There are some interesting convetions in photography, the most usual is "exclusive", which often doesn't quite mean what it seems to mean in plain English. It can mean the agent gets a cut if you sell copies elsewhere. If they are managing to sell the image, I don't care that I'm giving up part of the sales I make, in exchange for a steady stream of passive income. So "exclusive" is one of those things which have to be clarified (stock agencies usually mean it, they suffer when pieces sell without them knowing. If I sell a picture to Hallmark, it's value in ads goes to practically nil).
Some contracts, however, are nasty. This is often the case in competition. National Geographic, for example, is not someplace I'm likely to submit an entry.
Winning the prize would be nice, but not winning could be painful, because all of the contests I seen them conduct have language like this.
“By entering the Contest, all entrants grant a royalty free irrevocable perpetual non-exclusive license to Authorized Parties, to use the entries and a name credit in any media now or hereafter known, without restriction, including commercially using and exploiting the entries to fullest extent possible at any time following submission. Entrants consent to the Sponsor doing or omitting to do any act that would otherwise infringe the entrant’s “moral rights” in their entries. Display or publication of any entry on an Authorized Party’s website does not indicate the entrant will be selected as a winner. Authorized Parties will not be required to pay any additional consideration or seek any additional approval in connection with such use or exploitation.”
I particularly like, Entrants consent to the Sponsor doing or omitting to do any act that would otherwise infringe the entrant’s “moral rights”.
They have monthly contests, garnering about 5,000 entrants to each. That's a great way to garner stock, which means a pretty nice revenue stram can be generated; with no recompense to the artists.
Microsoft got it right, actually.
5. ENTRIES PROPERTY OF SPONSOR.
Submitting an entry does not assign or transfer any ownership or copyrights to Microsoft; those rights remain with the creator of the original work. However as a condition of accepting a prize, you agree to grant Microsoft an irrevocable royalty-free worldwide license to reproduce and display the image, credited with your first and last name, in print and on the web for the purposes of promoting this contest. If you are unable, or unwilling, to grant Microsoft this right, please do not enter this contest.
I don't mind letting a company/agency/etc. use pictures from the entries to promote the contest (nor even to use it so in future years), but the workman is worth his hire. Advertising photos cost money. A stock photo used in an ad in a national magazine costs the advertiser not less than $500, and can run as high as $40,000 for a one time use (they pay this because it's cheaper, and faster, than hiring someone to make the image to order)
Mind you, Microsoft started that contest badly:
5. ENTRIES PROPERTY OF SPONSOR.
All Entries become the property of Sponsor and Administrators and will not be returned. By submitting your Entry, you grant Sponsor and Administrators an irrevocable royalty-free, worldwide right, in all media (now known or later developed) to use, publish, alter or otherwise exploit your Entry. You hereby forever release the Sponsor and Administrators from any and all claims you might have in connection with their use and exhibit of your Entry as set forth above. You also agree to sign any necessary documentation to effectuate that license and release. If you do not want to grant Sponsor and Administrators the foregoing, please do not enter the Contest. Sponsor and Administrators are not obligated to use the Entry, even if it has been selected as a Winning entry.
I think the please was a nice touch.
Apparetly they caught a lot of flack for that one, as the rules were changed a few days after the sumbission period started.
The best, however, was one which looked good (in a general sort of way).
When I found the link to World Wide Arts (from the California Arts Council) I was a little excited. It looked a little odd, at first. The business model is this... they sell prints. To showcase artists (and they seem to have a lot) they have screens showing art in coffee shops, and I know not where else. On those screens they have a slide show.
As with any good service, it follows Yog's Law, "Money flows to the artist."
And it's non-exclusive. They aren't claming the right to a piece of all action on an piece. If I can sell through a gallery, or on my own, or through a stock agency, they don't care. They also sell deriviative products (mugs, shirts, etc., a la Cafe Press)
So all I have to do to get in is sign the contract, and send them some files.
So, lets look at the terms.
WHEREAS, the Artist desires to grant WWA, and WWA desires to obtain from the Artist, a nonexclusive license to broadcast images of the Artist’s Artwork and interviews and likeness of the Artist on the Art Channel, and to market, advertise, distribute, and sell Products based on, or associated with, the Artwork upon the terms and conditions set forth herein.
Straightforward. Nothing here to quibble about. It's actually really nice. If they work at it one might get a fair bit of exposure; certainly it's a passive way to get artwork out where people who might be interested in buying it can see it.
“Artwork” shall mean any and all original sketches, drawings, writings, (including but not limited to books, advertising copy, slogans and painting titles), paintings and any other works of art created by the Artist which are completed as of and after the Effective Date and which are used for any commercial purpose by WWA, and/or reflected in images broadcast by WWA on the Art Channel, at any time heretofore or hereafter.
Did I read that right.... Yes, I did, any other works of art created by the Artist which are completed as of and after the Effective Date.
That list is exhaustive, and it reaches from the dim and distant past to the far and distant future.
Do they mean it? I can hear my lawyer now, "It doesn't really matter what they mean, it's binding."
