Should I be bothered by this contract phrase....

Discussion in 'Miscellaneous Equipment' started by nhemann, Sep 14, 2011.

  1. nhemann

    nhemann Member

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    I was contacted regarding a picture I had posted over on Flickr by a company that wants to use it in an e-book they are publishing. The contract/release contained the paragraphs below and I was wondering if this is something that I should be concerned with. I'm not familiar with these type of things and my skeptical side is wondering if this it typical language or if I should just say no.

    Any opinions, especially from some of the professionals among us would be appreciated.

    Neil

    The text:
    In return for the unrestricted use of my image(s) as granted to (production company), I shall receive a pro
    rata share of 25% of net profits generated by Avena Productions from all sales of my image(s).

    I hereby agree that Avena Productions and all their assigns, heirs, and beneficiaries are granted full
    commercial rights to use, modify, display, sell, promote, or re-print and distribute, complete, or derivative
    works based on the photograph(s) in any form and for any purpose (except for pornographic or
    defamatory). I hereby waive any right to inspect or approve the finished version(s).
     
  2. vpwphoto

    vpwphoto Member

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    Sounds scammy... they didn't even telephone you?
     
  3. jnanian

    jnanian Advertiser Advertiser

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    i would say no, and put a big watermark across your image,
    or digimark it so if they steal it you will know.

    i googled Avena Productions and they don't even have an internet presence ...
     
  4. nhemann

    nhemann Member

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    yeah, that's what I am wondering about. Especially when the agreement form has all of my info, including ssn on it.

    The company name was Avena Productions (if anybody else has heard of them) - and the dude emailing me is Rael Cohen. They list an address in NYC - but no phone number, a gmail address, and a google search doesn't turn up anything. So I am def have my guard up.
     
  5. brucemuir

    brucemuir Member

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    Wait, don't give them "UNRESTRICTED" usage.
    IMO
    the only way that is fair is if they buy the copyright from you.

    25% of profits? (I'm sure they will calculate this fairly for you...yea sure :whistling:)
    That's insane.
     
  6. Klainmeister

    Klainmeister Member

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    Hmmm, no internet presence....no telephone.....a GMAIL account.

    Scam.
     
    Last edited by a moderator: Sep 14, 2011
  7. c6h6o3

    c6h6o3 Member

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    That's all you need to know. Phishing scam.
     
  8. zsas

    zsas Member

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    SSN?! Big red flag!
     
  9. Worker 11811

    Worker 11811 Member

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    I would never do business with anybody who contacts me solely by e-mail.

    Have them phone you from a land line which you can call them back at, not a cell. Have them send you a hard copy letter by U.S. Mail with a return address that comes from a real office, not a rented "McOffice" suite.

    If they won't go even that far, tell them to go pound salt and warn them that you will pursue any copyright violations to the full extent.

    Hell, I don't even talk to telemarketers. I tell them, flat out, that I don't do business with anybody who calls me on the telephone unless I called them first. Many of these a$$holes will STILL argue with me even after I told them, "No."
     
  10. R gould

    R gould Member

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    Sounds very much like they are scamming you. Unless they purchase the full copyright of the image then never give them unrestricted use of the image, and for the full copyright then the price should run into thousands, remember that you would lose any future sales of that image, and unrestricted use for a paltry 25% of the net profits, they must be joking, plus if you sign an agreement like that they can not only use the image for whatever they want but they can alter the image. leave it alone.
    Richard
     
  11. ROL

    ROL Member

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    "unrestricted use" is tantamount to assigning copyright to them. Is that what you want? Licensing agreements typically specify restricted use in terms of limited types of use and duration. For a primer, see my article: PhotoBiz – Licensing.
     
  12. TheFlyingCamera

    TheFlyingCamera Membership Council Council

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    Run. Screaming. In the opposite direction. NEVER transfer unlimited usage rights to anyone without a HUGE check attached. Remember those Calvin Klein underwear ads from the 1980s? The iconic ones of the guy in white briefs leaning up against a white stucco sculpture/thingie? Bruce Weber shot those, and they ran them with no attribution or credit to Bruce. But he also got a $1 Million check per ad. THAT is worth it. 25% of profits? WHAT profits? And if they manipulate it enough, how will you be able to be sure it was your image they're exhibiting, or if it can be considered transformative use not derivative? (Derivative use means they owe you $$$$ - transformative means it is changed enough to qualify as a new work and not bound by copyright restrictions). They approached you on Flickr because they figure you're an easily scammed amateur. Don't be. Just say NO.
     
  13. Klainmeister

    Klainmeister Member

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    I once sold an image of some chipmunks for $1,500 with sole ownership rights to the company, but that was because I didn't give a rats ass about the image itself (pocket digi shot)--evenso, with anything I actually consider my art, I would never agree to that.
     
