Exclusivity Use Clause?

Question

I'm writing up a small generic contract (1-2 pages at most) and I have a check box next to each clause so they may be included on a per contract basis and was wondering if I need to include an exclusivity use clause for the client (barring me from using the photos for promotion of my services)?

Is this done often?

I have been offered a job here and there and want to make sure I've got everything covered legally. Thanks.

EDIT:

I have revised my contract, as per recommendation that more easily read and obvious terms may be the way to go instead of going "legal" on them.

What do you say to this?

1. Any additional costs the photographer may incur for travel, meals, parking and other reasonable costs incurred will be included in the fee.
2. A set of watermarked proofs shall be delivered to the client on CD or via email with the client returning a written list of photographs required for final processing in full resolution.
3. The client may generally request processing on particular photographs with final discretion from the photographer, such as black and white or digital cross process techniques.
4. The photographer retains copyright in the photographs, and hereby grants the client unlimited but non-exclusive rights to use or reproduce the photographs for which the client pays.
5. The client will receive the final processed images upon full payment.

I see reasoning for including a lawyer but this is not something I can afford, in time and cost and my contract is simply something to make it clear to both parties what they are required of and receiving.

Answer 1

Let me preface this by saying that I'm not a lawyer, I don't even play one on stage (though I played the bailiff in Inherit the Wind in University), so any final contract you craft should be vetted through a lawyer to ensure that the rights you want to retain are retained. So, with that, here are some thoughts that I'd have in this area:

If the client hasn't asked for exclusive use, I wouldn't just give that to them. I'm not a pro, but my spouse is in the advertising industry and exclusives are usually more expensive because, in effect, you're assigning copyright to them, or may as well be. That's not necessarily a bad thing, but don't do that as a toss in!

In any case, variations to consider are:

1. Exclusive in perpetuity.
2. Exclusive for a set time period.
3. Unlimited, but non-exclusive, in perpetuity.
4. Unlimited, but non-exclusive, for a set time period.
5. Any of the above, but limited media scope.

From a general professional services concept, we're looking at (at least) eight options in a contract for the outcome of the creative work. I would work out those contract formats with a lawyer and then negotiate with the client for the type of contract that they want. Once you agree, present them with the appropriate one to sign. Now, of course, you may also encounter a situation where they offer you a contract and you have decide if the terms are acceptable. To be honest, I think that's a lot easier to deal with, it's going in with eyes wide open, but odds are they end up owning the end result.

One final consideration, do your level best to ensure that you can use the work in your portfolio unless, of course, it's not a shoot you want to brag about...

Answer 2

To expand a bit on my earlier comments:

• W.r.t. the needing a lawyer to make sure "everything's covered": basically, if you really need to make sure everything is 100% airtight, you really do need a lawyer. But, if you're happy with the (probably very small) risk of gotchas, you may not need one. Basically it's a risk/reward situation: if you pay for a lawyer, your risk is less.

• Now, a great way to get a lawyer is to copy and paste one. :) You can get nearly the full benefit of hiring a lawyer by using a boilerplate form. My recommendation, if you go this route, would be to find a template that's been vetted by a lawyer in your locale and then use it in its entirety, rather than cutting and pasting, because if you use only part, you might cut out something important.

• That said, I'm a fan of straightforward language. Your clients aren't lawyers and the jobs aren't big-dollar (a few thousand at max I'd assume), so you don't need the level of care a big company spending millions of dollars would. IMO (and IANAL, of course), the simpler, more straightforward language in your second version is more appealing to me. The caveat is that I didn't read either terribly closely.

• I'd suggest more attention to point 4, on rights retained and what the client may do with the images. It's not entirely clear to me you fully understand what your rights are and what you are choosing to grant the client. Understand these very well first, then decide what options you want to present.