# Exclusive Photographer Contract Violation



## HeldInTheMoment (Jul 26, 2016)

Hello All,

Very frustrated here and would like some advice from the community. My wife and I own a small photography business and had recently signed an agreement with a local motocross association as the exclusive photographer and the only people allowed to have a camera past the spectator section on the track. In turn, any photos we sell at the event we give 20% of our net income back to their association so we can all benefit. This past weekend the President of the association allowed a freelance photographer from the local newspaper onto the track to take photos for his article, which is a direct violation of our agreement. When I spoke to the President about this issue he failed to remove the other photographer from the track for over an hour. Eventually the other photographer left the track and continued taking photos from the spectator area, which is no problem as we are only exclusive for track access photos. After speaking with the President about the contract violation issue, I offered to let the local paper use any of my photos free of charge and only asking for credit in their paper so we can mutually benefit. I am more than happy to help their association get more publicity and share the photos to help, our contract even states that I will do so. Though, the other photographer from the paper never came to talk to us about this and refused to speak with me.

Today, I see in the local paper that the photographer was a freelance photographer and his photos were used in the local paper and credit to him (as expected). To me the association was in direct violation of our contract and I would like some input or advice on how to proceed with this issue.

Thanks!

Here is the clause in our contact in regards to us being the exclusive photographer:

Exclusive Photographer: The Photographer(s) shall be the exclusive photographer retained by the Clients for the purpose of photographing the events. The Photographer(s) will be the only persons permitted on the race track/restricted areas to take photos for these events. No other persons shall be permitted to sell or promote their photographs, during or after, the Clients events. Guests, Family and Friends of the Clients shall be permitted to take photos for their personal use as long as they remain behind the spectator fence and do not interfere with the Photographer(s) duties. A violation of this clause releases the Photographer(s) from any responsibilities or obligations to pay the Clients the Amount Agreed stated above.


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## robbins.photo (Jul 26, 2016)

Ok, well really only one response to this is possible.  So you'll need a 4x4 vehicle of some sort, a large tarp, two shovels, and a psychotic wombat....

Hmm... ok, well that might be a bit on the overkill side for a first offense.  Ok, so if it were me, I'd sit down with the President and explain that you have an agreement, and make sure he's aware of everything that happened.  He may or may not be aware of the pictures printed in the paper, etc.

Make sure he understands that you do expect the association to honor this agreement in the future.  If they fail to do so then you'll have to terminate your association.  I would also tell them that since this was brought to their attention on the day of the event and the response was inadequate, you'll be taking the 20% of the income you made from that day out of the next payment you make to the association.


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## tirediron (Jul 26, 2016)

HeldInTheMoment said:


> ...Here is the clause in our contact in regards to us being the exclusive photographer:
> 
> Exclusive Photographer: The Photographer(s) *shall be the exclusive photographer retained by the Clients* for the purpose of photographing the events. The Photographer(s) will be the only persons permitted on the race track/restricted areas to take photos for these events. *No other persons shall be permitted to sell or promote their photographs, during or after*, the Clients events. Guests, Family and Friends of the Clients shall be permitted to take photos for their personal use as long as they remain behind the spectator fence and do not interfere with the Photographer(s) duties. A violation of this clause releases the Photographer(s) from any responsibilities or obligations to pay the Clients the Amount Agreed stated above.


That's a fairly well worded clause, but I see a couple of potential hurdles:  Was this photographer retained by the track association?  If not, no violation of that clause.  "Retained" would normally mean that he had been approached by the client and was receiving some form of remuneration from them.   If the person was a journalist, than editorial use of the images likely would not constitute "sale/promotion" and as well for the line about "only persons permitted...   I could see (not agree, but see) where this might be said to not apply to a journalist.

IMO, you need to discuss this with the association, but based on the use of the images, is it worth damaging your relationship with them?


