# My picture to be used in a TV show... A couple of questions



## Charliedelta (Sep 7, 2013)

I shot a TFCD shoot with a model. Of course we signed a model release and TFCD agreement.

Now the model was selected to take part in a TV reality show about models, and would like to use one of the the photos I shot for the show. 

She sent me a "clearance agreement for materials" that the show producer had given her asking me to sign it. Basically the agreement states that I give the producer the complete right to use my photo in the show and in anything related to it. It also states that the producer can use the picture on TV and for the advertisement of their show, and that they can alter it in any way they want. It also states that I won't have any rights in this production or in any others.

I have nothing against her using the picture and I want her to use it, (I actually see it as a good opportunity to advertise my work) but I have a couple of questions.

Can I still claim I shot the picture?

Can I still use the picture in my portfolio on websites such as Facebook, Modelmayhem, or my personal site?

Thanks


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## Steve5D (Sep 7, 2013)

I can't think of a single reason why you shouldn't be paid for their use of your photo.

From what you've said, everything is for them, and nothing is for you. That's not a fair deal and, accordingly, I would decline to sign it...


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## Gavjenks (Sep 7, 2013)

Not only is it not a fair deal, it's not even a legally binding/valid contract if they don't give you something of value in return.

If it's for a T show and they want to use it potentially over and over, they should be paying quite a bit for that.  Absolutely do not sign it if they aren't offering any compensation, or if it is a pittance.

Demand (politely at first) reasonable payment (either a small royalty per usage or a largeish flat fee would be reasonable), and if they refuse or won't haggle at any respectful level, then simply decline to sign it. 

And if they happen to be really rude or intimidating about it on top of negotiations failing, then let them know in no uncertain terms that you will be keeping an eye on the show for your photograph and any pirating of it.


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## ShaneF (Sep 7, 2013)

I dont think i would demand anything, starting off a conversations with that tone usually does not go well and just makes everyone standoffish ( i think that's a real word).  I would suggest contacting them and bring up that you would like to be reasonably compensated for use of your photo.

If they want to have full rights to the photo and your ok with that, well that will cost a bit more.  Decide what you want out of the deal before you contact them.  Do you want to keep the rights and just license it to them or are you willing to just sell it out right.  Make that decision and come up with the prices you think would be fair.  If they don't want to pay well nothing you can do about that.


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## Propsguy (Sep 7, 2013)

I work in the film and television industry and most of my photography is within that realm as well.  I often ask artists for clearance on their work, and if the work is shown prominently, will offer to pay.  The vast majority of the time, the photo, painting, sculpture is seen as a background element that is easily overlooked by viewers or is seen very briefly.... artistic elements that are heavily featured are almost always created by the art department in order to control both the look of the show and avoid any clearance or usage issues.  

A standard clearance agreement does not claim ownership of any artworks, including photographs, so you can certainly always claim that you shot the picture.... after all, you did.  You also will retain the right to use the photo as you please on facebook etc...., so long as it doesn't infringe on the privacy rights in the agreement that you sign with the producers.  So, for example, they may ask you to not use the photo for other purposes until the episode that features that photo has aired on television.

If the photo is strongly featured in the show, it is perfectly reasonable to ask for compensation, and even a screen credit in the end of show credit sequence.


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## Light Guru (Sep 8, 2013)

Gavjenks said:


> it's not even a legally binding/valid contract if they don't give you something of value in return.



That's completely false. If a person agrees to no payment then a contract is still legal.


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## Gavjenks (Sep 8, 2013)

Light Guru said:


> Gavjenks said:
> 
> 
> > it's not even a legally binding/valid contract if they don't give you something of value in return.
> ...


consideration legal definition of consideration. consideration synonyms by the Free Online Law Dictionary.

