*Contract Monitor 1:1*
| Disclaimer: This information is true and accurate as of the dates specified, to the best of our knowledge and belief, and is provided by the Graphic Artists Guild to help artists make informed choices. |
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March/April, 1998
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Updated news on the following companies:
Good News:
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Welcome to the first issue of the Contract Monitor Newsletter!
INTRODUCTION: We are the Contract Watch Committee of the Graphic Artists
Guild, and this is the first issue of our electronic newsletter. This
newsletter was created to address a serious and growing concern of many GAG
members: how to deal with the sweeping changes in freelance contracts that
have taken place over the past few years.
BACKGROUND: Contracts between publishers and graphic artists have always
varied widely, and some have always been better than others. Recently,
however, we have seen a fundamental change taking place in contracts offered
by publishers, a change that is redefining the nature of the relationship
between the freelance artist and the publisher. More and more, publishers
are taking the position that from the moment they pay an artist for an
image, the artist has severed all connection with the image. This is a
radical departure from past practices. Traditionally, artists have retained
for themselves certain rights to determine the use, and to derive additional
income, from the image. These rights have rapidly eroded in the past few years.
Our goal is to provide information that will help graphic artists to regain
some of what has been lost.
Here's the kind of information we will provide:
WHO: Who you should watch out for. Which publishers, and which contracts,
need special attention.
WHAT: What those contract terms really mean.
WHY: Why these issues matter to you.
And here's how we're going to provide the information:
=> WARNINGS: Alerting GAG members to [unfavorable terms] potential dangers
in contracts currently being distributed by publishers.
=> TRENDS: Keeping track of changes in the relationship between freelance
graphic artists and publishers.
=> DEFINITIONS: Deciphering contract legalese.
=> CONTINUING EDUCATION: How to read a contract.
In each issue we will take a look at several contracts from different
publishers. We will analyze the terms of the contracts, with an eye toward
providing you with a clear, understandable summary. If we think the terms
of the contract are unfavorable to you, we will let you know. And when a
publisher produces a good contract, we will take note of that as well. We
will always offer publishers the opportunity to respond to our comments, and
we will engage in any dialog--with publishers, GAG members, even
lawyers!--that will help to clarify issues and serve the interests of our
members.
Without you, we're nothing! We need you to make it work, and we encourage
you to participate with us. If you have comments on companies and contracts
featured in the Monitor, send them to us. When you are given a new contract
to sign, alert us to any terms you think might be unfair. (You can e-mail
us at execdir@aol.com; complete contact information appears at the end of
the newsletter.)
Ask us questions. Provide answers for us when you can. And use us to stay
in touch with your community.
Regular issues of The Contract Watch Monitor will be e-mailed six times a year.
To subscribe to or be removed from the Contract Monitor mailing list, email
Paul Basista at: Paulatgag@aol.com
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THE ALL-RIGHTS CONTRACT: Not all right!
When you're hired to create a piece of art, do you want to sell it lock,
stock and barrel, and give up any future claim on how, when and where the
work is used, along with any future income from the work? Then the
All-Rights contract is for you!
Having second thoughts? Good! Because before you sign such a contract,
it's smart to know exactly what it is you're agreeing to.
While "all-rights" can mean different things to different publishers, under
a typical All-Rights Contract, the publisher pays a fee (usually a single
payment) and purchases the right to use and re-use the piece, in any medium,
any number of times, forever. The artist, in exchange for that fee, gives
up any and all interest in, and control over, the use of the image. In some
cases, the artist is even agreeing to give up the boards and computer files
with which the image was created!
TREND: More and more publishers are doing away with contracts that allow the
graphic artist to retain any connection to an image after the artist has
accepted a payment for the image. Artists are being required to give up
"all rights", and as a consequence, they have no claim on any future income
the image might generate.
To illustrate how this practice works, we have summarized the contracts of
several large publishers.
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Conde Nast has become the Graphic Artists Guild's poster child for dubious
contracts over the last year. Although they occasionally yield to pressure
by allowing some artists to negotiate certain contract terms, Conde Nast's
basic boilerplate contract is a classic of confusion, and a grab for
artists' rights.
(The Monitor has learned that Conde Nast has two contracts: a "Good"
contract for more acclaimed illustrators, and a more restrictive contract
for lesser-known contributors. The contract we review below is the "Good"
contract. The Bad one is worse.)