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  15. nhemann

    nhemann Member

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    I'm in the same boat on the image, its just a pocket shot from my cannon. It was the unrestricted ability to modify the image and asking from my ssn that really perked my ears up - i looked at the forms I filled out for contests and even generic forms on the I-nets and never do they ask for that. The, apparently, female Rael Cohen seems to be a real person in any case (look her up - she has some nice photos in any event). I did what an earlier post suggested and asked for a number to call them at - we'll see what happens, at this point I am curious how long I can drag it out before they either stop talking or act professional. lol
     
  16. nhemann

    nhemann Member

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  17. Steve Smith

    Steve Smith Member

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    I would have done it for just the one payment (but being English, it would have to be a cheque!).


    Steve.
     
  18. bblhed

    bblhed Member

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    Scammers sometimes use the names of real people, somewhat obscure real people, but real people none the less. I would want a street address to go with that phone number.
     
  19. c6h6o3

    c6h6o3 Member

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    This has nothing to do with usage rights, unlimited or not. It has nothing to do with photography. Once they have your SSN and your name to go with it you'll never hear from them again. It's a classic phishing scam, designed for the sole purpose of stealing personally identifiable information.
     
  20. pbromaghin

    pbromaghin Subscriber

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  21. pentaxuser

    pentaxuser Subscriber

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    The company obviously realises that and want to help you out. Nice people like that have always been around trying to help others out - it is just that there seems to be so many more of them now that we are more reachable via the touch of a key board:D:D

    pentaxuser
     
  22. resummerfield

    resummerfield Subscriber

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    That's my guess, too. This sound like a scam.
     
  23. Joe O'Brien

    Joe O'Brien Member

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    Draw out what information you can from them, then turn them over to your whatever authorities you deem appropriate.
     
  24. Worker 11811

    Worker 11811 Member

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    There is a chance, albeit a small chance, that this person is on the level but I wouldn't count on it.

    The e-book publishing business is far from a professional field. Any idiot that thinks he's got something to say can publish an e-book. The barriers to entry are a lot lower. Like digital photography, digital publishing attracts a lot of wankers who only know enough to be dangerous.

    This could be one of those wankers or it could be a crook. In either case, you should still be careful. Make the person cross every "T" and dot every "I." If he does anything that is the slightest bit hinky, call him on it. If you don't like the answer you get, tell them to stuff it where the sun doesn't shine.

    Who knows? This could be a genuine opportunity to make a buck. Just don't let that opportunity cloud your judgment.

    As I said, before, I would get a land line phone number to call them back on. I would get a physical address that's not just a postal drop or a rented office cubicle. I would make them put everything down on paper, hard copy, and sign it with pen and ink.

    Look at it this way. It's not like you've lost any money if you tell them to take a hike. You never had any money in the first place but, if this is a crooked operation, you could stand to lose a lot more than money.

    Treat this as if it COULD BE a genuine offer but look at it with a jaundiced eye.

    BTW: I have an idea...

    Instead of a straight percentage of sales, why not ask for a "guarantee vs. percentage?"
    In other words, ask them for a flat fee, up front, if their sales don't top a certain figure and a specified percent of the "overage" on sales that go over that figure.

    For example, your "guarantee" would be $500. You get paid that much up front, no matter what their sales are. Then, if the sales go over, say, $2000 you would get 20% of anything that goes over $2000.

    This ensures that you get paid something up front and they can't cook the books and screw you out of paying anything. Then, they get the benefit of paying a lower percentage on future sales. Hopefully, that will give them less incentive to tinker with their sales figures.

    This is the way a lot of independent movies are booked in theaters. The theater pays a flat guarantee fee to get the print on-screen but, if the movie tanks and they don't sell any tickets, they aren't on the hook for more money than they have already paid. They only pay more if the movie makes more than a predetermined amount. Then, it is only a percentage of the gate, based on what both parties agree upon.

    I don't know if it will work but, what the hell... It's worth a shot.
    If they really are on the up-and-up, they'll negotiate on that. If they don't want to negotiate or, at least, make a counter offer, you'll know that, more likely than not, they are crooks that you probably don't want to do business with, anyway.
     
    Last edited by a moderator: Sep 14, 2011
  25. nhemann

    nhemann Member

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    In the end I politely declined, I have never had to give out my ssn before for something like that and I don't intend to now. The person did respond but didn't give me a phone number so that's that. Though I do get the impression that she might be the person that she says she is (lovely looking lady and a fine model based on the pics I have seen)

    Keep your eye out for Avena Productions - who knows, maybe I just lost my ticket to fame an fortune?
     
  26. rthomas

    rthomas Member

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    I got as far as "unrestricted use" and stopped reading right there. My understanding is that legitimate users will want to license the image for specific usage(s).