Thursday, September 23, 2010

The First Thing We Do, Let's Kill All The Lawyers...

Dick the Butcher uttered that memorable line from Shakespeare's Henry VI and he may just be on to something. Okay, I will grant you that a good lawyer comes in handy when you need one, but just how often do you need one really? And you can't have just one lawyer now can you? No... there must be at least two of them to communicate in that dry, humanless, dense & indecipherable language of legalese spoken amongst members of their tribe. If one lawyer is involved, then there must always be another to translate their gibberish into something understandable by you & me.

And lawyers these days, at least on a media corporate level, seem to have very little to do these days and now occupy their expensive time drawing up offensive, over-reaching documents now being circulated as "Contractor's Agreements" or "Freelance Contributors Agreements". If you have been or are a regular contributor to large scale publications, either as a photographer, writer, designer or illustrator, chances are you've encountered one of these wretched little things.

OK... I understand that the lawyers are only doing their job, assisting their clients in protecting assets, securing intellectual property in ways that allow the utmost flexibility in generating not only use & exposure and, ostensibly, profit too... or at the very least, limiting cost exposure in terms of  future, unforeseen use & distribution of art, words and other forms of content published in their pages, on their websites, social media sites, etc. And while the new corporate media paradigm we see emerging may be an excellent business model in the conscience-less, non-human corporate-world model, it does very little in building human relationships between corporate media giants and the contributors they rely on to fill their pages.

To wit: Here's a copy of an "agreement" I received yesterday... after receiving & executing the assignment and delivering the preview images to the assigning editor. Names have been obscured to protect the greedy:

To be fair... immediately upon receiving the above, I contacted the assigning photo-editor to let him know that this "agreement" was unsignable in it's present form and that I had been shooting assignments for this publication for several years and had never been presented with an agreement like this... or any agreement, for that matter. Licenses, along with budgets & fees were always agreed upon prior to the assignment and written up in my standard invoices & Terms & Conditions, as it should be. His response was sheepishly apologetic. Yes, he had received howls, complaints and refusals from freelancers around the country ever since the new policy was instituted, the magazine had been recently bought up by a larger publishing conglomerate, all of the photo editors at the conglomerate's other publications were also experiencing the same cries of "foul" from their contributors, the photo-editors were talking with corporate about changing the wording of the agreement's template, changes were in the making and in the meantime, please feel free to cross out, initial & date any and all objectionable language.

Fair enough. The agreement  was literally gutted with my trusty sharpie and additional language was inserted stating that the use license contained within my invoice superseded any conflicting language in the publisher's agreement and that no rights of use in any form were granted until payment in full had been received. 

The point I'm getting at, beside the myriad reasons why no self-respecting free-lancer should sign one of these things in the first place is this: 
  • Relationships Matter: Photo-editors are, more often than not, your best friend & biggest advocate at the publication level. They hand out assignments, they provide valuable art-direction, they provide you with feedback on your work and how you can improve your work to better meet their needs (which, in turn, can lead to more assignments). They sometime (usually, in my experience) fight for your rights and respect at the corporate level. Unfortunately, these boilerplate, rights-grabbing templates do little build relationships by setting up an adversarial relationship right out of the gate. Photo editors, by and large, get caught in the middle. While they understand our concerns about these contracts & sympathize with us, even advocate to their bosses on our behalf, in the end, they have only so much power of persuasion when it comes to influencing company policy.  Ultimately, photo editors are bound to toe the company line, whatever that line may be. They don't like being thrown into adversarial situations any more than you and I.
  • Time Is Money: As a result of the corporate move to hungrily devour rights unnecessary in most instances, photo editors, as I mentioned above, get caught in the middle. Time that could be invested in researching new talent, new story angles, developing a pool of talent is now often wasted fielding the howling calls & emails of free-lancers, advocating on our behalf to their bosses, etc. On our end, precious time that could be spent shooting, editing, marketing is now expended in trying to read these nearly indecipherable documents, attempting to negotiate new terms, etc. Time is being wasted in an way that is ultimately wholly unnecessary. That gets frustrating for both sides.
  • The Demands Are Unnecessary & Uncompensated: Traditionally, editorial photography has always been a lower paying gig than, say, a corporate or advertising assignment. The trade off to editorial work is that it allows the photographer a great deal of creative freedom, albeit within certain parameters of the assignment of illustrating the accompanying text. There is also a certain measure of the "exposure" factor to be considered. While there are some benefits that do come with the exposure of having your work in print and before thousands of pairs of eyes, exposure in & of itself can never be the prime consideration if you plan to operate a sustainable, profitable business operation. Demanding worldwide rights of use in all media, in perpetuity & without additional compensation and for only a basic editorial day rate is unfair, especially given the fact that in most cases, those rights will never be exercised. Furthermore, should you grant Publisher XYX such far-reaching rights of use, you ability to offer any sort of limited exclusive license to future art buyers become virtually impossible, limiting your ability to profit from your creative output in the future.
Now... rather than just make blanket statements about why a free-lancer should never sign one of these contracts as is... let's tear the one I received yesterday apart point by point, shall we?

