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

v o l . 4 , n o . 2

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

The response to Contract Monitor 4:1, featuring the Boston Globe
contract, was overwhelmingly positive. We'd like to thank everyone
who wrote us to tell us your thoughts. Special thanks go out to the
Boston Globe Freelancers Association for their unwavering support.
The one negative review came from Dan Zedek at the Boston Globe.
Here's his letter:

***
Dear Michael,
I was surprised and dismayed to see the posting on the Graphic Arts
Guild [sic] web site this week. I never intended to revise the
Globe's contract -- I don't have authority to do that. I want to make
sure you know that in all our dealings I did not accept any revision
or addendum on behalf of The Globe and that nothing I said should
have been taken to indicate that.You may recall that when you wrote
to ask if you could pass on your notes to the Guild, I replied "I
don't mind you saying that we were willing to spell out the terms in
plain English, in fact, I'd appreciate it. I'm not comfortable
passing
on your appendix as a model because I was a little unsure of some of
the legal terms you chose." When I received your rewritten contract;
I immediately called to tell you of my concerns and passed the
document on to our legal advisors. Because this situation arises out
of an honest misunderstanding, the Globe will pay you the amount we
agreed upon in exchange from one-time rights in the Globe and online.
If you want to work for us as a freelance illustrator in the future,
you'll need to sign the agreement. I respect those illustrators who
choose not to sign the contract as a matter of principle. For the
many who do sign, the Globe remains an outlet for some of the best and
most interesting illustrations in newspapers. Thank you for your hard
work on the assignment; I think it turned out very well. We'll send
out tear sheets and your check in the next few days.
Sincerely yours,
Dan Zedek
Boston Globe

***
Contract Monitor responds:

We at the Contract Monitor are also "surprised and dismayed", since,
as you all read in Contract Monitor 4:1
<http://www.gag.org/ubb/Forum3/HTML/000103.html>, Design Director Dan
Zedek, as an authorized representative of the Globe, stated plainly,
in writing, his willingness to accept an addendum to the terms of the
notorious freelancers' contract. The appendix was drafted, and Zedek
reviewed it. After accepting it almost entirely, he asked for a
change in one term (he wanted the 5 year restriction lifted from the
online license), to which Mr. Wertz agreed - and after which Zedek
approved the amended appendix in its entirety. Under the terms of the
Globe's own contract (Paragraph 8, to be precise), what Zedek signed
was a valid amendment/modification of the contract; his emails
accepting the appendix are sufficient by the light of the Globe's own
carefully-drafted contract clause. He then gave Contract Monitor
explicit written consent to publish a plain-English online discussion
of this negotiation.

It wasn't until three days after Contract Monitor 4.1 reported the
results of this successful negotiation (and 2 1/2 weeks after the
completion of the assignment), that Mr. Zedek became confused about
the contract terms and attempted to renege on the deal. He accepted
the addendum according to the terms and conditions specified in the
Globe contract itself. Where could this sudden confusion have come
from?

Below is a "plain English" explanation of what the Boston Globe
freelancers' contract means; also included is a discussion of the
cover letter that the Globe sends with it.

The Contract Monitor's intention in publicizing this negotiation with
the Globe is to help artists make informed business decisions, and is
and was accurate to the best of our knowledge and belief at the time
of publication. For more information, you might want to read
reactions to the contract at the website of the Boston Globe
Freelancers Association, <http://www.bgfa.net>.

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BOSTON GLOBE CONTRACT HIGHLIGHTS

=> "Upon publication of the Work(s), the Globe will promptly pay me
the amount agreed upon by the Globe and me."

Payment "upon publication"? What if the Globe doesn't publish the
work? Then you don't get paid. It's standard in editorial markets to
use the phrase "payment upon acceptance of the work". There is no
provision for ownership and return of original artwork, no provision
for compensation for loss or damage to original artwork, no provision
for kill or cancellation fees not due to the fault of the artist, and
no provision for fees for revisions.

Here's where the contract gets really interesting:

=> "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.

This is a problem if you want to sell secondary rights to the piece.
In that case, you'd have to wait for the Globe to publish the piece
first before reselling the piece into any usage category. "One-time"
publication rights as opposed to "first" publication rights would
solve this problem.

