Sticky situation?

[Morgan J Segal]

So I was recently hired by ESPN to shoot the Rally portion of the X Games.
When they initially contacted me, the guy offered me money that amounted to my day rate and a half, sounds good. Later in the conversation I would find out that it would be 5 days of work, not so good. But I figured, hey, it's the X Games it would be worth doing, plus he said I could resell the photos. Cool! I had been in contact with some other companies and Car and Driver about shooting this

About two weeks later I get an email from someone else in marketing making introductions, etc, but what do I find attached to the email?..... a photographers agreement- Zing! In this agreement it states that I was to be doing "work for hire" and ESPN would own all images taken by me :eek:
Well, I freaked and called my contact who assured me that they only wanted exclusive rights to the photos I gave them and anything else I took I was free to sell. Not quite what I was told originally, but that made me feel a little better, until I read the agreement again, which clearly stated that they own ALL photos including out takes :eek:

So I decided that I would play dumb and ignore the agreement. I did not hear another peep about it and all was well until I got to the event. I got my credentials and went out and took pictures came back at the first break when I was stopped by some random ESPN person who asked if I had signed the liability waiver. I said no and proceeded to go sign (the norm for this kind of event) but it did not look like any kind of liability waiver I had seen before, so I read it.
Low and behold it was a different sign away your rights agreement :eek:
It basically said that I was only allowed to sell the photos for editorial purposes. Rrrrrr!

So I came up with some BS about how this form conflicted with my agreement with ESPN and walked away without signing

So here's the question, since I never signed ANY of their agreements (even one to get the credential) do they have any power to keep me from reselling these images? I am afraid to ask ESPN and open a can of worms, but on the other hand I don't need a lawsuit when they see an image in a national ad (which I have had an offer for already)


BTW the credential was only good for getting a free lunch, they had gestapo security and I could not go anywhere. I ended up having to shoot from the seats in the grandstands, I might as well have just bought the $5 ticket



* Long winded for entertainment value

[Dennis Murray]

Would the images you sell have any recognizable trademarks that belong to ESPN or any of the other event sponsors or promoters?

[Jacob Leveton]

Sounds like a rock and a hard place. If you didn't sign the agreement, then technically, they could say that you weren't allowed to shoot there and sue you for anything / everything you do make from the images. And ESPN has pockets (and a legal staff) that many other event promotors dont.

did the check from ESPN clear yet? or even come?

Would the images you sell have any recognizable trademarks that belong to ESPN or any of the other event sponsors or promoters?

i'm pretty sure all of the cars had signage designating them as X Games participants, plus most of the cars were purposely built / painted for the X Games.

[John Thawley]

Argh.... I think you may be screwed and tatooed on this on, MJ. Just a hunch, but this XGame thing is becoming a jewel in ESPN's shrinking crown... and they've packaged it beyond a "sporting event." IT's a show... even John Q buying buying a ticket is restricted on any sort of reproduction... especially commerical. I think they'd probably come at you with every intellectual property lawyer in LA... which I'm guessing is a lot. And, having presented you with the agreement, they'd probably come back with the fact that you "knowingly" circumvented their assertion of protected rights.

I could be wrong... but I bet proving it will be VERY expensive.

JT

One caveat... as I think. If the image sale in question involves one of the athletes, perhaps you could circumvent the issue by selling the image to the athlete who in trun could sell it to the potential client. ;)

[Morgan J Segal]

Well then I would be putting the athlete at risk of a lawsuit, as I am sure they had to sign something similar.


So how does anyone sell an image to a sponsor at an event. I am sure you track shooters have the same issues, no?


I guess I will call and ask
Thanks

[John Jovic]

Really the whole thing sucks. But thanks for sharing.

I would never enter a legal battle with any one that had more money than I do. Do you have more money than ESPN?

I think I would just consider the whole thing a write off and move on.

It certainly wouldn't be an event I would look forward to covering next year, considereing the negligible financial return and restrictions.

Many an amatuer would relish the opportunity though. And given the opportunity to shoot several thousand digital frames, instead of maybe ten or twenty rolls of film, I'm sure that even the least competant shooter could still pull a dozen half decent frames over the course of the event.

I try to avoid events these days.

JJ

[Morgan J Segal]

I would never enter a legal battle with any one that had more money than I do. Do you have more money than ESPN?


JJ

Well, they can't get blood from a stone

I try to avoid events these days.


Me too, this was a one off thing

[John Thawley]

Well then I would be putting the athlete at risk of a lawsuit, as I am sure they had to sign something similar.


So how does anyone sell an image to a sponsor at an event. I am sure you track shooters have the same issues, no?