It doesn't have to be money.  But you *do* need to get something of value. Furthermore, it has to be fairly straightforward to put a dollar value on it, if it isn't actually money.  So far the OP hasn't mentioned anything like that.  The privilege of somebody else making money from your photo while not allowing you to do so is clearly NOT going to be consideration, as it is pretty much impossible to construe that as something of tangible, objective value to the photographer in any way.

Unilateral contracts are possible, wherein party A promises to do something for B if and when B happens to get around to deciding to do X.  For example, an offer of a reward at McDonald's for scratching off your monopoly fries or whatever (note that it is only binding in one direction in that case. They can't sue you for not winning the contest, because there's not necessarily any consideration in the other direction, if you don't win). 

There's no way in which "I promise to give up X to you in exchange for you taking Y from me" satisfies consideration, though. *That's called getting mugged*, not signing a contract. (worse than mugging actually, since you are politely signing a piece of paper that says "yes please mug me," rather than at least having the dignity to be forced physically).



Edit: His contract very well might have consideration in it, mind you. But he just hasnt mentioned what it is yet if so, so I'm assuming the worst hoping for the best


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## Light Guru (Sep 8, 2013)

Gavjenks said:


> Light Guru said:
> 
> 
> > Gavjenks said:
> ...



Just because its common does not mean it is a requirement for a contract to be legal. If I took a photo and wanted to give someone else full legal rights to the photo and didn't want any compensation at all I could sign a contract and do just that. That contract would be completely legal. 

I'm not saying its what I would do, or that it's a good idea I'm just saying its still legal to do. 

Social networks put similar things in there terms and conditions all the time saying that they can do what they want with the images you upload.


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## Gavjenks (Sep 8, 2013)

> Social networks put similar things in there terms and conditions all the time saying that they can do what they want with the images you upload.


Um, they're_ providing you with and letting you use their service. _ That is a pretty cut and dry consideration.



> Just because its common does not mean it is a requirement for a contract to be legal.


You're right, its commonality is not the reason why it is required.
Instead, it is the other way around: The fact that it is, in fact, required, is why it is so common (100% common!).

The link I gave you provides several dozen citations in case law upholding the fact that it is absolutely necessary for a valid contract, including numerous examples of specific cases where contracts were thrown out purely due to lack of consideration. In particular, I direct your attention to this quote (emphases mine):


> A consideration of some sort or other, is *so absolutely necessary* to the forming a good contract, that a nudum pactum, or an agreement to do or to pay any thing on one side, *without any compensation to the other, is totally void in law*, and a man cannot be compelled to perform it.




Your assertion that consideration is completely unnecessary, on the other hand, is supported by...  .... nothing.


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## Steve5D (Sep 8, 2013)

All of this legal jousting is not only silly, but unnecessary.

Signing the agreement is a bad idea. It just is. The show gets everything, and the OP gets nothing. 

The idea that it promotes him as a photographer is a myth. No one is going to know he's the photographer when the show airs, and no one is going to hire him when he tells them he shot a photo used on a television show. That idea just ain't got no legs.

Get paid. The producers of the show are...


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## Light Guru (Sep 8, 2013)

Gavjenks said:


> > Social networks put similar things in there terms and conditions all the time saying that they can do what they want with the images you upload.
> 
> 
> Um, they're_ providing you with and letting you use their service. _ That is a pretty cut and dry consideration.
> ...



So your saying that I cannot take a photo, give it to you with nothing in return and sign a contract saying I give you all legal rights to the image?  Of course I can do that and that and it would be perfectly legal. Would I do that no, but you can go ask any lawyer and they will say that its just fine.


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## Gavjenks (Sep 8, 2013)

Yes that is exactly what i am saying. Im not sure how to put it any more strongly than the legal dictionary's cited quote above. Such a contract would be "totally void in law" and not binding. If you decided to go sell your photo later anyway, and I sued you for breach of contract, I would lose (assuming equally competent representation etc.).

Feel free to go ask "any" contract lawyer if you like. There are several websites where you can do so for free if you actually care enough.

