Magazine Contract/Agreement

[Erik Anderson]

A participant at an event I covered got picked for a feature article in a prominent magazine. My photo was selected for the lead and the editor contacted me for my rates. He committed to pay accordingly and everything is moving smoothly, he's even asking to see more of my work.

I get the agreement and it clearly states that I keep the copyright, I can't do anything with the photo until after the embargo period, etc. In addition, there are clauses as follows. I've bolded the parts that bother me (which is most of it). Is this typical boiler plate? I don't mind them using the photo elsewhere.....if I'm compensated, but it sure seems like they can do anything they want, and not pay for it.





(3) Rights in the Work. Photographer grants to Magazine the following rights in each Work:

(a) The exclusive right to publish any or all Work(s) selected by the Magazine photo editors in any issue of Magazine, on a related website and/or in e-magazine format within the Embargo Period and the non-exclusive right to do so thereafter; and also add a license for this specific use and specify that the rights are non-transferable. Any thoughts about how to do this gracefully? I'm thinking that I should mark up the contract and send it back to the editor for review explaining that his was not a work for hire and that I'm licensing a single usage for the article.

(b) the exclusive right to republish, transmit or reproduce the Work in whole or in part one or more times on or by means of any electronic, computer-based, digital or online media, methods or means now known or hereafter invented, including the Internet, World Wide Web, any method of electronic storage and retrieval and CD-ROM disks within the Embargo Period and the non-exclusive right to do the same thereafter;

(c) the exclusive right to authorize syndication of the Work in all print media in other periodicals or other print anthologies throughout the world directly or through a syndication company within the Embargo Period and the non-exclusive right to do so thereafter;

(d) the non-exclusive right to authorize publication of the Work in any foreign edition of Magazine and/or the right to license such use to a third party;

(e) the non-exclusive right to publish and use the Work in any special interest publication or book of Magazine, or in any other magazine or other publication published or distributed by THE COMPANY for which Photographer will receive an additional fee in the amount of ___N/A_________; and

(f) the non-exclusive right, by itself or through third parties, to republish, reprint and reuse the Work, and in addition to use the Work in promoting, advertising and publicizing Magazine, information, products and services in which the Work appears, and in merchandising.

(g) Magazine shall have the right to use the Photographer’s name, biography, and likeness in connection with the publication and promotion of both the Work and Magazine.


So, can I strike the parts I don't like and/or add something like 'Photographer will receive an additional fee in the amount of 'an acceptable agreed upon amount by the PHOTOGRAPHER and the MAGAZINE based on the usage.'

Any thoughts on how to do this in the most professional manner? I'm leaning towards editing the contract to change the usage and sending it back to the editor for review.

[Bill Jurasz]

When you communicated your rates did you also communicate the usage rights for that rate? If so, and if those usage rights don't match the language in their contract back to you, then they would appear to be trying to pull a fast one on you.

[John Thawley]

FIrst, NOTHING is standard. Everyone is trying to work every angle, every time. Is it unusual? No.

What I'm concerned with is you quoted a rate BEFORE seeing the discription of the USAGE. It appears you're not granting rights to the magazine. You are granting rights to a Publisher. The publisher obviously owns many magazines. :)

So, you need to pick up the phone, (if I'm correct that you've quoted a rate) and express your position that the written agreement extends beyond the terms of your verbal agreement. And, that YOUR quote was based on use in one publication.

Again, guessing.. they are NOT going to want to pay for usage in one publication. And, their reasons are valid (at least to them). They file the photo... and as they put together special editions or future articles where the image could be useful, they need to move forward. They don't want to be chasing down photographers (bunch of gypsies) for permission and rights at a later dated.

Ad agencies are beginning to play the same game. They wan blanket, non-territorial usage into perptuity. But... they don't want to pay for that. And, chances are, especially with motorsports images, they're not going to run the image world wide over and over. So, you find yourself stuck guessing and/or gambling on how often they'll REALLY use the ad. I've had this on my plate for the past month. Fortunately, I've have the opportunity to cut my deal with the end client (who I've been shooting for anyway) and increase their rate and package for full usage. Now, I'm still gambling on actual usuage, but, at least the savings is going to MY client and the I'm comfortable knowing I'm not giving in to the agency so that they can just mark-up my rate and passing on to MY client. And, it's a steadier and substantially larger amount of money.