=> "The results of each commission must be satisfactory in form and
substance to Conde Nast..." This gives Conde Nast the right to reject the
submitted work for any reason, and to withhold payment. We believe that a
fairer approach would follow along the lines of one artist's rep we know of,
who protected his client by changing the line to: "The results of each
commission must be consistent with artist's portfolio".
=> The contract grants and assigns copyright to Conde Nast for Australia and
New Zealand for full term of copyright, and (perhaps for an extra sense of
security), also gives Conde Nast rights "throughout the universe." More and
more publishers are including this sweeping clause. We believe each region
should be negotiated separately (e.g. North American Rights, European
Rights, Australian Rights, etc.).
=> The contract assigns to Conde Nast the "non-exclusive right, for full
term of copyright, by itself or third parties, to republish, reprint and
reuse the Work..."
Note: Conde Nast gets exclusive rights to the purchased
artwork for a limited period of time, beginning with the
date of commission (see below). During that initial
time period, no one but Conde Nast can use the artwork.
After that time period expires, Conde Nast still retains
certain non-exclusive rights to continue to use the art.
The non-exclusive rights listed are vague. Conde Nast can continue to use
the art, artist's name and likeness in "promoting, advertising and
publicizing the publication." The Company also gets a "merchandising"
right, which allows them to sell anything on which the image appears without
any additional compensation paid to the artist. Both the vague wording and
the merchandising right are of concern to us.
=> Conde Nast's exclusive rights are spelled out in
§2.i. and §2.iv. During
the exclusive rights period only Conde Nast can use the artwork. The
exclusive rights period runs from the "date of commission to 90 days beyond
the U.S. on-sale date of issue. If cover art, that period is extended for 1
year. Artist can not publish work in any other publication during those
periods."
=> Under this contract, Conde Nast has "The right to crop, retouch or
otherwise modify the Work." We believe the artist should have first option
to modify the work, and we think a more reasonable clause would state that
the "artist will be given first option to make any changes in work that
client may deem necessary."
=> Clause §2.c of this contract gives Conde Nast all rights to any media
"now in existence or hereafter developed." Again, this seeks to encompass
too much. Media developed in the future may well be used very differently
from existing media; rights to those new media should be negotiated as the
media are developed.
=> Conde Nast also gets the right to sell both their exclusive and
non-exclusive grant of rights, including merchandising rights, to another,
"third" party, with no permission necessary from the artist. And yet...
=> The artist is required to contact Conde Nast, and get written permission,
if the artwork is used for any commercial or advertising purpose, even after
Conde Nast's period of exclusive rights has ended. This means that if, at
any time, you ever want to use or resell the artwork to anyone else, Conde
Nast must be asked for permission, which they can withhold. This means that
even though Conde Nast may no longer own the exclusive right for a
particular use of the artwork, they can, if they chose, block anyone else,
including the artist, from using it.
[No comment from Conde Nast has been received regarding their contract as of
publication date]
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LOS ANGELES TIMES: (Im)Moral Rights
The list of companies jumping on the "All-Rights" contract bandwagon is
long, and growing longer. The Los Angeles Times has joined the party with
unusual gusto. Their standard, non-negotiable free-lance contract is a good
example of what a typical All-Rights contract might contain. Under the
terms of this contract:
=> The Times gets the "irrevocable license to any and all rights (including
all copyrights)" regarding the image. This catch-all phrase doesn't define
any rights, it simply takes them all.
=> The Times has the right to "sublicense to third parties any of the rights
granted to The Times." No additional compensation is provided for the
artist in instances where The Times "licenses" artwork to a third party.
=> The Times gets irrevocable and non-exclusive rights to all prior
assignments done for the Times. This is also known as a "blanket" agreement
(see Meredith, below); it means that any work you've done before for The
Times falls within the language of this contract. We believe the artist
should be able to renegotiate a reprint rather than sign away that right for
nothing.
=> The Times requires the artist to waive all Moral Rights to the image.
Moral Rights include the right of identification of authorship, and the
right of approval, restriction, or limitation on use or subsequent
modifications. This is the first contract we've seen that includes this
requirement. You loose all rights to claim the artwork is yours. You allow
The Times to alter and mutilate your work at will.
