21

I'm looking at a sample contract for a graphic designer who is planning on doing freelance work. I don't understand why it says that the Client should obtain all copyright permissions for materials included in the designs at their own request, like said client is asking himself to get copyright permission? It reads,

Client shall obtain all necessary copyright permissions and privacy releases for materials included in the designs at Client’s request. Client shall indemnify Contractor against all claims and expenses, including reasonable attorney fees, due to Client’s failure to obtain such permissions or releases.

Shouldn't it read,

Client shall obtain all necessary copyright permissions and privacy releases for materials included in the designs on their own"?

feetwet
  • 21,795
  • 12
  • 80
  • 175
Grafics
  • 313
  • 2
  • 5
  • 13
    It makes sense to me? When the client requests that some material be included in the designs, then it is the client who is responsible to obtaining the permissions and releases for that material. But of course you should not agree to any contract if you do not think its meaning is clear. – Nate Eldredge Aug 11 '20 at 22:16
  • 27
    In other words, I think "at Client's request" modifies "included", not "obtain". – Nate Eldredge Aug 11 '20 at 22:18
  • This is badly written. I'd find a different source for your "sample contract". Hire a lawyer. Then you'll have someone to answer questions like this. Or, even better, there won't be questions like this. – PJB Aug 13 '20 at 19:19
  • 1
    I think the pivotal thing is, "at Client’s request" modifies the phrase "materials included in the designs" It does not modify the phrase "Client shall obtain." In other words, if the Client asks for a specific image to be used, the Client takes responsibility for copyright concerns wrt. that image. – jpaugh Aug 14 '20 at 15:54

4 Answers4

38

No, the clause is correct. The reason it is put in is to protect the designer from the client's mistakes (or lies) about whether the material the client wants to use is copyrighted.

To see how this works, suppose the client gives the designer a photo, and says she has the rights to it. It turns out the client doesn't have rights, and the true owner sues. The designer will undoubtedly be named in the suit. This clause will probably not protect the designer against the true owner, so she may end up having to pay damages. However, this clause gives the designer grounds to sue the client to recover any damages she suffers.

TafT
  • 103
  • 4
Just a guy
  • 8,428
  • 27
  • 38
  • 8
    Just a guy: I think it should read, "Client shall obtain all necessary copyright permissions and privacy releases for materials that Client has requested to be included in the designs." – Grafics Aug 12 '20 at 01:06
  • 2
    @Grafics You are right -- translating it out of legalese would certainly make it clearer. PS Welcome to LSE and thanks for asking a good question. Let us know if you have any further questions or if we can clear anything up. – Just a guy Aug 12 '20 at 01:24
  • 5
    You say "this clause gives the designer grounds to sue the owner to recover any damages she suffers" but I think you might have meant to say "he designer grounds to sue the client" as I do not think you will have much chance of suing the true owner of an image that you used without permission. – TafT Aug 12 '20 at 11:06
  • 3
    @TafT You are absolutely right. Thanks for pointing that out, since I completely missed it. – Just a guy Aug 12 '20 at 14:50
  • @Justaguy -- calling it "legalese" doesn't excuse bad writing. If the idea is that the Client will indemnify the designer, the contract should say that. – PJB Aug 13 '20 at 19:17
  • 1
    @PJB Sorry if I wasn't clear, but I was not excusing the bad writing. I was using legalese as a pejorative, to mean bad writing. – Just a guy Aug 13 '20 at 19:25
  • Could be improved by adding the important Point from mkennedy's answer: "This clause protects both the designer and the client" The client is only liable if he requests the material, otherwise if the designer puts a picture in on his own, he is liable himself. – Falco Aug 14 '20 at 09:02
  • @Falco This wording doesn't say that the client is only responsible for stuff she suggests. That is usually stated separately, in language saying explicitly that the designer is responsible for the getting permissions for the material he selects. For example, see IP 1.4 in the standard contract from the AIGA: https://www.aiga.org/globalassets/aiga/content/tools-and-resources/standard-form-of-agreement-final.pdf#page=48 – Just a guy Aug 14 '20 at 15:08
11

