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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G R A P H I C A R T I S T S G U I L D

N a t i o n a l C o n t r a c t M o n i t o r

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May 2001 -- BOSTON GLOBE CONTRACT UPDATE
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Greetings to our Contract Monitor Subscribers!

Remember the Boston Globe "master contract" we told you about last
April? It featured the usual one-time grant of exclusive rights, and
allowed creators to retain their copyrights. BUT... also included in
the "rights package" were ongoing non-exclusive electronic archiving
rights and a breathtaking array of licensing and sublicensing rights
(including the right to make & sell derivative works based upon the
original work), in perpetuity -- all for the one original editorial
fee. The contract applied retroactively to all PRIOR work done for
the Globe by anyone who signed it. Worst of all, it was a
take-it-or-leave it contract; freelancers were told they had to sign
it, or risk never working for the Globe again.

The contract was presented to all freelancers who create work for the
Globe-- artists, writers, photographers. Many refused to sign, and
gave up working for the Globe, at great sacrifice to themselves and
their families. Some banded together and filed a lawsuit challenging
the legality of the contract. You can read about the Boston Globe
Freelancers Association lawsuit at their website. Click on
<http://www.bgfa.net> to find out more.

We are happy to report that things may be changing at the Globe, and
for the better-- at least for illustrators.

Two weeks ago, illustrator Michael Wertz, a Guild member from the
NorCal Chapter (and Contract Monitor Newsletter founder) was
approached by the Boston Globe to do a couple of editorial
assignments. Michael said he couldn't work under the contract as
written. The Globe Design Director indicated he would be willing to
accept a rider or appendix adjusting the terms of the master contract.
Michael hired IP/copyright attorney Daniel Abraham to draft an
appendix to the contract which would neutralize its most
objectionable aspects.

We are pleased to report that the appendix Daniel drafted for Michael
was accepted by the Globe, with some minor adjustments. This allowed
Michael to accept the assignments offered by the Globe.
This acceptance of new terms marks significant movement on the part
of the Boston Globe. While the Globe requested that the the actual
language of the Appendix added to the contract not be published here,
they expressed no objection to the Contract Monitor discussing the
terms of the Appendix in plain English.

Here are the high points of the new grant of rights language accepted
by the Boston Globe:

1) To ensure that the Appendix was recognized as part of the
contract, a line was written in above the signature lines stipulating
that the contract was accepted only if the Appendix was fully
incorporated.
(It's important to do this in just this way, so that the old contract
language would be unenforceable against the artist if the Appendix
became separated from the original contract document, or if the
commissioning party neglected to sign the Appendix.)

2) The Appendix itself appeared below the signature line. It
stipulated that, regardless of anything to the contrary in the second
and third paragraphs of the Globe contract (the paragraphs dealing
with rights and re-use), the Globe had an exclusive license only for
first-time print use.
(This is important, because the Globe didn't want their terms crossed
out on the actual document. It was therefore necessary to specify
that the new language in the Appendix overrides the old language in
the original contract.)

3) The Globe's non-exclusive license was limited to the
Globe's use of the image(s) on the Globe's website only, and
only in conjunction with the article with which it first appeared
(this is often called "in context" usage).
The Globe rejected an attempt to place a time limit on the website
usage.
(What this means to you: when you are negotiating your fee for
first-time print use, you need to take into account that you are also
granting the right to "in-context" website publication.)

4) The sole exception to the in-context website use was for
facsimiles of the print edition, whether on microfilm, microfiche, or
CD-ROM, for direct distribution to public libraries and databases
(schools and public libraries), and for the Globe's own
reference-only archive.
(This kind of archiving is not usually done for profit, but to
facilitate access for "fair use" of published works under the
copyright law.)

5) Private archives and databases, such as Lexis-Nexis, were
specifically excluded from the exception above.
(Licensing to private or commercial database services is typically
done for profit by the seller/licensor. Under the original contract,
the Globe had the right to license these rights to third parties
without paying you an additional fee. )

6) Any reproduction or distribution for or through private archives
and databases by the Globe requires the Globe to negotiate a license,
and an additional fee, from the illustrator.
(Under the new language, you can control and profit from the
licensing of your work to these image resources.)

7) No modification, adaptation, or derivatives of the work were
permitted.

8) The Globe was barred from re-licensing the work to third parties,
or from any other syndication, licensing, or distribution, without a
written agreement from the illustrator and payment of an additional
fee.

In summary, this Appendix as drafted by Daniel Abraham, Esq. and
accepted by the Globe limits exclusive use to the standard first-time
print usage; limits non-exclusive use to publishing the image on the
Globe website in conjunction with the article, archiving in the Globe
reference archive, and distribution in facsimile only to public,
non-commercial reference archives.

Alteration of the work is prohibited, and any relicensing or
distribution, whether in syndication or sub-licensing or to private
archives, requires negotiation of the license to do so and payment of
an additional fee.

We'd especially like to point out that the most objectionable
features of the Globe contract-- its retroactivity and open-ended
licensing provisions-- are rendered completely moot by this
negotiation.

Because the Globe's non-exclusive license is limited to use on its
website with the original article, alterations or derivatives are
prohibited, and licensing and syndication are prohibited unless terms
for those uses are negotiated in writing and an additional fee paid,
the free usage for the life of the copyright which the original Globe
contract extracted has been voided, and replaced by a commitment to
pay artists for future usage of their work.

We want to thank Michael Wertz for his willingness to take a stand
and negotiate a better deal with the Boston Globe; he has led the
artists' community by example. We want to thank Daniel Abraham, Esq.,
for drafting the Appendix to the agreement. We want to thank the
Boston Globe for being open to negotiating in good faith with
freelance illustrators.

But most of all, we want to thank everyone who refused to sign the
contract as it was written-- especially our friends and compatriots
of the BostonGlobe Freelancers' Association, led by Debra Cash/NWU
and Chris Fitzgerald, Photographer. Their sacrifice for the greater
good, their courage and their honor are a beacon to us all.
We hope that this is just the beginning of a new, equitable
relationship between the Globe and the freelance talent upon whom
they rely.

We will keep you apprised of further developments in this story.

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Disclaimer: This information is true and accurate as of the dates
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