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Dissecting the Terms and Conditions Document, Part II

This insight was originally published on October 5, 2015

On a few recent projects, we have spent a lot more time than usual reviewing specific terms and going back and forth with both agencies and lawyers to come up with language that works for everyone.  During these particular projects, I often felt at a bit of a disadvantage when there were lawyers involved and wishing we had one of our own to help navigate our point of view.

I figured we were not alone in this thinking so asked attorney Linda Joy Kattwinkel of Owen, Wickersham & Erickson, P.C. if she would help dissect a generic Terms and Conditions Document that we can share with our readers.  People were so appreciative of the information she shared regarding Copyright, we figured they would feel the same about Terms and Conditions. For more information about copyright, review this valuable post from pikwizard.com

The documents are a bit long and dense, so we are breaking this series up in a few posts.  Our first post reviewed items #1-#5.  This post addresses items #6-#10.  And, our next post (stay tuned!) will discuss #11-14.  If you have any questions, please leave them in the comments or email us directly.  We will do our best to get them answered for you.

The format we thought most helpful would be to 1) review the term 2) translate the term into layman’s language and 3) ask any relevant questions.

Terms #1-5 can be found by linking to an earlier post..
Terms #6-10 are below.
Terms #11-14 will appear in a later post.

#6. SUPPLIER’S WARRANTY. Unless otherwise provided on the front of this PO, Supplier hereby represents and warrants: (a) that no third party has any rights in, to, or arising out of, the material supplied hereunder; (b) that Supplier has full and exclusive right and power to enter into this Agreement; (c) that all models and any other living persons, or the representatives of any deceased persons whose names or likenesses are used in the material, and the owners of any unique or unusual inanimate objects which are used in the material, have executed releases allowing unlimited use by Agency (d) that the material supplied hereunder complies with Agency’s specifications and is free from any material defects in design or workmanship; and (e) that the material supplied hereunder complies with and/or has been produced in accordance with all applicable state and federal laws and regulations.

Translation: “Warranties” are promises or guarantees that you are making that:
(a) you did not copy someone else’s work to create your images (which would be a copyright infringement), AND that they don’t inadvertently infringe any other rights, for example, trademarks;

(b) you are the one who created the images, and have not granted conflicting rights to use them to someone else;

(c) it is your responsibility to get all necessary releases from models and owners of unique items (meaning anything that could be associated with a particular person, for example, Janis Joplin’s painted VW);

(d) your images (and digital files) will not be defective;

(e) your images (and digital files) do not break any laws.

•  What if there is a car on the set that I did not know was Janis Joplin’s car?
Under this language, you would still be legally responsible. I recommend adding to the best of your knowledge to these types of warranties to protect against that, e.g., .“(c) to the best of Supplier’s knowledge, that all models and any other living persons, or the representatives of any deceased persons whose . . .”

•  Or, what if the client says they will retouch out any logos and they do not?
Get the client to say this in writing. Then you can prove it was the client’s fault. Otherwise, under this language you could be legally responsible for a trademark infringement claim.

•  What if the client provides the talent releases and they turn out to be not adequate?
Under this language, YOU are responsible, not the client. If the client is providing talent releases, you should cross out subsection (c), and include a statement that the client is responsible for all talent releases.

•  And, what if the client asks me to provide the talent releases? Should I do that or insist that they provide them? If I do, will a general online version suffice?
Under this language, YOU are responsible, not the client. Whether to resist that depends on the nature of the client and the project. If you agree to get talent releases, the releases you get must match the scope of the specific project – meaning the release must say the photos may be used in the same media, time frame, and for the same purposes as the client’s PO and/or your contract. A general online version will work only if it matches the project parameters or it authorizes all uses in all media for all purposes. Many of these forms are written by non-lawyers and may not be adequate. Have an attorney review them before you rely on them.

#7.  INDEMNITY. Supplier agrees to hold Agency, Client, and their respective assigns and licensees harmless from and against any loss, damage, or expense, including court costs and reasonable attorneys’ fees, that Agency, Client, and their assigns and licensees may suffer as a result of any breach or alleged breach of the foregoing warranties or as a result of claims or actions of any kind or nature resulting from the use in any manner of the material furnished by Supplier hereunder. Agency similarly agrees to hold harmless Supplier and its assigns and licensees with respect to any materials supplied by Agency.

Translation: “Indemnity” means you have to pay all legal costs incurred by both the agency and the client if a legal claim is made against them, including:

– any claim that is inconsistent with any of your warranties (e.g., someone makes a claim that your images infringe their copyright, or a model says she did not give permission for your client to use the image);

– any other claim that the client’s use of the images violates somebody’s legal rights.

