09 Jun 2015 7 Common Terms in Microstock Contributor Agreements Explained
There’s surprisingly little variation in microstock agency Contributor Agreements.
Having worked on the other side I’ve seen that some contributors go through them carefully and ask questions about anything they see as unusual. Others freely admit that they don’t read them at all!
Reading legal agreements isn’t many people’s idea of fun, but it does get easier when you know what to expect and understand what the legalese is trying to say. Here is a list of 7 common clauses explained in real-person language.
1. Granting a License
We talk a lot about “selling photos” in stock, but technically that’s not what we do. We sell licenses to use our images.
Likewise, when you contribute to an agency, you’re granting a license to the agency to sell sub-licenses to their customers.
The clause, which has very similar cousins in social media and photo sharing sites, invariably starts off with “you hereby grant us a worldwide, non-exclusive license to sub-license, reproduce…. etc”
2. Change the agreement at any time
At traditional agencies, changes to contributor agreements have to be mutually agreed. Sometimes “proposed changes” come more in the form of an ultimatum than a negotiation, but in microstock that’s built right into the contract up front.
The key words of this clause are “…reserves the right to modify these terms at any time…” If you’re lucky the agency agrees to notify you of these changes, and if you’re really lucky they’ll also give you advanced notice so you can withdraw if you don’t like the changes.
3. Copyright is retained by contributor
Standard contributor agreements state that you retain copyright ownership: you’re just granting a license to the agency to sell licenses for your work on your behalf.
It usually sounds like: “the copyrights in and to all Content remain with the owner of such copyrights…” and/or “…nothing contained herein shall be construed to transfer any copyrights…”
4. Right to refuse submitted content
The right to refuse content is what permits the agency to pick and choose from your work, rejecting what they don’t want to include in their collection. This is different to most “agency” arrangements in other industries where recording artists or authors typically get their work published whether the agency believes in it or not.
“We reserve the right to refuse/delete content submitted at our discretion…” is usually how it goes. Note the use of the word “delete”, making it clear even accepted images can be later rejected.
5. Releases are your responsibility
Despite requiring that you upload a release, and going to the cost of reviewing that release for validity, most microstock agencies still place legal responsibility on you, the contributor, for having a valid release where required.
A clear example of how this is implemented is “…you represent and warrant that he or she has obtained all necessary releases or model agreements applicable to these persons, entities or property.”
6. You’re responsible for everything that goes wrong
Like almost all online companies, microstock agencies have general disclaimers that try to lay the blame for all problems at your feet, whether your fault or not. I’m told that these clauses are often ruled invalid in the courts, but they seem to be popular around the interwebs.
The scary words are usually some variation of “You agree to indemnify and hold [agency name] harmless from and against any and all claims, losses, damages, costs and expenses (including reasonable attorneys’ fees and disbursements) arising out of any breach or claimed breach of any of your representations or warranties…” Ouch!
7. They can fight your legal cases
This clause says that if a legal issue arises involving you or your work, they have the option to fight the case for you. This is to protect them from you messing up a case that involves the agency too, and is only an ‘option’ for them. It doesn’t mean they ‘will’ fight your case, but they ‘can’ if they choose to do so.
Watch for something like “…we shall defend such claims, control litigation, and settle claims in our sole discretion.”
Not so Difficult
See, that wasn’t so hard to read. What’s your favorite legal clause?