Comments on: Treatments http://www.burnsautoparts.com/blog/2009/10/01/treatments/ Leslie Burns writes on the photo business and marketing Tue, 07 Feb 2012 04:43:54 +0000 hourly 1 http://wordpress.org/?v=3.3 By: Greg Ceo http://www.burnsautoparts.com/blog/2009/10/01/treatments/comment-page-1/#comment-43547 Greg Ceo Tue, 13 Oct 2009 21:39:40 +0000 http://www.burnsautoparts.com/blog/?p=1344#comment-43547 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 Most of the contracts are old and outdated.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. 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 Most of the contracts are old and outdated.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.

]]> By: MarcW http://www.burnsautoparts.com/blog/2009/10/01/treatments/comment-page-1/#comment-43217 MarcW Fri, 02 Oct 2009 14:11:23 +0000 http://www.burnsautoparts.com/blog/?p=1344#comment-43217 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 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

]]> By: info http://www.burnsautoparts.com/blog/2009/10/01/treatments/comment-page-1/#comment-43193 info Thu, 01 Oct 2009 15:33:25 +0000 http://www.burnsautoparts.com/blog/?p=1344#comment-43193 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 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

]]> By: Tony Blei http://www.burnsautoparts.com/blog/2009/10/01/treatments/comment-page-1/#comment-43191 Tony Blei Thu, 01 Oct 2009 15:29:17 +0000 http://www.burnsautoparts.com/blog/?p=1344#comment-43191 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. 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.

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