In a message dated 01-10-17 13:31:53 EDT, Julie Yankowsky wrote:

<< My question is what other museums may have in place for such a policy
(although I have already asked that before :-), how that policy is enforced,
if the policy is enforced museum-wide or just by specific departments, do
different departments have different policies, what others may think about
this being a 'harsh' statement to use in such an agreement, and if anyone has
additional suggestions of how it could be written to achieve the same
outcome.  >>

I'm responding on the basis of considerable experience and familiarity with
the issues and definite opinions about what museums should do, but no real
knowledge of what most actually do!  I think your photographer agreement is
basically sound, and I don't think your use of "promptly" is too "harsh" at
all.  However, be forewarned that not everyone agrees with me about what is
or isn't harsh! :-)

Perhaps someone with legal experience could devise a better word than
"promptly", but I think it's a significant concept to include in the
agreement.  You need language to ensure that a photographer doesn't delay
delivery of your work while experimenting with making prints, transparencies,
or scans to fatten his or her portfolio, particularly if it is your express
intention to permit such a practice.  I see nothing harsh about the concept
of promptness, although you could soften it a bit by simply inserting a
specific delivery date for each transaction--in other words, use a
boiler-plate form, but with blank spaces to fill in particulars of the job,
such as price and delivery date.  In fact, come to think of it, that
specificity would be better for all concerned.  Pardon me for debating this
with myself (it's late), but maybe you should omit "promptly" after all--but
simply because it's too vague, not because it's harsh.

If you want the photographer to be able to reserve copies for a portfolio,
I'd suggest you state that up front in the agreement, but request inspection
of the material the photographer gets to keep.  The copies the photographer
retains should be clearly identified as being copyrighted by your museum.
You in turn agree to provide the photographer's credit when you publish or
use them (unless this isn't requested by the photographer).  I think it isn't
absolutely necessary to provide a credit line, but the fact is that many
photographers don't like doing work for hire at all, and agreeing to the
credit line might keep the price down.  Speaking from the photographer's
standpoint, I think this is a good tradeoff, as opposed to a
non-work-for-hire situation, in which the photographer would retain rights.

I think you're on the right track.  It's especially important for museums to
have all rights to use images of their own collection material, because the
alternative leads to headaches and unnecessary complications.  My
institution, the Smithsonian, is highly decentralized and doesn't have a
uniform policy regarding rights vis-a-vis work by outside photographers; it
varies from museum to museum, and often from department to department within
a museum.  But as someone who has worked with outside photographers in the
past, producing images for Smithsonian publications without a work-for-hire
agreement, I can tell you that it's very frustrating not to have ownership
and continuing access to the photographs.  In one case, the photographer
spent nearly a whole day working with one object from my collection (under my
supervision) which was extremely difficult to light; he got a great
photograph for the specific book project, but we never succeeded in obtaining
a comparable image for subsequent uses: what a waste of my time that exercise
was.

These are just my opinions, but as I say, they're based on solid learning
experiences.  Good luck.

David Haberstich

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