Why I don't like contract clauses that give away rights to your name and likeness

I've had a tiny writing career. Nothing spectacular, perhaps a little bit to sneeze at. In this career, one of the things I have had to do occasionally is sign contracts to give permission for my work to be published.

Note this is my opinion as a writer. I am not a lawyer and you should not rely on this as legal advice.

In these contracts I occasionally run into a clause like this:

PROMOTION. Arising under and terminating with the grant of rights to the Work in this Agreement, the AUTHOR grants PUBLISHER the right to use the AUTHOR’s name, image, likeness, and biographical material for all advertising, promotion and other use of the Work. Upon request, the AUTHOR shall provide the PUBLISHER with a photograph of the AUTHOR and appropriate biographical material for such use. The PUBLISHER shall use only the AUTHOR’s name, image, likeness and biographical material provided and approved by the AUTHOR.

On the surface it makes sense to be able to create promotional materials. You want to go out there, shake hands, drum up readership, sell your story to the public. And the public loves a face.

The problem is that you are giving away your privacy, in a legally binding contract, a priori and forever, until the other party agrees to let you out of the contract.

In the age of the internet, in a time where doxxing is a thing, or even in the reality of the world that occasionally stalking happens, or maybe your work is not conducive with a writing career, clauses like this being standard really get my hair standing on end.

Its a really, really bad idea for writers to accept.

Its nice to think that a reasonable person on the other side of the contract might go "Oh I'm so sorry, you have a restraining order against your ex and you need to go lowkey. Sure no thing, you don't have to provide us with a pic." In fact, I've had something similar where, when I told a magazine that a picture was a no go, the magazine said, "Honestly its just a standard clause, we don't even ask for that, you don't need to worry." and I genuinely believe they meant it.

The problem is, what's in writing is what will be held to, and if the other party isn't feeling particularly generous, you're stuck without taking additional action.

In my personal opinion and long experience of living, and I'm NOT a lawyer, if you don't like a clause in a contract and the other party says, "Oh yeah, we don't do that, you don't have to worry," then the clause needs to come out or be modified based on what they are telling you. Never trust that down the line what you're told verbally or in an email will supersede whats been signed and agreed to.

In fact, a lot of contracts in general will specifically state that you can't rely on verbal or written communications from agents or employees etc. You can only rely on what's in the contract.

I feel like its important for me to really emphasize why you should, for the most part, not sign away rights like these unless your deal is big enough for a rights attorney to guide you.

Other than

• the potential of being stalked, either personally or professionally (you'd be surprised how sometimes a bad apple in an agency can then use their reach to try to make sure your regular stuff is used against you),
• or that you might have a job right now that isn't conducive to having your name and picture out there (maybe you're a kindergarten teacher and your story is graphic murder of aliens, or you're a counselor and you've written a memoir on sexual abuse, being a bully and learning to be a better person)
• or you might be on services like social security or probation, in which the slightest things might be used to deny you benefits
• or maybe you're part of a vulnerable group experiencing discrimination
• or maybe you have family or friend of neighbor conflicts where its really just best for your writing to speak for itself and your face or name or city not be readily out there.

Consider that life circumstances change.

If you don't have the issues above, maybe your job will change down the road; maybe you'll go viral for all the wrong reasons; maybe your cousin will file a lawsuit and use your stuff against you. What if you're involved in an accident that changes the way you look, and you're just not ready to be in the public eye? What if tragically someone you're connected to does something sad and horrible and then all of the internet is chasing down your name and city and picture to line things up? Or what if simply you hit a time in your life where you need a little privacy.

We all deserve some level of privacy.

I'm not saying you shouldn't put your name or image to your work. I'm not saying to definitely hide away. It can be very gratifying to have your picture on a website or in a dustjacket proudly proclaiming your hard work and effort. And a Pseudonym is just not for everyone. I'm saying limit the right of publishers to do an open ended privacy rights grab. Give yourself choices. Leave yourself an out. Don't tie yourself up, let yourself opt in.

Don't make a contractual commitment to provide a photo unless you also provide a clause in which you can get the photo removed. Make sure whatever clause you sign gives you control over where and how your information and likeness is used. Don't ever hand over to another party the obligation to provide any more information, in any set of a time frame, with no limitations, than you actually need to.

If the other party won't negotiate or make changes, if they hand waive away adjusting the contract with a verbal promise, walk away. Your right to your own likeness and personal information as a writer is so much larger than getting published.