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Licensing contract/release for Documentary

I've been approached (via email) by a person purportedly representing Dakota Pictures (Peter Margolis project) -  who are currently making a documentary on the life of Randy Rhoads (late guitarist for Ozzy Osbourne).  I was wanting to get opinions from any of you on the contract language and whether any of it would/could be of a "rights grabbing" nature.

Below is the release I was sent, after requesting to see the language:

 

PHOTOGRAPHY/ARTWORK/PROPS/SET DRESSING RELEASE

The undersigned hereby grants DAKOTA PICTURES (“DP”) its successors, assigns and licensees, permission to use the material described below (the “Property”) for use as photography, props and/or set dressing in the television series and/or production tentatively entitled __________________________________ (the “Show”).

Property:__________________________________________
__________________________________________________
__________________________________________________

For good and valuable consideration, the undersigned hereby irrevocably grants to DP the right to distribute, exhibit or otherwise exploit the Property in the Show, any related advertising, marketing and promotion of the Show, and in any related or derivative versions or uses of the Show, in all media now known or hereafter developed throughout the universe in perpetuity.

The undersigned represents and warrants: (i) that it has the full right and authority, either as owner or as agent of the owner, to grant such permission to ILP in this agreement, (ii) that the Property is free and clear of any liens or other third party claims, (iii) that such use as authorized herein will not give rise to any claims of infringement, invasion of privacy or publicity, claims for payment of any monies such as re-use fees or residuals, any or other claims, and (iv) that no other third party permissions or licenses are required with such use.  The undersigned agrees to indemnify, defend and hold DP, its licensees and assigns harmless from and against any claims, damages or expenses (including reasonable costs and attorney’s fees) arising out of a breach or alleged breach of the representations or warranties provided herein.  Finally, because of editing and other factors, the undersigned acknowledges that DP has no obligation to use such Property in the Show, and that it may use such Property in its sole discretion.  In no event shall the undersigned have the right to enjoin the development, production, distribution, or exploitation of the Show.  DP may transfer and assign this agreement or all or any of its rights or privileges hereunder to any entity or individual without restriction.  This agreement shall be binding on all of the undersigned’s successors-in-interest and heirs.  This agreement, its validity, construction and effect shall be governed by the laws of the State of California. The parties hereto agree to submit to jurisdiction in the State of California.

(Thanks in advance for any input you can give me on this particular subject.)

File attachments: 

Take special note of the rights they do request and make sure your license fee takes that into account. They specifically state the potential for advertising (commercial). Most broadcast rights I have seen include specifics on how long the image will be on screen, and if advertising rights are requested then that is stipulated separately. Go through this with a fine tooth comb and write down all of the rights you pick out as separate line items. Then go back to them and clarify those rights and get as specific as you can. For example, there is no information in here regarding region of distribution. Will this be world-wide, North America, UK, Europe? There is also no mention of language. Will this be English language only?

As importantly, you need to address the indemnity clause. They are asking you to indemnify and defend them, and hold them harmless in the event there are any rights protests over the use of your image. That just isn't fair. You need that clarified. Either that clause comes out altogether or there needs to be equal indemnification for you should they use the image in a way that is not in agreement with the terms of the license. Also note where they ask you to state that you have authority to grant them permission to use the image, including all rights of privacy and publicity, and that "no other permissions or licenses are required". If you don't have a release for the people appearing in the image, you don't have that authority even if they are dead. Right of publicity is inherited if I recall correctly, so the estate or decendents would have to grant any rights of publicity.

I would also change the state that governs the agreement to be where you live vs where they are located. If a trial comes about at any point, everyone has to go to the state who's laws govern the contract. You live in Oregon. They are in California. You don't want to incur the expense of traveling to California to dispute any breach of contract disputes.

Don't let them push you around. Even if they are a big production house, you are just as legitimate a business as they are. If you have a good intellectual property attorney, I would get them to help you out with this. You need a solid license agreement. Your attorney can do that and will level the playing field against their attorney.

Founder, MusicPhotographers.net
www.WalterRowePhotography.com
Columbia, Maryland - USA

Thank you for taking the time to address each of these points, Walter.

I had particular concern over the following sentence, mostly ...

"DP may transfer and assign this agreement or all or any of its rights or privileges hereunder to any entity or individual without restriction."

You make a very good case about the language in the indemnity clause, too.

I GREATLY APPRECIATE the direction on this matter and although most of my concert photography days are behind me, I hope to contribute in some manner to this site in the future.  I've found interesting what I have read thus far, just at a casual half hour of browsing.

Thank you, again.

Dave Johnson