As steve points out though, in terms of the thread it is a moot point because it would be a dumb contract to sign anyway, valid or not.


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## orljustin (Sep 9, 2013)

Charliedelta said:


> I shot a TFCD shoot with a model. Of course we signed a model release and TFCD agreement.
> 
> Now the model was selected to take part in a TV reality show about models, and would like to use one of the the photos I shot for the show.
> 
> ...



To actually answer your questions, it depends on the "clearance agreement", but it likely just assigns them rights and doesn't try to remove yours.  So you can still claim you shot the image and use the image in your portfolio, etc.

Since you didn't mention whether or not you're getting paid for the usage, the rest of the posts here don't matter at this point, although I would suggest you do receive some compensation.  While the point of doing TFCD is to present the model with images they can use to promote themselves, the use by the show for advertising and other things would overstep that, imo.  A simple display of the image in connection with the model's work history, would not require extra, again imo.


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## Steve5D (Sep 9, 2013)

Oh, what the Hell.

The legal argument isn't a cut and dry one. 

If a photographer does what Light Guru says, then he enters into a legally binding contract, meaning that the photographer cannot then turn around and sell the photo to someone else. If he does, and the original client ("client" for lack of a better word)) decides to sue, the photographer will lose. Why? Because he will be in breach of contract. That's pretty simple.

However, if the photographer wants to, he can have the original contract nullified in court. If he decides to go to court, the client will need to show that the original contract is equitable. If he doesn't do that, the court will side with the photographer.

The caveat here is that any alteration of the contract needs to be _before _any further action (ie: selling the photo to a third party) occurs. If you give a photo away under a contract that says you won't sell it, and you sell it, you are _absolutely _in breach of contract. No court is going to side with the photographer because the original contract was one-sided. 

The contract is easy enough to have changed, or have nullified.

I certainly wouldn't recommend this approach for the OP, though, as the production company probably has far deeper pockets than the OP with which to fight any legal battle the OP might bring to bear...


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## Steve5D (Sep 9, 2013)

orljustin said:


> To actually answer your questions, it depends on the "clearance agreement", but it likely just assigns them rights and doesn't try to remove yours. So you can still claim you shot the image and use the image in your portfolio, etc.



I've never been able to pay my bills by claiming I took a photograph...



> Since you didn't mention whether or not you're getting paid for the usage, the rest of the posts here don't matter at this point, although I would suggest you do receive some compensation.



I didn't get the impression that any payment was in the mix...



> While the point of doing TFCD is to present the model with images they can use to promote themselves, the use by the show for advertising and other things would overstep that, imo.



What does the TFCD release say? Everyone I've ever signed has not only said that I would not sell them, but that the model wouldn't, either. She can use those photos to get a gig (say, by attaching it to an application to get on a reality television show about models), but that's it. Her use of that photo can go no further. Using the photo on a television show constitutes commercial use. I would be shocked if the OP signed a TFCD release which permits this...


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## orljustin (Sep 9, 2013)

Steve5D said:


> orljustin said:
> 
> 
> > To actually answer your questions, it depends on the "clearance agreement", but it likely just assigns them rights and doesn't try to remove yours. So you can still claim you shot the image and use the image in your portfolio, etc.
> ...



Which wasn't the question.



> > Since you didn't mention whether or not you're getting paid for the usage, the rest of the posts here don't matter at this point, although I would suggest you do receive some compensation.
> 
> 
> 
> I didn't get the impression that any payment was in the mix...



He didn't state one way or the other.



> > While the point of doing TFCD is to present the model with images they can use to promote themselves, the use by the show for advertising and other things would overstep that, imo.
> 
> 
> 
> What does the TFCD release say? Everyone I've ever signed has not only said that I would not sell them, but that the model wouldn't, either. She can use those photos to get a gig (say, by attaching it to an application to get on a reality television show about models), but that's it. Her use of that photo can go no further. Using the photo on a television show constitutes commercial use. I would be shocked if the OP signed a TFCD release which permits this...



