Exclusive Photographer Contract Violation

[HeldInTheMoment]

Hello All,

Very frustrated here and would like some advice from the community. My wife and I own a small photography business and had recently signed an agreement with a local motocross association as the exclusive photographer and the only people allowed to have a camera past the spectator section on the track. In turn, any photos we sell at the event we give 20% of our net income back to their association so we can all benefit. This past weekend the President of the association allowed a freelance photographer from the local newspaper onto the track to take photos for his article, which is a direct violation of our agreement. When I spoke to the President about this issue he failed to remove the other photographer from the track for over an hour. Eventually the other photographer left the track and continued taking photos from the spectator area, which is no problem as we are only exclusive for track access photos. After speaking with the President about the contract violation issue, I offered to let the local paper use any of my photos free of charge and only asking for credit in their paper so we can mutually benefit. I am more than happy to help their association get more publicity and share the photos to help, our contract even states that I will do so. Though, the other photographer from the paper never came to talk to us about this and refused to speak with me.

Today, I see in the local paper that the photographer was a freelance photographer and his photos were used in the local paper and credit to him (as expected). To me the association was in direct violation of our contract and I would like some input or advice on how to proceed with this issue.

Thanks!

Here is the clause in our contact in regards to us being the exclusive photographer:

Exclusive Photographer: The Photographer(s) shall be the exclusive photographer retained by the Clients for the purpose of photographing the events. The Photographer(s) will be the only persons permitted on the race track/restricted areas to take photos for these events. No other persons shall be permitted to sell or promote their photographs, during or after, the Clients events. Guests, Family and Friends of the Clients shall be permitted to take photos for their personal use as long as they remain behind the spectator fence and do not interfere with the Photographer(s) duties. A violation of this clause releases the Photographer(s) from any responsibilities or obligations to pay the Clients the Amount Agreed stated above.

 

[robbins.photo]

Ok, well really only one response to this is possible. So you'll need a 4x4 vehicle of some sort, a large tarp, two shovels, and a psychotic wombat....

Hmm... ok, well that might be a bit on the overkill side for a first offense. Ok, so if it were me, I'd sit down with the President and explain that you have an agreement, and make sure he's aware of everything that happened. He may or may not be aware of the pictures printed in the paper, etc.

Make sure he understands that you do expect the association to honor this agreement in the future. If they fail to do so then you'll have to terminate your association. I would also tell them that since this was brought to their attention on the day of the event and the response was inadequate, you'll be taking the 20% of the income you made from that day out of the next payment you make to the association.

 

[tirediron]

...Here is the clause in our contact in regards to us being the exclusive photographer:

Exclusive Photographer: The Photographer(s) shall be the exclusive photographer retained by the Clients for the purpose of photographing the events. The Photographer(s) will be the only persons permitted on the race track/restricted areas to take photos for these events. No other persons shall be permitted to sell or promote their photographs, during or after, the Clients events. Guests, Family and Friends of the Clients shall be permitted to take photos for their personal use as long as they remain behind the spectator fence and do not interfere with the Photographer(s) duties. A violation of this clause releases the Photographer(s) from any responsibilities or obligations to pay the Clients the Amount Agreed stated above.

That's a fairly well worded clause, but I see a couple of potential hurdles: Was this photographer retained by the track association? If not, no violation of that clause. "Retained" would normally mean that he had been approached by the client and was receiving some form of remuneration from them. If the person was a journalist, than editorial use of the images likely would not constitute "sale/promotion" and as well for the line about "only persons permitted... I could see (not agree, but see) where this might be said to not apply to a journalist.

IMO, you need to discuss this with the association, but based on the use of the images, is it worth damaging your relationship with them?

 

[HeldInTheMoment]

Ok, well really only one response to this is possible. So you'll need a 4x4 vehicle of some sort, a large tarp, two shovels, and a psychotic wombat....

Hmm... ok, well that might be a bit on the overkill side for a first offense. Ok, so if it were me, I'd sit down with the President and explain that you have an agreement, and make sure he's aware of everything that happened. He may or may not be aware of the pictures printed in the paper, etc.

Make sure he understands that you do expect the association to honor this agreement in the future. If they fail to do so then you'll have to terminate your association. I would also tell them that since this was brought to their attention on the day of the event and the response was inadequate, you'll be taking the 20% of the income you made from that day out of the next payment you make to the association.

Thanks for the reply, your thoughts are very similar to mine...!