[No comment from the Los Angeles Times has been received regarding their
contract as of publication date]
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MEREDITH CORPORATION: Wet Blanket
A "blanket" agreement is a contract kept on file by the publishing firm
covering all future (and sometimes past) assignments. Blanket contracts
require special vigilance by the artist, because in addition to the current
job, any future jobs are controlled by its language. The Meredith
Corporation, publisher of many Better Homes and Gardens specialty magazines,
requires its contributing graphic artists to sign such a blanket contract.
The terms of Meredith's contract are sweeping, calling for the artist to
"vest all copyright and ownership rights in the WORKS in Meredith including,
but not limited to, all copyright, all extensions of copyright, all
copyright renewal rights, all derivative rights, and all rights to
reproduce, publish, perform, and display the WORKS in any and all devices,
media or modes of communication, whether now known or hereafter created,
throughout the universe."
Note: when the word "all" appears in a single sentence six
times, it's a safe bet the contract is an All-Rights contract.
Well, that covers all copyright issues, all right. But Meredith goes even
further, and demands ownership of the physical media used to create the work
itself: boards, digital files, everything. "CREATOR hereby assigns and
transfers all right, title, and interest in the WORK...to Meredith..." That
means Meredith owns the physical work. The artist may still retain
authorship of the work done for Meredith, but that's all they retain.
Artists should be aware that this is one of the most extreme all-rights
contracts around. Essentially, you make it, they own it, lock, stock and
barrel. Keep in mind that this means they are entitled to alter your work in
any way they wish. Of course, it may not make a difference, since they are
under no obligation to credit the artist, anyway. But if you sign this
contract, the possibility exists that you may see a distorted or mutilated
version of your work with your name on it.
[No comment from the Meredith Corporation has been received regarding their
contract as of publication date]
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SALON: The Pass/Fail Entrance Exam
Salon, the on-line literary magazine, apparently has decided to use their
contract as an qualifying entrance exam. They recently sent out a blanket
contract to all past contributors, to be signed and kept on file for future
assignment. Note that this contract was sent out as an independent
document, unaccompanied by any specific assignment. It is intended to cover
POSSIBLE assignments in the future, and artists who don't sign it will
(presumably) not be considered for assignments. In essence, Salon is
saying, If you ever want to do work for us, you'll accept our terms in advance.
CONTEXT: Other publishers have required artists to sign
blanket contracts, but those contracts have always been
accompanied by a work assignment. To our knowledge, Salon
is the first and only publisher to require such an
agreement up front, as a criterion for consideration.
Some of the terms of Salon's qualifying contract are of particular interest:
=> The contract states that Salon will get non-exclusive rights in
perpetuity. Anytime you sign over any rights forever, you loose the right to
negotiate on future use. Web magazines feel they need the right to publish
your work forever on the web. We disagree. Time is the foundation of all
copyright issues. Limits on time are reasonable. "In
perpetuity"--forever--is not reasonable.
=> Salon has the right to license or syndicate the use of artwork to other
publishers, in any medium or market, provided the artist is paid 25% of any
fee negotiated by Salon. Why should Salon keep 75% of the fee when it
resells your artwork?
=> If the image is reused in any publication other than Salon, this
statement must always appear in the credtis: "This artwork first appeared in
Salon, an on-line magazine at http://www.salonmagazine.com". Salon offers
no compensation to the artist for carrying this piece of advertising, which
actually lowers the value of the work.
Ironically, Salon contacted the Guild for guidance on their blanket
contract, and then proceeded to ignore all the Guild's suggestions.
[[No comment from Salon has been received regarding their contract as of
publication date]
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NEW YORKER: Changes in Attitude
In the old, pre-internet days of 1989, New Yorker Magazine offered a contract to graphic artists that was in many respects a model of fairness and simplicity.
Unfortunately, it couldn't last. The 1997 contract represents a move in the wrong direction. Here's a side-by-side comparison.
1989: Demanded "first right of refusal" of ideas and cover art, but paid generous fee just for signing contract. Establishes payment floor pegged to previous fees paid to artist in question; offers an additional "bonus plan". Grants artist right to veto reprints by 3d parties, and artist receives payment for 3d party reprints. Explicitly states that New Yorker does not own title to ideas and cover-art drawings. Artist makes any revisions required.
