Conde Nast/CondeNet Contract: Term 2 - Exclusive/Grant of Rights

Commentary and analysis continues:

Version OL1	Version OL2
2. Exclusive Rights: Freelancer owns the copyright in the Works and hereby grants to Company the exclusive first worldwide right to reproduce, publish, transmit, disseminate, display, perform, or otherwise use each Work, which exclusivity lasts until ninety (90) days after the initial publication or public dissemination of the Work by Company. Freelancer will not publish, disseminate or use or allow anyone else to publish, disseminate or use any of the Works for any purpose until the exclusivity period has expired. Company’s exclusivity extends to each and every Work taken at the shoot or as a result of the assignment until the exclusivity period has expired.	2. Grant of Rights Work-Made-For-Hire: It is agreed that the Works shall be works-made-for-hire within the meaning of the U.S. Copyright Act, and Company shall own all rights, including copyright, therein throughout the world. In the event any of the Works are determined not to be works-made-for-hire for any reason, Freelancer hereby transfers and assigns the entire copyright (for the full term of copyright), throughout the world, in any and all media and forms of publication, reproduction, transmission, distribution, performance, adaptation, enhancement and display now in existence or hereafter developed, in each Work to Company.
COMMENTS: Here’s where the major difference between the two contracts is. OL2 is a work-made-for-hire contract. OL1 is not, but has many many restrictions on what you can do with the work. What is problematic though, is how they define the exclusivity. For example, OL1 says “Company’s exclusivity extends to each and every Work taken at the shoot…until the exclusivity period has expired.” The problem here is that, suppose I were to take a portrait of Person X, and I made 40 images of Person X in pose 1, and 40 images of Person X in pose 2 in a second location. They are only going to publish one, maybe 2 or 3, throughout the story. This leaves about 78 other images that fall under the “each and every Work” classification, that are still exclusive to Conde Nast, You may not read it this way, and an editor may tell you that’s not what they mean, but Conde Nast’s legal department surely has been clear – “each and every Work.”

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