Transferring any non-exclusive right to another party for the entire
term of copyright (which is your lifetime plus
70 years, folks!) destroys your ability to license any exclusive
right to the artwork during that term to anyone else. You can't even
place the artwork with a stock agency, since most of them (even
artist-controlled ones) want to have the exclusive right to license
rights in the images for the term of the contract. The Globe isn't
offering to pay an additional fee for any additional uses they may
put the artwork to, so you'd be giving up your rights, and even your
children's rights, to grant an exclusive license in this work, in
return for zero dollars.

=> "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."

This provision makes the Globe contract what is known as a "blanket"
agreement. 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
this blanket contract is retroactive in addition to the current job
and all future jobs, any past jobs are controlled by its language.

Shouldn't you be able to renegotiate a reprint rather than sign away
those rights for nothing? What about the problems which might arise
if you have already re-licensed work from the past jobs this contract
covers?

=> "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."

This reminds the Monitor of the Condé Nast contract!

See http://www.gag.org/contracts/companies/conde.html for a
discussion of the Condé Nast contract and
http://www.gag.org/news/news_2000/conde.html for the details of our
continuing efforts to ameliorate the terms of their contract.

Let's be clear about this. This last paragraph gives the Boston Globe
the right to alter or re-purpose your work, for the life of the
copyright, in any media whatsoever, for no additional payment to the
illustrator. None. The only stipulation is that the product they
manufacture must belong to the Globe brand.

=> "The Globe shall have no obligation to publish the Work(s) which I
submit."

Taken in conjunction with the "upon publication" language discussed
above, when exactly will the artist get paid if the work remains
unpublished? Nor is there any provision for reversion of rights back
to the Artist if the piece remains unpublished.

=>"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."

Notice the language about "email messages" as signatures to the
agreement. This applies to Mr. Wertz's negotiation with Mr. Zedek,
since Mr. Zedek sent Mr. Wertz an email agreeing to the amendment
language offered. As to the rest of this section, because it says
that this Agreement sets forth "the complete understanding and
agreement," with no mention of any other documents, the assurances
offered in the accompanying cover letter (discussed below) have no
legal effect whatsoever.

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CONTRACT COVER LETTER

Here's some highlights from the Cover Letter that is being sent along
with the Globe contract.

=> "I'm sorry for the misunderstandings this contract has caused and
I hope the explanation below makes our intent clearer. Who owns what
and when:

1. We are buying the rights to print your work in the Globe
newspaper."

Okay, sounds good. This is true.

=> "2. As soon as your work has been published in The Boston Globe
newspaper (or 48 hours after publication within our main circulation
area), you retain all rights and can resell the work anywhere you
wish."

This is not exactly true - you retain a gutted copyright that is
impaired by the inability to ever transfer an exclusive license to
past, present, or future work created for or used by the Globe.

=> "3. We're also getting your permission to reprint your work if we
reprint the work in The Boston Globe or a Globe publication. For
illustrations, this happens rarely."

This is also true, though woefully incomplete. However, if it happens
rarely that an illustration is reprinted, then the pertinent language
doesn't belong in a blanket illustration contract. Rare occurrences
are best dealt with in addendums that apply to the specific work for
which the "rare" grant of rights is being requested.

=> "4. We are also buying the rights to post the work online on our
website, boston.com. Boston.com reposts the Globe each day, and if it
uses your illustration (and it almost never uses illustrations), your
work would accompany the same article with which it appeared in the
paper. If you have concerns about an individual assignment being
posted online, we can check with boston.com to see if the site is
interested in using it. Of course, your work would be fully credited
online."

If Boston.com "rarely" uses illustrations, why not deal with the
occasional electronic re-use on a case-by-case basis, instead of in a
blanket retroactive contract?

=> "5. We DO NOT HAVE THE RIGHT to resell your work to any outside
party nor do we have the right to limit to whom you resell it. We
won't put your work on coffee mugs, T shirts and the like."

This is patently untrue. See our discussion above of their
non-exclusive license.

In a world where corporate branding in the area of consumer goods is
a growing trend, signing this Agreement would cut artists off from a
revenue stream from Globe-branded derivative works bearing the
Artist's images. It would also render the artist incapable of ever
granting an exclusive license for derivative works (including
consumer goods) bearing the artist's own images.

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Remember: Without you, we're nothing. 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. And send us
any contracts you think we would be interested in seeing.

LEGIBLE hard copies of contracts should be MAILED (not faxed) to:
Contracts
Graphic Artists Guild
90 John Street, Suite 403
New York, NY 10038

Until next issue....
Sincerely yours,
The Contract Monitor
# # #

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