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Common Cents Column On The Cost of Doing Business

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Portions of this column were originally written for the October 2012 edition of News Photographer Magazine.

Mark Loundy is a media producer and consultant based in San Jose, California. Full bio.

The opinions in this article are those of the author alone and do not necessarily represent the official views of the National Press Photographers Association.

October 2012, Volume 115
By Mark Loundy

"Indemnity: Contract with a third-party to perform another's obligations if called upon to do so by the third-party, whether the other has defaulted or not."

— Duhaime's Law Dictionary

When you examine the boilerplate of many contracts, you will see a section titled "Indemnification." Usually, this means that you agree to put your economic future on the line to protect your client against legal issue arising from the job. Often, that protection is not limited to claims arising from things over which you have control.

Indemnity When you indemnify somebody, you promise to protect him or her legally. This means if somebody sues your client, they will point at you to cover attorney fees. This applies even if the client is being sued for something beyond your control. Such legal fees can run into many thousands of dollars.

It is inappropriate for a freelancer to indemnify a corporate client for anything beyond negligence (and your insurance should cover you for that.) Yet client lawyers insert it assuming that photographers will sign without question. I've lost several jobs when clients refused to budge on indemnification. But the risk simply isn't worth it. Indemnification is a deal breaker for me.

As always, it is important to consult with your own attorney about issues like this.

The Good
Bullet Costco, for its in-house photography contest that asks rights only from the winners and offers a paid publishing contract.
Bullet The New York Daily News in-house counsel for correcting one of the paper's desk editors for lifting an image from Twitter without permission and then contending that such images were "in the public domain." Oh yeah, they also paid the photographer's invoice.

The Bad
Bullet Urban Climber magazine, for extremely slow payment.

The Ugly
Bullet The editor at the New York Daily News who lifted the Twitter image in the "Good," above.
Bullet Magnet Media for first agreeing to limited rights for image use and then presenting a written contract with terms that were far greater. Always read the written contract.

Please let me know of any particularly good, bad or ugly dealings that you have had with clients recently. I will use the client's name, but I won't use your name if you don't want me to. Anonymous submissions will not be considered. Please include contact information for yourself and for the client.

  • Jean-Charles Renaud is a satisfied man. The Ottawa, Canada wedding photographer was asked by Journal Le Droit if they could use a few of his distinctive images in a an upcoming feature. Although the paper wasn't offering any compensation, Renaud figured that his business would benefit from the exposure (don't get me started.)
    The published pictures looked great in the newspaper, but Renaud's credit was tiny, obscured or missing. After the publishing of an "erratum" and several email exchanges failed to ameliorate the situation, Renaud sent the paper an invoice. Renaud figured that the paper would simply ignore it and that would be the end of it.
    that would be the end of it. Then the phone rang. The person at the other end of the line was from the Journal Le Droit accounting department. After hearing Renaud's story, the person cut a check for the full amount.
    Renaud's lesson from this? "When in doubt, just send them an invoice."
  • If you imagine a website dedicated to just the Bad and Ugly, you'll have a good sense of what the IP Memoriam is all about. London-based photographer Martin Orpen compiles his list as "A Place For Grieving" as part of the Artists Bill of Rights site.