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## HeldInTheMoment (Jul 26, 2016)

robbins.photo said:


> Ok, well really only one response to this is possible.  So you'll need a 4x4 vehicle of some sort, a large tarp, two shovels, and a psychotic wombat....
> 
> Hmm... ok, well that might be a bit on the overkill side for a first offense.  Ok, so if it were me, I'd sit down with the President and explain that you have an agreement, and make sure he's aware of everything that happened.  He may or may not be aware of the pictures printed in the paper, etc.
> 
> Make sure he understands that you do expect the association to honor this agreement in the future.  If they fail to do so then you'll have to terminate your association.  I would also tell them that since this was brought to their attention on the day of the event and the response was inadequate, you'll be taking the 20% of the income you made from that day out of the next payment you make to the association.



Thanks for the reply, your thoughts are very similar to mine...!

I did speak with the President on-site, he was very aware of our agreement and thought since he was not selling his photos on-site it was not a big deal as it was not in competition with me. I kindly explained that the contract states we are the exclusive photographers and there are no exceptions to that. I again explained I would be more than willing to give the paper ANY photos they need for shared publicity. The President stated that the photographer said his editor would not allow that, that was a red flag to me as any editor has no problem crediting and getting free photos for their paper. The President knew he was there for the paper and to put the pictures in his article.

The contract does state if they allow other photographers onto the track I do not need to honor the 20% payment; though, as the President later told me that any photos used would be from the spectator areas, or our photos would be used and credit, so I paid the 20% and moved on. Now I see that is not the case. So I agree that the 20% paid this weekend should be taken out of any payments made in the following weeks, or I may have to cut ties with them.

Also, this is not the first time they have allowed other cameras on the track...though, the first time was a parent helping the 50cc bikes ride (in case they fall) and used his camera on the track. He was talked to and issue resolved...but then this happened the following weekend and now with another photographer and not just a parent.


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## HeldInTheMoment (Jul 26, 2016)

tirediron said:


> HeldInTheMoment said:
> 
> 
> > ...Here is the clause in our contact in regards to us being the exclusive photographer:
> ...



Thanks for the reply as well. I see your point about the wording; though, it's beyond my legal knowledge to debate technicalities.

While I do not want to ruin any relationship with the association, we were considering terminating the contract due to poor revenue in comparison to the time and work put in. Additionally, this is not the first time they have violated the agreement.

I guess my biggest concern is that we pay to be on the track for the exclusive photos, would have loved the publicity, and repeat violations of the agreement is getting very frustrating...especially as it was discussed on-site and the verbal agreement is not even being honored.


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## robbins.photo (Jul 26, 2016)

HeldInTheMoment said:


> I guess my biggest concern is that we pay to be on the track for the exclusive photos, would have loved the publicity, and repeat violations of the agreement is getting very frustrating...especially as it was discussed on-site and the verbal agreement is not even being honored.



Well I happen to have both a psychotic wombat and a couple of extra shovels, if you can bring the 4x4 and the tarp.. lol...

I'd probably just sit down with them and address this, I could be wrong here since I don't know the people involved but it sounds like they seem to feel like that portion of the agreement isn't a big deal, and it just needs to be impressed on them that it is a big deal.


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## tirediron (Jul 26, 2016)

Don't get me wrong, I'm not a legal expert by ANY stretch, I don't play a lawyer on television and I definitely did NOT stay at a Holiday Inn Express last night, BUT...  I can see where, despite the wording of this clause it would be considered that a journalist's presence was not a violation.  While I've never agreed with it, PJ folks frequently get special privileges.


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## HeldInTheMoment (Jul 26, 2016)

robbins.photo said:


> HeldInTheMoment said:
> 
> 
> > I guess my biggest concern is that we pay to be on the track for the exclusive photos, would have loved the publicity, and repeat violations of the agreement is getting very frustrating...especially as it was discussed on-site and the verbal agreement is not even being honored.
> ...



I might take you up on that wombat offer! haha

My biggest thing is that they have been talked to about that clause. The spoke to other board members that day (who I am friends with) and they had no clue the other photographer was allowed on the track and it was not previously discussed. Turns out the photographer just showed up, asked for track access, and the President allowed him on.


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## HeldInTheMoment (Jul 26, 2016)

tirediron said:


> Don't get me wrong, I'm not a legal expert by ANY stretch, I don't play a lawyer on television and I definitely did NOT stay at a Holiday Inn Express last night, BUT...  I can see where, despite the wording of this clause it would be considered that a journalist's presence was not a violation.  While I've never agreed with it, PJ folks frequently get special privileges.



