302 EP ANALYSIS OF BOSTON GLOBE CONRACT
April 20, 2000
The following analysis of the Boston Globe Contract was prepared by Seth Resnick
and Paula Lerner of the Editorial Photographer online business forum. For more
information about EP you can go to
By: Seth Resnick and Paula Lerner
We at EP feel that this contract would be completely fair if the Globe would be
willing to provide full time pay, health benefits, profit sharing, vacation time,
incremental raises and all other perks normally associated with full time
employment. Since the Globe specifically states that this agreement is for
independent contractors, however, it clearly goes against the freelance
photographer's best interests to sign this agreement. EP would be willing to
grant the Globe similar rights excluding those related to previously submitted
work, if and only if the Globe paid a fee commensurate with the value of the
rights they seek. To agree to anything less is a poor business choice for the
To make this clear, let's do a comparison and contrast between the Globe's
contract and the new Business Week model. Business Week Magazine seeks some of
the same rights to assignment photos that are sought here by the Globe. The key
difference is that Business Week will fairly compensate the freelance
photographers for these similar usage right, and will not prohibit the
photographer from distributing the material themselves in other venues for
additional income. Further, all subsequent use by Business Week will generate
additional payments. The Globe by contrast, offers the photographer a low fee to
begin with, will in effect prevent the photographer from distributing it further,
and offers no additional payments for the additional usage.
Lets flesh this out a bit more specifically. Under their new model, Business
Week hires Pat Photographer to shoot an assignment for a day rate of $850. For
that rate, Business Week gets the rights to use the photos in various ways
including in print in the main magazine. If they use the same photo in a later
edition, the photographer receives an additional payment of $450 per quarter
page. Let's contrast this with the Globe. Pat Photographer is hired by the
Globe to shoot an assignment for an unspecified amount of money, but which we
know to typically be $150- $250. According to this agreement the Globe will
never pay an additional fee but could use it daily in multiple venues for ten
years or more if they see fit to do so. What's wrong with this picture?
The Globe can either treat freelancers like independent contractors and pay the
appropriate fees, or they can have employees to whom they pay full benefits and
with whom they have a work-for-hire arrangement. They can't have it both ways.
For a freelancer to agree to the terms of this agreement without the benefit of
fair fees or employment benefits is a poor business choice with a dim future. We
suggest that freelancers presented with this agreement recognize it for the very
bad deal it is and choose to walk away from it.
A point by point analysis of the Globe contract by Seth and Paula is described
below. Their comments are indented under the appropriate paragraph in the
contract. Louisa Williams, Managing Editor/Administration Freelancer, of the
Boston Globe is listed as contact person for questions and comments.
This License Agreement sets forth the terms pursuant to which the
undersigned agrees to submit, on a freelance basis, articles, photographs,
illustrations and/or graphic designs (the"Works") for publication in The Boston
Globe published by Globe Newspaper Company, Inc. ("The Globe").
1. Upon publication of the Work(s), The Globe will promptly pay me the amount
agreed upon by The Globe and me.
1. The word "promptly" has no legal definition. Also, the "amount agreed
upon by The Globe and me" is not specified, and whether this contract is
acceptable or not completely hinges on this amount. Any license that transfers
any rights does so upon receipt of payment. The reality is that to be fair,
payment must be made either before publication or at the very minimum within 30
days of receipt of invoice. Either way there would be no transfer of rights
until the payment is made.
2. In exchange for such payment to me for each Work that The Globe accepts from
me, I grant The Globe
(a) the exclusive right to first publish the work in The Boston Globe and
(b) the non-exclusive, fully-paid up, worldwide license to use the accepted Work.
This non-exclusive license shall last for the entire term of copyright in any
accepted Work. In addition, for no additional fee paid by The Globe, I grant to
The Globe a non-exclusive, fully-paid up, worldwide license to use all of the
Works that The Globe has previously accepted from me, if any. I also agree that
this non-exclusive license includes the right to publish the Works; to create
derivative works; to use, adapt, modify, perform, transmit or reproduce such
material and derivatives in any form or medium whether now or hereafter known
throughout the world including, without limitation, compilations, microfilm,
library databases, videotext, computer databases, CD-ROMs, and the Internet; and
to transfer or sublicense any of these rights to any entity acting for the
benefit of The Globe, as determined in its sole discretion, or to its
subsidiaries, affiliates, successors or assigns; provided, however, this
non-exclusive license limits The Globe's use, transfer or sublicense of a Work to
inclusion of the Work in works that are marketed and/or grouped under The Globe's
name or brand. I agree to take all actions The Globe may reasonably request to
confirm The Globe's non-exclusive license in the accepted Works.
2. First of all, payment should not be contingent on the work being
"accepted" by the Globe, but rather on the work being performed by the
photographer. Photography is subjective; if the work done is technically
adequate, there should be no question regarding payment.
For an extremely low fee paid to the photographer, the Globe is asking for rights
that last more than a lifetime: copyright lasts 70 years after the death of the
creator. If you were paid $250.00 to do an assignment today, and if you were to
live 30 more years, the license that they are asking for would essentially last
100 years. That means that for an average of $2.50 per year you grant the Globe
license to use that picture worldwide for any purpose they see fit. All that
for a fee of $2.50 per year. This is dreadful, and it gets worse.
They go on to ask for subsidiary usage granted to ANY ENTITY. The reality here
is that at the Globe's sole discretion they can relicense the work even for
advertising or corporate reprints WITH NO ADDITIONAL COMPENSATION TO THE
PHOTOGRAPHER. For example: a photographer shoots the Boston Marathon. This
type of photo has a strong resale potential in many venues including corporate
and advertising use. Imagine John Hancock Insurance, a sponsor of the marathon,
decides to use the photo in a full page ad. Typically that usage would be worth
at least several thousand dollars if not more. The Globe will profit by
licensing an image like this and according to this contract has no obligation to
pay the photographer any additional fees for this use. This is fundamentally
against everything that freelancers build their businesses on. A fee in the
range that the Globe is willing to pay would limit usage to one-time
non-exclusive print only editorial use, with any usage beyond this commanding
additional fees. To include any other usage rights in that package for that same
fee would be to sell it for well below market value.