I did speak with the President on-site, he was very aware of our agreement and thought since he was not selling his photos on-site it was not a big deal as it was not in competition with me. I kindly explained that the contract states we are the exclusive photographers and there are no exceptions to that. I again explained I would be more than willing to give the paper ANY photos they need for shared publicity. The President stated that the photographer said his editor would not allow that, that was a red flag to me as any editor has no problem crediting and getting free photos for their paper. The President knew he was there for the paper and to put the pictures in his article.

The contract does state if they allow other photographers onto the track I do not need to honor the 20% payment; though, as the President later told me that any photos used would be from the spectator areas, or our photos would be used and credit, so I paid the 20% and moved on. Now I see that is not the case. So I agree that the 20% paid this weekend should be taken out of any payments made in the following weeks, or I may have to cut ties with them.

Also, this is not the first time they have allowed other cameras on the track...though, the first time was a parent helping the 50cc bikes ride (in case they fall) and used his camera on the track. He was talked to and issue resolved...but then this happened the following weekend and now with another photographer and not just a parent.

 

[HeldInTheMoment]

...Here is the clause in our contact in regards to us being the exclusive photographer:

Exclusive Photographer: The Photographer(s) shall be the exclusive photographer retained by the Clients for the purpose of photographing the events. The Photographer(s) will be the only persons permitted on the race track/restricted areas to take photos for these events. No other persons shall be permitted to sell or promote their photographs, during or after, the Clients events. Guests, Family and Friends of the Clients shall be permitted to take photos for their personal use as long as they remain behind the spectator fence and do not interfere with the Photographer(s) duties. A violation of this clause releases the Photographer(s) from any responsibilities or obligations to pay the Clients the Amount Agreed stated above.

That's a fairly well worded clause, but I see a couple of potential hurdles: Was this photographer retained by the track association? If not, no violation of that clause. "Retained" would normally mean that he had been approached by the client and was receiving some form of remuneration from them. If the person was a journalist, than editorial use of the images likely would not constitute "sale/promotion" and as well for the line about "only persons permitted... I could see (not agree, but see) where this might be said to not apply to a journalist.

IMO, you need to discuss this with the association, but based on the use of the images, is it worth damaging your relationship with them?

Thanks for the reply as well. I see your point about the wording; though, it's beyond my legal knowledge to debate technicalities.

While I do not want to ruin any relationship with the association, we were considering terminating the contract due to poor revenue in comparison to the time and work put in. Additionally, this is not the first time they have violated the agreement.

I guess my biggest concern is that we pay to be on the track for the exclusive photos, would have loved the publicity, and repeat violations of the agreement is getting very frustrating...especially as it was discussed on-site and the verbal agreement is not even being honored.

 

[robbins.photo]

I guess my biggest concern is that we pay to be on the track for the exclusive photos, would have loved the publicity, and repeat violations of the agreement is getting very frustrating...especially as it was discussed on-site and the verbal agreement is not even being honored.

Well I happen to have both a psychotic wombat and a couple of extra shovels, if you can bring the 4x4 and the tarp.. lol...

I'd probably just sit down with them and address this, I could be wrong here since I don't know the people involved but it sounds like they seem to feel like that portion of the agreement isn't a big deal, and it just needs to be impressed on them that it is a big deal.

 

[tirediron]

Don't get me wrong, I'm not a legal expert by ANY stretch, I don't play a lawyer on television and I definitely did NOT stay at a Holiday Inn Express last night, BUT... I can see where, despite the wording of this clause it would be considered that a journalist's presence was not a violation. While I've never agreed with it, PJ folks frequently get special privileges.

 

[HeldInTheMoment]

I guess my biggest concern is that we pay to be on the track for the exclusive photos, would have loved the publicity, and repeat violations of the agreement is getting very frustrating...especially as it was discussed on-site and the verbal agreement is not even being honored.

Well I happen to have both a psychotic wombat and a couple of extra shovels, if you can bring the 4x4 and the tarp.. lol...

I'd probably just sit down with them and address this, I could be wrong here since I don't know the people involved but it sounds like they seem to feel like that portion of the agreement isn't a big deal, and it just needs to be impressed on them that it is a big deal.

I might take you up on that wombat offer! haha

My biggest thing is that they have been talked to about that clause. The spoke to other board members that day (who I am friends with) and they had no clue the other photographer was allowed on the track and it was not previously discussed. Turns out the photographer just showed up, asked for track access, and the President allowed him on.

