Editorial Use

 
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Jack English
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Joined: 24 May 2009
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Location: San Diego, California

PostPosted: Wed May 18, 2011 2:29 pm    Post subject: Editorial Use Reply with quote

About a month ago I received an email from a European Photo magazine that had found one of my surf photos on my site http://www.jackenglish.com

In short they said they would like to use the image one time as a two page spread and will pay $320.00 along with a short little interview on how I got the shot, etc.

So I sent them the shot, did the interview, sent them an invoice and now over a month has gone by and they send me this contract saying I need to sign this to get paid.

Now in the contract in totally contradicts are original agreement. Contract states things like the publishing company can use this image for any of there other magazines, etc, etc.

I was blown away that a photo magazine would turn around and try to get me to sign one of these agreements. I told them they should do a story in there magazine warning photographers in these situations.

What I learned from this and want to pass it on to you is, ask for any contracts up front that they will request you to sign to get paid!!!
On this note, don't you also think it's backwards that I (the owner of the image) have to sign there agreement? When I go into Avis to rent a car I am not making Avis sign my agreement, I have to sign theirs.

Your take?
Jack
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tcphoto
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Location: Atlanta, Ga

PostPosted: Wed May 18, 2011 5:36 pm    Post subject: Reply with quote

I would love to hear how they would react to, "I am striking out the points on your contract that I cannot accept. Perhaps it would have been better to present your contract before we agreed on the usage and rate. If my edit is not acceptable, please do not use the image and delete from all your computers. Otherwise, my invoice/contract supercedes your proposed contract".
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Ashley
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PostPosted: Fri May 20, 2011 10:06 pm    Post subject: Re: Editorial Use Reply with quote

Tough one - but not uncommon for companies to demand this sort of thing - especially after they have the images.
Lets face it, they have nothing to lose here by asking you for this, but everything to gain, should you happen to say 'Yes'.
So it's basically just a game they play.

Anyway, what you should do, is just let them know your invoice is the pre-usage agreement - which clearly states what has already been agreed.
So should they wish to use your images, then what has been stated on your invoice stands.

However, if they would like to use your images for more that what has been stated, then naturally you would be more than happy to discuss this with them - and provide them with a new quotation based on this new information.
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Ashley Morrison
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Jack English
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Location: San Diego, California

PostPosted: Wed Jun 08, 2011 3:57 am    Post subject: Reply with quote

Update. I have been in contact with the art director and explained that I am not trying to be difficult here, but instead I just want it to be a win/win situation for both parties so we can continue working together in the future.

Then he reached out to a lady in the legal department and this is what I got after I explained the situation to her and she mentioned if I agree to these new terms, I can get paid.

1. You hereby give "Publishing company" a non-exclusive licence to reproduce any material you have previously supplied and any material you will supply to "Publishing company" going forwards (referred to collectively as the "Material") once only in the issue of the UK edition of the publication for which the Material is supplied, in any electronic version of such edition that is on sale worldwide and all licensed editions of that magazine. For the avoidance of any doubt, an "electronic version" shall mean any electronic, digital or interactive version of the publication for which the Material was supplied, whether such electronic version is identical to the print version for which the Material was supplied or sufficiently different in format as to be considered a different product



2. You warrant that you own or have the right to licence the Material to "Publishing Company" and that "Publishing Company" use of it in accordance with this e-mail does not infringe any intellectual property or proprietary rights of any third party. You waive the benefit of any moral rights to which you might otherwise be entitled in relation to the Material in respect only of "Publishing company" permitted use hereunder. You also warrant that the Material will be of a professional publishing standard.



3. You agree to allow "Publishing company" the right to store, edit and adapt the Material for publication purposes



4. If applicable "Publishing company" will make the payment you agree with the magazine for this licence 45 days from the date of receipt of a valid invoice from you containing the applicable Purchase Order number. You may issue your invoice at any time following the intended date for publication of the Material, as notified to you by "Publishing Company".



5. This e-mail is subject to English Law and we each agree to submit to the exclusive jurisdiction of the courts of England and Wales.

Please email by return confirming that you agree to these terms.
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bubs
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PostPosted: Wed Jun 08, 2011 11:55 am    Post subject: Reply with quote

Sounds proper.
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shanekislack
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PostPosted: Thu Jun 09, 2011 3:36 am    Post subject: Reply with quote

have the ran the pic yet?
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Ashley
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PostPosted: Thu Jun 09, 2011 6:57 pm    Post subject: Reply with quote

Jack English wrote:
1. You hereby give "Publishing company" a non-exclusive licence to reproduce any material you have previously supplied and any material you will supply to "Publishing company" going forwards (referred to collectively as the "Material") once only in the issue of the UK edition of the publication for which the Material is supplied, in any electronic version of such edition that is on sale worldwide and all licensed editions of that magazine. For the avoidance of any doubt, an "electronic version" shall mean any electronic, digital or interactive version of the publication for which the Material was supplied, whether such electronic version is identical to the print version for which the Material was supplied or sufficiently different in format as to be considered a different product


Okay, so let me get this straight.

It's all about the use of your pictures, so the 4 key things are:
1. Number of images they want to use.
2. Media use.
3. Period of use.
4. Territory of use.

Originally it was:

To provide one image of someone surfing.
For non-exclusive use, for "Publishing company" to use this image for:-
Media use: Editorial feature in 'Photo' magazine only.
Period of use: 60 days from 1st Publication date (ends 1 year from invoice date).
Territory of use: UK & Ireland only.
Licence fee based on the above: $320.00


i.e. your Base Usage Rate (BUR) -50%, as it's less than 'Standard use' - hence the discounted rate.
(Standard use = 2 media for 1 years use or 1 media for 2 years use, in 1 country)


And now they want:

To provide an unlimited number of images ?
For non-exclusive use, for "Publishing company" to use these images for:-
Media use: Editorial feature in 'Photo' magazine + Worldwide web.
Period of use: 60 days from 1st Publication date in 'Photo' magazine + Unlimited years internet use.
Territory of use: UK & Ireland + Internet.
Licence fee based on the above: $?


It should be your BUR+% now, as this is more than 'Standard use' they are wanting i.e. 1 media for 2 years use = your BUR.

(Using the Association of Photographer's guidelines & assuming your BUR is $740.00:
Then for Editorial use it would be your BUR-50% = $320.00 & for 5+ years web use, the fee should be your BUR+100% = $1,480.00.
Total: $1,800.00)

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Ashley

Ashley Morrison
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