1997: Agrees to pay "not less than our current rate"; No bonus plan. Demands exclusive first syndication; non-exclusive anthology, third party reprint, and on-line rights, with no additional payment to artist. No artist veto of third-party use; no payment to artist for third- party use. Rights demanded are global, for full term of copyright. Grants artist cover-art ownership, but qualified by New Yorker's right to alter, crop, etc. (See below.) Reserves right to "retouch, crop, or modify the work". Demands that artist require subsequent reproducers to credit The New Yorker, and to provide The New Yorker with copies of works containing reproductions. Artist to be given credit on reprints "whenever possible."
[No comment from the New Yorker has been received regarding their contract as of publication date]
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PC World Magazine: Working Towards Solutions
Not all companies are intent on separating artists from their copyrights.
Many companies are finding ways of working with their contributors to create
equitable solutions to the copyright issue. PC World Magazine, based in San
Francisco, is in the forefront of this welcome effort.
PCW Art Director Robert Kanes pointed out that artwork originally purchased
for use in PCW Magazine may be reused in two other places: the PCW web site,
and in PCW's international editions.
To solve the problem, Kanes and his publishers called together several
regular illustrators and photographers to discuss the issue. What the round
table came up with is a reasonable contract that not only pays artists for
additional copyright transfers, but specifically limits PCW's use of the
artwork. 15% was added to all assignment prices for one-time use in their
international editions, even though less than 15% of the art typically found
in the US version finds its way into international editions. PC World also
added an additional 20% for non-exclusive use on their internet magazine.
PC World also will pay an additional 50% for any reprints.
PC World's contract is one of the best we have seen. We applaud their
dedication to their contributors, and their willingness to craft a
reasonable contract. We hope this will be the start of an industry standard.
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InfoWorld Magazine: Simplicity
After blearily looking through so many long and vaguely worded contracts
sent to us, we found it refreshing to review InfoWorld's brief
four-paragraph contract. It allows negotiations for reprints on a
case-by-case basis, gives artist first option to change artwork if needed,
provides a fairly clear cancellation/kill clause, and provides for return of
artwork within 30 days of publication.
(The brevity of the contract almost makes us overlook the fact that
InfoWorld requests the right to "publish same art in subsequent on-line and
electronic versions of the same issue of InfoWorld, but not limited to,
CD-ROM and other similar media." This uncompensated reuse of artwork is a
persistent thorn in our side.)
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Companies Without Contracts: Is rights-grabbing really necessary?
Many major magazines still require no contract or very limited agreements
and manage to thrive. Although without a contract, many items won't be
spelled out (payment schedule, kill fees, etc.), copyright remains firmly
established with the artist, since no written agreement exists for transfer.
Companies without contracts or with limited contracts include:
* Family Circle
* Hemisphere
* San Francisco Chronicle
* Sierra Magazine
* Walking Magazine
* HR Magazine
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CONTRACT TERMS--What does it all mean?
=> ALL-RIGHTS CONTRACT: a contract under which the artist who created the
work gives up any and all claims on that work in the future, including the
right to resell the work. The all-rights contract claims for the publisher
the right to use the image, in every type of medium, for all time.
=> BLANKET CONTRACT: An contract kept on file by the publishing firm,
covering all future assignments (and in some cases, retroactive to past
assignments as well).
=> EXCLUSIVE USE: No one except the purchaser of the image can use the image
without permission of the purchaser.
=> NON-EXCLUSIVE USE: Purchaser retains the right to reuse (or resell) the
image, but the artist can reuse or resell the image as well.
=>MORAL RIGHTS: right of identification of authorship, right of approval,
restriction, or limitation on use or subsequent modifications.
=> TRANSFERRING: Usually refers to the act of reselling rights to artwork.
"Assigning" is another term commonly used for reselling.
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The Graphic Artist Guild National Contract Monitor is a bimonthly e-mail
service. Information provided in Contract Monitor is accurate to the best
of our knowledge as of the date shown above. The Graphic Artists Guild
provides this information to members to help them make better informed choices.
The Guild encourages reproduction and distribution of this document for the
benefit of free-lance artists and designers. Please credit the Graphic
Artists Guild, and do not alter contents.
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