Five Very Dangerous Words
Photographers are entering into contracts more often these days, including for photo contests. Beware when contract clauses include a phrase that gives the other party more than you may realize.
Take, for example, the Shell Wildlife Photographer of the Year Photo Contest. Rule #8 states, in part:
. . . By entering your images into the competition, you grant to the Natural History Museum a non-exclusive licence to reproduce the images for any purpose in connection with the competition including, but not limited to, the following purposes:
— judging the competition
— display at the exhibition of the winning entries held at the Natural History Museum and within the UK and subsequent international tours
— inclusion within the Wildlife Photographer of the Year book and magazine or similar
— inclusion within promotion of the competition and exhibition organised by BBC Wildlife Magazine
— inclusion (if selected as one of the promotional images) within the Natural History Museum’s marketing and promotional materials (including press packs) for the exhibition or touring exhibition
— use on competition- and exhibition-related merchandise to be sold by the Natural History Museum
As a prudent photographer, you will examine closely the list of granted uses for your photos. But, in the process, you can easily skip over those words, “including, but not limited to.” What the phrase does to the list is make it moot. The clause in effect states that “you grant . . . a non-exclusive license to reproduce the images for any purpose . . . .” To the contest’s credit, the usage is limited to purposes “in connection with the competition . . . .”
After recently settling an infringement claim on behalf of a client, I battled with the infringer’s attorney who consistently tried to insert “including, but not limited to” clauses in the release so that unintended potential claims and/or photos would be part of the settlement. The phrase is usually a ploy to overcome specific agreements. Don’t be suckered by it.
Take my advice; get professional help.
Thanks to Mary Ann Melton for submitting this notice.
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