A recent experience taught me that photographers (and other artists) don’t necessarily have to accept outrageous contract stipulations from “publishers” or lose the deal. There’s another page in that playbook.
About three months ago I received an image licensing request from the director of a prestigious design group (I’ll call her “Mary”) responsible for developing interpretive panels for a new nature center in the state park system of one of our larger states. Mary requested “one time use” of my image for one of those interpretive panels and asked what my fee would be for such use. I told her my fee and she submitted the information to State Parks for approval. Approval came a few weeks later.
1/1250, f/7.1, ISO 500, Canon 7D, 500 f/4, 1.4 tc, not baited, set up or called in (though the carp was killed by refuge managers)
This is the image in question and it’s one of my favorites – a Bald Eagle eating a fish in midair while other birds (out of frame to the left) were chasing it.
There were two components to our informal agreement, negotiated by email:
- State Parks would have “one time use” of my Bald Eagle image #4372 for their interpretive panel at the new nature center
- For such use they would pay me my requested fee
That was it – there were no other conditions agreed to or requested by either party. As per usual in these situations I expected to be sent a contract that reflected our agreement. I received the contract but what it reflected was something very different. When I read it, three paragraphs (below) in the Copyright License Agreement literally made my jaw drop:
- “I understand that the Department wants to use and reuse the Material, as the Department deems appropriate.”
- “I hereby grant the Department an unrestricted, fully paid up, world-wide, irrevocable, perpetual license to use, reproduce, distribute, create derivative works, publicly display and perform the Material, in whole or in part, in any manner, for any purpose and in any medium now known or hereinafter invented. This right includes, but is not limited to, the right to copy, publish, distribute, alter and publicly display the Material for education, interpretation, advertising and other purposes consistent with the mission of the Department.”
- “I understand that I will not receive any money for this license agreement or for any use described above. I understand that I will retain the copyrights to the Material, but hereby grant an unrestricted license to the Department.”
In a flash I was angry. I take my photography very seriously, my images mean a lot to me and I despise being duped or taken advantage of. I let myself cool down (a little) and then fired off the following email.
“Mary,
Your request for my image was for a “one time use” by State Parks for the interpretive panels at xxx Recreation Area. I agreed to that use for a fee of $xxx.
The contract you sent me stipulates the following:
* that I will “not receive any money” for the image
* that you have the right to alter my image
* that you have the right to create “derivative works”from my image
* that you have the right to use my image in any medium you like
* that you have the right to use my image virtually any way you like, whenever you like, forever
That’s just not going to happen. Not for $xxx or for 10 times that much.
I don’t know how the agreement you and I reached became altered to the bizarre terms stipulated here but I will not sign this contract.
Sorry,
Ron”
I thought Mary responded appropriately. She said that she had questioned this contract in the past more than once with State Parks and that some other photographers had reacted in the same way that I did (but despite that, apparently State Parks had been insistent on using this contract for some time and hadn’t yielded). She told me that she would find a resolution and she did. A few days later Mary sent me a different and much more palatable agreement, the germane portions of which I’ve listed below:
-
Title of image: bald eagle eating mid-air
-
Description of use: nonexclusive, one-time, one-format use at the recreation area
-
Duration of use: indefinite. May be reproduced over the lifetime of the display
-
Credit line to read: Copyright © Ron Dudley
-
Destination of image: interpretive panel
-
License fee: $xxx
I signed the contract, sent my image to Mary and received my fee. Mary and the design group were never an issue with me. She was professional, forthright, efficient and a delight to work with. I’d do so again in a heartbeat. My problem was with the original State Parks contract.
So, what’s my point with all this? My point is that photographers (and other artists) need not roll over and play dead when publishers and other organizations or individuals attempt to hold them hostage with outrageous contract stipulations. High end consumers of photography (and other art) know quality and they generally know what product best fills their need. But they’re also highly aware that many artists are desperate for “exposure” and are willing to accept almost any terms offered just to get their work “published”. I most definitely am not.
Sure, I could have lost the sale (and the “exposure”) by refusing to sign the original contract but these folks knew what they wanted and when I made it clear that I would not accept their one-sided terms they immediately became more reasonable. It was a chance I was willing to take and I’d do it again, even if I knew up front that doing so would cause the deal to fall through.
Just sayin’…
Ron
Note: I apologize to my regular readers for the rant. I’ll be back to more normal fare tomorrow…
No need to apologize for your rant. Anyone in their right mind would do the same. I’m glad you stood up for yourself successfully.
