks on a contest contract template that in the end is "not what they really meant anyway". And as shown, they could have copied their template from myriad other comps if they DID want to do the right thing on the cheap.

I'm sure the intentions of the staff at SD are honorable, I guess you can only hope they will be the staff forever :goodpost:

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#37 Walt Stearns

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Posted 06 April 2010 - 10:54 AM

For everyone who has an opinion on what they think their images are worth should read this article from The New York Times.

For Photographers, the Image of a Shrinking Path

Like it or not, it certainly spells out where things are going.

#38 TheRealDrew

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Posted 06 April 2010 - 11:48 AM

I know I mentioned some of this above, but figured it also fits in this reply. Also I really am a pro-artist/photographer/musician type of guy :dunno:

I'm having a bit of trouble with this statement. It is the photographer and not the company that grants the rights to reproduce his/her image. Any further use of the image above and beyond what was originally negotiated would require further compensation.


Corporate expediency is not necessarily the issue as much as corporate practicality (kind of close I admit) and the way things work in terms of getting things done.

Photographs have become very fungible. To negotiate every conceivable scenario can be more trouble than it is worth. Again, the hypothetical, if the company has to run more than a normal number of runs of a magazine or reprints. Is the
company going to go back each time? Will they entertain someone who submits one of 100 images in a issue to limit to "normal runs" and no reprints. Are they going to negotiate every possible combination?

Mind you, I am not saying there cannot be some general limitations, and also there is some leeway for some additional protection, but there needs to be some sense of the place where you (any of us) are "coming" from and what value is truly being brought to the table vs. what a company will entertain before saying it ain't worth it. Again, alot of this is context based and there is never any harm in asking. But that is really when the foot is in the door already, where there has been some face time, where the company has a sense of who they are working with.

Administration of "big contracts" can take alot of time. Think about how difficult it is for payments to be sent out in a timely manner from companies for payments of invoices. As the saying goes, "They can send people to the moon, but record companies still cannot get out royalty statements in a timely manner." It is not that the companies are trying to mess with people (generally), it is that the systems themselves are set up in a certain manner to help things run effectively (in theory), but hiccups can occur.

Personally I totally agree - with computers, image database software and the rest it should be easier to do, pull the InDesign or Quark files, see what files are used, look up what the rights are and done. But there is also the aspect that you have the tail wagging the dog in some cases - the more bits and pieces that constitute the final product open up more potential holes so internal standards get developed. (Do you want to sell to a huge store as a vendor of some product? Here is the form and terms of conditions. Yes, of course the on one sided and draconian. Don't agree to them? Feel free to sell your product elsewhere.) If a dive magazine wants a photo of a Queen Angel for an article, how much hassle will they put up with in limiting rights. Dunno.

Are you saying that it's all right to leave out one of the stakeholders in the creative process due to corporate expediency?


Depending on various things, unfortunately yes. All parts that go into a bundle of rights are not equal. Some person who creates some CGI affect of model is not going to have the same rights as a director of a movie, yet they are both could be considered stakeholders in the creative process.


If they are professionals "who know the business" and are administering the process, then they should be quite use to dealing with photographers, their agents, and/or stock photo agencies on a routine basis. I see no difference between the photographer who submits one photograph in a contest settings and a photographer who submits images for publication and payment and the abilities of the users of said images to keep the facts straight.


I agree that makes sense, but no system is perfect and mistakes will happen. Often there is some vetting process before businesses will even accept things from someone. Why? To avoid material from "unknown" sources which may not be the .....ummmm...... most rational. They can turn into a time bomb. Contests extend things further into the realm of potential problems and there is a more limited balance of negotiating power.

And I am sure there are places who have their act together, with lawyers who understand the business, and can (do) make things more tolerable.


Since we are now entered the world of scenarios....



Ted, Senior President of xyz corp: "Welcome to the second quarter financial review of our promotional products. As you all know, the last quarter has seen a drop in sales of 12% on an annualized basis. I called this meeting to see if there is a viable way of stemming our losses and returning ourselves to a state of positive cash flow and profitability. A good many of our jobs ride on the our ability to meet the 6% annual projected sales increase for this fiscal year on top of our 12% setback. Bill what does accounting have to say for itself."

.........

Al, President of Marketing of xyz corp.: "Whatever you say, Dad!"


I hate kids who get their jobs due to nepotism :B):

Legal would look at it (assuming how the rules were drafted) and give the go ahead or not. If the rules gave the company those rights, then they have them. No one is holding a gun to anyone's head to submit images to a contest. They do so on their own free will. If the language is opens up a potential legal hazard, the lawyer should stop it immediately, no matter how much others will b__tch and moan that they must be able to use something or the world will stop rotating on its axis.