Good luck.

JT

[Erik Anderson]

When you communicated your rates did you also communicate the usage rights for that rate? If so, and if those usage rights don't match the language in their contract back to you, then they would appear to be trying to pull a fast one on you.

I quoted prices for photos appearing in magazine, that's it. The contract is what brought forth all the other ways the photo could be used.

[Erik Anderson]

What I'm concerned with is you quoted a rate BEFORE seeing the description of the USAGE. It appears you're not granting rights to the magazine. You are granting rights to a Publisher. The publisher obviously owns many magazines. :)

As mentioned above, I granted right to publish a photo in a magazine. You are correct in that this contract is written with the publisher ultimately in mind. We've only traded one email a piece, so the contract is the first discussion of anything other than a single magazine usage.


So, you need to pick up the phone, (if I'm correct that you've quoted a rate) and express your position that the written agreement extends beyond the terms of your verbal agreement. And, that YOUR quote was based on use in one publication.

Again, guessing.. they are NOT going to want to pay for usage in one publication. And, their reasons are valid (at least to them). They file the photo... and as they put together special editions or future articles where the image could be useful, they need to move forward. They don't want to be chasing down photographers (bunch of gypsies) for permission and rights at a later dated.


I can see that point. On a similar note, I'm not willing to take a bank account hit so as not to inconvenience them!


Fortunately, I've have the opportunity to cut my deal with the end client (who I've been shooting for anyway) and increase their rate and package for full usage. Now, I'm still gambling on actual usuage, but, at least the savings is going to MY client and the I'm comfortable knowing I'm not giving in to the agency so that they can just mark-up my rate and passing on to MY client. And, it's a steadier and substantially larger amount of money.


I wish I were in a similar position, but the car is just owned 'by a guy'. He's excited to get his car in the magazine, and rightfully so, but he doesn't have deep pockets. If I had to guess, most of his money is in the car!

I much prefer to work with the clients, but this case is what it is. I'll call the editor and see what we can work out over the phone. thank you again for your timely advice.

[Erik Anderson]

I talked with the editor (who was very nice, by the way). He respected my position and we had a pleasant discussion on usage. He asked to quote an 'unlimited usage' package (something that falls into the contract clauses above). As we've discussed on here, unlimited is just too wide open of a playing field to get anything accurate and as JT pointed out, It's a guess.

Perhaps I should take my lumps, treat this as a lesson learned, and know to be clearer in my communications.

[John Thawley]

No... don't take your lumps. BUT... do be realistic.

There is no shame in negotiating or being amicable. My corporate rate is basically triple my team rate.... based on a full season. What you really need to ask yourself is, potentially, how much can they use it... and what would that generate in usage fees. Next, you need to do a gut check between reality and pontentially.

So... you have to give... if you want them to take. How does triple the rate sound to you? If you think there is more work down the road, how does double the rate sound?

In my case, I look at the year. Is my client going to run an ad after every race? Judging by advertising space rates... probably not. Are they going to run one every other race? Maybe... but probably not. So... they might run a few ads.... and I'm "betting" that the usage rate for those few times will probably equal out to what I'm collecting for the year.

JT

[Erik Anderson]

No... don't take your lumps. BUT... do be realistic.

There is no shame in negotiating or being amicable. My corporate rate is basically triple my team rate.... based on a full season. What you really need to ask yourself is, potentially, how much can they use it... and what would that generate in usage fees. Next, you need to do a gut check between reality and pontentially.

So... you have to give... if you want them to take. How does triple the rate sound to you? If you think there is more work down the road, how does double the rate sound?

In my case, I look at the year. Is my client going to run an ad after every race? Judging by advertising space rates... probably not. Are they going to run one every other race? Maybe... but probably not. So... they might run a few ads.... and I'm "betting" that the usage rate for those few times will probably equal out to what I'm collecting for the year.