There’s an axiom known as “Hanlon’s Razor”: Never attribute to malice that which is adequately explained by stupidity.
I imagine that the State Agency was not intentionally trying to deceive you, but what happened was just the turning of the gears of a bureaucratic machine.
Bruce, you may be right but I think there’s often a fine line between “intentional deceit” and deliberately weighting the scales heavily in your favor and then depending on the ignorance or vulnerability of the other party to make it pay off.
Stunning image and worth more than whatever they paid you! You are generous Ron, but you absolutely were about to get screwed and you had no choice but to speak out.
Thanks very much, Jerry.
Wow, Ron, this is such a stunning image!! I can see why it is one of your favorites. The contract from the State Park System was outrageous and surely the result of a group of lawyers working to “protect” their client by creating documents and/or policies that are disgusting abuses of artists and small vendors. They are lucky that you would consider letting them use one of your images (on your terms)–at any price.
Exposure…yea, sure. In response to that ploy, a photographer friend once said “people die from exposure.”
I have seen the same type of contract issues working with large corporations. I was working on a joint marketing print piece for multiple Cable TV Premium Channels. The management of the business end of the print piece was being handled by the largest premium network. I’d worked with them for years and we had a great relationship.
In those days, we were sent slides of the upcoming blockbuster movies which we had drum scanned and included in the print piece. Each Premium Network sent their own slides. I received, from one of the smaller Premium Networks, the slides they wished included with several sheets of legalese that stated: by including these slides in the print piece, that I, the designer, agreed to indemnify the Premium Network against any and all lawsuits (by actors, directors, movie studios, and anyone or any company that might choose to sue) that might arise from using said slides in the marketing piece (their marketing piece).
Needless to say, I refused to move forward with the piece. Eventually it was worked out so that I, an independent, sole-proprietor, measly tiny business working for a relatively small fee, would not be held responsible for any lawsuits arising from the multi-million dollar a year company’s use of their images in their marketing piece. Instead the multi-million dollar a year company would indemnify me against any and all lawsuits that might arise from said marketing piece.
There are so many people out there that will try to take advantage of anyone that crosses their paths. I’m so glad that your situation was resolved with a positive outcome to you.
Sharon
An incredible story, Sharon. Thanks for taking the time to spell it all out for us.
You did exactly the right thing. Good for you. It’s a beautiful photo.
I’m glad you like it, Gale. Thank you.
Good for you Ron, That is a sad deal and an incredible capture.
Thanks for shareing
Thank you, Earl.
The thing is, many photographers think that the exchane of image for public exposure will somehow morph into being “discovered” by some agent and having bazillions of $$ and adoration falling into their laps. Nothing could be further from the truth, and it always saddens me to see an artist give away their work in exchange for the hope of future riches. Ack.
I couldn’t agree more, Lane.
I am happy that you got the contract as you wanted and thank you for sharing – it gives me a heads up for possible business in the future and reminds me to know the differences in contracts and to get things in writing. Also that artists need and should get paid for their work, because behind every excellent shot is a lot of practice and hard effort and maybe dozens more shots that. Now, the photo: What a Catch! for both you and this eagle. Congratulations on this excellent shot and the contract.
I agree, Jane – it is important to have a formal image agreement of some kind. We’ve just got to remember to read the “fine print”.
Kudos to you Ron for sticking your ground. As always, I love your feathered photography. Simply amazing!
I’m glad you enjoy it around here, Kathryn!
Now….like with most contracts (and laws) is enforcement. Who will monitor the use and offer the reminder when the agreement is being violated? What is the damage and how is it to be assess? I’d give them a reminder once in awhile of the agreement. Its seems to me that if they have handed out this contract before, some have taken it. Which means the attention to detail may not be a concern. Some images have good contracts and some don’t….they may treat them all the same and let the lawyers sort it out. And in the case of most artist, they don’t have a lawyer. I have a friend who is a lawyer just for artist. Her licence plate reads ARTLAW, which shows me, she means business. The biggest part of her job is helping artist know when the contract has been violated and if damages have occured. I hope this doesn’t happen to you, but if it does, I imagine you will be able to right the ship.
Tim
As an artist, whose grandfather, father, mother, son , sisters, nephews, and granchildren all are, or were artist, I’m so pleased to hear there is such a thing as an Art Lawyer! I have a friend who is an Intellectual,Properties lawyer, but this is great news!
Tim–doesn’t this information about your art lawyer friend make you the “Artful Dodger”?