I think it is a very good thing to call attention to the issue on general and also let people know that there could be issues with the rules, such as the heads up given in this thread by Tim, things started by Simon and the others on the subject.

But when people start questioning an entities factual veracity, for instance, I think things may just be taken a bit too far. If that is how they choose to run their contests, so be it - meaning their choice of rules. Can some things be deduced from the rules, maybe.

For me it is more looking at something and thinking it is sloppy drafting, some form or an overeager (or overly cautious) lawyer. But by the same token, knowing some of the background on how things have gotten into a variety of contracts through the years, I can understand the caution some rules have. It is some of the comments, positions, that could be a tad misguiding to people, that should be avoided. For instance:

On the contest rules - Me, hey it is a chance to be seen or get a little credit, it is not like people on my door and if I give away too much on my one photo, it may lead to good things and if this was the only photo that was worth anything, the career is going to be kind of in the toilet (unless of course the photo is something so rare that it may never be captured again.) Eric Cheng or Alex Mustard - totally different story because the value of what they are delivering. (Just for the record, there are a ton of amazing photos we all see everyday around here and I am not trying to minimize the quality, it is more that some people may need a break - do well in a contest for instance - while others are past needing a contest for whatever reason.)

It is very similar to the threads around here where people get a bit snarly about any discussion of giving a photo away and that to do so is the equivalent of being the parent of Rosemary's Baby.

I also want to make something clear - I abhor infringement on someone's intellectual property rights or the intentional use of IP rights when they know it is outside of the scope of a contract.

I have been engaged in VERY heated arguments with people who think file sharing, torrents and the rest of similar ilk are fine because "Well it is not hurting anyone."

I tell them to write a song, take a photo, film a movie, write some software and then watch someone take it and get back to me. I have had images stolen (early days of the internet). And I think certain contests, such as the ones I mentioned in this post, should be applauded and the people behind it deserve many thanks for what they do and being sensitive to the needs of photographers and videographers. And I have passed on contests because of the rules.

Thanks for clearing that up.


:goodpost:

Just out of interest - It's not clear if there is an alternative idea in the script. I was looking something that would help the magazine run a competition and secure the rights they need as well as keep photographers happy but perhaps I have missed it. If I did, then many apologies in advance. What terms do you think would work for both parties?



You are correct, there were no rules in the script. And before continuing further, just want to make sure to reiterate something I mentioned above one last time - I think it is REALLY good when Tim, you and others point out issues which can be problematic for photographers, and even more so since WP has a common denominator of people who love UW imaging - with the number of contests out there for UW types, those who are newer to the contest and publishing arena and may be prevented from doing something they could regret later on.

In fact the rules you posted were good also, and the couple of things I pointed out were more to show what happens with language and companies. The things I have seen, the good, the bad, the craziness, sometimes could seem outlandish, yet as friend says "You just can't make this stuff up." Though the example of being sued because of the calendar being on a mousepad maybe extreme, there is alot of bizarre out there. When it happens it makes the rounds and winds up in contract forms and corporate culture. Often rather intractably. There are literally some things where attorneys are told "If you change this paragraph at all, just pack your bags and leave."

Of course the bizarre is not all the time, and really not that much, but when it happens it really leaves its mark. That is how some generally accepted basic form contracts to start a negotiation are 50 pages instead of 5 pages, the difference being that the other 45 pages discuss things and minute details to cover things that you would assume people would do anyway. But when it does happen, and the language is not there, jobs can be lost.

Fortunately when I draft nowadays I have the luxury of doing it more my way and strip out the theoretical pitfalls and address what really happens day-to-day. I let people know the what-ifs and leave the decisions to them on how they want to proceed. I try my best to keep things as short as possible and in English (well American English ;) ), but even then people will want different things.

Example: There are two companies that are formed for charities. They ask for the use of photos on a poster for free since they are not really big and do not have cash to pay, but they say that they hope at some point to be able to pay for photos and go back and maybe even pay the photographers who helped initially, but the do not want to commit to paying past photographers in a contract because they heard that can lead to problems.

Company #1 Conversation:

Me: "That is okay, you do not have to put anything in the contract about paying me at some point down the line. I want to help and if money comes my way later, it will be a nice surprise anyway. So you can use my photo on the poster. By the way, how many posters have you sold?"

Them: "The first 7 Posters each sold 100 copies."

Me: "Okay. Though I am willing to help and want to get cash flow going for you, I will limit your use to 5,000 copies. That should get you going and over the hump for why you cannot pay now."

Them: "No."

Me: "Maybe you are right, make it 10,000 copies."

