Can the client do this?
Posted on: Fri, 02/13/2009 - 13:06
Can the client do this?
I'm a pro. I was hired by a developer company to take pictures of a hotel. Aerial and land photos were made of the construction process and finished hotel to print a book about it. Nothing was signed at the beginning, but now the book is ready, they want me to sign a contract allowing them the usage in any media and in any form beyond editorial and prohibits me from selling any of the material even to other companies involved in the construction.
Am I obliged to accept this or should I defend my right to sell images to other participants?
Note from admin: This was originally posted as an 'Ask a FAQ' query. The question is too long and complicated to be a FAQ, which need to be no more than a dozen or so words, so has been moved to here.
This is a classic situation that comes up from time to time, and it's completely avoidable. With the greatest of respect, if you are a pro, why on earth did you take on a job without either agreeing something in writing or at least sending them some standard terms (eg on the back of a quotation) saying at least "I own the copyright to my photos, you may use them for the commissioned purpose but nothing else". As Admin rightly said, the difficulty now is that what was verbally agreed may be disputed and it can get very messy.
What is actually happening here is that the client is attempting to define the contract after you have fulfilled your part of it. This is common, either out of ignorance, presumption, or outright bullying.
Legally, contracts and variations of contracts cannot be imposed, they are an agreement between both parties (unless one party already signed away the right to object). Since you made a verbal contract to do the work, then did it to the client's satisfaction, it is too late for them to now seek terms they failed to specify. So, no, you are not obliged to accept their proposal.
However unless you have documented proof of what was agreed, eg signed T&C's or at least emails or letters or notes or recordings of phonecalls, what actually was agreed may be disputed by the client. Clients often mistakenly believe that they are the owners of copyright in commissioned work, although in this case it seems more like a deliberate copyright grab. But, in the absence of an agreement you own copyright as the creator of the work. Presumably you based your pricing on this understanding, too. The onus is on the client to prove otherwise, not you.
The diplomatic way out of this may be to point out that a copyright buyout will be very much more expensive than your quoted price for first use. Almost certainly they don't need the broad rights they are now asking for and will not want to pay this. If they do, they should pay accordingly, and the Association of Photographers recommend that a buyout should cost somewhere around 7.5x-10x the first use fee. You may be able to agree a license that includes the rights they really need at a price that is mutually acceptable. If not, then stick to the first rights fee for first rights. Don't be intimidated by threats such as 'you'll never work for us/this industry/in the UK ever again'. Clients who don't play fair are not worth keeping.
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