The model isn't selling the image.  Not sure where you came up with that.


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## Charliedelta (Sep 9, 2013)

thanks everybody for the replies. For a number of reasons I am not going to discuss here, the compensation part is not what my concern is. 

My question was if the agreement would limit the my usage of the photo. So special thanks to those who clarified it.

At this point I have another question. Compensation or not compensation, it is normal for a producer to ask the photographer to sign a release agreement right? 

And also, the agreement mentions that I will not sue the producer or its affiliates for the usage of the picture, and that if I do, it will be at my expenses. Again, it is normal, right?


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## Steve5D (Sep 9, 2013)

orljustin said:


> The model isn't selling the image. Not sure where you came up with that.



Fair enough. I should've used the term "use commercially".

She can use the photo to get on the show. But I've never seen a TFCD which permits a model to give the photo to a third party who will then use the image commercially...


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## Steve5D (Sep 9, 2013)

Charliedelta said:


> thanks everybody for the replies. For a number of reasons I am not going to discuss here, the compensation part is not what my concern is.



Well, okay. But you should be getting paid for this...



> My question was if the agreement would limit the my usage of the photo. So special thanks to those who clarified it.



It doesn't seem like it does, but that's not the compelling part. The compelling part is that it seems to give the producers free reign to use it as they see fit, to benefit financially from it (through show sponsors, etc) while you get nothing in return...



> At this point I have another question. Compensation or not compensation, it is normal for a producer to ask the photographer to sign a release agreement right?



It's normal, yes, regardless of the compensation.

Without knowing whether or not you're being compensated, it gets a little difficult to discuss. If you were being compensated well, then signing that release may make sense. If you're not being compensated a dime, then signing it borders on the insane.

Are you able to say whether or not you're being compensated financially?



> And also, the agreement mentions that I will not sue the producer or its affiliates for the usage of the picture, and that if I do, it will be at my expenses. Again, it is normal, right?



Ask yourself this: If the release was a fair agreement, why would they need to include this? The model is giving the photo to the producers. Now, it's apparent that the producers want free reign to also give it to others.

Sorry, man, that's a _huge _that's a red flag...


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## Gavjenks (Sep 9, 2013)

I still disagree about the need to nullify an agreement proactively, if it is void due to lack of compensation (I don't think the case law supports that). Furthermore, I think it is potentially relevant to the OP of this thread: if he does sign this and there is no compensation, then has second thoughts later, he would be in exactly the situation of making such decisions.

But I don't really want to go seek out pro bono contract law advice or look up any more 50 year old supreme court cases, so I'll leave it at just agreeing to disagree, unless/until the OP actually ends up in such a situation.



Steve5D said:


> > And also, the agreement mentions that I will not sue the producer or its affiliates for the usage of the picture, and that if I do, it will be at my expenses. Again, it is normal, right?
> 
> 
> 
> ...


There is a pretty good reason to include this in some contracts: closing unforeseen loopholes being exploited by douchey signers of the contract in cases where there is some sort of *non-contingent* and complete transfer of something. I have seen this before in contracts I signed and didn't worry about it, and was not burned by it.  But it was in situations where the contract was already very clear that there were to be no exceptions, and so it wasn't really adding anything new other than an extra layer of clarity.

In this case, though, I agree it is a red flag, because based on what was described in the OP, this is NOT a complete and non-contingent license to use your photo.  It sounds like the contract only states that the photo is to be used for the show and for show-related things.

Thus, a line that says you can't sue them for *ANY* usage is not just an innocent anti-douche clause.  it is instead actually adding new terms to the contract, by allowing them, as Steve said, to for instance sell the photo as a sub-license to some third party who has nothing to do with the show so that they can also make money off of it (i.e. your photo ends up in toothpaste ads, etc. and you get no cut).


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## Ilovemycam (Sep 9, 2013)

OP, don't know. 

But great for you!!


