Is a Musician’s WFH Contract Enforceable?

 

Many musicians today require photographers to sign a contract granting to the musician the copyrights (or a very broad license along with a restriction of the photographer’s use) of the photos taken at a concert in exchange for access at the concert. Are these contracts are enforceable? Probably.

Take, for example, the Juggernaut Contract required to be signed to photograph Janet Jackson. It seeks to give Juggernaut Productions all rights to photographs taken of the artist.  On first blush, the definition of “Photographs” is too broad, as it doesn’t limit the images at issue to those shot at the concert.  Therefore, if you took Janet Jackson’s photo on the street months after the concert, Juggernaut may argue that photo also belongs to the company.  The court probably wouldn’t agree.  But as to the photos you take at the concert after signing this agreement, Juggernaut likely would own the copyrights.

We asked Leslie Burns of Burns Auto Parts, a long-time supporter of photographers’ rights and recent law school graduate (who will be admitted to the California Bar next week!) to review the contract.  Leslie is working with our firm on a part-time basis as she continues her consultation services.  This is a summary of her analysis:

The first issue is whether it is a contract of adhesion:

a “standardized contract, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it.” Armendariz v. Foundation Health Psychcare Serv., 24 Cal.4th 83, 113 2000).

A photographer could argue that, because Juggernaut is offering the contract on a take-it-or-leave-it basis, the contract would be deemed null and void if challenged in court.  This argument, however, would not hold water.  A photographer does not have to take images of Janet Jackson (or any other celebrity in performance). The photographer wants to do so, but not doing so is certainly an option. Under Tricome v. Ebay, Inc., 2009 WL 3365873 (E.D. Pa. Oct. 19, 2009) that ability to not take advantage of the opportunity seems to be the significant factor in the contract not being a contract of adhesion. There, the court held that because plaintiff was not obligated to sell his products on eBay but rather chose to do so, eBay’s User Agreement was not a contract of adhesion.

The only other major argument for a photographer is related to adhesion: unconscionability (see Williams v. Walker-Thomas Furniture Co., 350 F.2d 445, 449 (D.C. Cir. 1965)). Because unconscionability requires both a procedural and a substantive aspect (although on a sort of sliding scale–that is, more of one and less of the other, either way) that argument likely would fail here, as well.

The procedural aspect is covered by the adhesion argument. Substantively, to be unconscionable, the terms must be so one-sided as to “shock the conscience.” Kinney v. United HealthCare Services, Inc., 70 Cal.App.4th 1322 (Cal.App. 4 Dist., 1999). Although the terms of this contract are certainly not in the interest of the photographer, it seems unlikely that they would be seen as one-sided enough. The photographer gets a benefit (at least in theory) of getting to shoot Ms. Jackson in concert and to get to use the resulting image(s) in a news item, or even otherwise, albeit with the permission of Juggernaut.

Moreover, because this is a California contract (the contract specifies California as the choice of law), a California statute permits a party to show the context of the contract so as to permit better understanding of its formation and the abilities of the parties to enter into the contract, specifically:

CAL. CIV. CODE § 1670.5 (b) When it is claimed or appears to the court that the contract or any clause thereof may be unconscionable the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose, and effect to aid the court in making the determination.

This statute would permit Juggernaut to show how the “unregulated” use of the image(s) would be harmful to the artist as well as showing how the contract was entered into by two commercial parties, both of whom had an understanding of the terms and nature of the contract.

Specifically, here, the photographer is not some uninformed victim to the contract. The photographer is a business person and as such the courts generally expect a certain amount of business savvy of the photographer. The photographer could choose not to sign the contract and not do the shoot. Therefore, the photographer should be aware of the terms used in the contract, understand the ramifications of signing it, and would therefore be making a conscious choice to accept the terms.

Speaking of California law,  photographers should keep in mind that California has stronger rights of publicity laws and the control of one’s likeness is generally more often held to be more important than the economic rights of others to make money from that likeness.

The last possible argument for a photographer might be the work-made-for-hire claim in the contract. It is unlikely that a court would find that the circumstances enumerated in this contract would fit the requirements for a work-made-for-hire (see 17 U.S.C. § 101).  However, even if the WMFH is not upheld, the agreement includes an “in the alternative” assignment clause. Therefore, the photographer would be bound by the apparently legitimate assignment of rights clause. An assignment of copyright it must be in writing, which is satisfied by this contract.

Now, there is one small issue in the assignment language, but it appears to be a typo. The contract reads:

In the event that the Photographs are determined not to be a “work-made-for-hire,” this agreement shall constitute an assignment to Company of any and rights in and to the Photographs.

The word “all” is omitted from the standard language “any and all rights.”  A court probably would not find this to invalidate the clause.

While each contract is different and courts may interpret them differently, the safest assumption is that the Juggernaut agreement would be upheld by a court.  Photographers should act accordingly.

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