"at their own request" is referring to design elements that the Client (customer) wants in the product. That could include particular fonts, a photograph, etc. If the designer wants to use a particular font in the product but was not asked for that particular font by the Client, the designer will make sure to obtain any copyright permissions.

mkennedy
  • 1,355
  • 9
  • 17
  • Although the accepted answer explains the purpose of the clause and the legalities involved, this answer cuts straight to the point that I think was confusing the OP, and explains that more clearly. – John Bollinger Aug 12 '20 at 21:03
  • Absolutely! This is an important difference to the alternative wording the OP suggested. - If there is a copyright problem, the designer will have to provide proof the client explicitly requested the use of this material. - And from a Client perspective I would never sign a contract which makes me liable for any material the designer used at his own leisure. – Falco Aug 14 '20 at 09:00
5

Client shall obtain all necessary copyright permissions and privacy releases, for materials included in the designs at Client’s request. Client shall indemnify Contractor against all claims and expenses, including reasonable attorney fees, due to Client’s failure to obtain such permissions or releases."

Does that make more sense? As you can see the comma I added seems almost out-of-place, but my bolding reflects the intended scope of the phrase.

Specifically, it means Client has no obligation to obtain copyright releases for material the contractor decides to put in there.

This protects the contractor only from Client's error in clearing material.

Harper - Reinstate Monica
  • 19,563
  • 2
  • 27
  • 81
  • The comma is indeed ungrammatical and out of place. Maybe instead delimiters : Client shall obtain [all necessary copyright permissions and privacy releases]* for [materials included in the designs at Client's request.]*. – J... Aug 12 '20 at 16:18
  • These kinds of grammar / scope ambiguities are very common in contracts, I find. Lawyers are better at legalese than they are at English. In general, a court is likely to interpret the contract based on (1) what makes sense, and (2) what the parties thought they were agreeing to. Usually that's enough to fix little ambiguities in wording like this. – Glenn Willen Aug 12 '20 at 18:12
-2

Shouldn't it read, "Client shall obtain all necessary copyright permissions and privacy releases for materials included in the designs on their own"?

Most likely it is a [draftman's] mistake. You might want to ask the client to fix the clause because its current wording makes no sense.

Based on the terms regarding indemnification, the burden of obtaining copyright permission(s) is on the client. In that case, the most straight-forward approach is to remove the part in bold (i.e., the phrase "at the Client's request").

