Wednesday, September 23, 2009

Don't Pay Lip-Service to Liability

Every day, people calculate what reasonable risk is, from crossing the street, to signing a contract where you agree to pay for the lawsuits that arise when you have indemnified your multi-million dollar corporate clients for their mis-uses of your photos beyond your control. A few weeks into a second year law student's licensing class, this academic (Indemnification, 9/22/09) somehow deigns that they can offer advice in the form of opinion about how you shouldn't have a "hissy fit" over indemnification issues. This is like getting a photographer in their sophomore year in college to shoot your ad job with millions of dollars in an ad buy and tens of thousands of dollars in pre and post-production on the line. Maybe it will work, but should you take the risk?
(Continued after the Jump)

More often than desirable, photographers get KILLED on indemnification, especially where there are people in the photographs and the client's usage of the image, including the text in the ads (which is outside of the control of the photographer, but which nevertheless results in a high level of liability to the photographer if the photographer is dumb enough to follow pay lip-service to issues of liability) results in a lawsuit by the models, even though the photographer obtained signed model releases. Lawyers all too often rip to shreds even signed model releases. Lawsuits will be for millions in lost modeling fees, emotional distress, etc.. Far exceeding the photographer's insurance against such things. Yes, millions.

It is one thing for photographers to indemnify their client against the photographers' actions, or those under the direction of the photographer (like an assistant). However, in the interests of parity, your contract should indemnify you against their mis-use of the images outside of the scope of the license and/or model release, it's only fair.

The bigger problem is that photographers are all to often told that the terms of a contract are non-negotiable. On the point that these are negotiable, we can agree. Everything is negotiable. Heck, the old joke applies - the man who offers a million dollars to sleep with a beautiful woman who agrees, is then asked "well would you take $50k?" She responds "who do you think I am?" To which the man replies "we've already established you are a prostitute, now we're just haggling over the price."

That "hissy-fit" you might have been having will look like you didn't even put up a fight when a judgement that exceeds your business insurance means you have to sell your home to cover the judgement against you. (By the way, this isn't theoretical, it has happened.) Have a real lawyer, one who has graduated, passed the bar, and has some experience under their belt, give you advice that you pay for, and have one skilled AND EXPERIENCED in contracts look at yours to make sure they are lawful for your jurisdiction. Have your lawyer look at indemnification clauses, or compare the ones in your contract against the ones you are being presented with, and negotiate for the terms that are in yours. Really. Not doing this could well mean that the proverbial wheels, doors, and chrome trim will fall off the vehicle that is your business, and there won't be enough auto parts in the world to put humpty dumpty back together again.

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