Small Chamber of Commerce Publisher wants Copyright! Part I

I try to give my assistant the smaller jobs that come my way. I got a call regarding this job and I didn’t really have the time to take 30+ images over a 3 to 4 day period and make $650. But my assistant wanted to do it. He got the contract and it read that they wanted all rights to the images. He was also supposed to “Indemnify” them against any claims while he was shooting, AND they could withhold payment if they did not like some or any of the pictures. The also wanted him to carry full liability insurance. Below are  a few e mails regarding the job. Since he would not give them copyright to all the images, they would not hire him. He tried to offer them additional usage, but they declined to even entertain the idea.

My name is ________ and I’m the Editorial Coordinator with ___________ Publishing. We do custom publications for chambers of commerce in the southeast — small magazines with limited budgets distributed annually.

Right now, we’re doing a pub in __________, which is a little west of _______ in the _________ County area.  I’ve seen your work on your website and we were wondering if you’d be interested in covering this assignment for us? It pays $650 and we’ll send you a shotlist with contacts and you have a quick meeting with the chamber to ensure you have a good idea of the assignment. The assignment generally takes 2 to 3 days to complete. Please let me know what you think. Thanks!

Here is the shotlist:

My assistant looked at the contract and I helped him modify a few things. He then faxed the contract to the editor and sent this e mail to the editor:

Hey __________,

I hope I’m not causing you too much trouble, because I really want to work with you on this project. I can leave the indemnity clause in, it was sort of a last minute decision. I understand your company’s concern for publication in other magazines, and I am prepared to offer an exclusive license for the period of time you’d think would be useful, would you think two years might do it? That would mean in that time no one else would publish the images, and you’d be able to use them however you wanted. If longer is needed, that can be negotiated.

When the fees are low like this, generally usage is where a photographer has to make up for it. I would love to speak with your editor and explain this so you don’t think I’m trying to jerk you around, I promise I’m really not. I just want to make sure you know that I really want the gig, and that this is standard practice with copyright. Total buyout of rights is typically offered only at an extra fee (by more seasoned photographers at a large extra fee).

I realize time is ticking and we need to get started, but I needed to explain all of this to you, and I hope you can relay it for me, or put me in touch with whomever needs to discuss it.

I really appreciate your patience and I hope you’ll hold off on contacting someone else just yet.

Thank you very much.

My managing editor says that the part about the “Contractor shall indemnify and hold the Client harmless…” and the copyright clause absolutely have to stay in the contract. She told me to go ahead and start contacting other photographers if that’s an issue.

Editorial Coordinator

I understand your concerns as well, however I’ve worked with a dozen publications at least—all in various different publishing companies and affiliations—and they’ve always included this same copyright clause in the contracts, without any buyout.

I’ve been a freelance writer for going on ten years as well, and I assure you it works the same way with written editorial content as well—anything submitted under the auspices of an editorial contract is the property of the publishing house, and that’s just how it works.  At any rate I apologize, but I tend to think that this is actually a standard clause in most editorial photo contracts. Thanks for your time, but we’re going to have to work with another photographer on this one.

I’m sorry things didn’t work out between your company and _______. I have to weigh in here and disagree with your assessment that all writers and photographers give up all rights to their work and that this is commonplace.  I write for American Photo magazine, a national publication with a circulation of 650,000, and after 3 months, I can re-publish the article anywhere I wish. I own it. The only time a company owns your work is if you, 1) sign away that right or 2) you work full time for the company. I have shot photographs for many other magazines, large and small and have never given up all rights, including the local magazine, South and the national music magazines, Vibe and Business Week. see this link:  http://www.gregceo.com/#a=0&at=0&mi=2&pt=1&pi=10000&s=0&p=5

I’ve never worked for a magazine that allowed its freelancers to reuse published photography or stories that have been submitted under the auspices of an editorial contract with a different publication, and I’ve worked for A LOT of publishing companies. That’s all I can say.

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