I like that..I think. lol.
Tim, I too like the idea of the ARTLAW “specialty”. I thought IP attorneys were about as specialized is it gets in that arena.
Rant MORE than justified. I am so glad that you took them on, that you won, and that Mary was a pleasure to deal with.
Mary was great, Elephant’s Child.
Stunning image! I agree with Dick Harlow. Thanks again
for your sharing your breathtaking photography and words of wisdom.
Thanks, Pamela.
WOW!!! Right on, Ron! That is THE most amazing, most incredible, BEST image of an eagle I’ve EVER seen, ANYWHERE!!! Every detail crisp and clear, can almost see the scales on the fish…an astounding capture!!! Of course you weren’t going to be steamrollered! I can’t believe the gall of anyone, ever, to ask any artist to accept those conditions…that’s almost as amazing as the image!
Re: the designation “rant”–my wise younger sister once said, “One of the problems we face today, I think is very unhealthy, is that there’s no acceptable outlet for justifiable outrage”..
Sincerely, your fellow ranter, Patty
Thank you very much, Patty.
And your sister is absolutely right. Writing this post was a bit of a catharsis for me.
Hello Sir, first things first. I recently found you and your work while looking around and I am blown away with your professional qualities!! I lay awake sometimes thinking about how good you really are… Now as to this situation that happened to you, it would have been alot worse if you didn’t stick to your guns… Never let someone make you drink from their pond. Again may I give you a heartfelt thanks to for your incredible work and play..Someday maybe I can shake your hand!!.. shutterly yours, Gary E. Greene
Thanks for the kind words, Gary. I’d be happy to shake your hand one day.
Thanks Ron for the information and for your integrity .
Thank you, John.
Ron this was a great posting and I’m very glad to read it. Your comment ” highly aware that many artists are desperate for “exposure” ” hit this issue square on the nose. I’ve been approached by a number of companies offering opportunities, and I’ve found that once I begin to question and probe regarding terms, some disappear into the woodwork. The ones who hang in there with me have generally come to an acceptable agreement. I always figure, well, if they flew the coop that easily, they probably either wouldn’t have followed through on the terms or their check would have bounced … and I’ve not given them and their “opportunity” a second thought. But for those who were willing to work with me on terms, I’ve been very, very fortunate.
This particular image, Ron, is absolutely outstanding!!!!!
Lois, nice to know that you don’t let them run over you with a steamroller. Hopefully more artists will begin to value their work as it deserves and publishers will be less willing to take advantage (though the latter is probably hoping for too much…)
Please don’t apologize Ron, not necessary! Anyone reading your Blog know how you feel, how passionate you are toward your photography and how excellent your images are. We need more artists like you, who value their art to the point of not allowing organizations or individuals to take advantage of them. If more were like you there would be less problems for photographers in general.
Many thanks for the rant, and the image is fantastic!! Well deserved!!
Thanks very much for the encouragement, Dick. I too hope that many photographers become more discriminating in the contract terms they’ll accept.
Good for you, Ron!
I have encountered a great deal of infringement on the internet of my work, and have found that the publishing side of writing can easily take the joy out of the art.
Your photo is fabulous, as the State Park has indicated by their 2nd contract with you, and they are fortunate to have it included in their display. (You ought to snap a photo of your photo on display) 🙂
Congratulations on all levels.
I heartily agree with you about infringement, Patricia – it’s the bane of my photographic existence.
One day I hope to see the interpretive panel and if I do I’ll certainly snap that photo.
First off, one of my all time favorite images of yours. Simply stunning in every respect.
I’m glad you read the details of the contract and told them what you did. It always amazes me how people want to use the images we work hard to get, and want them for free, or for a small amount, or pull the nonsense they tried to pull here with a bait and switch contract. I’m glad you stuck up for photographers in general in this negotiation and more importantly for you as this image has serious $$$ value.
Thanks, Keith. One of my goals with this post was to encourage other photographers not to “low-ball” their work just for the sake of “exposure”. As you well know, we tend to cut our own throats when we do so.
Ron
Seems like ethics are negotiable by everyone. I’m sorry.
But I got to see this marvelous hungry eagle, of course maybe eating a fish she? stole. It is so sharp I can see the beak in the fish eye. Wonder full.
Thank you
Thank you, Diana, I don’t believe this eagle stole the fish from another bird but it sure was intent on not having it taken away. One of the gulls behind the eagle in flight even bit and pulled on the eagle’s tail. I missed that shot…