derivative works created therefrom

[MOREGONE]

So just to confirm... lol

"derivative works created therefrom"
​

This means the photos I do not provide to the client cannot be used elsewhere right?

I shoot events for the local newspaper and want to expand the use of my images. Looking over my contract it included the above statement which I take to mean I cannot use any images, from the events during the Exclusivity Period in contract. Not just the "originals" I provided them. The newspaper is mostly interested in the people, crowd and scene of the local event where the other outlets I am contacting about using my images are more about the music, the artist, the experience. So my plan was to give them each unique, original images. But looks like I will have wait for the exclusivity period to expire before I can share any images to the other outlets.

 

[bratkinson]

Disclaimer: I am not a lawyer, never been to law school, and do not/have not portrayed one in any video/movie production(s).

Back in the days when I was writing and licensing software for use at client sites, I was fortunate enough to discover that my employer had a clause in their contracts with clients clearly stating that the use of the software was limited to its use by and for the clients specific purposes only. It also further restricted their use that it could not be incorporated or used in another product of their design.

Not long after I started writing and marketing software in my own company, I plagarized that clause in my contract and, as I was dealing with a large corporate client that both used and licensed their own software, added a clause that limited their use to specifically named clients (known up front) and that additional clients, if any, would require an amendment and surcharge to the agreement.

COULD they have used the software beyond the original scope of the contract? Other than the contract, there was nothing to prevent them from doing so. It's altogether possible that one or more technician employees were not aware of the contractual limitations and may have used it outside the scope of the contract. I'll never know.

One of the clauses that was in my former employers contract as well as my own, was that the licensee had non-exclusive rights to use the software. Another clause in there was their right to transfer the license and non-exclusive use to another organization, but they would have to remove it from their computers. And for those companies that used the product(s) at multiple sites...a per site surcharge for every site after the first one.

Unfortunately, in todays world of pirated just-about-everything from designer handbags to Hollywood movies and Facebook images, one can never know where or when their work will be illegally used.

As far as 'derivative works created therefrom', I'd assume that would apply only to the images you provided to them, not the extras you may have shot and did not provide them. Although it would be apparent to them if you provided images of the same sporting event to multiple newspapers, I don't think they'd have a leg to stand on if the images supplied to each were different...even if shot one second apart. For what it's worth, I've seen the exact same images from one individual in a couple of my hobby magazines, which probably 'black listed' that photographer from both. No doubt he submitted them to both publications hoping at least one of them would publish his pictures.

It may or may not be possible to modify your contract with newspaper #1 to add a non-exclusivity clause. However, in attempting to do so, or even asking for clarification about the 'derivative works' clause, may trigger their ending the contract altogether as there are likely countless 'for hire' photographers' available to take your place willing to submit to 'their' terms. Unfortunately, I suspect they are 'in the drivers seat' (with apologies to Hertz Corporation ads from eons ago).

 

[orljustin]

So just to confirm... lol

"derivative works created therefrom"
​

This means the photos I do not provide to the client cannot be used elsewhere right?

I shoot events for the local newspaper and want to expand the use of my images. Looking over my contract it included the above statement which I take to mean I cannot use any images, from the events during the Exclusivity Period in contract. Not just the "originals" I provided them. The newspaper is mostly interested in the people, crowd and scene of the local event where the other outlets I am contacting about using my images are more about the music, the artist, the experience. So my plan was to give them each unique, original images. But looks like I will have wait for the exclusivity period to expire before I can share any images to the other outlets.

What's the context of the quote? You don't make derivative works from an event, unless, you were taking very specific images of the art works there, putting a statue in a different medium, say. Or are they talking about you using your photos to make derivative works, like putting an image into a montage or something?

 

[KmH]

Any edit you later add to one of the photos the newspaper has used would then make the edited photo a derivative.

It's not a good business practice to sign a contract that has language you do not understand.
Whichever party to a contract writes the contract usually has a huge legal advantage over the other parties to the contract.
Whenever possible, you want to be the party that writes the contract.

http://www.copyright.gov/circs/circ14.pdf

 

[MOREGONE]

Yeah, I'm guessing one of the largest news outlets in the country wasn't just going to let some random contractor bring his own contract. I feel the contract is very fair since the exclusivity period is only 24 hours from publication and they outright state I hold copyright and everything.

Here is the bulk of the contract. In some parts it discusses Original works. Looking at it again, it seems they're reserving the right to create derivative works, not limiting me.

(the Newspaper) will pay for original articles, photographs, designs, layouts, artistic work and all other

copyrightable work (hereafter, the “Work” or “Works&#8221 upon acceptance for publication in the Newspaper, in accordance

with guidelines provided by your assigning editor. The amount of compensation for accepted Work will be full payment for

the rights described below. The agreed-upon fee includes the customary expenses incurred by you in reporting or creating

Work for the Newspaper. Additional expenses or payments must be approved in advance in writing by your assigning

editor. This Agreement will govern all Works that you create for the Newspaper, unless otherwise agreed to in a separate

written agreement between you and the Newspaper. Nothing in this Agreement will obligate the Newspaper to publish the

You hereby grant the Newspaper, its affiliated corporations and licensees: (i) exclusive publication

rights for the period up to first publication of the Work in the Newspaper and for twenty-four (24) hours thereafter [or

insert other mutually agreed upon time period]; (ii) the non-exclusive rights thereafter to reproduce, edit, adapt, modify,

perform, transmit and otherwise use the Work, including any derivative works created therefrom, in whole or in part, in

any language, manner or medium now known or hereafter developed, including, without limitation, in electronic or optical

media, CD-ROM, online or other similar format, throughout the world in perpetuity, without any additional compensation;

(iii) the right to digitize or otherwise electronically scan and store the Work for archival purposes or the purposes set forth

above; and (iv) the non-exclusive perpetual right to use your name, likeness and/or biographical information for advertising

or promotional purposes in connection with the Work, without further compensation.

