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|| SportsShooter.com: News Item: Posted 2004-03-30

Let's Talk Business: Staying in for the Long Haul
By Rick Rickman

Photo by
There are times in history when we can look back and see pivotal points of importance that affect the outcomes of our lives. We know in our hearts that what happened at those particular times shaped our lives in ways that affected us forever. For me, there are several of those points.

The first was the day that I found 2 one hundred dollar bills blowing across a sandy knoll at college. That money allowed me to purchase my first Nikon Ftn camera and get me started in this amazing business.

One of he other significant pointers in my professional life's time line was the day I decided to quit my $65,000.00 job and venture off on my own as a freelance photographer. Both events changes my life in serious and dramatic ways that can never be undone.

The same is true for our profession. We can look back thru history and see specific points in the progression of time that affected the industry as a whole. One significant point in the history of this profession was the invention of the 35mm camera. It has allowed an evolution of documentary journalism to occur. That one event opened up a world to us that allowed a journalist to be unobtrusive to the subject, quick in response to events, and low key in profile. It changed the state of photography.

The copyright act of 1978 was a major date of significant change for this industry. Congress made changes to the wording of the law that allowed greater protection of an authors work so it could not be stolen and used without agreement of the creator or author. This step so changed a creators (photographers) rights that it allowed this industry to actually become a profession. That one change allowed a sense of security to photographers to know that from that day forward they would be able to make a living from their work without fear of no recourse.

In 1998 the first truly useful and functioning digital cameras came into play and again changed the industry in ways that have altered the industry forever. The speed at which stories can reach there publications now is almost real time in nature.

Sadly, some of the remarkable changes haven't been as beneficial for our industry. Sadder yet is the fact that many photographers have been responsible for allowing those less than beneficial changes to occur. One such event was back in April of 1998 when the Associated Press decided to force photographers to sign a contract that basically eliminated any resale opportunity they might have by requiring photographers to relinquish their copyright to the AP for unbelievably little money. For more than a week now there has been discussions on the Sports Shooter site that have circled around that very issue and how it has affected our industry.

Let's suffice it to say that that contract was the beginning and precedent setting grandfather of bad contracts. Once publishers realized that photographers were spineless enough to sign such an adversarial document it was the beginning of Work For Hire open season. The profession of Free Lance Photography was from that point forward under siege.

I'd like to believe that in the past 6 or so years since the advent of the "Great Disaster" known now as the AP freelance contract, that there has been enough good information out there for photographers to see the importance of maintaining control of their own copyright.

My wife, who is my greatest source of grounding, always accuses me of being the hopeless optimist. I have to admit that I do have a tendency to be somewhat of a glass half full kind of person. She believes that most photographers are painfully stupid and incapable of deciphering a good deal from a bad deal. After watching some of the discussion on the SportsShooter.com message board unfold about good deals and bad deals and how we decide between the two, I have to say that I'm beginning to believe that maybe I am too optimistic for my own good.

I have to say that this past week's discussion on the message board about how to survive in this industry did show me that there are a lot of people in this business who are less than astute about the value of their own work and less than capable in assessing what will be good for them in the long term. However, I personally believe that there are stupid people everywhere and the process of natural selection isn't performing the way it was designed to. We'll hold that topic for a later discussion.

In hopes that we, as an industry, are capable of proving my wife wrong, I'm going back to where I began this column. There are events in this industry and in our lives that pointedly have changed us forever. We are facing one of those kinds of changes as we speak. The event I refer to is the introduction of a new and incredibly heinous contract for free lance photographers by the New York Times.

This is indeed one of those events that will, in the course of time, be another industry shaping event that will not be advantageous to photographers themselves or the industry unless dealt with appropriately. The American Society of Magazine Photographers, (ASMP) has done a very thorough review of this contract and I have included that review here for you to read. You can also find the review by going to the ASMP website. I also strongly urge you to join that group. The following is their assessment of the New York Times Contract.

Summary & Conclusions:

This contract is clearly unfair to photographers. While it falls just short of seizing all rights, it puts photographers in competition with the Times in the marketing of the same images. If it came down to a bidding war, we believe it will not be the photographer who will be willing to license uses and sell prints for ever lower and decreasing prices, thereby escalating the downward price spiral for photography. Ultimately, Work for Hire contracts like this one will inevitably drive better and more experienced photographers out of business. This will hurt not just the photographers. It will further damage the quality of the newspapers, eventually driving down their sales. It will also hurt the American public by degrading the visual information that they receive. This contract is bad for everyone, and in the long run, it is a lose-lose-lose proposition.

