View Full Version : thoughts on this contract?

11-03-2000, 03:40 PM
Here's the language of a contract I've been negotiating for some photos I took with a website (I'll leave the name out). It is not alot of money, but good for my resume. What do you think of it?


Freelance Contributor Agreement

AN AGREEMENT, made this 30 day of October between Doug Hess, hereinafter referred to as the Author, and [Company Name], hereinafter referred to as the Publisher, regarding seven photographs [names of each photo here] and captions, hereinafter referred to as the Work.

1. Publisherís Representation

The Publisher represents and warrants to the Author that the Publisher has full power and authority to make this Agreement and perform its obligations under it.

2. Authorís Warranties

The Author represents and warrants to the Publisher that:

a. Authority. The Author has full power and authority to make this Agreement and the grant of rights made hereby and to perform the Authorís obligations under this Agreement.

b. Original Work. The Work is a wholly original work, solely originated and created by the Author.

c. Sole Owner. The Author is the sole owner of the Work and of all rights therein, including all copyrights in and obtainable in and to the Work.

d. Copyright. The Work does not infringe any copyright or violate any patent, trade secret or other property, proprietary or personal rights of any third persons or contain any materials which, based on Authorís reasonable good faith belief, is defamatory or unlawful.

3. Grant of Rights

a. Author hereby grants the Publisher the non-exclusive, unlimited online rights to publish the Work on the [Website name] with photo credit to Author. Publisher reserves the right to archive the Work and promote it through online and offline channels for as long as it deems appropriate, subject to Publisherís exercise of reasonable good faith care not to use the Work in a manner which may violate the rights of any third party.

b. Nothing in this agreement shall be interpreted as limiting the right of the Author to have the Work published in newspapers, magazines, books or other media of a non-competing nature.

4. Payment.

a. Subject to the terms of this Agreement, the Publisher agrees to pay to the Author a monetary payment of $XXX for publication of the Work.

5. Indemnity

a. The Author agrees to indemnify the Publisher from and hold it harmless against any losses caused to the Publisher by reason of any breach of any of the Authorís representations or obligations set forth in this Agreement, inclusive of losses arising from claims, demands, actions or suits against the publisher by third persons which, if true, would mean that a breach had occurred.

b. However, Publisher agrees to exercise reasonable good-faith care in its use, publication and dissemination of the Work, with due regard to the rights and concerns of third parties. Accordingly, this Indemnity shall be null and void in the event that any such loss, or claim of loss, is caused, in whole or in part, by the action, or inaction, of the Publisher which violates said reasonable good-faith care.

Agreed and accepted on ___/___/___
Author's signature:

Publisher's signature:

Mailing Address, telephone number and Social Security number for Author:

Blue Spade Productions

11-03-2000, 06:18 PM
Dear bluespade,
Whether for illustration, design or fine art, there should always be an "out" clause. There are several other issues I see in this agreement. I recommend taking this to a lawyer who does work in the arts for an hour to look over/edit for you. It is worth every penny. And, you can use what the lawyer suggests in future agreements.

11-03-2000, 07:11 PM
What exactly are you selling, Doug? The non-exclusive right for them to publish your photo online and/or in other media as part of their offline promotions of their online site, with a photographer's credit to you? 3a. & b are not very clear.
3a. says you're selling the non-exclusive rights, which should mean you can sell this same right of use of the photo to another online organization; but,
3b seems to limit you to non-web publications (noncompeting, I think it said.)which implies that you are selling them the exclusive online rights in your work.
This isn't very good drafting but then most contracts of this kind aren't.

11-03-2000, 11:17 PM
I don't know anything about contracts but I think common sense says #3 down needs to be looked at very carefully.
What will the rights of the third parties be?

Tammy "I MUST be an Artist, artist".

11-05-2000, 02:55 PM
Also keep in mind that by agreeing to "indemnify" the Publisher, you're agreeing to defend the publisher in court -- so if somebody else sues them for whatever reason, and there's a trial in say, Zimbabwe... then you gotta go there and testify on the publisher's behalf. At least, that's how it was explained to me.

There's a big difference between "hold harmless" (means you won't sue them) and "hold harmless and indemnify" (means you won't sue, AND you will testify to defend them).

Yeah, talk to a lawyer.

-=- Jen "Shoeshopping" de la Cruz
http://www.BewareofArt.com and http://www.Pixelscapes.com