Contracts and the Freelance Isn’t Free Act.
by Tim Soter
Just last week the Freelance Isn’t Free Act passed here in NYC which certainly is a step towards helping those who are freelance gain some leverage in getting payments that they are owed. I want to spend just a minute to think about a part of it, which is the language in the bill that states that clients will also be required to provide a written contract to freelancers working on projects for which they will be paid $800 or more.
I can see how this would help many freelancers but I can also envision how it’s going to hurt professional photographers. I’ve often benefitted from a lack of a contract when I’m shooting. I’m guessing if you surveyed my fellow shooters they would feel the same.
There is a trend in new contracts offered by clients, editorial and otherwise, to want to grab all of the rights to one’s photographs for a one-time fee. It’s becoming more and more common. Photographers can try and push back but in my experience they don’t have the leverage to get these contracts modified. (Ironically or coincidentally because they is no “photographer’s union.”) There is always another photographer willing to sign the contract, usually someone who is unaware of the concept of Usage in photography. Usage refers quite simply to how the client plans on utilizing the images and the price is set accordingly. There is a different price for using an image on social media versus a print advertisement. Or using a photo for one time editorial use or being able to use that images in an unlimited capacity in perpetuity (the end of all time and space.) When I send clients an estimate for every job I am sure to include the terms of Usage. It lets everyone know exactly what they are getting for the service they are paying for.
So who drafts contracts? A lawyer who wants to get the most for the company. Rather than negotiating specific Usage per job it’s much easier (via a lawyer) to say:
1. Vendor grants Agency, Client, and their subsidiaries, affiliates, agents, representatives, assigns, successors in interest and licensees an exclusive, royalty-free, irrevocable, worldwide, perpetual license to use, modify, copy, print, publish, display, distribute and prepare derivative works of all or any part of the materials (the “Materials”) created pursuant to this Agreement on media attendee social media channels, internal client recap and Client owned social media properties/networking sites (i.e. YouTube, Facebook, Twitter, Instagram, Vine, Pinterest).”
This is taken from an actual current photography contract. This grab to own freelance-created work is
like paying one month’s rent and expecting to own the apartment.
Often times the language allows for the reselling of the photograph by the client. Or retaining the copyright which means the photographer may not even receive a credit of his/her name with the work and may not even use the image they shot for promotional use. Now obviously every circumstance is different and needs to be evaluated accordingly but there must be a compensatory value for the photographer to agree to sign off on the transfer of copyright.
So how does this tie in to the Freelance Isn’t Free Act? If clients and companies are going to be forced to create a standard contract for almost all freelancers, there are strong odds given the current climate that those standard contracts will include owning all of the rights. Photography has been devalued by a number of factors; proliferation of photographers in a saturated market, incredibly inexpensive stock photography prices and shrinking budgets. Contracts that require the signing away of rights and photographers willing to sign that contract blindly are an additional threat.