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March, 2004 NY Times Contract

Introduction

The following are ASMP's analysis and recommendations concerning the new freelance photography contract that has been sent out by the NY Times starting on March 1, 2004.

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.

ASMP contacted the Times to open a dialogue with the goal of improving the contract for the benefit of all. In our experience, it is the refusal by a critical mass of valued photographers to sign such contracts that brings publishers to the negotiating table. We hope that photographers will see this contract for what it is and refuse to sign. Read the Times response.

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.

In Conclusion: We cannot recommend that anyone sign this contract in its current form.

Response from NY Times:

Dear Mr. Perlman:

Thank you for your e-mail of March 10 outlining your concerns about our new freelance photographer contract. As I mentioned in our phone conversation, the contract has already been mailed to our freelance photographers and signed copies are now being returned to us. Although the contract is now completed and in use, I would still like to respond in this e-mail to the concerns you raised.

First and foremost, while we believe this contract is fair -- and in many cases more favorable to photographers than most contracts out there now -- signing it remains the option of the photographer. And as such, the decision to work with us remains the option of the photographer. I will also note as an overarching point that many of the clauses you highlight as unusual are in fact standard in contracts of this nature. Additionally, the spirit of this contract presumes that both parties will act in good faith. Your tone suggests that this is not the case but certainly from The Times's perspective it is the case and I trust that your members who have worked with us know this from first hand experience.

As to specific points you raise about paragraphs 1 and 2, these paragraphs use standard contractual language and they reference standard practices that have been in place at The Times -- and elsewhere -- for a long time. This new contract was mailed to photographers who already work with us, who already understand how we manage expenses, handle materials and give photo credit. The contract does not change any of these practices and therefore should not be problematic for your members.

Regarding paragraph 3, there are various ways to achieve a joint copyright interest in material. One way is the way you cite, which is joint authorship, where both parties contribute something to the work. But another equally valid way to achieve joint copyright is for one copyright proprietor to transfer to another a joint interest in the work, which is what we have done with this contract.

Regarding paragraph 4, we simply intend for photographers not to trade on the name of The Times or the International Herald Tribune (IHT). While it is acceptable for a freelance photographer who has worked for us to say so, it is not acceptable for him/her to allow for the use of The Times or IHT's name in conjunction with photos shot for us without prior approval from us.

Regarding paragraph 5, as photographers who work with us know, it is highly unlikely that we would hold onto works indefinitely. Nevertheless, in those rare instances where such an event might occur, the photographer need only request the work and we would quickly review the request and would not unreasonably prevent a photographer from exercising his/her rights to the photograph.

In paragraph 6, please note that not only do we share syndicated photograph revenues with the photographers, we do not require the same in return. Those who received this contract, who work with us regularly, understand that we advocate for them. Furthermore, we do so in a very competitive environment.

As to paragraph 7 and our conflict of interest policy, The Times guidelines are thorough and made available to all photographers at: http://www.nytco.com/company-properties-times-coe.html. We believe this paragraph is beneficial to all involved. In particular, we have set a cap on advertising and promotional related sales to prevent instances where a photographer would aim to have his/her work appear in The Times or IHT in order to generate a lucrative resale to an advertiser once the photo is associated with The Times or IHT. Such a conflict would not be acceptable and our policy spells this out. Again, the photographers who received this contract and who work with us will recognize that its does not change their working relationship with us; it merely confirms practices they have already been following vis-a-vis our Ethical Journalism guidelines.

Paragraph 8 also uses language that is standard in any license agreement. We ask the photographer to stand behind the images because, as between The Times and the photographer, the latter is in a better position to know how the photograph was obtained and whether the photograph is original, or violates another person's rights. A photographer would not be responsible for our improper use of the photograph. In addition, we generously do not insist that they indemnify us for any third party claims, which most agreements do.

Finally, regarding the termination clause, this is a standard contract clause that merely formalizes for each party a means to end the working relationship. Of course, the photographer could also cease taking photographs as another way of terminating the contract if/when it not longer met his/her needs. This clause is something your members should welcome inasmuch as it provides them with and exit if/when they would want one.

I hope that I have addressed your concerns. Certainly we value our relationship with freelance photographers and we are pleased to formalize those relationships with a contract that we believe is fair, concise and clear. We are equally pleased that photographers have signalled their agreement by returning signed copies to us.

Best,

Toby Usnik
Director of Public Relations
The New York Times Company

Related announcements:

New York Times Freelance Contract Update (5/7/04)

New York Times Freelance Contract Revision (6/11/04)

New York Times Legal Fund Contributors