I guess I will call and ask
Thanks


Actually, the athlete maintains control of his image. The issue is actually on the other foot. By his participation, he allows ESPN/XGames use of his image. Think about it... they can't claim copyright over other people's logos, other peoples perfromance or other peoples likeness. The "show" is their property. No different than if I buy your old computer... you don't get to sell me the software or licenses installed on it. Not legally anywway.

Their "intellectual property" is the sum total of the parts... the show... how it is reproduced and distributed.

I have a license with American Le Mans. I can incorporate my images into products I sell on The Collection. Posters, greeting cards... whatever. They feel, as long as that driver is involved in "race activities" I'm on fair ground under thier licenses agreement. Basically, the driver "shares" that use with his signed entry form into the race. But that does not preculde him from doing anything with his image either.

Now... granted the ALMS is not NASCAR. I'm sure a NASCAR driver and/or his army of attornies could cripple me in a heartbeat. :) But again, that's not a legal discussion or challenge... that is one of monetary might. I believe it's called "greenmail."

JT

[Todd Corzett]

As for the agreement, you may want to read on SS about the whole PGA thing that happened a few months back. They were presented with a new agreement that had some crazy requirements and several people/agencies refused to sign, or crossed-out the section of the agreement. In the end, if they didn't sign the agreement then they couldn't shoot... but that was better than what the agreement was requesting. I've yet to read an agreement that really got under my skin, but if I did... I'd just cross-out that section, or ask to specifically speak to someone about it. Most of the time the agreements don't limit you much more than what you're already limited to... ie, you'd need to get permission from the people/sponsors to use their trademarked likeness anyhow, so what's one more release from the series?

John knows more about the licensing stuff that I do (and I need to buy you a dinner when you're at Laguna laster this year to pick your brain), but you could sell the images without releases. Yes, you walk a thin line... but if you cover your ass... you shouldn't have a problem (well, unless you want to shoot the XGames again and ESPN starts to deny your credential requests).

Your best bet for commercial sales, remember editorial is fair game, would be to the teams and sponsors. If they wanted to use the images, then they should be able to get the required releases. I've found the sponsor can get much farther than me when it comes to those battles, and if they want to use the image, they will do the legwork.

-Todd...

[Jim Sykes]

Ok, lets look at this slowly, you got a few things going on here. One is who owns your photos and two, what you can do with those photos.

First off, I get from your explanation that you never signed any form of agreement. If this is the case then legally, there are no real restrictions here. There is no proof that you agreed to shoot under any specific rights. Now, if there is nothing specific on the back of the credential or anything that you signed when picking them up, legally you own your photos and you can do pretty much whatever you want with the photos if it does not go against any other laws.

So that brings us to the other point and other laws. What are you legally allowed to do with a photo taken of someone else? Well, in this case you are strictly limited to editorial sales without permission from all recognizable people and names in the photo. So in this case, if it was a photo of McRae's car, you would need permission from Subaru, No Fear, McRae, and any sponsors or names you see in the photo.

This is the norm though, regardless of what you signed or not and who owns the photos.

Now, generally, if its being sold right back to a direct sponsor or competitor in the event, sales back to them for their commercial purposes are not a problem. Most of the time, as a participant or sponsor of an event, part of the benefit is being able to use any images from the event to promote yourself. So, if the image of McRae was being sold to NoFear or Subaru directly, they should have all the pull needed with ESPN to be able to use the image for their own purposes. This is why we have no problems working directly for sponsors and teams within the ALMS as they can use the images however they want as being part of the series.

If they are not a direct sponsor of the event, then you can put the responsibility on them to get all proper releases before using the image and sell to them with that clearly outlined in the contract. I dont believe this will totally absolve you of all responsibility, but it certainly would go a long way if things were to ever be brought before a court. You could always argue the image was sold with the full expectation and belief that the buyer would get all releases and they even signed something to that extent.

So, I would talk with whoever wants to buy it, find out what their relationship with the event was and see if they have or can get all releases to use it the way they want. If they are convinced they can use it (because of their agreements with ESPN or sponsors) or will get the releases and you believe them, then consider going ahead with it. If not, then I would not as you dont want to be sued by ESPN and No Fear and McRae and anyone else that feels like joining in.

Lastly, consider your relationship with ESPN. If you shot this in a way that goes against what they wanted, even though you signed nothing and they have no legal recourse, you may want to consider not selling them if you want to keep a good relationship with them.

BTW, none of this is totally absolute legal advice, I am not a lawyer, I just play one on the internet.

[Morgan J Segal]

I called one of the other X Game photo regulars and he said he has had no problems selling the his images in the past, but he suggested I call them anyway.

thanks for the advice