A little further in,
Commencing on the Effective Date of this Agreement, Artist hereby grants to WWA the complete, unencumbered, non-exclusive world-wide and perpetual right to (i) to upload, download, edit, display, and adopt digital images, available electronically for uploading, on CD or DVD, or in any other media known or hereafter devised, which are available on the Effective Date or thereafter, of the Artist’s Artwork existing on the Effective Date or created thereafter, and to include, incorporate, display, broadcast and exploit such Artwork and images of the Artwork, in and on WWA’s Art Channel and in any publication, demonstration, marketing and advertising in any media now known or hereafter devised, and (ii) to reproduce, manufacture, publish, print, vend, market, distribute, promote, advertise, reproduce, sell, display and otherwise use the Artwork and Products for all manners of commercial use in any manner and by any means, whether or not now known, invented, used or contemplated.
Seems they might mean it. Any works, any format (you a painter... did you write an poem for your college literary mag... did I toss out a villanell on Making Light? All grist to the mill), from birth to death.
In addition to such rights, the Artist hereby grants the Publisher:
the perpetual non-exclusive world-wide right to use and publish Artist’s name (including any professional name heretofore or hereinafter adopted by Artist), likeness, signature, biographical material, and interviews in full or as edited or excerpted or any reproductions or simulation thereof, on the Art Channel, or in any publication, demonstration, marketing and advertising in order to promote and advertise the sale of the Artwork and Products and/or develop any brand name associated with Artist, and
the perpetual non-exclusive world-wide right, but not the obligation, to assert, and to defend against any actual or threatened infringement of the Artwork, and copyrights and/or trademarks related thereto or associated therewith.
Oof... Can't even pull a Prince and change your name to get out of the contract.
But do they mean it?
Artist agrees to provide and/or make available to WWA all of his or her Artwork created prior to, on, or after the Effective Date, in digital format. Additionally, WWA shall be entitled to create digital images of any Artwork. For purposes of clarification, in addition to the Artwork delivered under this Section 3(a), WWA shall also have the non-exclusive rights to any and all original sketches, drawings, writings, paintings and any other Artworks created by Artist prior to the date of this Agreement, including any “archive” images to which Artist secures access. While Artist shall take into consideration the reasonable requests of WWA, Artist shall in his sole discretion, determine all manners of an artistic nature, including but not limited to size, subject, titles, color, composition, style, method of execution and themes of the Artwork.
The Artist (i) shall cause his signature to be affixed to the Artwork by the Artist’s actual hand signing of the original Artwork, and (ii) shall cause or allow his signature to be affixed to Products either by the Artist’s actual hand signing of the Products or by the use of an official signature block, which WWA is permitted to develop, or by a mechanical means acceptable to WWA.
Yep, they mean it. Don't want to give them a work... they can make a copy, and affix your, "signature". Any work you've ever made, or will ever make.
The next piece we look at is where it gets nasty.
Covenants of the Artist.
Artist will not, during the term of this Agreement grant, license or sell any rights to, any other Person that would limit or restrict the rights granted by Artist to WWA hereunder in any way.
There goes any agreement one might enter into which has any exclusivity to it. Because WWA has been given a grant to any art the artist ever made, or will make.
What if you enter into an agreement (say with a stock agency demanding excusive access to the images you provide them)?
From and after the date hereof, each party (the “Indemnifying Party” for the purpose of this Section 13) will reimburse, indemnify and hold harmless the other party and its directors, officers, employees, shareholders, affiliates, successors and assigns, as applicable (each an
“Indemnified Party”) against and in respect of any and all actions, suits, claims, proceedings or governmental investigations, damages, losses, deficiencies, liabilities, assessments, fines, devaluation in investment, costs and expenses, including court costs, costs and expenses of investigation and reasonable attorneys fees (collectively, “Losses”), incurred or suffered by any Indemnified Party that result from, relate to or arise out of:
any misrepresentation, breach of warranty or nonfulfillment of any agreement or covenant on the part of the Indemnifying Party under this Agreement;
How does one get out of the contract?
Termination of the Agreement.
This Agreement is a perpetual license for the Artwork as set forth in Section 2 hereof, and may be terminated only as follows:
by WWA upon the material breach of any agreement, covenant or representation or warranty of Artist, if such breach has not been cured ninety (90) days after written notice to Artist of such breach.
by Artist upon the material breach of any agreement, covenant or representation or warranty of WWA, if such breach has not been cured ninety (90) days after written notice to WWA of such
by Artist upon the adjudication of bankruptcy or insolvency of WWA.
Terminations under Section 14(a) shall be effective ninety (90) days following
Do they really mean it? Would they claim an artist is in material breach and try to get a court to void a contract with another part which demands exclusive rights (usually for a limited term)? Probably not. They would probably just lie back and assert the right to make various related works as soon as the exclusive term was up.
There's one other thing which gives me pause. They say the artist gets 100 percent of the proceeds from selling original artwrk, and 60 percent of everything else, but the qualify it with the word, net.
I think I shall pass, because I don't think I want to give up; pending the bankruptcy of WWA, actual control of my art.