 

[HeldInTheMoment]

Don't get me wrong, I'm not a legal expert by ANY stretch, I don't play a lawyer on television and I definitely did NOT stay at a Holiday Inn Express last night, BUT... I can see where, despite the wording of this clause it would be considered that a journalist's presence was not a violation. While I've never agreed with it, PJ folks frequently get special privileges.

I agree and understand the associations aspect, at first...but when I am offering ANY photos to the paper to use for their article so we all benefit (the paper get their story, I get photo credit, and the association gets their story in the paper) and they still let him on the track and use the photos after talking with them about the contract violation...I'm just frustrated!

I like the idea of taking the 20% paid this weekend out of the next payment until the balance is even. We have to pay for track access and have exclusive rights to on-track photography...why does the paper get those photos for free and avoid using the exclusive photographers photos. All we asked was a credit in the paper...

 

[astroNikon]

"A violation of this clause releases the Photographer(s) from any responsibilities or obligations to pay the Clients the Amount Agreed stated above."

What does that mean?
ie, a violation of the above statements and then the photogs don't have to pay the Client .... (and all are released from said contract)

so if they break the contract you are free to go on your merrily way ?
and there's no penalty what-so-ever ?


is there a Violation clause for the Client ?


ie .. at some point we'll all say ask your lawyer ...

 

[HeldInTheMoment]

The contract does state that if they violation the exclusive photographer clause we do not have to pay the 20%

Additionally the contract does allow us (the photographers) to terminate the contract at any time.

This isn't a HUGE deal and lawyers are not going to be needed, but I am just trying to get some general industry advice. It is very frustrating we are making so little, but as we strongly support the association we are happy to take the low revenue and give riders some great photos and help the association with 20% of our net income. But when we have to pay 20% for track access and have an agreement, it is really frustrating when they violate the agreement. Furthermore, using our photos for the paper would have benefited us ALL.

 

[astroNikon]

I guess in the end what do YOU want to do ?
assume the newspaper thing never happened, as financially (directly) it would not have change the evening for you.
Or make a big deal of it, withhold 20%, which may sour the Client for future contracts.

or politely mention to client that you can provide photos for any photo-opportunities for newspapers etc ?? (as I think you have already done).

 

[Dave442]

It sounds like the President made the attempt initially to have the press use your photos. When that was rejected then he just let the PJ in. I'm sure he wanted the publicity in the paper and if they hadn't had it before then maybe he is wondering if the services you provide are giving them the coverage they want (possibly more interested in the coverage over that 20% cut).

A lot of time with issues like this it gives you the opportunity to sit down with the people and go over what you are providing to see that it meets their needs and possibly open up new sources of revenue. You could also go over the procedures in place for what everyone is to do when there is a potential problem and how to reduce those problems from occurring in the first place.

 

[KmH]

While I do not want to ruin any relationship with the association, we were considering terminating the contract due to poor revenue in comparison to the time and work put in. Additionally, this is not the first time they have violated the agreement.

I guess my biggest concern is that we pay to be on the track for the exclusive photos, would have loved the publicity, and repeat violations of the agreement is getting very frustrating...especially as it was discussed on-site and the verbal agreement is not even being honored.

Apparently the association President has no problem ruining the association's relationship with you and is only concerned with what benefits the association.

Did you have a qualified attorney review your contract before you presented it to the association?
In many legal jurisdictions paying a kickback has landed business people in jail.

 

[vintagesnaps]

I don't get the 20% either, I don't know of a situation where a photographer had that in a contract. But I don't know anyone that had an exclusive contract either; usually photographers would be shooting for a team, or a media outlet, etc.

In my experience doing sports (hockey) there would often be more than one photographer at a game; it would depend on the team and level of play (minor pro, college, high school, etc.). Media passes would be left at Will Call for scouts, visiting media, other local media, etc. I started out having a pass on an individual game basis and eventually had a pass for the season, so I could be at ice level during games. But still, if a local news crew was there, it was like the parting of the sea - TV ruled! everybody with cameras had to stay out of their way. Literally.

Anyway, local newspapers in my experience send their own photographer(s) and writers/reporters. I think there would be a problem if the newspaper photographer went off on his own and starting selling pictures he took when he was hired or contracted to take photos and provide those to the newspaper.

Seems like maybe this arrangement isn't working out in a number of ways and this is one more frustration. After completing the terms and the time frame of the current contract it might not be worth continuing. Seems like it might be best to finish out this season, provide the photos, then decide whether to pursue renewing a contract or if it would be better to move on.