By Nancy Wolff, Esq.

Q. I am a freelance photographer based in Jacksonville, Florida. In order to build a music portfolio, I began shooting for a local newspaper's Web site 18 months ago. This work has supplied me with media credentials and a nominal fee structure loosely based on the number of events I shoot.

Early last year, the newspaper created contracts, which included both generalized verbiage stating "TBA" in the fee structure and a rights grab clause giving it ownership of all the images uploaded to its Web site. The paper required me to sign this contract in order to continue shooting events.

Is this contract legal? Can a contract state "TBA" and be delivered to a photographer without being signed by the proposing organization? Is it legal to basically coerce a photographer to sign or not be allowed to continue to shoot events? I realize that I could have declined to sign, butI felt I needed to continue building my portfolio.
    Carol Keller, via e-mail

A. The answer starts with looking at your rights under the Copyright Act and then the contract you were asked to sign. As a freelancer, you begin the relationship with the newspaper as the copyright owner of the images you take. This right of ownership derives from the US Copyright Act of 1976 (17 USC § 201). This same section allows the owner to transfer copyright by a “conveyance.” The Copyright Act provides that no transfer is valid (other than one that occurs by law) unless it is in writing and signed by the owner of the rights conveyed. The contract you were offered is a form of conveyance. The newspaper needed you to sign it to acquire all rights to any images you uploaded to the site. Otherwise, it could not legally acquire those rights under the Copyright Act. Once it owned the rights to the photographs, it could do anything it wanted with them without your permission, including sell them as prints or use them for marketing. It may need permission from the subjects for advertising use, but that is a right belonging to the subject, not the creator of the image.

Notice that the Copyright Act just uses the word conveyance to transfer ownership. The legal definition of conveyance is “the voluntary transfer of an interest in property or a property right, usually by means of a written instrument other than a will.” There is no requirement that you receive consideration for the transfer to be valid. So the fact that the payment was “TBA” will not affect the validity of the written transfer.

So even if this is a valid transfer, can you make a binding contract if the money you are to receive is not agreed upon at the time of signing?

A contract is a legally binding agreement, either oral or in writing, voluntarily entered into by two or more parties, in which there is a promise to do something (or not to do something) in return for consideration. In law school you learn that to form a contract you must have an offer, acceptance, a promise to perform and consideration. Consideration can be anything of value that induces you to perform, not just money. So here you have an offer to take pictures, you accepted the offer, you uploaded them according to certain terms and were promised some value to be agreed upon. Part of the inducement was the ability to attend events and to create a portfolio piece. Assuming you are of legal age to make a contract and you were not asked to do anything illegal, it is probably a valid agreement. It gets complicated, and whether the ambiguous consideration is a missing material term can be argued. If the newspaper has a standard fee, that fee may be implied by the courts.

Finally, can you undo the contract because you were coerced into signing it, and if you refused, would you lose out on shooting events? While contracts can be undone based on duress, the type of pressure that can undo a contract is severe—it requires threat of actual harm to you or some kind of severe economic hardship. Mere commercial pressure is not sufficient.

Unfortunately, there are many people who just want their work published and have other sources of income. Newspapers and many community Web sites recognize that many of us have digital cameras or camera phones and just want to share images. If you agree that someone can either use a photograph or own a photograph you take, and you put that in writing, you have given away rights you were initially granted under the Copyright Act. And while you may develop a portfolio by doing this, your work may not be valued as it should. To develop into a professional photographer, you need to find clients who like your work and value it enough to pay you for it. It is important to remember that if you give your copyright away in a written transfer, you no longer own it and may need permission for your own uses.

Nancy Wolff specializes in intellectual property law and new media law and ha been an adjunct professor at the Benjamin N. Cardozo School of Law, teaching mass media and entertainment law. Got a legal question? E-mail us at jwaterman@pdnonline.com