Contemporaneous thereo

December 29, 2010 by pmelcher.

Along with publications refusing to pay any additional licensing fees for Ipad usage, declining space rates, horrific day rates for assignments, the new trend in photography is the legal mumble jumble that now accompany  emails from researchers and photo editors looking for images.

Example ? sure :

” By agreeing to this request, you grant Microsoft a royalty-free, worldwide, non-exclusive, perpetual license to use the Image on Microsoft’s MSN, Windows Live and/or Live Search websites, and you agree Microsoft’s use will not infringe the rights of others or give rise to any third party payments.  You agree this email is our entire agreement regarding this license, and merges all prior and contemporaneous communications. ”
More and more, photo agencies and photographers are receiving emails requesting specific images along with dictatorial usage terms.

“All requested photo licenses are for **Company Name** magazine and any digital replica thereo “.  What if you do not want your images on any “digital replica”

or you could get this along with a request for invoice :

” for editorial purposes on its web site now known as ****.com  and on its affiliated online services and to promote the editorial content in which the photo(s) are used, for the life of ***** Online for a fee of $xxx per photo, for a total fee of $xxxxx.  Please indicate your approval by  sending a return email approving the license request or sending an invoice for the above usage. This email exchange constitutes our entire agreement with respect to ****’s license for the photo(s) and supersedes any other agreement, discussions or terms regarding the photo(s). ”

Does that means that even if you had a contract or previous agreement with that company with different terms, should you reply by sending an invoice, all bets are off ??  If you invoice them you are screwed since it means you agree to these new terms, if you don’t you are screwed, as you will not get paid for your images. Nice.

We could go on and on with many variations of these.

( Disclaimer:) THE FOLLOWING IS NOT LEGAL ADVICE. If you need legal advice, please contact an attorney directly. Do not go to court with my blog as it will get you nowhere, besides maybe in more trouble.

You should know that these “end of emails agreement” do not constitute a viable agreement. However, if nothing else was agreed upon in a more formal way, then it could be used as bidding terms. What does this mean ? Well, if you had not previously or afterwards agreed in a more formal way on the terms, then you should, immediately.  Have them agree to your terms.

What used to be an informal hand shake between two people or companies is now  turning into a legal tug of war between lawyer-obese companies and legally uneducated  photo agencies.

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