The ASMP challenges the Boston Globe photographers contract : LUSENET : Dirck Halstead : One Thread

From: Seth Resnick Subject: The Boston Globe-Action from the ASMP



Seth Resnick



You have no doubt seen the new contract currently being circulated to freelance contributors by the Boston Globe; if you haven't, you should go on-line to 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, 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,, 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.

=================================================================== Seth Resnick Photography BOSTON (617) 277-4920

-- dirck halstead (, April 17, 2000

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