Iñaki Viggers
  • 1
  • 4
  • 68
  • 95
  • 4
    -1, removing entirely "at client's request" would completely change the intended meaning of the clause, which is supposed to protect the contractor for materials which the client has asked to include. This is an interpretation issue - see Nate Elredge's comment on the question. The correct solution is to make it clearer what is being modified by "at client's request" (i.e. it is the materials included and not the permissions obtained). – JBentley Aug 12 '20 at 11:57
  • 1
    "the burden of obtaining copyright permission(s) is on the client" - not correct (see above). The burden is on the client only for materials requested by them. We can presume (having not seen the rest of the contract) that for materials included on the contractor's initiative, the contractor will carry the burden. – JBentley Aug 12 '20 at 11:59
  • @JBentley "This is an interpretation issue". That ambiguity is exactly why "at client's request" should be removed. It is unclear which act the phrase qualifies: to obtain permission, or to request materials for inclusion in the design. If anything, a scenario where the contractor uses materials despite his awareness of client's inability to obtain the requisite permission(s) therefor would contravene the contract law covenant of good faith and fair dealing, which would forfeit contractor's entitlement to recovery [from the client] regarding those specific materials. – Iñaki Viggers Aug 12 '20 at 13:17
  • Entirely changing the meaning of a clause is not a correct solution to resolving an ambiguity. As we both agree, it is unclear which act the phrase qualifies. The fairly obvious solution then is to make it clear. As for your final sentence, (a) that is not what this question is about, and (b) it is a rather bold assertion, given that such indemnification clauses are pretty standard. Therefore I'd ask if you have any legal authorities to back it up. – JBentley Aug 12 '20 at 13:42
  • @JBentley "I'd ask if you have any legal authorities to back it up". See Wilson v. 21st Century Ins. Co., 68 Cal.Rptr.3d 746,751 (2007) ("The law implies* in every contract [...] a covenant of good faith and fair dealing", emphasis & brackets added). Implied by law* means that it underlies the OP's contract even if he does not phrase it. And being too ambiguous implies that the term at issue it is devoid of meaning, whence it makes no sense to assert that removing that language"entirely chang[es] the meaning" of a clause. – Iñaki Viggers Aug 12 '20 at 14:07
  • To be clear, I wasn't asking for authority that the concept of good faith exists. I'm asking for authority that it would forfeit the contractor's entitlement to recovery from the client merely on the basis that the contractor cannot know whether or not the client obtains permissions, in spite of a clause indemnifying the contractor against that very thing. If what you are saying were correct, most modern contracts would contain unenforceable indemnification clauses. – JBentley Aug 12 '20 at 14:53
  • "being too ambiguous implies that the term at issue it is devoid of meaning, whence it makes no sense to assert that removing that language"entirely chang[es] the meaning" of a clause" - I really don't understand what you are getting at here. If a drafter has intended meaning X, but he drafted it too ambiguously to achieve X, then your proposal is to change the meaning to an unambiguous Y. The correct approach is to fix the original wording so that it achieves X without being ambiguous. – JBentley Aug 12 '20 at 14:55
  • @JBentley If some terms are too ambiguous to achieve X, then those terms are nothing but noise. Noise only obfuscates issues and makes it more difficult to ascertain intent X. Removal of that noise does not (and cannot) "change" the meaning of a clause. Quite the contrary, it will usually result in a more concise outline of the parties' rights and duties. – Iñaki Viggers Aug 12 '20 at 16:40
  • @JBentley "I'm asking for authority that it would forfeit the contractor's entitlement to recovery from the client [etc]". Please be clear from the start so I don't have to cite sources you "didn't mean". If the contractor unilaterally incorporates materials, it is reasonable to expect he will duly notify the client, be aware of the possibility that permissions might be denied, and follow up accordingly. A consequence of the covenant of fair dealing is that the contractor is not allowed to single-handedly corner or strangle the client apropos of the indemnification clause. – Iñaki Viggers Aug 12 '20 at 16:46
  • I think you still haven't grasped the intended purpose of "at client's request". The purpose is to limit the indemnification to only items that the client has asked to be included in the design. If you remove that phrase entirely you are not limiting the indemnification in that way. Hence you change the meaning completely. It is not "noise" if you find a way to phrase it unambiguously. I don't know how else to get across this point to you, so at this point I will bow out of the debate and let the downvotes speak for themselves. – JBentley Aug 13 '20 at 08:43
  • As for "Please be clear from the start so I don't have to cite sources you "didn't mean" - I was clear when I referred to "your final sentence". If you review your final sentence you will see it includes the part about forfeiting recovery entitlement. As for your latest response, firstly it is the client and not the contractor who would be incorporating materials, and he is not doing so without the contractor's knowledge. It is done "at the client's request"" (request meaning the contactor will be informed) - the famous phrase that you want removed from the clause. – JBentley Aug 13 '20 at 08:49
  • @JBentley "The purpose is to limit the indemnification to only items that the client has asked to be included in the design". And what I have been explaining to you is that the covenant of fair dealing renders "at client's request" redundant (at best). "It is not "noise" if you find a way to phrase it unambiguously". An unclear phrase constitutes noise for as long as it is ambiguous. It is analogous to removing dirt from an object: The object henceforth will be clean, but the dirt will remain dirt even if you found a way to make the object clean. – Iñaki Viggers Aug 13 '20 at 10:43
  • Let's continue this discussion in chat – Iñaki Viggers Aug 13 '20 at 10:50