Copyright Waiver draft

urbanaries

(updated)

I have drafted a notice for clients to sign AT BOOKING per my battles with this issue. Input appreciated, especially if I have misstated the law as I understand it.

Something I am going back and forth on is the uploading to photo fulfillment vendors like Shutterfly and Kodak to share the images and in the process help friends and family avoid buying prints through me. Maybe that is just something I need to accept as cost of selling the negatives?

EVERYONE IS WELCOME TO USE THIS, I AM NOT RESERVING MY OWN COPYRIGHT ON THIS TEXT. :rofl

And I don't *really* consider myself an artist, but in the context of the purpose of copyright law, the term seems to fit.

******************
Copyright Terms Notice


By commissioning _______ Photography for photographic services, I affirm my understanding and respect for the following protections in place to uphold the integrity of the artist's images and products.


1. I understand the images resulting from this engagement are the intellectual property of the artist, and are protected by US copyright law.

2. As the client, I understand US copyright law prohibits me from duplicating the images. Prohibited uses include but are not limited to: screenshots, digital capturing of the artist’s website in any manner; scanning, photographing or photocopying purchased prints; removing watermarks or artist signatures.

3. If the digital negative files are made available to me for purchase, I understand the law allows for the transfer of limited personal use copyright, but that the full copyright will always belong to the artist.
a. Limited personal use permits the following: use of images on personal websites such as myspace; distributing to friends and family via email; providing files to a photofinishing vendor for printing.
b. Limited personal use prohibits the following: uploading to a photo fulfillment vendor for mass distribution and sale; publication in editorial or collateral such as brochures, newsletters, magazines.


4. I understand it is considered copyright infringement to provide these images to any organization or company for any purpose, regardless of whether the transaction involves payment, and regardless of the non-profit status of the organization. The artist reserves the right to negotiate all commercial licensing of images. Any organization or corporation who uses images without a written commercial use license from the artist will be held liable.


I have read and understood the copyright notice.

signed __________

Icebear

urbanaries wrote:

3. If the digital negative files are made available to me for purchase, I understand the law allows for the transfer of limited personal use copyright, but that the full copyright will always belong to the artist.
signed __________

I think you mean to say license and not copyright here.

urbanaries

Icebear wrote:

I think you mean to say license and not copyright here.

yep you're right! thanks!

quark

Lynne,
I think you ought to add something about retaining a credit for the photographer under the limited personal use. When they share with family and friends it would be nice for your name to still around somewhere.

For the personal use it might actually be a Creative Commons Attribution-Noncommercial-No Derivative license and you could just the language from the creative commons website.

RogersDA

. As the client, I understand US copyright law prohibits me from duplicating the images in any way.

That is not right. U.S. Law allows for fair use; e.g., editorial use. Your client could be within their right to allow a local newspaper to scan the image of Johny and place it in the local news service since it was news that Johny graduated, became an eagle scout, got the honor role, etc. Posting images on myspace or other types of sites should not be considered "editorial" for fair use purposes.

Might also want to check out "Licensing Photography" by Richard Weisgrau and Victor Perlman, if possible. That book has some great examples of contract forms for photos. Go check Amazon.com.

Angelo

"The man who represents himself has a fool for a lawyer"

Lynn:

I don't mean to be insulting but IMHO you are seriously overreaching here and quite possibly setting yourself up for more harm than good, beginning with the use of the word "waiver" which is the direct opposite of that which you're trying to accomplish.

urbanaries

Angelo wrote:

"The man who represents himself has a fool for a lawyer"

Lynn:

I don't mean to be insulting but IMHO you are seriously overreaching here and quite possibly setting yourself up for more harm than good, beginning with the use of the word "waiver" which is the direct opposite of that which you're trying to accomplish.

Thank you Angelo---

If I didn't want honest feedback I wouldn't have posted it here!

Waiver is absolutely the wrong term, you are right. I think notice or statement would be more accurate.

My intention is not for this to be a legal document or contract to stand in court. Rather, it is an attempt at educating clients so they in essence "know what they don't know."

I believe there are some folks who know about copyright law but are selfish/cheap enough to ignore it for their own self interest. I do think, however, that the majority of offenders are truly unaware of what is expected of them. It is irresponsible of me to expect folks to be aware of industry norms if I haven't taken steps to educate them.

urbanaries

quark wrote:

Lynne,
I think you ought to add something about retaining a credit for the photographer under the limited personal use. When they share with family and friends it would be nice for your name to still around somewhere.

For the personal use it might actually be a Creative Commons Attribution-Noncommercial-No Derivative license and you could just the language from the creative commons website.

That's a great idea about retaining credit...thanks!

I will look at the creative commons for the proper terminology. Thank you for your input!!!

urbanaries

RogersDA wrote:

That is not right. U.S. Law allows for fair use; e.g., editorial use. Your client could be within their right to allow a local newspaper to scan the image of Johny and place it in the local news service since it was news that Johny graduated, became an eagle scout, got the honor role, etc. Posting images on myspace or other types of sites should not be considered "editorial" for fair use purposes.

Might also want to check out "Licensing Photography" by Richard Weisgrau and Victor Perlman, if possible. That book has some great examples of contract forms for photos. Go check Amazon.com.

