Pet Peeve No147

Many of the provisions in documents provided by clients are fundamentally unfair to photographers. I find many of those demands offensive to varying degrees. Some, however, are so unreasonable that I tend to take them personally, and I can feel my blood pressure rising every time I have to deal with them. Unfortunately for my health, that tends to happen fairly frequently these days.

The chief offender, which I have titled my Pet Peeve #147 for purposes of this article, is the pair of related clauses dealing with the photographer’s representations and warranties, and its companion—the indemnification clause. In case you aren’t familiar with this legal jargon, here is an example from a contract that I recently reviewed:

Representations and Warranties. Photographer represents and warrants that: (a) the images are wholly original to Photographer, (b) neither the images nor the use by Client or any of its assigns will infringe any third party rights or violate the copyright or other intellectual property rights of any person or entity, (c) the caption and all other information provided to Client is accurate and complete and (d) a valid release, either model and/or property, has been obtained where necessary and appropriate for each image, and Client may use such images without obtaining any additional consents or permissions or the payment of any additional fees to third parties.

Indemnification. Photographer agrees to protect, defend, indemnify and to hold Client (and its funders, successors, parents, subsidiaries, affiliates, officers, directors, agents, developers, networks, distributors, joint venturers and attorneys) harmless from any claims, liabilities, losses and damages (including reasonable attorney’s fees and expenses) arising from any breach of any representation or warranty, any failure to perform any covenant or agreement under this agreement.

To summarize what all of this means: The photographer guarantees that there won’t be any claims relating to the creation or use of the images and that, if there are, the photographer will pay all costs and liabilities relating to those claims that the client or anybody with a business relationship to the client incurs. That is, the photographer will act as the client’s insurance company for many of the basic business risks that normally accompany uses of photographs.
What is so wrong with that, and why do I find it so outlandish? First, let’s look at the big picture: Most photographers are sole proprietors or tiny businesses with generally modest means, often without any liability insurance of their own. On the other hand, most clients or at least those that are commercial entities, have assets, resources and insurance that are enormous compared to the photographers’. Asking the little guy to provide financial protection for big business is unreasonable, unfair and just plain absurd.

Next, let’s look at the details, phrase by phrase, from the beginning. Starting with the guarantee that the images are completely original, that is something that no photographer can know with absolute certainty. No matter what any photographer does, it is always possible that any given image will turn out to have been so unconsciously inspired by another, probably forgotten, image that the photographer’s image will turn out to be considered as based on the other one. Copyright is what is known as a strict liability law. That means that an infringement does not have to be knowing or intentional. If one work unintentionally and unknowingly bears a substantial similarity to an earlier published work, there is probably an infringement. There are plenty of judicial decisions finding infringements in which the infringer used another work with absolutely no intention or knowledge of infringing on the part of the infringer. Unless a photographer is omniscient, he or she is simply not in a position to guarantee that any image is completely original.

Next, the guarantee that no third-party rights will be violated is even more impossible to make. In addition to the fact that nobody can predict the future, most violations of third-party rights by photographs don’t arise from the making of the photographs (which is in the control of the photographer), they arise from the use of the photographs by the clients and others, which is completely outside of the photographer’s control and even knowledge. Holding the photographer responsible for the client’s behavior is an insulting abuse of power by the client.

Similarly, guarantees as to things like the need for and accuracy of releases and information really requires (again) that the photographer be omniscient, clairvoyant and a legal expert. Personally, I don’t know any photographers (or anyone else) whom fit that description. I could go on, but I think that I have made my point.

So, if this kind of language is unfair in the extreme, what can be done to make it fair and reasonable? My first choice is to reverse these provisions by making the client indemnify the photographer for any claims relating to the client’s use of the images. The forms that I recommend to photographers do exactly that. If the client will not agree to that, the next best thing is to have cross-indemnifications, where the photographer and client indemnify each other for any claims arising out of anything that is the fault of the indemnifying party.

The last choice is to make the representations and warranties less than absolute; that can be done by preceding the representations and warranties with language like, “to the best of photographer’s knowledge, information and belief.” At least then, the photographer can be held to a human standard instead of being required to possess godlike knowledge and powers—and possibly large amounts of money and/or insurance.

Victor S. Perlman is General Counsel to the American Society of Media Photographers, Inc. (ASMP). He has also served on the Boards of Directors of the Media Photographers Copyright Agency, Inc., the Copyright Clearance Center (CCC), and the Philadelphia Volunteer Lawyers for the Arts. Mr. Perlman has frequently appeared as an author in various publications, including Communication Arts and Popular Photography and is co-author of Licensing Photography, published by Allworth Press. He has testified in Congressional hearings and proceedings held by the U.S. Copyright Office and the U.S. Patent and Trademark Office.