and
review it. Attached is a copy of our analysis of it, along with a
copy of a press release we have issued.
As you can see from the press release, we plan to support a legal
challenge to this contract and are seeking photographers who have
worked or are working with the Boston Globe and are willing to put
their names on the line as plaintiffs. This contract, however, is
not limited to photographers and affects all freelance contributors
of copyrighted works to the Boston Globe. We are asking you and your
organization to work with us in identifying freelance contributors to
the Globe who are willing to stand up and be counted. ASMP will pay
the legal expenses of this challenge, but we need freelance
contributors to the Globe to be the real, named parties. We would
appreciate anything you can do to help put us in touch with such
people.
If you have any members or know of any others who have been working
with the Globe and who are willing to risk the consequences of taking
legal action against their client, including the likelihood of
never working for that publication again and the possibility of being
blacklisted in the industry, please have them contact ASMP at
215-451-ASMP and ask for Amy Whitmoyer.
If you can think of any way in which our organizations can work
together to fight this contract, and hopefully stop it before it
becomes an industry-wide plague, please call either Dick Weisgrau or
me at this office. In the meantime, we greatly appreciate anything
you can do to publicize this within your membership and to put us
together with members who are ready, willing and able to take a stand.
Best regards.
ASMP ANALYSIS OF BOSTON GLOBE CONTRACT
ASMP, the American Society of Media Photographers, was founded more
than 50 years ago to protect and promote the interests of
professional photographers who earn their livings by making
photographs for publication in the various media. One of the
services that we provide our members in carrying out our mission is
the analysis of, and advice concerning, various contracts offered to
our members by their clients and prospective clients.
We have been asked by some of our members to analyze and comment on
the contract that is currently being circulated by the Boston Globe,
which is owned by the New York Times. That analysis follows.
Although written in the context of photography, all of the following
comments apply equally to writers, graphic artists, and other
creators of copyrighted works, as well as to photographers. Our
bottom line recommendation to those members who are interested in
knowing it is that this new contract is an unconscionable and thinly
veiled attempt to grab additional rights on a wholesale basis while
giving nothing in exchange. In overall terms, the Globe is
attempting to change its practice from "first-time, one time" to "all
rights, for all time," while apparently making no additional payment.
Worse, it is doing so retroactively. It is ASMP's opinion that any
photographer who signs this agreement is acting directly against his
or her best interests and is doing a great disservice to his or her
colleagues, the photo industry, and in the long run, to the public.
Further, it is ASMP's belief that at least certain provisions are
legally void, voidable or unenforceable.
First, the cover letter accompanying the contract makes it sound as
if the contract were at least partly for the photographer's benefit
when it says that it "protects your rights to the work you have
created for us." It goes on to summarize the photographer's rights
and other supposed benefits, such as having "distribution of your
work through the Globe, Boston.com, and its archives". The letter
does not, however, mention the fact that the distribution is without
any control by or additional compensation to the photographer.
The cover letter goes on to point out two items that are reminiscent
of the labor practices of the great Robber Barons: 1. If you do not
sign the contract, you cannot work for the Globe again (and you won't
receive any payment after September 1, 2000 if you haven't signed);
and 2. If you do sign, the terms of the agreement replace any
arrangement that you had with the Globe before. That is, if you had
any rights relating to images that you had licensed to the Globe in
the past, those rights disappear and are replaced by the terms of
this new contract. Take it or leave it. Taken together, these two
provisions are saying that, after September 1, the Globe will not pay
any more usage fees, even if they are legally obligated to pay them.
ASMP believes that these two provisions, when taken together, make at
least part of this agreement legally unenforceable, as a contract of
adhesion or for being void as against public policy.
The contract itself starts out with some disturbing vagueness. It
says that upon publication of your work, the Globe will pay you
"promptly." While "promptly" is better than saying nothing about
timing of payment, it is not much better. A better approach would be
to state a specific amount of time, e.g. "within one week."