JT

It's a 'very very nice photo' (per the editor) and even if he was trying to feed my ego, I think it's a solid, wheels up shot. Can they use it elsewhere? Sure. Will they use it overseas? Perhaps, but I'm going to guess not much if any. I do get the point of reality and potential.

I do see this as an 'in' to the magazine, but I'm not so disillusioned to think that this contact can or will guarantee any work. That said, I don't want to kill the proverbial goose for the golden egg.

Thanks again, JT. Your advice is always spot on.

[John Jovic]

Erik, pretty much all I do is shoot car features for magazines and I've been doing it for quite a while. In my experience it would be very unusual for an image or feature (of custom/modified cars) to be syndicated outside the publishers magazines or reused by the publisher in a magazine. But it does happen. It's not uncommon for the publisher to re run a feature in a tear sheet later in the year or even a couple of years later but it is uncommon for the feature to be syndicated in a bunch of different countries. If the image is stunning then they might use it in other magazines to advertise their own magazines subscriptions or similar. WEb use is standard. There are exceptions, especially in the 'new car' magazines.

Unless you just shot the Australian GM EFIGY (custom/concept car) doing a wheels up launch then I wouldn't loose too much sleep over it. An image such as this would be snapped up by many magazines worldwide due to the incredible interest in that particular car!

My approach in these circumstances is first to reject the contract outright as it's not always a show stopper to do so, but that isn't always an option. Next try deleting the clauses that you don't agree with and/or pick a fee that suits but be realistic. Keep in mind that many magazines are not advertising agencies or corporate photography clients at least in terms of budgets. They often have a per feature or image budget and pretty much need to stick to that so if you come in with a figure that seems OK to you but doesn't suit their rates then you've lost a job.

Sure, some publishers try to take advantage and you do need to be carefull.

Good luck.
JJ

EDIT; I just realised you're really the stock agancy here. How many stock agancies do think would agree to such a contract, it's usually the other way around where the client agrees to the agencies terms. I think you need to lay down the terms, eg single use including web use for 12 months. If they want more than that then fine, work out a fee, but don't sign a contract which takes the image out of your hands all together. I've sold plenty of images on the above basis, ie specified the useage and have not had a problem in the past. I don't see why you should be signing their contract in this scenario.

JJ

[Erik Anderson]

I was able to work out a fee above the stated maximum and got a request to submit my portfolio.

In reading the first part of your post Mr. Jovic, I think you hit the nail on the head. it's a solid shot, but it probably won't be on a billboard near you.

lesson learned, but in this instance it seems to have worked out for he positive.

thanks for everyones help. I know that I couldn't grow as fast or as well with the people in these forums.

[Jacob Leveton]

Out of curiosity - is this one of the Primedia / Source Interlink magazines?

their contracts often contain verbage like this. It's the "if we want to, we can" verbage. 99.9% of the time, the shot is used in the article they stated (and corresponding web republication), and that's it. .08 percent of the time, it's reprinted again beyond that (IE when Honda Tuning first started out, some features from Import Tuner and other magazines were brought into the book to minimize startup costs. When Project Car magazine started up, some tech articles from other magazines were re-used for the first issue or two). .02% of the time is anything beyond that ACTUALLY happening... but if they do, they're covered.

Why do they do this? basically, because people are lazy. They like having 'stock' around for random stuff like tech articles, advertisements for the parts company, etc, etc.

If you don't grant them these rights 'unlimited' , or you grant these rights at a higher price, are they likely to still use it? depends on the editor.... Many of them will say to themselves "it's not worth it" and just run the story without the shot, and 99% of the readers and advertisers wouldn't know any difference. Is it worth it to go with the price you normally would have gone with for the '1 magazine + web' useage, and risk them using the photo in one or two other places you didn't include in the rate? That's something you'll have to weigh, but in my experience, most of the time this works out just fine.

[Mike Ditz]

The contracts or POs that I have seen from magazines, corporations and agencies are usually a boilerplate contract written by the guys in 'legal' and designed to protect the clients position. They also will use the same contract for an assignment as for a stock photo sale which are two radically different things.

They are also a starting point, strike out what you don;t agree with and submit your own terms, but don't be surprised, mad or hurt if they strike out our your terms or walk away.