First, a disclaimer, I'm not a lawyer, far from it. Take the recommendations here in that context. If you're really not sure about a clause in a contract and you have a lawyer, have them review it and advise you on where your risks are and how to possibly mitigate them.

Contract Pitfalls
 
At first glance contracts can be daunting and intimidating to the average person. Beware of contracts that are overly complex and onerous. Common sense - don't sign anything you don't understand. The best contracts are the ones that explain things clearly, in plain but non-ambiguous language and appear to protect the interests of both parties more or less equally.
 
Don't assume that the contract can't be changed. If an agency wants your material enough they will be flexible. It never hurts to ask at least ask for clarification of points you are not sure of. Their professionalism and manner of response to your questions will tell you a lot about how easy they will be to deal with going forward.
 
Don't let yourself be rushed into signing a deal with talk of deadlines, missing out on a special promotion or something to that effect. Take a few extra days to read and understand the terms and again, get clarification on any points you are not sure about.
 
Here are some key areas within the contract to watch for;
 
1) Exclusivity: Does the contract ask for exclusivity and if so is it region specific (i.e. one or more countries) or global? I really caution anyone from signing exclusive contracts unless they are with one of the major players and you are sure they will actively promote your images. They need to work to earn those exclusive rights.
 
2) Transfer of Ownership: Are you being asked to sign over any specific rights to your images? They are your images. Unless you have a good reason to do it or the money is spectacular, don't do it.
 
3) Warranty: Does the contract ask you to warrant specific things about your images, such as quality level, copyright or releases? If so make sure you understand that by warranting this you are putting yourself in a position that you could be sued if you fail to provide proof when requested. Chances are it won't happen but it's better to err on the side of caution. One critical mistake many photographers can make is in indicating a release exists even if they don't have it on file. Its the, "well, it's my cousins kid and I can get that anytime" scenario. Make sure you have those releases on file and available when you need them.
 
4) Indemnification: A thousand curses on the lawyer who came up with the concept of indemnity. Now many contracts carry an indemnity and/or "hold harmless" clause. This is one of the most misunderstood clauses in a contract, and probably the most dangerous to the one signing it. There are many types of indemnity clauses that range from broad to narrow, as well as one sided and reciprocal versions. Basically, and again this is a non-legal opinion, it means that if any of the conditions of the contract are broken, the party protected by the indemnification clause cannot be held responsible and all of their costs could be transferred to you. In the broadest sense this can even include breaches of the terms that are outside of your control. Now that's a snake pit...
 
5) Payment: Make sure the contract very clearly indicates how commissions payments will be calculated, how often they will be paid out and what your rights are for recovering non-payment. Beware of language in the contract that puts the onus on you to request payment or gives the other party a reason not to pay. Make sure there is a clause about allowing an independent third party audit of transactions if needed. Make sure you have the right to withdraw images and/or cancel the contract if your payments do not come in.
 
6) Image Withdrawal: You need to make sure that you have the rights to submit images and withdraw them if and when you need. If an image is no longer available due to usage elsewhere or you no longer have the rights to sell it you need to be able to pull it out in a reasonable timeframe.
 
7) Renegotiation of terms: You need to understand whether the other party can change the terms of the contract at will or whether it is locked in for a period of time. In particular when it comes to commission amounts, are they specified in the contract or outside the contract? If they are not in the contract that means they can be changed at will, likely not in your favor.
 
8) Re-distribution: Many agencies now, not only will sell your images direct but may also sell them through other channels in order to gain access to additional markets or marketing plans. There's not necessarily anything wrong with this as long as they are up front about it and you understand what your ultimate piece of the pie will be. You may also want to understand your rights, if any, to opt out of certain re-distribution deals if you don't feel they are in your best interest.
 
9) Usage of your images in marketing or promotional material: Most contracts will require that you agree to having your image used in their internal promotion and marketing if the other party so wishes. Usually it's a good thing as it gets you more exposure but don't be afraid to ask for an image credit in this case.
 
10) Term of contract: Beware of contracts that are excessively long in duration, especially if there's no review or escape clause. Typical contributor contracts span 1 or 2 years with the option to automatically renew or renegotiate after that time.
 
Your Thoughts?
 
I'm sure there are other things I didn't cover here and obviously there are a lot of details left out. Feel free to add your comments based on your own experience. Have any good adventure stories to tell?




(c) 2006 Steve Smith, World of Stock [Contact] [Bio]