As a professional photographer, you have to make a decision. You have to make a living, but you also have to make business decisions in light of their long-term consequences to your ability to make that living. It is ASMP's opinion that signing this contract and contracts like this is detrimental to your personal interests and will also adversely affect the industry.

Detailed Analysis:

The first item is the cover letter dated March 1 from William Schmidt, Associate Managing Editor. It contains several statements about the contract which are in direct conflict with the actual contract content. For example, the statement that "we hope you agree that its terms reflect the fair consideration of your needs as well as those of the paper" leads the reader to expect a fair and reasonable contract. That expectation is quickly crushed once the contract, itself, is read.

Similarly, the statement that "we believe we are offering you the highest possible degree of flexibility and control over your work after it has appeared in the newspaper" may indeed be their belief, but it is not a reality.

The letter does contain one sobering reality, however: It says "that we will be unable to make assignments to you in the future unless we have a signed contract on file." In other words, you can take this document or leave it, but if you leave it, you can expect never to work for the Times again. That reflects the Times' real view of "the fair consideration of your needs."

The contract starts with a statement in paragraph 1. (a) that "The Times will pay you a day rate as agreed upon by you and The Times." That "agreement" is presumably the same kind of agreement that is reflected in the cover letter: you either agree to accept the Times' terms, or else. In addition, it is our understanding that there is no intention at the Times of raising the day rate, despite the additional rights being acquired by the later provisions in the contract. That paragraph also specifically says that the Times will not be bound by any terms in your paperwork or other attempts by you to change the Times' contract.

1.(b) talks about reimbursement for expenses. It requires that you "submit documentation acceptable to The Times," but there is no way to know what will constitute acceptable documentation, nor is there anything that prevents the Times from imposing extreme requirements on what it considers "acceptable."

That paragraph goes on to say "The Times determines the rate at which film and mileage are reimbursed." The Times does not care what you or the federal government thinks is reasonable mileage reimbursement; instead, the Times gets to decide that for you. The same is true for film. Also, you should note that there is no mention of reimbursement for media other than film. While there could conceivably be reimbursement for digital media under the earlier, general description of reasonable expenses, its absence from mention in connection with reimbursement is troubling. Digital delivery is mentioned in the very next paragraph, so its absence from mention in relation to reimbursement may be an indication that the Times is not willing to reimburse for digital expenses.

Paragraph 2 requires you to turn over your entire shoot, not just the selects. The Times then turns around and says that even though you just handed over all of your images, it will not be responsible for any loss or damage to any of the images. Also, the Times says that it "will credit you on published Work according to its crediting policies." It does not state what those crediting policies are. Even if those policies were provided, there is nothing to prevent the Times from adopting a policy that it does not publish photo credits.

Paragraph 3 starts out by stating that this is a Work for Hire contract. Since the photography is being submitted as a contribution to a collective work, and since the agreement is being signed before the photographs have been made, this provision appears likely to be legally valid, in ASMP's estimation. This makes the Times the copyright owner.

That paragraph then goes on to assign you "a joint copyright interest" in the photographs and to provide that, just in case the Work for Hire approach does not work for any reason, you agree to transfer to the Times "a joint copyright interest" in the photographs. This approach is, first and foremost, a rights grab. It is also somewhat unusual and potentially confusing. The Copyright Act provides for something known as a "joint work," which has a very precise meaning and requires that both parties create copyrightable contributions to the work. A casual reading of the Times contract might lead one to believe that this is what the contract is doing. In fact, it is not; rather, the contract is creating a joint ownership of the copyrights, not the ownership of joint copyrights. There are definite differences between the two, which is why the potential for confusion may create misunderstandings.

In either event, this contract makes the Times an owner of the copyrights to all of the photographs that you make on any assignment for it. That fact is made crystal clear in paragraph 4, where it says that both "The Times and you shall each have the irrevocable, non-exclusive right to exercise any and all rights granted by the United States Copyright Act..." Thus, you are now in competition with the Times in the use and marketing of your own images, and the grant of those rights to the Times is irrevocable --- you cannot take back any of those rights. In addition, the Times could license or transfer its rights to others, so you might even find yourself in competition with additional, and potentially more hostile, entities. It should be easy to imagine what that will do to the market values of those images.

The final sentence in paragraph 4 states, "In exercising your rights hereunder, you may not use the name of The New York Times or The International Herald Tribune." We are not sure exactly what the intention, purpose or legal effect of this language is. Let's say that you are licensing a published photograph to a third party and are asked where it had been published. It seems hard to believe that you would be prevented from saying, "The New York Times," but this appears to be the result that this language would dictate if it were enforced and enforceable.