More vague, and more significant, is the amount of payment, which is
described as "the amount agreed upon by the Globe and me." Thus, the
Globe wants to specify what rights it is going to buy from you, but
it isn't willing to tell you how much it is willing to pay. It would
be interesting to see how a client would react if a photographer took
that approach to fee negotiations: "Here is what you can do with my
photographs, but we'll talk about the price later." Obviously, the
Globe wants to have one contract that will give it virtually every
right it could ever need and does not want to have to deal with
renegotiating it for a long time, if ever. Such an approach is
understandable, but it does not work if a term as essential as the
financial arrangements is left out. It also makes no sense if you
assume that there should be some relationship between what is being
bought and what is being paid, since half of that equation is left
blank.
Paragraph 2 of the contract begins the Globe's latest attempt at
grabbing all rights. Under this contract, it would receive
everything it might need in order to capitalize on the photographers'
copyrights: (a) exclusive right of first publication; and (b)
worldwide, unlimited rights to use the work on a non-exclusive basis,
for the duration of the copyright (i.e. for 70 years after the
photographer's death), including the same rights to any work that the
Globe has previously accepted from the photographer. These rights
specifically include, but are not limited to, creating derivative
works and using the works in any manner and any medium, including the
internet and other electronic media, that the Globe may desire. The
rights also include the rights to transfer and sublicense the works,
with the only limitation being that the transferees and sublicensees
have to be using the Globe's name or brand in some way.
In Paragraph 3, after the Globe exercises its right of first
publication, the photographer has a two-day embargo during which he
or she can republish the works only in print media that are published
outside the Boston and southern New Hampshire area. However, you
have to remember that "publication" includes distribution. In that
context, the overwhelming majority of news publications are
distributed and available for purchase in that region. That means,
in practical terms, that there is a two-day embargo on the
photographer. For most news photos, that means that they are
virtually useless to the photographer unless and until they acquire
some sort of archival or historical value. Of course, at that point,
the photographer would be in competition with the Globe in any
attempts he or she might make to market the photographs.
In Paragraph 5, the photographer agrees to "use reasonable care" to
avoid infringing the rights of third parties, such as copyright
infringement and violation of rights of privacy and publicity. Here,
the Globe is to be commended for not trying to force photographers to
indemnify it.
Paragraph 6 has the photographer agree to "take care to avoid
conflicts of interest or the appearance of conflict." The
photographer goes on to agree specifically not to "accept free
transportation, gifts, junkets, or commissions/assignments from
current or potential news sources." It is logical to believe that
virtually everyone is a potential news source, which means that, if a
photographer signs this agreement, he or she may not work for any
other client. That is, this can be interpreted as an exclusive
contract for the Globe's benefit without any guarantee of work or
revenue to the photographer.
In Paragraph 7, the photographer acknowledges that he or she is an
independent contractor, not an employee, and therefore is not
entitled to any benefits. This confirms what has been evident
throughout the contract: that the Globe has taken all of the
benefits of being an employer that it wants, but has not taken on any
of the responsibilities or costs of being an employer. It is ASMP's
belief that fairness in business always requires that there be a
reasonable relationship between what is being acquired and what is
being paid in exchange. By this measure, this contract is
fundamentally unfair.
It is, therefore, ASMP's position that the Boston Globe contract and
its underlying approach are unfair to photographers and that any
photographer who signs it is hurting both that photographer and all
other photographers. That damage will negatively affect the ability
of qualified and talented people to earn a reasonable living from
publication photography, which will erode the quantity and quality of
photography available to the publication marketplace and the public.
This contract is a lose-lose proposition based on short-sighted
economic desires.
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Seth Resnick Photography BOSTON (617) 277-4920
http://www.sethresnick.com
sethres@sethresnick.com
-- dirck halstead (dirck.halstead@pressroom.com), April 17, 2000