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|| SportsShooter.com: News Item: Posted 2001-04-30
ASMP's Stance on MLB Credential Issue
(Editor's note: The Association of Media Photographers wrote recently to Major League Baseball pointing out several areas the organization finds troubling with the credential use agreement. ASMP has recommended their members not sign the current MLB agreement.)
April 17, 2001
Ethan Orlinsky, Esq.
V.P. & General Counsel
Major League Baseball Enterprise
245 Park Avenue
New York, NY 10167
Re: MLB Credential
Dear Mr. Orlinsky:
I am writing to you in connection with the most recent version of your organization's media credential. In case you are not familiar with ASMP, we are a §501(c)(6) trade association founded in 1944 to protect and promote the interests of professional photographers who earn their livings by making photographs for publication in the various media. We currently have nearly 6,000 members and count many of the world's leading publication photographers among them. We play an active advocacy role on behalf of photographers in carrying out our mission in legislative, judicial and industry matters.
The current version of your credential presents a number of problems and legal issues for photographers, for the publications assigning them to cover MLB games, and for MLB itself. This letter will point out the most significant of those difficulties and extend ASMP's offer to assist you in drafting revised wording that will be in all of our best interests.
The introductory language of the credential states that the terms and conditions are agreed to by the individual that signs for or uses the credential, "and for his/her/its employers." This language creates a number of problems. First, relatively few of the photographers using the credential are employees; they are mostly freelancers who are acting as independent contractors on assignment. Asking them to state that they are employees is asking them to misrepresent the facts. Further, if that language were in any way binding, it would obligate the assigning publications and other entities to provide various employee benefits and to file and pay withholding taxes, unemployment compensation and other fees required of employers. Even worse from our perspective, it would turn the photographers' work into work-made-for-hire under the Copyright Act of 1976. For these reasons and others, the reference to employers should be changed to "the entity that engaged him/her/them" or something similar that does not state a legal relationship that in most cases does not exist. You use that language in paragraph number 7, and it would be advisable to use it here, as well.
Even with that change in wording, however, the introductory clause still creates problems. It is asking the photographers and others to bind their clients (publications and other assigning entities) to the terms of the credential, and this is something that most, if not all of them, have neither the actual nor the apparent authority to do. By including this language, you are asking photographers and others to agree to a term that they do not have the authority to agree to, thereby making them misrepresent the facts. At the same time, you gain nothing for MLB because such a statement will almost certainly be legally unenforceable. If you want to obtain the agreement of the assigning entities, you will have to get that agreement directly from them; asking the photographers to make that agreement on behalf of their clients simply does not work.
A number of the difficulties in the credential language stem from MLB's understandable desire to use a single document to cover both the photographers (and other members of the media) and the publications and other entities that assigned them to cover the games. Unfortunately, the problems created by that attempted simplicity are substantially greater than the benefits that are being sought, and I would suggest that there be two documents, an agreement for the assigning entities and a separate credential for the photographers and other members of the media.
Turning to paragraph number 1, you ask each photographer and other person using the credential to agree that he or she "is acting on a specific assignment for a newspaper, or for a press, news or photographic service." First, I believe that this is not always true. Are you saying that there are never people with credentials who are present at MLB games without an assignment from a newspaper or press, news or photographic service? Personal experience tells me that this is simply not correct (ignoring the fact that magazines are not included in the list). If I am correct that this is not true, it is unreasonable, and legally improper, to ask every credential-user to agree to it.
Additionally, even if I mistaken, and that statement is100% true and accurate, there is still the question of why you should bother to include it. Since MLB has verified the credential-bearer's assignment status before putting him or her on the credential list and issuing the credential, why ask the credential-bearer to agree to something that MLB already knows to be fact?
Since my primary interest is the effect of the credential on publication photographers, let's turn to the section that most directly affects them: paragraph number 7. The most significant problem with that provision appears in the following section:
"... the MLB Entities shall have the right to purchase prints of any published photographs taken by the Bearer in connection with the credential, at the best financial terms offered to third parties, and such MLB Entities shall be licensed at no additional charge to use the photographs for news coverage purposes only."
We appreciate the change in this language from the earlier version that would have demanded that photographers sell prints to MLB Entities at cost. However, the compulsory license that it requires photographers to grant --- even though limited to news coverage --- automatically puts a significant number of the photographers in breach of their own contracts with their clients. The vast majority of assignments to photograph events like baseball games are made on the basis of at least some exclusivity. Typically, photographers agree with their clients that they will not allow any other entity to publish the photographs made for the clients for a period of ninety days. Often the embargo period is measured from the date of publication. By requiring the photographer to allow MLB to make unlimited and unrestricted use of the photographs for news purposes, you are automatically putting many photographers in breach of the exclusivity arrangements they have made with the very entities whose assignments got them the credential to photograph the game in the first place. As with all of the troublesome provisions, we stand ready to help you draft workable language that can function well and achieve all of our respective objectives.
Paragraph number 10 is another place where the credential causes difficulties by trying to use a single document to cover both the members of the press and the entities for which they are on assignment. Part of that provision requires the photographers and others to indemnify MLB against any liability or expense arising out of:
"... (a) Bearer's use of any Game Information taken or obtained in connection with the credential, including, without limitation, any claim that any use of such Information infringes any third party's copyrights, trademarks, rights of publicity, rights of privacy, or other proprietary or personal rights, however denominated..."
Virtually any claim against MLB that would be covered by this provision would arise, not out of the making of a photograph, but out of its publication and/or other use. Use of the photographs is made and controlled, not by the photographers, but by their clients, the assigning entities. It would be logical (and I am not commenting on whether it would be fair or reasonable) to have such a provision in an agreement with a publisher or other assigning entity, but it makes no sense to have such a provision in a credential issued to a photographer or other member of the media.
Further on the subject of indemnifications, generally it is ludicrous to ask an individual photographer to indemnify a corporate giant like MLB for anything. Given the comparative lack of resources and insurance of most photographers vis-à-vis the MLB, the indemnification is pointless and, therefore, ought to be deleted. Again, having different documents for the photographers and their clients would make sense and help avoid this sort of problem.
I will conclude by repeating our offer to assist and work with you in shaping language that will eliminate these and other problems. If you would like to take us up on this offer, my extension is 1207, and our Executive Director, Dick Weisgrau, is at Extension 1201. We look forward to hearing from you and to working with you.
Very truly yours,
VICTOR S. PERLMAN
Managing Director & General Counsel
AMERICAN SOCIETY OF MEDIA PHOTOGRAPHERS, INC.
(Reprinted with permission from ASMP. For more information on ASMP, go to their web site at: http://www.asmp.org/.)
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