Why understanding contracts is important....or How I learned to stop worrying and love Lawyers

There's been a lot of controversy over the latest Newsweek cover.  For those who have yet to see this cover, it's the same image of Sara Palin that graced the cover of Runner's World.  The majority of the controversy with the cover is the claim that the cover is sexist.  However, there is another issue with this cover that come to light that is not getting nearly as much media attention.  Allegedly, Newsweek obtained this photo, not from Runner's World, but from the photographer. Which, according to Runner's World is a breach of contract between them and the photographer.  If this is true, which is distinctly appears to be, although I haven't actually seen the exact wording of the contract, this could mean the photographer has basically shot himself in the foot.

A VERY Brief/Rough Explanation of Licensing and Copyright Law as it relates to Commercial/Magazine Photography:

-Photographer Takes Image.  The photographer now OWNS the rights to that image he created.
-Photographer sells LICENSING rights to Magazine
-Magazine DOES NOT OWN image.  But is can use it for X period of time.
-Magazine also Gets Exclusive Rights to the image for 1 year (aka. NO ONE ELSE can use this image during that time unless Magazine says it's ok and photographer agrees)
-Everyone Is happy and makes "Lots of Money" as a result
-Lawyers are Happy

What seems to have happened with this cover:

-Photographer Takes Image
-Photographer wants to make lots of money so sells Licensing to Magazine A
-Magazine Buys Exclusive Licensing Rights of Image for 1 year
-Many Moons Pass  (for those not familiar with the skit The legend of Falling Rock , imagine someone pretending to moon the audience and turning around in a circle several times.)
-Magazine B sees image....says I WANT THAT IMAGE
-Magazine B asks to buy it's own license of the image
-Photographer wants to make LOTS OF MONEY
-Photographer doesn't know/understand the details of the contract with Magazine A
-Photographer Doesn't Talk to Lawyer (or maybe doesn't like said lawyer) before selling license
-Photographer Sells different License to Magazine B
-Magazine B uses image on Cover
-Magazine A sees cover and get's upset that Photographer let image be used without their consent
-Magazine A sues Photographer to get money Photographer may owe for selling the license to the image when he agreed not to sell it for 1 year
-Now Photographer may be a Poor photographer because the Photographer didn't read the contract or didn't talk to his lawyer.
-This makes the Photographer Very Sad.


How I Learned to Stop Worrying and Love Lawyers:
So, we all know that lawyers are basically seen in hierarchy of things as being somewhere between dirt and the rodent of your choice.  There are plenty of good lawyer jokes out there to demonstrate this point (just type lawyer and Joke into Google).  However, I like lawyers. Although, I should clarify that some.  I like the lawyers that I know.  The more and more I do business, the more I can appreciate and value the advantage of having a good collection of people who understand the law who are basically going to bat for you.  The way I see it, these people are there to protect your ass and your assets, at least the good ones are. They are specialists who are there to keep you out of trouble or get you out of trouble if you are already in trouble.  In other words they're part of my arsenal to make sure my interests are taken care of, which means I'm happier.  I also know these are people that you really don't want to piss of too much.  Remember, they know the law a lot better than you do. They also have their own language comprised of mind spinning terms and phrasing which can make the average person throw up their arms in submission and hand over their wallet.

In any case this whole situation just seems baffling to me because I am relatively young within the photography scene but seem to know more than most photographers about the business of high end commercial/magazine photography.  This whole issuing of licensing and exclusivity isn't even that complex of an issue.  It's actually the basis for a lot of how these photographers make most of their money.  So, it seems silly for this person not to know how licensing works.

In any case, if we're lucky we'll get to see the lawyers battle it out on the latest reality series: American Gladiators: Lawyer Edition.

I'd watch that.

-Cheers

Brian