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## nycphotography (Sep 9, 2013)

I realize you expect to get nothing from this... but the offer being presented has either AMATEUR or SHADY or LOSER (depending on how long they've been at this and if they deserve the benefit of the doubt) written all over it.

I personally make it a point to NOT deal with shady people.  Ever.  And to not suffer an amateur to retain that status for long, because thats how they become LOSERS.

 If they're SHADY just say no.  If they're LOSERS just say no.  You don't want your name associated with either of those in any way.

If they're merely amateur schmucks, then tell them or get their act together and make you a REASONABLE offer with a reasonable contract that is consistent with the generally accepted practices of the industry they are in.


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## Steve5D (Sep 9, 2013)

Gavjenks said:


> I still disagree about the need to nullify an agreement proactively, if it is void due to lack of compensation (I don't think the case law supports that).



I'm not just pulling this stuff outta' the sky. 

This very situation happened to a friend of mine. He was not compensated and, when he sold the photo to a second party, the first client pounced on him. He argued that he was not in breach of contract. The court disagreed, and he was ordered to pay damages. Furthermore, he was then sued by the second party for selling them an image that, legally, he was not allowed to sell. The court did not recognize that he was not compensated by the first client. It simply didn't matter. He broke the contract he willingly signed.

At the end of the day, his legal fees and judgments drove him into bankruptcy. 

Now, whether or not the same concepts hold, jurisdictionally, but I wouldn't be surprised if they do...



> Furthermore, I think it is potentially relevant to the OP of this thread: if he does sign this and there is no compensation, then has second thoughts later, he would be in exactly the situation of making such decisions.



I don't know how else to say this: You're wrong. If you affix your signature to a contract, you can't simply decide, some time down the line, that you're not going to abide by the agreement.

My friend thought exactly that...


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## Steve5D (Sep 9, 2013)

nycphotography said:


> If they're merely amateur schmucks, then tell them or get their act together and make you a REASONABLE offer with a reasonable contract that is consistent with the generally accepted practices of the industry they are in.



Excellent point.

I was recently contacted regarding a photo I took of Gerry Beckley of the band America. They wanted the photo to accompany an article in the magazine. I won't get into the details, but the magazine which contacted me wasn't going to get this photo anywhere else. They knew it and I knew it. Accordingly, I was compensated fairly for the photo.

The OP has his ass firmly in the driver's seat. He just needs to realize that...


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## Gavjenks (Sep 9, 2013)

Steve, maybe it was ruled that way due to them saying it was a valid contract.  Or maybe they were taking into account things other than the validity of the contract itself. As one example, if was decided that your friend knowingly deceived by intending to act against his promise all along, they may rule against him for just acting unfairly / fraudulently, regardless of a contract or not (equitable estoppel: Legal Dictionary | Law.com). 

Since I can't go look up the exact facts and arguments and decision on just "Steve's friend's county/state court case," it's hard to say really how much it may have been actually about contracts versus something else.

Again, since none of us are AFAIK contract lawyers, and none of us seem willing to put the time into researching lists of publicly detailed (e.g. supreme court) cases or actually asking any lawyers, and since it is not (yet) directly relevant to the OP, I think we should just drop the issue as a case of conflicting intuitions from non-expert positions on both sides.


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## HughGuessWho (Sep 9, 2013)

Gavjenks, is there any subject that you are not an expert in? Just curious?


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## Gavjenks (Sep 10, 2013)

HughGuessWho said:


> Gavjenks, is there any subject that you are not an expert in? Just curious?


The very last sentence before your post was me saying I'm not an expert in this subject.


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## Steve5D (Sep 10, 2013)

Gavjenks said:


> Steve, maybe it was ruled that way due to them saying it was a valid contract.



Um, duh. Yeah, the court said it was a valid contract.

What point are you trying to make?