Paragraph 5 contains the embargo provisions. For works that are published by the Times, the International Herald Tribune or their successors, you have to wait until 10 days after the first publication. With regard to the outtakes, you have to wait until 24 hours after the first publication of another image from that assignment.

On their face, those provisions seem fairly reasonable, but there are some hidden problems. First, as long as the Times holds your photographs from an assignment without publishing them, the embargo period does not start running, effectively freezing your ability to market the images. The duration of that freeze is completely in the hands of the Times. Potentially, it could last for the life of the copyrights to the images, thereby preventing your use, whether they are on film or digital file.

Second, remember that if you shoot film, the Times has possession of all of the film from the assignment, is under no contractual obligation to return any of the photographs to you, and is not liable to you for any failure to return them. In light of those facts, even though you theoretically have the right to market the images, you have no practical ability to do so, unless and until the Times voluntarily returns the images to you. Yes, as a copyright owner, you could go to court and probably get an injunction to force the Times to give you reasonable access to the images under the second CCNV v. Reid decision, but in the real world, almost no photographer will be willing and/or able to do that. Thus, as a practical matter, you are at the mercy of the Times for your ability to do anything with your copyrights.

In paragraph 6, the Times says that, even though you and the Times are joint owners of the copyrights to your photographs, the normal rules of sharing all revenues and expenses do not apply. Instead, the Times says that it is under no duty to share its revenues with you. Rather, it says that if the Times licenses ("syndicates") any uses, it will pay you one-half of the net syndication fees after deduction of "syndication expenses." Those syndication expenses are not defined, and they appear to be in the sole control and determination of the Times. Thus, the net to the photographer could be drastically eroded, or even wiped out, by the syndication expenses.

This provision is followed by an ambiguous sentence, "Where the Work is syndicated by The Times for use in an advertisement or promotion, in lieu of fifty percent (50%) of the net receipts, The Times will pay you a fixed Syndication Fee set in accordance with its internal conflict of interest standards." We are not sure exactly what this means, what the internal conflict of interest standards are, or why they are relevant. In any event, since advertising and promotional uses tend to be significantly higher-paid than editorial and other uses, it appears that the Times wants to be in a position to turn over less than half of the net fees for those cases where substantial money might be involved.

One "good" point is that the Times at least has the decency not to use the joint copyright ownership as a way to claim any revenues that you might derive from licensing the images to third parties

The final sentence of paragraph 6 contains more bad news for photographers: No syndication fees will be paid where additional uses are by the Times and its various operations, nor will they be paid when the use is as "part of the Newspaper or along with other works published in the Newspaper..."

Paragraph 7(a) requires that you agree to the Times' extensive Code of Ethics, which can be found at
http://www.nytco.com/company-properties-times-coe.html. A specific example mentioned in the contract is that "you will not accept free transportation, gifts, junkets, or commissions/assignments from current or potential news sources or subjects." This makes one wonder how a photojournalist is supposed to travel with a presidential candidate while covering a campaign. Much worse, since anyone and everyone is a "potential news source or subject," this provision, if literally applied, would mean that you could never work for any client other than the NY Times! Otherwise, you would be accepting commissions/assignments from potential news sources or subjects.

Under 7(b), you cannot even describe yourself as a NY Times photographer in any speaking engagements or public appearances without prior permission from the Times. For an entity that purports to be dedicated to protecting the First Amendment freedom of speech, the Times certainly seems to want to control the exercise of that freedom by others.

The representations and warranties appear in paragraph 8. As with many such clauses prepared by clients and their attorneys, this provision is one-sided and completely unfair to photographers. It requires you to represent and warrant that the images are original and unaltered, which is fair and reasonable. However, it goes on to require you essentially to guarantee that the images "will not infringe another's copyright or trademark, violate any person's right of privacy or contain libelous or otherwise unlawful material." Let's look at these individually:

Copyright: Since copyright is a strict liability law, your intention to infringe and even the knowledge that you are infringing are irrelevant to infringement. Thus, you could be guilty of copyright infringement without intending to infringe and without even knowing that you infringed. Requiring you to guarantee that you have not infringed anyone else's copyright is asking you to be omniscient. It would be reasonable for the Times to require you to represent and warrant that you had not intentionally or knowingly infringed a third party's copyright, but the Times is not willing to accept anything less than a guarantee that no human being is in a position to give.

Trademark: Trademark violations through photographs come from the use of the photographs, not from the making of photographs. You, as a photographer, control the making of the images, not the use of them. Conversely, the Times, as publisher, controls the use of the images, not the making of them. Since the Times controls the potential source of liability (the use), the Times should be making guarantees to the photographers, not the other way around.

