Treatments

Recently, I was asked by Heather Morton about treatments and copyright for a piece she wrote on her fabulous blog about how photographers are getting their work, not their images as such but rather their treatments, ripped off. She wondered what the copyright implications were. I gave her my take on it, as a non-lawyer and just generally interested human being, of course (because nothing I write should be taken as legal advice, right? Right.), which was, essentially, that copyright doesn’t cover style or ideas and much of the treatment stuff is verbal or stylistic. Treatments are often developed in meetings and may result in something tangible, but often is more just the words describing how the photographer would approach the problem. Uncopyrightable stuff.

I kept thinking that there must be a solution. And I think I’ve found one. As I was siting in Licensing class, at about the same time, the professor lectured on how to start the negotiating process for a licensing agreement. First thing she pointed out was that a non-disclosure is essential because there will be trade secrets and other confidential stuff discussed.

A-ha!

I emailed my Licensing prof about this and she agrees with me that NDAs are a good solution to the photographers-are-getting-ideas-ripped-off-after-submitting-treatments issue.  However, as she pointed out, the trick would be getting the agencies to sign.

Here is a link to a generic NDA pdf from SCORE.

It is important to note that photographers really need to have one written up by their own attorney. It’s important to get exactly what is confidential accurately described (the trade secrets of the photographer–that is her/his ideas about the project) to be properly protected. Each photographer has his/her own interests to protect.

Also, the example above is a unilateral NDA and mutual one would be more likely to get signed, I would think. A mutual non-disclosure would protect the agency from having its ideas get out (which is a very big concern for them!) and the photographer’s ideas from being appropriated. If the agency used the photographer’s ideas, techniques, etc., after signing a non-disclosure, the photog could sue–and the agency could sue if the photog, for example, tweeted about the new campaign idea. Everybody’s asses, as it were, are covered.

Most companies (outside of our industry) won’t even begin to discuss a possible collaboration for any project involving ideas and (possibly) trade secrets and/or other IP without first executing an NDA. So why should photography and advertising be any different? It protects everyone. But, if agencies are reluctant to sign, then photographers would need to stick together on this issue until the tide turned.

I think that it makes sense for agencies to want to see treatments, but it also makes sense for photographers to protect that work. An NDA could do this. Take the idea to your own attorney and see what s/he thinks.

4 Replies to “Treatments”

  1. I have an NDA. I think things through before I whip it out.

    Most photographers won’t have an attorney who can customize an NDA. They are expensive (mine charged me $75 just to look at 3 very short e-mails). But the biggest problem that I foresee is that few will want to sign the NDA.

    If someone were to find themselves in a meeting where the AD won’t sign the NDA, the photographer would need to end the meeting and politely leave. Unfortunately, I think that by ending the meeting, you could be potentially blackballing yourself.

  2. Tony:
    I agree that whipping it out at a meeting would not be good. I think the mutual NDA will help with this and also how it is presented could make a big difference. Shoot it to your contact with a meeting confirmation email, along with a note saying something like “I know we both want to have our ideas protected so I’ve included my standard NDA that will cover both of us from revealing anything.” You want to make it clear that it is as much about them as it is about you.

    But yeah, getting them to sign is going to take finesse, especially at first.
    -L

  3. While I *am* an attorney – and one who has both written and sued on NDA in a variety of jurisdictions – nothing below is legal advice, and the reader should seek the advice of a lawyer licensed in their jurisdiction and familiar with the relevant law before making legal decisions.

    Spot on, really. An NDA can protect “ideas,” which nothing in our traditional body of IP law (patent, copyright, trademark) can. Another possibility, depending on jurisdiction and subject matter, is “trade secrets.” The availability of trade secret protection varies widely by jurisdiction, but can be a good litmus test when talking to an attorney: if they just look at you blankly when asked about trade secret protection, you might want to shop around a little more. 🙂

    That being said, NDA interpretation is *heavily* fact-dependent. If you’re going to use them at all use a good one and have a system for tracking your disclosures (and identifying covered disclosures to recipients) or don’t even bother. NDA are also one of the most bitterly fought “battle of the forms” subjects in all of IP practice. You send them yours, they send you theirs and say, “Our lawyer says we have to use ours.” If theirs is fair, well and good. if it basically disclaims anything not covered by the big three, not so good. You then have to either negotiate or walk away. And this sort of negotiation HAS to involve experienced counsel. The most subtle wording change can produce the most catastrophic effect: while this is true for most contracts it is very pronounced in NDA and the change can be one which a san… I mean, a non-lawyer would never recognize in a million years.

    If they won’t negotiate, you then have to decide whether to walk away. It is a sound solution to a vexing problem, but as always, in the law there are no “magic bullets.”

    M

  4. It’s so rare that any party signs ANYTHING in this industry. I have never had an estimate signed. Most of the time a photographer’s invoice is left unsigned. In this business, in legal terms there is an “Offer” but rarely a signed “Acceptance.” It’s a legal mess. Most of the contracts are old and outdated.

    So I can’t imagine it would be looked kindly upon if a photographer produced an NDA and asked agency people to sign. It would have to be industry standard, as Leslie suggested.

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