Subject to these rights, you hold the copyrights in your original Work, including the right (after 24 hours [or insert other

mutually agreed upon time period] from first publication in the Newspaper) to publish it as you wish and to prepare other

material based on it. You warrant that the Work submitted under this Agreement is your original work, of which you have

sole ownership, that it has not previously been published and that its publication will not violate any copyright, proprietary

right or other right of any third party, including, without limitation, rights of publicity and privacy.​

 

[KmH]

Here is the bulk of the contract. In some parts it discusses Original works. Looking at it again, it seems they're reserving the right to create derivative works, not limiting me.

I agree.

But they reserve extremely broad rights to - derivative works created therefrom, in whole or in part, in any language, manner or medium now known or hereafter developed, including, without limitation, in electronic or optical media, CD-ROM, online or other similar format, throughout the world in perpetuity, without any additional compensation;

 

[ronlane]

Keith, I see what you are going for here, but I would say that this is a better situation than you taking the photos and THEY get the rights to them. At least in this case, the OP retains the right and ownership of the images and can do what they want with them after the 24 hours is up.

 

[MOREGONE]

These are events. It's not like I am photographing exotic or rare stuff. I'm not worried about them using pictures of 3 girls drinking by the pool in the future.

Oh and it's not the topic... and not part of my concern so yeah. I could have either A) not ever worked for them because it's "Extremely broad" or B) worked for them and kept copyright to the images. Glad I chose B :scratch:

 

[vintagesnaps]

I would interpret this as meaning that the newspaper has exclusive use of your image for 24 hours, then after that time period it says you have the right to publish it as you wish and to prepare other material based on it, etc.

This seems to allow the paper to potentially use the photo again nonexclusively in the future without further compensation. I would expect that could cover usage such as the paper reporting the event as upcoming next year (and could publish a photo of what by then would be last year's event). Or if you covered for example a significant event and the paper might run something like a 10 year anniversary article and reprint your photo.

There's mention of being able to use your name associated with your photos, which probably would cover future usage and being able to include a photo credit, although sometimes a past photo is just run as a file photo. It also says they archive the photos which seems to have always been standard practice for newspapers as photos may someday have historical significance.

It seems to me that you're able to use your photo(s) after the 24 hour period. You could check NPPA's or ASMP's websites to see if they have info. on standard practices and contracts, etc.

 

[MOREGONE]

Yeah each image has proper credit with it that I have ever seen used. I got "lucky" and emailed the right editor at the right time and got to work very early on in after jumping into photography. Honestly I think it was just about a year after I picked up a DSLR for the 1st time that I signed the contract with them. Been a great experience I feel they have been appropriate with pretty much everything.

Just looking to broaden my horizons. Thanks everyone.

 

[curtyoungblood]

Now that you've posted the whole contract, I would like to point out that the way you describe the contract in your original post is a misunderstanding. The derivative works phrase of that contract is most likely intended to give the paper the right to create something else out of your photographs. I would imagine this being a collage, a promotional piece, a multimedia piece, or something like that. Also, it only applies to how the paper uses the photos after the embargo period. After the newspaper has published any photos from a single event, you are free to do whatever you want with all the photos from that event. So, if you're wanting to try and sell other photos to a magazine, or other news outlet, then you should be able to do so 24 hours after the original publication in the newspaper.

 

[MOREGONE]

Now that you've posted the whole contract, I would like to point out that the way you describe the contract in your original post is a misunderstanding. The derivative works phrase of that contract is most likely intended to give the paper the right to create something else out of your photographs. I would imagine this being a collage, a promotional piece, a multimedia piece, or something like that. Also, it only applies to how the paper uses the photos after the embargo period. After the newspaper has published any photos from a single event, you are free to do whatever you want with all the photos from that event. So, if you're wanting to try and sell other photos to a magazine, or other news outlet, then you should be able to do so 24 hours after the original publication in the newspaper.

I do agree with you pretty much, but do you see anything that excludes the use of images I do not provide to them within the exclusion period? It talks of Originals and I am suggesting using different images, and this part of the contract that calls out "Of the work in the newspaper"... so if it's not in the newspaper and it's not an original I provided them then I see how I could submit photos to more than one outlet.

You hereby grant the Newspaper, its affiliated corporations and licensees: (i) exclusive publication rights for the period up to first publication of the Work in the Newspaper and for twenty- four (24) hours thereafter [or insert other mutually agreed upon time period];

​

***I fully understand nobody is giving me legitimate legal advice and I should seek assistance from a local professional and I am the only one accountable for any actions I take.

 

[curtyoungblood]

This Agreement will govern all Works that you create for the Newspaper, unless otherwise agreed to in a separate

i would interpret this to mean that everything you shoot is part of the Work you create for the newspaper. I really think that your editors expectations are far more important than the letter of the contract in this case though. If the assigning editor is expecting exclusive rights until 24 hours after publication and sees photos from the event somewhere else, then you'll likely never shoot for that paper again. I also don't think that it is an unreasonable request if the paper is call you and assigning you something to shoot.