OK... the introductory paragraph states the date of the agreement and introduces the scope of the assignment. So far, nothing objectionable here.

  • Paragraph 1.1: Here it states that if you, the photographer, fail to meet the deadline without a pre-arranged understanding with all assigning parties, the publication is under no obligation to accept the work or to pay you or cover any expenses incurred in executing the project. Fair enough...
  • Paragraph 1.2: The publisher states here that they reserve the right to alter by cropping, editing or augmenting your submitted images. Cropping to meet space requirements or to increase a photograph's impact is and always has been acceptable. The word "edit " & "augment" leaves some cause for concern. No attempt is made to define the terms "edit" or "augment".  In today's world of easy Photoshop manipulation & compositing, selective editing, and an overly litigious public, this language leaves a lot of room for trouble. Say, for instance, that some editor at the magazine had an axe to grind with one of the subjects you were assigned to photograph and decided to Photoshop the head of one of your subjects onto the nude body of a porn star and then run the composite with a inflammatory caption. In that case... and it HAS happened, you are now exposed to all sorts of legal action against you. Chances are, if you've maintained good records and paper trails, you will prevail, at least legally, in the end. Unfortunately, getting to "the end" may bankrupt you in the process.
  • Paragraph 1.3: Kill Fees... not uncommon. The language "Contractor agrees that publication of the Work will be solely at the discretion of [Publication XYZ] ..." is a bit troubling. If the work submitted does not meet the scope of the assignment given, is of poor quality, etc... then I feel the publisher is within his rights to reject the work. I also feel that they need some substantial reason to reject the work beyond there was no room in the issue for it or some other arbitrary decision not to publish. Demanding 30 days to either accept or reject assigned work is objectionable for obvious reasons. A Kill Fee "not to exceed twenty-five percent (25%) of the scheduled publication fee." is equally objectionable. By "scheduled publication fee" they limit payment only to a small fraction the agreed upon creative fee for producing the work and exclude any form of reimbursement for pre-agreed upon expenses incurred in producing the work.
  • Paragraph 1.4: If the publication decides to publish the Work, then it agrees to pay you upon publication. Let's not forget that in a previous paragraph, the publisher also wanted 30 days to notify you that the work has been accepted. Factor in that most publications assign work at least two months prior to the issue's publication date and, in most cases, even farther in advance... you're now looking at 90 days, 3 months, six months or more before getting paid. In essence, you're making a loan to the publisher. The loan is uncompensated, no interest accrued, until the publication date... which, by the way, is at the sole discretion of the publisher. Is your business in such a position that you can afford to make such a loan?  Your licensing agreement should contain language that includes legal remedies for payments not received within 30 days or less of submission. Your license should also contain very clear language stating that no right of publication or distribution in any form is granted until full payment has been received.
  • Paragraph 2.1: OK... here's where things really go off the tracks. Traditionally, editorial work, due to the traditionally low fees that come with it, has been licensed as "one-time use only" in whatever primary publishing form it is intended to appear... print, web, etc... If the work was assigned ultimately for print publication, then without additional compensation/use-fees all publishing options were excluded, that included online versions of print publications, iPad & Kindle® media formats, etc. Furthermore, use has been traditionally limited to specific regions and languages without additional compensation. We see in this paragraph that the publisher is demanding all rights in all media in all languages in perpetuity... forever & ever for the initial fee. Chances are that fee did not include what has long been traditional compensation for such a  broad and over-reaching demand of rights. To be fair, the wording in this paragraph does include the caveat " [use] as described in the Project Outline". In this instance, the photo-editor was kind enough to state in the Outline at the bottom of the form the specific print publication and the accompanying online version. Also, in the spirit of fairness, I know that this publication publishes magazines in several major metropolitan areas around the country and often, stories and other content are published simultaneously in several different regions & markets. In those cases, such a demand of far-reaching rights may be somewhat justified given that the associated editorial fee is in line with that extensive use. In the case of local & regional content destined to appear only in one specific region or market, such attempts at a rights-grab without additional compensation is both wholly unnecessary & offensive. 
  • Paragraph 2.2: This paragraph deals with the traditional embargo of assigned editorial photography (and other content). Traditionally, embargoes of the Work have been until first publication of the Work. That's only fair as the publisher was the origin of the assignment and, in turn, should have first right of publication. Due to the low pay structure of most editorial assignments, photographers have always sought other venues for publication of work, even assigned work once the first rights have been exercised. Demanding an embargo of  90 additional days after first publication is not completely objectionable, in my opinion, I can see where there would be cases where the images may be newsworthy or otherwise time-sensitive and such an embargo would limit the author's ability to generate income from his/her intellectual property. It's going to be up to the individual to decide whether or not to agree to this term on a case by case basis. The unusual language in this paragraph is the demand that subsequent publishing of the Work requires the accompanying statement "previously published by XYZ Media" and further requiring the photographer to "notify [the original commissioning entity] within five(5) days of entering into said agreement" to license work to another party after the first rights of use have been exercised.  My only response to this is WHY? Never have I seen this language in any agreements previously sent to me. Silly, offensive and again, unnecessary.
  • Paragraph 3.1: This starts out innocently enough. You warrant that the work submitted was created by you, that you have the rights to license it for publication and that you do not violate anyone else's copyrights or proprietary rights by offfering the Work for publication. That past of the paragraph is pretty standard stuff and I take no objection to any of it. sadly, the publisher goes a step further, demanding that the phoitographer INDEMNIFY & hold harmless anyone ever associated with or working for the publication, either now or in the future, against "any and all liability, loss or expense, including reasonable attorney fees, resulting from any breach of warranty or representation made herein." One one hand, this language would seem to make some sense at first glance... that the warranties made to ownership & right to publish the Work are proper and legal. That's simply good business sense and good ethics in doing business as an editorial photographer. However, even if your paperwork is legal, proper and correct and your warranties accurate, the language of this portion of the paragraph appears so vague and open-ended that a scenario in which some former publisher's employee might see fit to alter the intended original use of the Work and potentially portray someone inaccurately or unflatteringly could open up a legal can of worms for you sometime in the future. Once delivered, the files held by the publisher are out of your control completely. It is only proper that the media company does everything within it's power to protect against improper use or unflatteringly altered work ever seeing print. In the event that it did somehow happen, agreeing to this paragraph could leave you holding the bag for legal fees to defend yourself for improper conduct on the part of the commissioning publisher. It is never a good idea to indemnify a client commissioning work for you against anything. In fact, most photographers Trems & Conditions require the client to indemnify the photographer against improper use by the client.
  • Paragraphs 4.1, 4.2 & 5.1: Nothing out of the ordinary here. No objections to any of this language.
  • Paragraph 5.2: Unless you alter this contract completely or even better, refuse to sign it altogether and provide your own licensing language and Terms & Conditions, by signing it you are bound to it's terms. Don't sign it as is. Do what ever it takes to negotiate on the vital points to work in your favor. That's not to say that your alterations will ultimately work against the publisher's interests... quite the contrary. The be enforceable, any contract needs to be a "meeting of the minds" and work towards the benefit of both parties involved. In my case, when confronted with this contract, I simply crossed out this paragraph entirely, initialed and dated it and then inserted my own language stating that the license included in my invoice & terms supersedes any conflicting language in the free-lancer's agreement.
  • Paragraph 6.1: Finally, the contract concludes that any disputes regarding this agreement shall submit to the jurisdiction of the California courts. Do you have the time and money to fly back & forth to deal with legal issues arising from your licensing work to the publisher? I don't! make sure your agreements fall under the jurisdiction & laws within the state where you do business. 'Nuff said...
As a measure of full disclosure, let me state now & for the record that I am not an attorney. I offer the above only as a guideline for you, dear reader. When faced with agreements like the one I discuss in this entry, I encourage you first to carefully read the thing before you sign it, to do your best to negotiate on the objectionable points and to seek competent, professional legal advice when you have questions. 

