EP Analysis of Boston Globe Contract

Posted on 4/20/2000 by Jim Pickerell | Printable Version | Comments (0)

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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

http://www.editorialphoto.com.

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

photographer.

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.

LICENSE AGREEMENT

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

the Works.

    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

year.

    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

    compensation.

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.


Copyright © 2000 Jim Pickerell. The above article may not be copied, reproduced, excerpted or distributed in any manner without written permission from the author. All requests should be submitted to Selling Stock at 10319 Westlake Drive, Suite 162, Bethesda, MD 20817, phone 301-251-0720, e-mail: wvz@fpcubgbf.pbz

Jim Pickerell is founder of www.selling-stock.com, an online newsletter that publishes daily. He is also available for personal telephone consultations on pricing and other matters related to stock photography. He occasionally acts as an expert witness on matters related to stock photography. For his current curriculum vitae go to: http://www.jimpickerell.com/Curriculum-Vitae.aspx.  

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