3. Notwithstanding the non-exclusive license granted to The Globe in paragraph 2,
until the second day after the date of first publication of a Work in The Boston
Globe, I agree that I will republish the Work(s) only in print media published
outside Barnstable, Essex, Middlesex, Norfolk, Plymouth, Suffolk and Worcester
counties, Massachusetts, and Hillsborough and Rockingham counties, New Hampshire.
(In other words, during this two-day period, I may resell a Work in print media
outside Barnstable, Essex, Middlesex, Norfolk, Plymouth, Suffolk and Worcester
counties, Massachusetts and Hillsborough and Rockingham counties, New Hampshire,
and thereafter may resell a Work in any media anywhere in the world.)
3. We understand the above to mean that the Globe has a two day embargo on
usage inside their geographic range, which we don't find unreasonable as long as
this is met with appropriate compensation for that exclusivity.
4. The Work(s) will cover subjects and be submitted on a schedule to be agreed
upon between The Globe editors and me. I agree to cooperate in the normal editing
process of The Globe, including such rewrites as may be requested. The Globe
shall have no obligation to publish the Work(s) which I submit.
4. This does not apply to photographers and should not be in a
photographer's contract. Although we believe the Globe should have no obligation
to publish the work, they should have an obligation to pay the photographer as
long as the photographer completes the assignment.
5. I will be the sole author of the Work(s), which will be original works by me,
free of plagiarism. I agree to use reasonable care to ensure that all facts and
statements in the Works are true and use reasonable care to ensure that the Works
do not infringe upon any copyright, right of privacy, proprietary right, right of
publicity or any other right of a third party. I will cooperate fully with The
Globe in responding to and defending against any third party claims relating to
5. Much of the above applies to writers, not photographers. However, the
photographer has to ensure that the images do not infringe on the right of
privacy, proprietary rights, right of publicity or any other right of a third
party. It is impossible for the photographer to do his or her job in good faith
and guarantee this to the Globe. For example: a photographer is assigned to
photograph a mobster. The mobster does not want to be photographed. Obviously,
there is not going to be an opportunity to get a model or property release. If
the photographer turns in the film he/she may have infringed a third party in the
process. This impedes the news process and makes the photographer responsible
for something he/she has no control over.
Cooperating and defending a claim could potentially mean extended days in a
courtroom and lost income due to being unavailable for other assignments. The
photographer should cooperate, but should also be compensated for such actions.
The only time additional compensation would not be required would be if that
person were a full time employee.
6. I agree that with regard to the Work(s) submitted under this License
Agreement, I will take care to avoid conflicts of interest or the appearance of
conflict. For example, in connection with work submitted to The Globe, I will not
accept free transportation, gifts, junkets, or commissions/assignments from
current or potential news sources.
6. We commend the Globe for upholding high journalistic standards.
However, if a photographer goes to shoot at a corporate luncheon and is
prohibited from accepting food, then the Globe should be willing to pay for that
meal or any other expense which the photographer might incur in the process of
doing the assignment that might otherwise be volunteered by the subject (for
example, parking or travel-related expenses).
Notwithstanding the above, however, freelance photographers are freelance and not
full time employees. To bar them from accepting assignments from any potential
client interferes with their ability to do business and is essentially a
restraint of trade.
7. I acknowledge that my relationship to The Globe is that of an
independent contractor. As such, I will not be an employee of The Globe, nor will
I be entitled to any employee benefits, such as medical benefits, life insurance,
retirement benefits, etc. Since I am an independent contractor, The Globe will
not withhold moneys, including but not limited to taxes and FICA, on amounts paid
to me under this agreement. I understand that at the end of each year, The Globe
will send me IRS Form 1099, which will reflect all amounts paid to me during the
7. Obviously we agree with this. However, since freelancers are NOT
employees, there should be no restrictions on the freelancer that would be more
typically applied to full time employees, including limiting their ability to
work for other clients and owning their own material and the right to distribute
it throughout the universe for the life of copyright for appropriate
8. This License Agreement sets forth the complete understanding and
agreement between The Globe and me, supersedes all prior agreements and
understandings, and may not be amended or modified except in writing and signed
by both of us. E-mail headers and plain text signatures on e-mail messages shall
be deemed signatures on this Agreement and all amendments thereto. Unless
covered by a separate written agreement that expressly supersedes this one, this
License Agreement represents the entire understanding between The Globe and me as
to all Works that I will submit or have previously submitted to The Globe.
8. Although we disagree with terms of this contract, we acknowledge that
once signed it should supercede all other agreements. However, to have it apply
to all previously submitted work is ludicrous, unreasonable, and is an obvious
rights grab. No additional compensation is offered for the additional usage
rights on the previously submitted material. The entire concept of a contract is
to set terms agreed upon by both parties from that moment forward, and not to
govern work submitted in the past.
9. This License Agreement has been made in and shall be construed and enforced in
accordance with the laws of the Commonwealth of Massachusetts applicable to
agreements executed and wholly to be performed therein. Any action to enforce
this agreement shall be brought in the federal or state courts located in the
Commonwealth of Massachusetts.
IN WITNESS WHEREOF, The Globe by its duly authorized representative has caused
this License Agreement to be executed and the undersigned has executed this
License Agreement on the date set forth below under the undersigned's signature.
GLOBE NEWSPAPER COMPANY, INC.