Question about royalties

Janus12 · January 24, 2012

Hey everyone,

I'm at the beginning of what could become a bit of a legal issue with a client. I did some work for a band last year, they used some of my photos for promotional materials for a tour they went on. They've asked to use various photos for other things since then. However, last month I found that they were selling t-shirts on their website, using one of my photos, for $20 a pop. They had never asked me about this, nor did they have my permission to use it for that purpose. As such, I immediately sent an email to them and their manager telling them they didn't have the rights to use the photo for t-shirts, and inquiring into how many they had sold. Long story short, they kept dodging me until recently when I had my attorney send them a letter. Now I'm going to be negotiating some sort of compensation with their manager. Ideally I'd like to set up some sort of royalty based contract, where I get a certain percentage of whatever profits they make on future sales. I have no idea how much to ask for. I'm not going to name the band, but know that while they aren't Rolling Stones successful, they also aren't your run of the mill local band. They are on tour all the time and obviously derive enough money from it to not have to do anything else with their lives. Anyone have experience with this sort of thing, or any input? Thanks.

Art Scott · January 24, 2012

This advice would be best gotten from your attorney. You may even want to ask the mods to remove this post...just saying it is on the net their attorney's will see it and do their best to low ball you .... Good Luck.

Sam · January 25, 2012

First, second, and third...what were the terms of your original contract????

With out that info no credible advice can be expected.

Sam

Janus12 · January 25, 2012

The terms were that they would be allowed to use the photo in question for promotional materials for their Spring 2011 tour, with the caveat that any future use for other purposes had to go through me first.

Sam · January 25, 2012

If this is in writing then your on firm ground. If not in writing but they are willing to negotiate then all is still looking good.

I would advise against looking for anything tied to profit or sales. Much too difficult to nail down, track, and verify. Settle for a fixed amount.

Good luck.

Sam

johng · January 31, 2012

Sam's advice is dead-on. When you deal with retail outlets that capture point-of-sale (POS) data you have some ability to get to true sales figures. But it can still be a pain in the butt. They probably aint scanning UPC codes on t-shirt sales so when the band tells you they only sold 32 shirts, how are you going to challenge them? Forget royalty for this type of thing. Negotiate a rate for a year's duration for t-shirts only. Up the rate if they want posters or anything else.

Art Scott · January 31, 2012

johng wrote: »

Sam's advice is dead-on. When you deal with retail outlets that capture point-of-sale (POS) data you have some ability to get to true sales figures. But it can still be a pain in the butt. They probably aint scanning UPC codes on t-shirt sales so when the band tells you they only sold 32 shirts, how are you going to challenge them? Forget royalty for this type of thing. Negotiate a rate for a year's duration for t-shirts only. Up the rate if they want posters or anything else.

spot on...remember I have yet to see a t-shirt vendor even give out a receipt at a concert...the few that accept Credit Cards..yeah you got your receipt....most onoy accept cash and they do not even know what they made till the end of the tour usually, then they have to figure out why they only have money for 20K of sales when they started the tour with 30K shirts...an exaggeration I know but that is how it works

work out a contract for a year n t-shirts, posters, and whatever else they sell in the concessions that will use your image.

Good Luck.

BradfordBenn · January 31, 2012

Also a T-Shirt can be considered a promotional item. Think about how many are given away at various events. In my day job we go through boxes of them during events. Also I will caution you, your attorney will know your situation better than we will; especially if he drew up the original contract.

Art Scott · January 31, 2012

again i will suggest take it to your attorney...as we are not attorneys and our thoughts are really worthless to you ... let the legal team sort it out.

johng · February 1, 2012

Consulting an attorney is good advice - but attorneys are like doctors - and you, my friend, want a specialist. Many attorneys can advise you on whether there was a breach of contract. That's the easy call. Not every attorney can advise you on what to ask the band for in regards to compensation. I have a sister and a friend that are both attorneys and neither one of them has a clue on that type of thing. It's not their area of expertise.

jpc · February 6, 2012

"promotional materials" is WAY too ambiguous. A t-shirt could easy be considered a promotional item; so could a lunch box. I am no attorney, but unless you have a written contract specifying exactly which "promotional materials" are acceptable, I think you might have a hard time with this one. Unless, of course, the band's management wants to work with you some more and doesn't want to ruin your relationship.

Question about royalties

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