> Or maybe they were taking into account things other than the validity of the contract itself. As one example, if was decided that your friend knowingly deceived by intending to act against his promise all along, they may rule against him for just acting unfairly / fraudulently, regardless of a contract or not (equitable estoppel: Legal Dictionary | Law.com).



No, the ruling was based on the fact that he signed a legally binding contract which stated he would not sell an image. Some time later, he was offered a nice paycheck for the image, and he took it. He didn't plan on that, it just happened. He conducted himself in such a manner that he broke the contract, and he was hammered for it.



> Since I can't go look up the exact facts and arguments and decision on just "Steve's friend's county/state court case," it's hard to say really how much it may have been actually about contracts versus something else.



There was no "something else", and I don't really care if you can look up the facts or not.

There's a pitfall here that the OP could easily fall victim to, so he should be aware of it. You would have the OP dismiss it.

The legal action was brought against based on his being in breach of contract. The plaintiff really didn't have to work very hard to prove their case. They had a contract with my friend's signature on it. They produced irrefutable evidence of him acting in breach of that legally binding contract. The courts said "Yep", and his nightmare was then in full swing...



> Again, since none of us are AFAIK contract lawyers, and none of us seem willing to put the time into researching lists of publicly detailed (e.g. supreme court) cases or actually asking any lawyers, and since it is not (yet) directly relevant to the OP...



So only a Supreme Court case will satisfy you?

I was in the courtroom when my buddy's entire life went in the toilet. I heard the arguments and I heard the judge's decision and I heard his opinion. While I felt really, really bad for my friend, the judge's determination was sound and reasoned. My buddy screwed up, and he screwed up _big_-time, and there was simply no arguing it. 

Now, I honestly don't give a rat's ass if someone wants to dismiss that. It doesn't affect me at all. But suggesting that someone can act contrary to a signed contract without repercussion, simply because they're not compensated, is wildly irresponsible on your part, and you should stop doing that.



> I think we should just drop the issue as a case of conflicting intuitions from non-expert positions on both sides.



Of course you do.

Look, this is a case where you're simply wrong. Lack of compensation will _not _protect you from breach of contract. Period.

If you sign a contract in which you are not compensated, it's a legally binding contract. If you don't renegotiate it with the client, or have it nullified by a court (which is always an option), you _*WILL*_ be in breach of contract if you act contrary to it. You may or may not be sued, but there's no question, legally, as to whether or not you've breached your contract.

That is _not _my opinion...


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## Gavjenks (Sep 10, 2013)

> You would have the OP dismiss it.


Actually I have advised the OP repeatedly to *not *sign the contract if there is no compensation.

Therefore it's not relevant to the OP regardless of which one of us one listens to. He would not fall into any pitfall either way, because we both told him not to have anything to do with it.

Which makes your rant purely academic, not an issue of actual advice to a real person.  And that's fine. Can't hold that against you: I do it all the time.  But at this point, now that you've cleared up any possible ambiguities, it boils down to your single county or whatever court example versus a completely contradicting national organization legal dictionary definition.  I have no idea which one is more correct or generalizable or how to resolve a conflict like that when it arises, nor do I think you do.  So I don't really see anything else interesting to say.

Anybody finding themselves in a real situation where this matters should, as always, retain a lawyer to figure it out, which is neither of us.


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## Steve5D (Sep 11, 2013)

Gavjenks said:


> I have no idea which one is more correct or generalizable or how to resolve a conflict like that when it arises, nor do I think you do.



Well, I watched it unfold firsthand. I watched the photographer come out on the s**t end of the stick in a court of law.

Resolution of such a conflict is often handled as it was in the case of my friend: Photographer signs contract. Photographer breaks contract. Photographer gets sued for breach of contract. Photographer listens in horror as judge rules in favor of plaintiff. Photographer loses his shirt.

The key is to address it _before _a conflict rears its ugly head. If a contract is unfair, that fact doesn't negate it. It's still binding. But, if a contract is truly unfair, getting a court to nullify it is a pretty simple exercise...


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