I agree and understand the associations aspect, at first...but when I am offering ANY photos to the paper to use for their article so we all benefit (the paper get their story, I get photo credit, and the association gets their story in the paper) and they still let him on the track and use the photos after talking with them about the contract violation...I'm just frustrated!

I like the idea of taking the 20% paid this weekend out of the next payment until the balance is even. We have to pay for track access and have exclusive rights to on-track photography...why does the paper get those photos for free and avoid using the exclusive photographers photos. All we asked was a credit in the paper...


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## astroNikon (Jul 26, 2016)

"A violation of this clause releases the Photographer(s) from any responsibilities or obligations to pay the Clients the Amount Agreed stated above."

What does that mean?
ie, a violation of the above statements and then the photogs don't have to pay the Client .... (and all are released from said contract)

so if they break the contract you are free to go on your merrily way ?
and there's no penalty what-so-ever ?


is there a Violation clause for the Client ?


ie .. at some point we'll all say ask your lawyer ...


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## HeldInTheMoment (Jul 26, 2016)

The contract does state that if they violation the exclusive photographer clause we do not have to pay the 20%

Additionally the contract does allow us (the photographers) to terminate the contract at any time.

This isn't a HUGE deal and lawyers are not going to be needed, but I am just trying to get some general industry advice. It is very frustrating we are making so little, but as we strongly support the association we are happy to take the low revenue and give riders some great photos and help the association with 20% of our net income. But when we have to pay 20% for track access and have an agreement, it is really frustrating when they violate the agreement. Furthermore, using our photos for the paper would have benefited us ALL.


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## astroNikon (Jul 26, 2016)

I guess in the end what do YOU want to do ?
assume the newspaper thing never happened, as financially (directly) it would not have change the evening for you.
Or make a big deal of it, withhold 20%, which may sour the Client for future contracts.

or politely mention to client that you can provide photos for any photo-opportunities for newspapers etc ?? (as I think you have already done).


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## Dave442 (Jul 26, 2016)

It sounds like the President made the attempt initially to have the press use your photos. When that was rejected then he just let the PJ in. I'm sure he wanted the publicity in the paper and if they hadn't had it before then maybe he is wondering if the services you provide are giving them the coverage they want (possibly more interested in the coverage over that 20% cut). 

A lot of time with issues like this it gives you the opportunity to sit down with the people and go over what you are providing to see that it meets their needs and possibly open up new sources of revenue. You could also go over the procedures in place for what everyone is to do when there is a potential problem and how to reduce those problems from occurring in the first place.


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## KmH (Jul 27, 2016)

HeldInTheMoment said:


> While I do not want to ruin any relationship with the association, we were considering terminating the contract due to poor revenue in comparison to the time and work put in. Additionally, this is not the first time they have violated the agreement.
> 
> I guess my biggest concern is that we pay to be on the track for the exclusive photos, would have loved the publicity, and repeat violations of the agreement is getting very frustrating...especially as it was discussed on-site and the verbal agreement is not even being honored.


Apparently the association President has no problem ruining the association's relationship with you and is only concerned with what benefits the association.

Did you have a qualified attorney review your contract before you presented it to the association?
In many legal jurisdictions paying a kickback has landed business people in jail.


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## vintagesnaps (Jul 27, 2016)

I don't get the 20% either, I don't know of a situation where a photographer had that in a contract. But I don't know anyone that had an exclusive contract either; usually photographers would be shooting for a team, or a media outlet, etc.

In my experience doing sports (hockey) there would often be more than one photographer at a game; it would depend on the team and level of play (minor pro, college, high school, etc.). Media passes would be left at Will Call for scouts, visiting media, other local media, etc. I started out having a pass on an individual game basis and eventually had a pass for the season, so I could be at ice level during games. But still, if a local news crew was there, it was like the parting of the sea - TV ruled! everybody with cameras had to stay out of their way. Literally.

Anyway, local newspapers in my experience send their own photographer(s) and writers/reporters. I think there would be a problem if the newspaper photographer went off on his own and starting selling pictures he took when he was hired or contracted to take photos and provide those to the newspaper.