Them: "No, it is too much work to remember that we cannot make more than x copies. We do not want to have to think about that."

Company #2 Conversation:

Me: "That is okay, you do not have to put anything in the contract about paying me at some point down the line. I want to help and if money comes my way later, it will be a nice surprise anyway. So you can use my photo on the poster. By the way, how many posters have you sold?"

Them: "The first 7 Posters each sold 100 copies."

Me: "Okay. Though I am willing to help and want to get cash flow going for you, I will limit your use to 5,000 copies. That should get you going and over the hump for why you cannot pay now."

Them: "Thank you, that is great news and is going to go a long way to helping us meet our goals."

So, back to the language issue regarding rights. As a photographer, I really prefer the limited language. The language that Tim set forth above, the language you posted, the language from other contests.

And, believe it or not, I almost prefer limiting language from the inside also - meaning if I was a lawyer at a media company, contests have a certain value in terms of promoting products and so forth, but they can come with headaches. Limit the rights to the magazine, including all formats that it is distributed or could be distributed in, posting on websites in connection with the contest or the magazine and posters/placards that get shown at Dive Shows. If something is that important, bring it up and have it put in, otherwise find another photo. Maybe tomorrow I can give a bit more of a whirl on contest language.


For everyone who has an opinion on what they think their images are worth should read this article from The New York Times.

For Photographers, the Image of a Shrinking Path

Like it or not, it certainly spells out where things are going.



:(

#39 Tim of the Deep

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Posted 06 April 2010 - 02:48 PM

The screenplay treatment is a masterpiece. Forget contests! Hollywood here we come.

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#40 decosnapper

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Posted 06 April 2010 - 10:19 PM

I know I mentioned some of this above, but figured it also fits in this reply. Also I really am a pro-artist/photographer/musician type of guy :goodpost:

..........................

You are correct, there were no rules in the script. And before continuing further, just want to make sure to reiterate something I mentioned above one last time - I think it is REALLY good when Tim, you and others point out issues which can be problematic for photographers, and even more so since WP has a common denominator of people who love UW imaging - with the number of contests out there for UW types, those who are newer to the contest and publishing arena and may be prevented from doing something they could regret later on.

In fact the rules you posted were good also, and the couple of things I pointed out were more to show what happens with language and companies. The things I have seen, the good, the bad, the craziness, sometimes could seem outlandish, yet as friend says "You just can't make this stuff up." Though the example of being sued because of the calendar being on a mousepad maybe extreme, there is alot of bizarre out there. When it happens it makes the rounds and winds up in contract forms and corporate culture. Often rather intractably. There are literally some things where attorneys are told "If you change this paragraph at all, just pack your bags and leave."

Of course the bizarre is not all the time, and really not that much, but when it happens it really leaves its mark. That is how some generally accepted basic form contracts to start a negotiation are 50 pages instead of 5 pages, the difference being that the other 45 pages discuss things and minute details to cover things that you would assume people would do anyway. But when it does happen, and the language is not there, jobs can be lost.

....................................

So, back to the language issue regarding rights. As a photographer, I really prefer the limited language. The language that Tim set forth above, the language you posted, the language from other contests.

And, believe it or not, I almost prefer limiting language from the inside also - meaning if I was a lawyer at a media company, contests have a certain value in terms of promoting products and so forth, but they can come with headaches. Limit the rights to the magazine, including all formats that it is distributed or could be distributed in, posting on websites in connection with the contest or the magazine and posters/placards that get shown at Dive Shows. If something is that important, bring it up and have it put in, otherwise find another photo. Maybe tomorrow I can give a bit more of a whirl on contest language.


I often wonder if I should have studied law. And then I wake up and realise it would have been a huge mistake. I like simple, easy to understand concepts but somehow when a lawyer gets involved it starts to get hazy.......but I also know the paperwork helps when (and generally only) when things go wrong.

Example; a client ends up using an image outside of the terms of the deal that was done and dusted 2 years ago. They claim that it's "industry practice" et al and the "informal nature" of the deal means they could use it. At this point I pull out the delivery note and invoice....... in other words, paperwork supports my reasoning and their argument isn't so strong.

I bet not every one who supplies images for commercial use ships a delivery note stating the precise terms? 999 times out of 1000 I never need the paperwork and think "is it worth it? Should I bother?" And then once in a while a reminder pops up.

The magazines want to cover their backsides, just like me. The question is how much should be covered? If the intention is (and I use the term broadly) "competition display and future promotion of said comp" then that's all they need. Corporate boilerplate does exist to look after their interests, but contracts do need to be "fair". There are only three things we can do; ask them to change their terms, raise awareness and decline to enter.

And I guess all three are "ongoing".
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