Rights of privacy etc.: Violations of rights of privacy, acts of defamation, etc. also come almost entirely from the use of photographs, not from making them. For that reason, the discussion concerning trademarks is equally applicable here.

Otherwise unlawful material: This is a catchall, intended to cover everything not specifically covered in the agreement. That raises the question of why you should become the Times' insurer for their unspecified and unidentified risks. If the Times isn't willing to accept those risks, why should you?

The rest of the contract is boilerplate. Paragraph 10 specifies that either party can terminate the agreement upon 30 days' written notice. However, remember that you have granted irrevocable rights as to all images shot on assignment for the Times after the signing of the contract, so the termination right is largely illusory. The same paragraph also specifies that the only way the agreement can be changed is in writing, signed by both of the parties.

Photo District News has also done an excellent story about this contract and it's potential effects on our industry. You can read that article at;

http://www.pdnonline.com/photodistrictnews/headlines/article_display.jsp?vn...

Ironically, because of the length of this column and the fact that most photographers read less than my 10 year old daughter, chances are that much of the important information here will never get to the very people it needs to reach. Most of the photographers who send me notes about the columns I write and who tell me they appreciate the information in the text aren't the people who need to hear the information. There are always guys who seem to think that no matter what is in a contract that they will sign it and it will be ok.

John Marshall Mantel is one such guy. He said, in the PDN story, he signed the contract the moment he received it. "The amount of creative and professional satisfaction I get working for the Times gives me no reason to quibble with the contract," Mantel says. "Is it a paradise of a contract? No. But on balance, the limitations put on me are vastly outweighed by the fact that I work with them on a daily basis."

There have always been and will always be men and women who, for whatever reason, feel that working for a particular publication is enough of an "ego stroke" to be willing to do whatever it takes to work for or continue to work for that publication. For many people who try to look past just the short term, this contract is potentially a disaster for this industry.

The New York Times should be ashamed of itself for even considering this contract as being fair. The photographers who work on staff for the New York Times should, in my opinion, do everything in their power to try to help change this contract. Photographers have to begin to realize that we aren't going to be able to stand idly by and not help each other take stances against bad deals that effect the industry.

I was in Florida this past week photographing some spring training baseball and had the chance to meet a wonderful photographer who has been free lancing for the New York Times for a couple decades now. We got to talking about this new contract and he was lamenting the fact that the Times had even rolled this out. He told me that he has always had a gentleman's agreement with the paper that allowed him to keep his copyright and sell his material to whoever. He said they had always been very good about making sure he was notified about sales and felt like a member of the organization even though he was a free lance photographer.

He told me this new deal made him feel like he was being walked on. He got this serious, almost angry look in his eye and told me he would never sign this deal and if it meant he wouldn't work for the New York Times again then so be it. I'd rather eat a little less than feel like I'm being pissed on by a bunch of ingrates. I've always busted my ass for these guys and they want me to believe this is good for me. "F**k Em!" he said. Those guys have to be taught that a working relationship is a two way street. "Somewhere along the line they have forgotten that how you treat people matters."

Photographers have historically been bad at letting publications take advantage of they and their work. The time has come to change that mind set. I feel like the time is at hand that photographers are capable of not being forced into accepting unfair deals. We should take this opportunity to make a stand here.

I personally witnessed a small group of photographers take on Business Week. By not working for them for almost a year and with help from other photographers throughout the country they were able to get Business Week to create a new deal that was advantageous for the freelance contributor to the magazine. The same thing happened at Forbes Magazine. It can be done! It takes guts, commitment, and a true sense of indignation.

Don't sign the New York Times Contract! Don't let this be a time at which we look back and say, the summer of 2004 was another black day for the state of photography as was the case with April 1998 and the AP contract.

Let's take the opportunity to be able to say that the summer of 2004 was the time when photographers stood their ground. They changed the dynamic that portrayed photographers as too weak to take a stand to better their condition. They didn't allow a publishing giant to get away with cheating.

There are literally thousands of outlets in this country that need pictures and pay good prices to get them. You don't "have" to work for the New York Times! More importantly, if you choose not to work for the New York Times you may be doing yourself and many around you a great good service and teach the world, as my new friend in Florida so appropriately said, "How you treat people matters!"

Now stop letting people walk all over you and get out there and take great images.


(Rick Rickman is a freelance photographer based in Southern California. He is a regular contributor to Sports Shooter, writing on business issues. He will be leading a breakout class on the business side of the freelance industry at the Annual Sports Shooter Workshop & Luau 2004.)



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