Seems like maybe this arrangement isn't working out in a number of ways and this is one more frustration. After completing the terms and the time frame of the current contract it might not be worth continuing. Seems like it might be best to finish out this season, provide the photos, then decide whether to pursue renewing a contract or if it would be better to move on.


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## smoke665 (Jul 27, 2016)

tirediron said:


> Was this photographer retained by the track association? If not, no violation of that clause. "Retained" would normally mean that he had been approached by the client and was receiving some form of remuneration from them.



Though I'm not an attorney I have written 1,000's of contracts over the years which were then reviewed by my attorney. Very seldom was the wording changed. I think as "tiredion" stated, using the word "retained" puts you out of luck for any contract violation, because obviously the association didn't "retain" the newspaper or the journalist working for them. Whether the journalist was actually employed by the paper as an employee or a contract employee he was still the newspaper's agent and not acting on behalf of the association. You on the other hand could be held liable for contract default if you fail to pay the association the agreed upon amount. While the association, may be entitled to prohibit entry into your "exclusive" area, it's doubtful that they could prevent the photographer from taking pictures from any public access area, and or the newspaper publishing those pictures.


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## TheLibrarian (Jul 27, 2016)

From what you've provided it doesn't seem like there is any penalty if they breach this that or another area of the contract anyway. If I were president of some childrens motocross track i would just stop working with you entirely considering you aren't making much for yourself or them and now you're a problem. 

The newspaper journalist is not there to sell pics to children and i generally feel anyone demanding exclusive rights to childrens sporting events is kind of... in the first place.


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## orljustin (Aug 1, 2016)

I'd boot you for being a PITA about something which doesn't affect the intent of the agreement which is about you selling prints.  Not making you the press photographers for the location, and it doesn't even sound like that was something you initially offered to do/provide.


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## Braineack (Aug 1, 2016)

seriously.


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## CCericola (Aug 8, 2016)

Sounds like you don't want to continue the job, so stop. As for the photojournalist; I think you are stretching the meaning of your clause a bit. Editorial coverage doesn't seem to fall under the wording of your clause. 

So sales are bad and maybe keeping the 20% will make you feel better but face it. It will burn your bridges with them and any other organization they associate with. 

From my perspective. And I don't know you personally but, keeping the money does kinda make you look like bit of a douche. If it really isn't making the income you want just don't do it anymore instead of possibly ruining your reputation.


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## DGMPhotography (Aug 8, 2016)

Did it impact you personally? 

Is there any reason, besides the violation of the terms, that you should be upset? 

Yeah, it sucks that you didn't get your photo in the paper, but that's the newspapers' job, not yours. 

Honestly, it's probably not worth the trouble. If this is a relationship that is giving you income on a regular basis you don't want to damage that relationship. Though, perhaps the damage has already been done. 

I had a similar situation to this myself. My photo was used without my permission. And I was upset about it. We were friends so we were able to talk it out, but it doesn't sound like you're personal friends with the president. 

To him, you're just another pawn. A revenue source. If you become more trouble than you're worth then they would probably not want to work with you anymore. 

If you really cared you could try suing them for breach of contract, but what would that do except give you the reputation that you sue your clients? And according to your contract, the only punishment for violating this anyway is that you don't pay them. And that's not going to make anyone happy. 

The best thing to do in these situations is prevention. Make sure the client clearly understands the contract terms beforehand. If they mess it up, it's because you didn't explain it well enough. Now you know in the future, if you care, to include something about editorial rights.


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## Braineack (Aug 8, 2016)

That's not a similar situation whatsoever.


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## pixmedic (Aug 8, 2016)

before I went off on any wild tangents to the facility or administration, I would take that contract and have it looked over by  a lawyer experienced in that sort of thing and...
first: see if its even written properly for what you want to do/provide based on what the facility wants you to do/provide. 
second: if there ARE any inconsistencies with the wording , find out what the proper wording should be for the above mentioned. 
third. if..and i mean IF, the contract *was *good, and the facility DID somehow breach the aforementioned contract...is it actually worth pursuing to any degree. 

you might find a simple conversation with whoever is in charge there to clarify both positions to be more fruitful than crying contractual foul.