I realize fair use is not covered, but I really don't want this to be a comprehensive study on copyright law; rather an initial heads up that if you have questions, don't assume it is ok...contact the artist.

If they've purchased digital negs I don't have a problem with myspace use; but you're right about the fact that I do NOT want them thinking it's ok to post them there using images from their cache or screenshots.

rwells

urbanaries wrote:

(updated)
a. Limited personal use permits the following: use of images on personal websites such as myspace; distributing to friends and family via email; providing files to a photofinishing vendor for printing.
b. Limited personal use prohibits the following: uploading to a photo fulfillment vendor for mass distribution and sale; publication in editorial or collateral such as brochures, newsletters, magazines.

The acts that you allow and prohibit are the same, the only variant is the last part "for mass distribution and sale".

Both Kodak and Shutterfly are "photofinishing vendors for printing".

That looks like it could be very hard to make stick, to prove they wanted more than just "personal" printing services from either. I can't remember, but I think to have pics printed from either, you need to have them posted.

This sounds familiar, Smugmug is the same.

RogersDA

urbanaries wrote:

My intention is not for this to be a legal document or contract to stand in court. Rather, it is an attempt at educating clients so they in essence "know what they don't know.

Then why do this at all? What is your intention if they don't abide by your signed document? If you were to end up in court are you going to plan on showing this to a judge? You can bet that if the language you write and the client signs is any way favorable to the client then they will most assuredly raise the document in court.

Don't screw yourself out of your rights.

chuckinsocal

Taking a broader view, I'm wondering if you might be trying to swat a fly with a sledge hammer.

Imagine for a moment that a client violated the terms of your document, which some, if not many, will do either on purpose or because they just didn't understand the rules, which most people don't.

Calculate your dollar loss for a typical violation. Is it $25, $100, $500, $1,000, more? Now decide how much money, time, and effort you are prepared to spend in litigation to recover that loss. Or, if not litigation, how many people are you willing to alienate, or how much good will are you willing to sacrifice by demanding payment for a simple violation?

Goodwill is worth a lot of money in future referral business. Negative goodwill can be very expensive in terms of lost business that you'll never even know about. Sometimes it's worth it to write off some perceived losses in favor of goodwill knowing it's likely that you'll recover that small loss, plus a lot more, by getting an extra referral or two sometime in the future.

My other thought (ya mean there's more?) is that I might be be somewhat alienated by that document and want to shop around for a photographer who I perceived as being less restrictive.

I'm thinking that you might want to consider reducing all that down to 1-2 broader sentences and incorporating those somewhere else in your contract. If you feel it's necessary, you can bring it up verbally.

Or, (last thought, I promise) how 'bout a separate piece of paper that is not a contract and is not signed, but that merely describes in easy to understand non threatening language how the copyright laws apply in this situation. It's something that you could just leave with them and ask them to read later on when they get chance.

I swatted a fly with a sledge hammer once. I got the fly but I also shattered the expensive stained glass window on which it landed.

Just my $.12 worth.

Chuck Cannova
www.customrideportraits.com

urbanaries

chuckinsocal wrote:

Taking a broader view, I'm wondering if you might be trying to swat a fly with a sledge hammer.

Imagine for a moment that a client violated the terms of your document, which some, if not many, will do either on purpose or because they just didn't understand the rules, which most people don't.

Calculate your dollar loss for a typical violation. Is it $25, $100, $500, $1,000, more? Now decide how much money, time, and effort you are prepared to spend in litigation to recover that loss. Or, if not litigation, how many people are you willing to alienate, or how much good will are you willing to sacrifice by demanding payment for a simple violation?

Goodwill is worth a lot of money in future referral business. Negative goodwill can be very expensive in terms of lost business that you'll never even know about. Sometimes it's worth it to write off some perceived losses in favor of goodwill knowing it's likely that you'll recover that small loss, plus a lot more, by getting an extra referral or two sometime in the future.

My other thought (ya mean there's more?) is that I might be be somewhat alienated by that document and want to shop around for a photographer who I perceived as being less restrictive.

I'm thinking that you might want to consider reducing all that down to 1-2 broader sentences and incorporating those somewhere else in your contract. If you feel it's necessary, you can bring it up verbally.

Or, (last thought, I promise) how 'bout a separate piece of paper that is not a contract and is not signed, but that merely describes in easy to understand non threatening language how the copyright laws apply in this situation. It's something that you could just leave with them and ask them to read later on when they get chance.

I swatted a fly with a sledge hammer once. I got the fly but I also shattered the expensive stained glass window on which it landed.

Just my $.12 worth.

Chuck Cannova
www.customrideportraits.com

I really appreciate your thoughtful input, you've raised some really great points. You've very aptly explained what I am afraid I've done in the past and want to avoid in the future....winning the battle, but losing the war in terms of goodwill, which is a great term. At the same time, I am not comfortable being a pushover simply out of fear of alienating someone. I work too hard for that.

It is a tough spot to expect clients to respect laws they don't fully understand, so I'm really just trying to do my part and educate them. I think a more innocuous (unsigned) document will sit better and not blur the lines of what I'm trying to accomplish.

I found a really great example here that might give me a start to explain the hidden costs of producing their products, and add some concise, friendly copyright statements.

I don't want to alienate people, but I think the alienation rate is much higher if I have to address a situation after it happens.

xris

Interesting and valuable thread! Thanks!