Here's an example of my license/invoice and standard terms & conditions as suggested by the organization Editorial Photographers (EP) just to give you an idea as to how most of us present these matter to our clients. You can click on the image below for a larger, readable version.

I encourage all of you, especially the new, up & coming photographers out there to  spend as much time researching business practices when you venture into the areas of editorial & commercial photography as you do marketing and promoting your business. These niches of the photographic industry are very different from, say, "consumer oriented photography" (i.e. wedding, portrait, school photography, etc.). It would not be unreasonable to state that freelance editorial photography is currently under attack from corporate publishing behemoths hell-bent on securing rights that they will never use or need. If they were willing to compensate us for these over-reaching attempts at rights grabs, things might not be so bad. Sadly, they are not willing, in most cases, to provide additional compensation. Furthermore, I have yet to be confronted with one of these agreements where I could not negotiate terms more in line with long-established business practices. In the end, negotiations have always ended up with a contract containing far more reasonable language. 

Remember that you are absolutely powerless when confronted with these attempts to limit your ability to profit from your creative output while granting the client opportunities to potentially distribute, dilute and yes, potentially profit from your work until you find yourself willing to say NO. Also remember that negotiating is possible in nearly all of these cases, at least in the ones I've encountered thus far. It's important to learn to say no while leaving the door open to form a more reasonable agreement. In the end, I've found that client's have greater respect for those that stand up for reasonable business practices and their right's as artists. 

Ultimately, the world of publishing works best when there is a spirit of collaboration, when publishers acknowledge the value of work they rely on to fill their respective products and freelance artists feel motivated to produce the best work possible on any given assignment. To pay the extortionate retainers to a team of lawyers hired to pull the rug out from under contributors seems to me to ultimately work against the best interests of publishers. These adversarial agreements would seem to limit the talent pool publishers have to select from, though I also know that there are many freelancers, both new and established, willing to toss away sustainable business models in exchange for the promise of exposure and a small check. Perhaps these publishers may never reach the bottom of the shallow end of the talent pool... as artists continue to operate from a position of fear or from having no experience or understanding of traditional business practices. The world would be a much better place if, in the end, the money paid to these legal teams to generate these offensive documents was spent to fairly compensate those that actually generate valuable content contributing to the final valuable product.

No comments: