Saturday, April 08, 2006

Don't sign access contracts

In this biz, we sign and negotiate many contracts. Common to the profession are model and property releases, vender agreements, delivery memos, image licenses, "hold harmless" waivers (personal safety waivers) and more. Most of these are either required to protect our rights, keep us from getting sued or keep someone else from getting sued.

We either write or read them carefully and redact (scratch through) phrases we know are unfair or plain wrong. Anything without a date or time limit is typically considered "wrong." I won't hold a company harmless forever. However, I'll hold them harmless for one day while I'm flying with a parachute team.

Typically, we encounter various contracts during our freelance work. Staffers rarely encounter contracts after an initial employment except on assignments dealing with airplanes and other dangerous situations. This is primarily because we work for a corporation. Any contracts with the outside world are handled through the corporation attorneys. Since we're not the legal representative of the corporation, we can't sign a binding contract on the company's behalf.

Entertainment access contracts
In recent years, national, touring entertainment events are trying to make PJs sign contracts to gain access. They can demand signatures for access, but PJs shouldn't sign them. If it eventually means we're walking away, then it's the performer's fault - not ours.

It's really embarrassing and disappointing to walk away from a concert assignment. It's only happened three times in my entire career. It leaves me with a creepy, violated feeling inside. However, I'd rather walk than be completely violated by signing the contract.

Early in my career, I signed an ambush contract at a venue. I still hold resentment against the performer and its promoters. I won't purchase any of the performer's products, nor mention the performer's name in print or online (it was previously one of my favorite performers).

PJs are at the venue for the "First two songs, no flash" to document a performer's visit. The bigger and more local the performer, the more important it is to document the performance. These images are used immediately after the performance, but they become part of a publication's archive and are used again for future stories.

Most performers return to a venue or city if their last appearance was successful. Archive images are used for future preview stories. Furthermore, entertainers are news. Imagine not being able to run images of a performer who gets married, becomes sick, gets in an accident, gets arrested or dies. After all, the performers will probably die before the newspaper does.

Why not sign?
This is a common argument. Let's look at the primary reasons. There are more reasons, but these should suffice.

1) First and foremost, a staff PJ isn't authorized to enter an agreement for the company. PJs can enter personal agreements to waive safety (common while covering parachuting, rock climbing and other dangerous "extreme sports"). However, the PJ is not the company and the PJ can't know what happens to the image after it's placed into the system. Contract stipulations could be violated the second the image enters the system and the PJ has no control over it.

Since most staff PJs don't actually own the images (the company does), the images stay at the company if the PJ moves to another paper or magazine. After the PJ is gone, anyone in the organization could violate this contract and leave the PJ and/or the company on the hook for contractual damages.

2) Although most PJs can work their way through a contract and find the loopholes, there's always the chance for a trick phrase to catch the PJ and put her/him in a pinch. The problem isn't with the general contract wording, it's with the alternative meanings (i.e. the language lawyers prefer).

For example, "Bob owns all rights to his name and likeness." It sounds reasonable - particularly when couched with other innocuous statements such as "grass is green." However, it means whoever signs this agreement also agrees that Bob owns the images made of him during the performance. Furthermore, this is an ex post facto agreement. Since the statement says "all," it means any images taken before or after the contract date by any person in the organization.

Honestly, it's unlikely the performer will ever enforce the terms of this contract. However, the fact that they could do it is enough to reject the contract and walk. It leaves the PJ and the company open for a lawsuit and has a chilling effect.

For example, let's say a circus has a signed contract from five years ago. During the show, a clown violently kills a stilt walker, two security guards and a few patrons then flees. Now, the city has an armed, killer clown on the loose and a PJ has spotlighted images of it.

FYI:   they'll stop the press for this story with photos.

The circus promoters immediately want to squash this news as well as any related images and stories. With a carefully-worded, signed contract, they can threaten the newspaper and keep the story of their killer clown out of the news. This isn't a situation any journalist, PJ, editor or publisher wants.

3) It's unfair treatment. No reporter would agree to a similar contract. Somehow, entertainment folks have decided to treat visual reporters differently than text reporters. The text reporters are free to write whatever they choose, however they choose.

4) It's against the spirit of the free press (First Amendment). If we're not invited, fine. If we're invited, let us do our job. We're there to show the performer to our readers and make some readers happy for a moment.

Resolve this problem before it happens
First, the reporter assigned to cover the entertainment event should want to contact the tour company for an advance interview of the performers. During this time, the reporter can find out if any such contract will be presented.

If so, the reporter should have the promoters fax the contract to the company attorney. Since tour dates are scheduled months in advance, there's plenty of time to work out the logistics. The attorney can go through the contract and see if the company is willing to take on the legal liability involved while giving this performer free publicity (in editorial space, which can't be purchased at any price).

If so, the lawyer settles the agreement and all is cool. The PJ gets the shooting rules in the assignment and all is settled. No problem for the PJ.

If the company attorney and the promoter lock horns and either backs away, the PJ simply doesn't get the assignment. No problem.

Either way, everything should be settled before the PJ gets the assignment or arrives at the venue.

Should the venue not be aware of this pre-established agreement, the contact name and number on the assignment should be for the tour manager and any problems can be settled immediately.

Keep perspective and professionalism
Should an ambush contract ever be presented to a working PJ, try to stay calm. Often, promoters back away from the contract if they understand the PJs will walk. Explain the situation calmly to the promoter and give them a chance to resolve the problem.

If the venue promoter says it's out of their control and the tour manager is somehow unavailable, call the desk. It's best to have the desk make the final decision. Often, it's company policy to walk away from these situations. However, the desk will want to make the final call.

PJs actually have the upper hand in these situations. It's unlikely a newspaper will lose a single subscriber if a concert isn't covered. However, it's very likely the performer loses potential album sales if the concert isn't covered by a major newspaper. If several newspapers band together, performers (or their lawyers) are likely to ditch the silly contracts. Then we (PJs and performers) can all happily do our jobs.

Make lemonade
If the headliner demands the contract for access, see if the opening act (typically new in the business) is included in the contract. If not, shoot the opening act. They probably welcome any publicity.

Another option is to shoot fans in the lobby or outside the venue.

At least the PJ has something to fill a hole in the paper. Additionally, today's opening band may be tomorrow's headlining band.

Enough for now,


Justin DeYoung said...

Mark I was waiting for you to blog about this. Great information. Now I know why you werent shooting the concert. When will entertainers learn that a photographer/newspaper own the copyright?

Mark M. Hancock said...

The same applies to TV.

Marie said...

Yep. Been ambushed twiced and walked each time...only to be chased down by PR to renegotiate. Each time it was over ownership of images...blew my mind, but somehow I was able to gather my wits and overcome my anger to fulfil my duties.
Like you, I won't name bad names, but if'n I was to name my favorite PR folks and performer to deal with, from start to finish, I have to say Willie Nelson is the man!

Justin DeYoung said...

Willie is the man!! Shot one of his concerts last year never anyone question me and if I remember right didnt sign any release/or contract . Shot as many pictures as I wanted. As for the Jones concert they were rather strict but the had to sign. Had to have the video. It was a major part of the story and also the archives.

Mark M. Hancock said...

My fav performers (for access and assistance) are: Ray Wylie Hubbard, America, War, Kiss and Pink. Clay Walker and TruSoul got huge points this year.