Contracts Of Adhesion: Photographers Beware
By Mickey H. Osterreicher, Esq.
(Author’s note: I write the following as a cautionary tale for those of you who may be faced with a similar situation, so that you are aware of what exactly you are being asked to sign. While working as a freelancer, I signed many such agreements. Now that I’m also a lawyer, I see these contracts through different eyes.)
BUFFALO, NY– In the “footage agreement” that a popular television network requires freelancers to sign, the first paragraph states that the photographer agrees “to coordinate with the assignment desk concerning each assignment, including, without limitation, reaching agreement with regard to the fee for such assignment.” This in itself seems very standard, except for the fact that this “agreement” is a contract that like all contracts requires “offer, consideration, and acceptance.” In this case the “consideration” on the photographer’s side is that s/he will do work and the network’s consideration is that it will pay her/him.
The “offer” comes in the form of negotiating the photographer’s hours and duties and in coming to a mutually agreeable fee. This “agreement” sets forth in its recitations that “in consideration of the mutual promises and covenants contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and of the mutual promises and covenants contained herein, the parties hereto agree … .” The issue here is that the network claims to have offered “good and valuable consideration” for accepting the agreement’s terms but it is clear that one must still negotiate the actual “consideration” (which may not be so good or valuable) with the assignment desk, while the rest of the terms of the agreement are already agreed upon.
Those terms go on to state that “the photographer shall supply all of the necessary tools, equipment, and supplies commonly used in the industry to perform the services described in this Agreement.” After enumerating things like cameras, lights, and vehicles, it goes on to say that the photographer shall provide his/her own transportation and that s/he “assumes and bears the sole and exclusive responsibility for any loss or damage to said equipment or any other claim arising in connection with the equipment and for insuring the equipment against all such loss, damage, and claims.” It also states that the photographer shall have insurance on the vehicle that s/he uses and “acknowledges and agrees that the network has no liability in connection with any loss, damage, or claim arising with respect to the equipment.”
In the next section the agreement deals with the “ownership” of the “footage.” With some convoluted language, the agreement states that the footage “shall be deemed a work made for hire” and shall be the network’s “sole and exclusive property in perpetuity” and “throughout the universe” and that it may do anything with the footage that it wants. Should the footage not be deemed a work made for hire, the photographer relinquishes any and all rights to it regardless of its classification.
Just to make sure there isn’t a loophole the network hasn’t thought of, the agreement also states that the photographer grants the network an irrevocable power of attorney, which means that it can draft some other language on the photographer’s behalf modifying the agreement without him/her having to sign it. Rest assured that such new language will only benefit the network!
There is additional language that states that the photographer will “indemnify and hold harmless” the network, its affiliates, licensees, assignees, and affiliated companies and their respective officers, directors, employees, and agents against and from any and all claims, damages, liabilities, costs, and expenses, including reasonable counsel fees arising out of any breach or alleged breach of the provisions of the agreement. In clear terms this means that the photographer will be liable for everything and to everyone and for insuring the network and protecting it.
The agreement gets worse from there, stating that the network or anyone or entity associated with the network in any way is not responsible for anything that happens to the photographer, his/her equipment, employees, vehicle, etc. Even should the network be found liable for something, the photographer further agrees that s/he shall not be entitled to any relief other than for actual damages.
Finally, the agreement states that it shall be construed in accordance with the laws of the State of [omitted]. This clause is known as a “forum coveniens” and means that should a dispute arise, the matter would be heard in a court in the home state of the network for its convenience.
This onerous agreement is known legally as a contract of adhesion. In other words, it is a standardized form contract offered on a “take it or leave it” basis, without affording any realistic chance to bargain and under such conditions that a freelancer cannot obtain work except by acquiescing to its terms. Whereas the concept of “contract” usually involves a traditional form of bargaining, this unconscionable contract is one which no honest or fair person would make and no sensible person would accept.
This brings us to the concept of “acceptance.” It would be a much better work environment if those that employed freelancers did not require such agreements, but unfortunately in their quest to protect themselves from lawsuits they have shifted the liability to the photographers while leaving almost no right to further compensation for the work. The rule of caveat emptor (buyer beware) should also apply here. If such an agreement is required, make sure that you understand all the terms and conditions before signing and then only sign after you have weighed the costs and benefits of entering into such an agreement.
Attorney Mickey H. Osterreicher, Esq., has been an NPPA member since 1972. He is the chair of the NPPA Media Government Relations Committee and is also a member of the New York State Bar Association Media Law Committee. He’s been a photojournalist for both television and newspapers for over 30 years in Buffalo, NY, where he now practices law.