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## tecboy (Aug 8, 2016)

I'll just blurt out.  The contract is pretty strict.  I think the president has a hard time following it.


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## DGMPhotography (Aug 9, 2016)

pixmedic said:


> before I went off on any wild tangents to the facility or administration, I would take that contract and *have it looked over by  a lawyer* experienced in that sort of thing and...
> first: see if its even written properly for what you want to do/provide based on what the facility wants you to do/provide.
> second: if there ARE any inconsistencies with the wording , find out what the proper wording should be for the above mentioned.
> third. if..and i mean IF, the contract *was *good, and the facility DID somehow breach the aforementioned contract...is it actually worth pursuing to any degree.
> ...



This. If you really want the best advice and insight, you may want to talk to your lawyer. Hope we've helped though.


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## vintagesnaps (Aug 9, 2016)

I think exclusive in this situation would mean the photographer is the only one permitted to take photos at these events and sell/license usage to participants, their families, fans, etc.

I doubt it means this photographer is the only one allowed to shoot in restricted areas. Or that other media such as newspaper reporters and photographers wouldn't be allowed to be there and take photos/write articles for their publications' use.

There's a difference between taking photos and how they're used.

Get on http://asmp.org or PPA and look at resources and get informed.

(Granted maybe it's a similar situation but doesn't sound the same.)


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## Braineack (Aug 9, 2016)

Braineack said:


> That's not a similar situation whatsoever.



@DGMPhotography  Your friend used a photo of yours without permission.  How is that similar to having a contract to be the only photographer allowed special access to an event, and the event host then allowing a photographer from a newspaper also have access?

hint: they aren't similar.  Only similar since the word "photo*" was used in the sentence.


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## robbins.photo (Aug 10, 2016)

After all of this hopefully you've come to appreciate the subtle genius of my psychotic wombat plan...

Lol

Sent from my N9518 using Tapatalk


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## DGMPhotography (Aug 10, 2016)

Braineack said:


> Braineack said:
> 
> 
> > That's not a similar situation whatsoever.
> ...



It's similar in that in each case, the client broke the rules of the agreement. In any case, not really worth arguing about.


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## vintagesnaps (Aug 10, 2016)

That sounds like a bit of a stretch... I think there's a difference between being an amateur or hobbyist in photography who wouldn't know about the business of photography, and being a pro or aspiring professional photographer - that's when it's necessary to learn this stuff.

Or just go with the wombats.


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## HeldInTheMoment (Aug 22, 2016)

Quick Update All:

We terminated the contract as the client made yet, ANOTHER, violation letting ANOTHER freelance photographer on the track while promoting their images...too bad.

Thanks Again!

#LearningExperience


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## robbins.photo (Aug 22, 2016)

HeldInTheMoment said:


> Quick Update All:
> 
> We terminated the contract as the client made yet, ANOTHER, violation letting ANOTHER freelance photographer on the track while promoting their images...too bad.
> 
> ...



Well, Good news I guess but I have a feeling the wombat is going to be very disappointed.    I'll probably have to sick him on a busload of nuns or something just to cheer him up.


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## HeldInTheMoment (Aug 23, 2016)

Ohhhhh.....the Wombat is still more than welcome! No need for him to be disappointed...


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## TamingRoman (Aug 24, 2016)

OK, that is touchy and I get it.  Been there, done that.  Problem is that each contract is unto itself.  As a PJ photog I can tell you that if it's out in the open, you can shoot it. Anyone can.  Sorry, it just goes that way.  Do you have an agent?


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## HeldInTheMoment (Aug 24, 2016)

TamingRoman said:


> OK, that is touchy and I get it.  Been there, done that.  Problem is that each contract is unto itself.  As a PJ photog I can tell you that if it's out in the open, you can shoot it. Anyone can.  Sorry, it just goes that way.  Do you have an agent?



Of course if it is out in the open any one can shoot it, that wasn't the issue. The issue was track access. We paid 20% commissions to get exclusive photographer rights on the track. Anyone could shoot from the spectator areas, but we all know to get those special shots you need to be on the track.


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## tecboy (Aug 24, 2016)

I have met a several presidents, but not as big as motocross.  They are nice to me and I often get special treatments.


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