Indemnify the Agency?

 
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Mike
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PostPosted: Mon May 04, 2009 6:08 am    Post subject: Indemnify the Agency? Reply with quote

Last year I did a job direct to a client, their agency licensed a bunch of images for a different use. Now a month after billing them, they come back with a 'revised' PO that states:
"I warrant and represent that the images provided hereunder are original and will not infringe upon the rights of any third party. I agree to indemnify and hold the agency and its client harmless from and against any and all claims and damages arising from a breach or alleged breach of the foregoing warrant and representation"

I dont have a problem with the first part but the second sentence is a liitle open ended and scary legal talk.

Any opinions
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tcphoto
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PostPosted: Mon May 04, 2009 1:57 pm    Post subject: Reply with quote

You have a signed Estimate from the client for the shoot? You are set and they are to pay the invoice generated form that shoot. They are simply trying to cover their rear ends to the 'enth degree, perhaps the images are going to be sent out to a Third Party and that may cause some issues. I would talk to them about the rewording but hold firm to your original agreement.
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Leslie
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PostPosted: Mon May 04, 2009 2:56 pm    Post subject: Reply with quote

Don't worry about that clause--it is only saying that you have the copyright to and model releases, etc., for the image(s) you have made and you have not infringed on any other copyright (etc.) with those images. The second sentence is a guarantee that you haven't infringed and says that you take responsibility (legally) if you have.

As long as you are confident that you have made your images without infringing on someone else's rights (trademark, copyright, etc.), then you have nothing to worry about.

[NOTE: I am not a lawyer and this is NOT real legal advice.]

-Leslie
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Mike
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PostPosted: Mon May 04, 2009 3:53 pm    Post subject: Reply with quote

TC- I have the signed PO from a month ago.

Leslie- I'm pretty sure that a similar clause is buried in a lot of POs, I was just a little concerned because they made a big thing by calling it out. Maybe this is a reaction to something that happened recently to them.
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shanekislack
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PostPosted: Mon May 04, 2009 3:57 pm    Post subject: Reply with quote

You did a job last year and you just billed them last month?
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Mike
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PostPosted: Mon May 04, 2009 4:02 pm    Post subject: Reply with quote

shanekislack wrote:
You did a job last year and you just billed them last month?


The job was shot last year, for PR purposes by the original direct client. A few months ago their agency needed the images for advertising.
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shanekislack
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PostPosted: Mon May 04, 2009 4:10 pm    Post subject: Reply with quote

Ah...can't wait until I get to that point.
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James Cook
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PostPosted: Mon May 04, 2009 11:20 pm    Post subject: Reply with quote

Quote:
"I warrant and represent that the images provided hereunder are original and will not infringe upon the rights of any third party. I agree to indemnify and hold the agency and its client harmless from and against any and all claims and damages arising from a breach or alleged breach of the foregoing warrant and representation"


There is a significant issue in this.

Even if you and the agency do everything right and you have releases, etc., nothing prevents someone for suing over a perceived misuse: an alleged breach. They may readily lose the case, but by these words you are responsible for reimbursing the costs of the legal defense. And who chooses the lawyer, thereby determining the legal fees?
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Gordon Moat
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PostPosted: Tue May 05, 2009 12:32 am    Post subject: Reply with quote

You might want to check with your insurance carrier whether they will cover legal expenses in the event of a lawsuit. An example would be that the images are used in a campaign that another company deems to be close to their campaign in look and feel (or concept). In such a situation, you might become responsible for legal defense. It could happen that the agency gets dragged into a lawsuit anyway, despite their agreement with you.

I had this once in an agreement with a very large corporation. My feeling was that their legal department and insurance were better equipped to handle disputes, so I asked about it. Based upon my inquiry, that clause was changed. I don't recall the exact wording, and don't have that handy at the moment, though best I recall it specifically addressed trademark and copyright infringement on the re-write.

I think it may be better to be specific about what they want to protect. While a blanket statement is easier for their legal department to write, it can also be too open ended. Don't leave yourself at risk. At least consult an attorney about this prior to signing.
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Leslie
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PostPosted: Tue May 05, 2009 12:38 am    Post subject: Reply with quote

James Cook wrote:

There is a significant issue in this.

Even if you and the agency do everything right and you have releases, etc., nothing prevents someone for suing over a perceived misuse: an alleged breach. They may readily lose the case, but by these words you are responsible for reimbursing the costs of the legal defense. And who chooses the lawyer, thereby determining the legal fees?


Yes, but at some point a photographer, like any businessperson, must assume the responsibilities of his/her "product." I think this is a reasonable place for that.

Just my opinion...
-Leslie
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Mike
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PostPosted: Tue May 05, 2009 3:09 am    Post subject: Reply with quote

After talking to my attorney and reading the posts here and a little nip and tuck in the clause I approved it.
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