•  Can I ask them to indemnify me?
Yes. The client should be willing to indemnify you for any content they provide or any instructions they give you or anything they do or fail to do to your images. You probably can’t get the client to indemnify you for anything you are responsible for, including a breach of your warranties in Section 6. That’s why it is important to add the “to the best of your knowledge” limitation.  It is also important that you ask for indemnification if your client is handling any aspect of the production, such as talent or providing props.

#8.  REJECTION AND APPROVAL RIGHTS. Agency reserves the right to reject and not pay for material not delivered in accordance with the specifications of this PO, including timely delivery, which is of the essence. Notice of defects in workmanship or design of the material, or notice of rejection of material, will be forwarded to Supplier promptly after Agency and/or Client have reviewed the material. If approval rights of Agency are to be limited in any way, it is the responsibility of Supplier to obtain Agency’s written consent to such limitations, either on the front of this PO, or in a separate, written agreement signed by Agency.

Translation: The agency does not have to pay you if it decides the images don’t comply with the PO, are late, or are defective. The agency gets to make this decision without input from you. If you want to limit this absolute right to reject your work, you have to put alternative approval terms on the front of the PO.

•  How should I word alternative approval terms?
State that Agency’s decisions must be reasonable, and you have an opportunity to correct defects. And make sure your work cannot be rejected because of delays caused by others. For example:  “Agency may not reject material that is untimely delivered because of delays caused by Agency or Client. All decisions regarding defects or rejection of materials must be reasonable and shall not be final unless Supplier has failed to correct the defect within ten (10) days after notice thereof.”

#10.  PRICE; AMENDMENTS. The price specified in this PO is firm except for the addition of sales and use taxes applicable to the services and materials provided. Agency will not recognize any claim for an increased price, unless approved by Agency in writing prior to the commencement of or during the course of completing the work. No charge will be allowed for packing, crating, transportation, or storage without the Agency’s prior written consent. None of the directions provided Supplier by Agency’s representatives during Supplier’s fulfillment of this PO shall be considered a change of project specifications or shall justify a change in the agreed cost unless specifically agreed to in writing by the Agency.

Translation: You cannot charge more than the PO shows, except for sales and use taxes. You cannot charge for packing, crating, transportation or storage without a written approval. If costs increase from what is shown on the PO, you have to get written approval for the increased cost before you incur them, even if you incur additional costs in order to follow directions from the agency’s representative during the shoot.

•  Things happen so quickly on set and often times there is not time to get written approval but an account person or art producer will provide verbal approval. Should I revise this line item to address this possibility?
Yes. Ideally, this sentence should be rewritten to say the opposite:  “Agency agrees that in the event directions provided to Supplier by Agency’s representatives during Supplier’s fulfillment of this PO constitute a change of project specifications that increases costs, such additional costs shall be deemed authorized by Agency.”

Alternatively, you can say something like:

“Supplier is not obliged to follow directions provided by Agency’s representatives during Supplier’s fulfillment of this PO if such directions would increase the cost unless the Agency representative agrees in writing to the cost increases.”

Either wording gets the Agency to agree that its on-site representative has authority to require changes that will run up costs. Either way, you should always get written approval (so you can prove what happened if there’s a dispute about it later), even if you have to do a handwritten note signed by the representative.

If you can’t get the Agency to change this, make sure they understand that it will take more time to get written approvals from the Agency instead of its on-site representative, and the Agency will be responsible for such delays. Ask the Agency to add to this provision a list of people at the Agency who are authorized to agree to changes in project specifications and additional costs, a guarantee that they will be available to receive text or email messages seeking approval during the shoot, and acknowledgment that the Agency will be responsible for additional costs caused by any delays in obtaining the written approvals. At that point, the Agency may realize it is better to give their representative authority to approve changes on site.

Please stay tuned for our final post regarding the remaining Terms #11 – 14.

Linda Joy Kattwinkel is an artist (painter) and a lawyer for artists with the firm of Owen, Wickersham & Erickson, PC in San Francisco. She was an illustrator and graphic artist before she became an attorney. She helps her clients with licensing and contracts, and has successfully prosecuted and defended many infringement claims on behalf of photographers. Some of her local photographer clients include Jim Marshall’s estate, Jim Erickson, Steven Sommerstein, Charles O’Rear, Max Fallon, Dennis Anderson, Caren Alpert, and Elena Kulikova. Other prominent clients in the visual arts include Craig Frazier, Michael Schwab, Howry Design, and Hello Kitty.

Ms. Kattwinkel is the author of Legalities, an online column on legal issues for artists and designers for AIGA|SF,  http://www.owe.com/resources/legalities/, and various published articles. She can be reached at ljk@owe.com.

Thank you Lupine Hammack for the use of your image.