Best Business Practices for Photographers [141]
"an unlimited grant of rights for an unlimited period for an unlimited number of media"
not only have you done the same, but you've precluded yourself from using the images because one of the rights that was not limited was the exclusive versus non-exclusive. When you license to a client exclusive rights, they, for the period of time, control those rights. This means you cannot license the same rights to another party, nor use them yourself. A nonexclusive granting means just the opposite. You can license the same images to other parties for the same rights. Instead, try:
"a non-exclusive unlimited grant of rights for an unlimited period for an unlimited number of media"
This alone grants you not only permission to license the work to others, but also to use it yourself. But one thing's missing—you've granted them the right to re-license the work to third parties. Instead, try:
"a non-exclusive unlimited grant of rights for an unlimited period for an unlimited number of media, for the sole use of XYZ corporation"
Your terms in the contract should also stipulate that rights are transferable only with the sale of the client's company to another company. Following is a clause from one of our contracts. This clause in our contract was inspired by, and based in part on, terms and conditions from the Advertising Photographers of America boilerplate language.
The licensed rights are transferred only upon: (a) Client's acceptance of all terms contained in this Agreement… Unless otherwise specifically stated on the front of this Agreement, all licenses are non-exclusive. Client shall not assign any of its rights or obligations under this Agreement. This Agreement shall not be assignable or transferable without the prior written consent of Licensor and provided that the assignee or transferee agrees in writing to be bound by all of the terms, conditions, and obligations of this Agreement. Any voluntary assignment or assignment by operation of law of any rights or obligations of Client shall be deemed a default under this Agreement allowing Licensor to exercise all remedies including, without limitation, terminating this Agreement….
But I'm getting ahead of myself. The point here is to know what you're negotiating before agreeing to anything. Know the value of what you have.
Negotiating from a Position of Strength
When you're hungry with an empty pantry, or you feel as though you don't have two sticks to rub together, it's definitely not the time to try to effectively negotiate prices and rights for an assignment. You're much more likely to give in when your senses are affected. Consider this: When you go grocery shopping and are hungry, how often do you find that there are more "immediate gratification" purchases lining your shopping cart than the sundries you came looking for? I have often bought a soda and sandwich from the grocery store deli and eaten them and then gone shopping. The cost of the sandwich ends up being far less than all the chips, snack foods, and other items I'd have bought while shopping on an empty stomach. Yes, yes, I know—have a little self-control. But the problem is I was negotiating with myself from a position of weakness. No biological instincts are more powerful than hunger, which is a sub-instinct of the self-preservation instinct. The drive for sex runs a close second, but that's another book and another type of negotiation.
As photographers, positions of strength come from a number of areas:
An award-winning photographer will negotiate for better rates and more control over the direction of a story being considered, especially right after the conveyance of the award. Years later, the sheen of the award will have worn off, and self-doubt will return.
A photographer with numerous bookings will negotiate for better rates and be able to put