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.

*CONTRACT MONITOR 5:1 *

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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GRAPHIC ARTISTS GUILD

National Contract Monitor

Vol.5 , No. 1

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Welcome to the Contract Monitor Newsletter!

The Contract Monitor is up and running again to help you understand freelance visual artist contracts and make better informed
business decisions. Contracts between media publishers and graphic artists have always widely varied - some being better than others. In recent years, we have seen a fundamental change taking place in contracts offered by media publishers, a change that is redefining the nature of the relationship between the freelance artist and media publishers.

Increasingly, media 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.

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THE ALL-RIGHT CONTRACT: Not all right

While "all rights" can mean different things to different media publishers, under a typical All-Rights Contract, the media publisher pays a fee (usually single payment) and purchases the right to use and re-use the piece, in any medium, any number of times. 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.

It has been awhile since the last Monitor, but some things don't change. The "all rights" Bandwagon is getting bigger and longer. Recently, the Carus Corporation revised its standard contract to all rights. Carus Corporation publishes children's magazines…you know the ones that you read while waiting in the pediatrician's office - Babybug, Ladybug, Spider, Cicada, Cricket.

You can check out the submission guidelines for their magazines at their web site http://www.cricketmag.com

The Carus "standard" contract is short but not very sweet - only two paragraphs. The contract is amazing in that it takes one sentence to take all rights and ownership of the art:
"I, XXXX, for the consideration of the sum of XXXX and other good and valuable consideration sell, transfer, assign, and convey to the Cricket Magazine Group all existing copies of illustrations ("Graphics") to accompany the article XXXXXX and all my right title and interest therein, including but not limited to the right to copyright and publish and otherwise use the property in any way that Cricket Magazine Group in sole judgment shall determine.
That one sentence, takes it all away, Whatever interest and rights you have in the art you create is gone. Your work can be displayed on the web, slapped on merchandise, used for multimedia presentations and published in books over and over again and not a dime more will you be entitled. Your work can be cropped and altered until you hardly recognize it. You have no say at all, once you sign on the dotted line.

The Carus new rights contract asks for the "right, title and interest..." in the work. "Title" means the company owns the original. Like owning the title to a car or house. You are no longer the legal owner of the work that your created. Carus Publishing owns your original work, and can do with it what it wants and profit from your creativity over and over and over.

One illustrator who has work for Carus over the past several years see the new rights contract this way:
"The pay from Carus has never been very good, but they've always supplied a lot of time to get the work done and the magazines are viewed as a good showcase for illustrators throughout the industry. I've been able to sell the secondary rights to many of the images I've done for Carus so I've been able to add to their less than adequate fees. My feeling is that whatever advantage there was to working for Carus has now been nullified by their unfair work agreement."
Marianne Carus, the head of Carus Published recently issued this statement:
"Regarding our new rights contract: yes, Cricket Magazine Group is now buying all rights to text and illustrations. With the addition of the Cobblestone Magazine Group, DIG (9 and up), and our brand-new ASK (7-10) [in between MUSE (10 and up) and CLICK (3-7)], we find it impossible to deal with all the different kinds of contracts. So, after a lot of consideration and discussion, we made the difficult decision to simplify and standardize our rights procedures.
In addition, the proliferation of electronic uses of our stories, poetry, and illustrations has made it necessary to change our thirty year policy of letting our authors keep all rights. Our small rights and permissions staff can no longer handle the many requests we get for material that appeared in any of our magazines. Each request involves long searches for authors' or illustrators' addresses, phone numbers or e-mail, as well as administering contracts and pay outs. But, of course, we want to continue our commitment to promote our brilliant authors and illustrators (many of whom started their publishing careers with CRICKET Magazine) by giving them the highest possible visibility in the field of children's literature.

We love and admire our authors and illustrators and want to help as much as we can to further establish their careers in this field. The economy, such as it is right now, also played a part in our decision. The publishing industry, and especially children's magazines, were hard hit and continue to struggle. We are a small publishing company, but we will never compromise our belief in giving children only the highest quality literature and illustrations. Mass market products are everywhere, surviving and doing well, especially those supported by TV, but we strongly believe that quality needs to survive as well, now more than ever before. We are doing whatever we can to make this happen and we sincerely hope that our authors and illustrators will come to understand our decision."
If the staff is so bogged down with researching the authors and illustrators, can the only solution be to issue all rights contracts instead of hiring additional staff to help? We at the Contract Monitor wonder if in simplifying the contract, Carus Publishing can now tap into the lucrative secondary market of reproduction and reuse. So much for love and admiration. If Carus wanted to simplify the whole process, why then was another illustrator with able to negotiate a fair contract?

Note: This contract was dated after Marianne Carus' statement:
"The rights covered by this commission will be:

A. first publication rights plus promotional rights as further described. The physical art will be returned to you.

B. an additional, non -exclusive right to reprint the Work in any volume, anthology or other printed form published by the Magazine Division of Carus Publishing Company to be for sale. You will receive a specific license upon exercise of the option and, offered a pro rata share of a total X% royalty of net sales.

C. the non-exclusive right to reproduce, distribute or display the Work on electronic databases, on-line networks, interactive multimedia software or any electronic system or medium now existing or hereafter developed, for inclusion in Future projects published by the Magazine Division of Carus Publishing Company and offered for sale to the public. Artist will be notified before the election of such option and fees will be negotiated at that time."
What is going on here?

It's simple. The second contract was negotiated. The illustrator didn't like the standard all rights contract. He negotiated with Carus for fair terms and conditions. He stuck up for his rights and held out for a good contract. Most publishers will bend specially if they value your work so it is absolutely worth the effort.

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NEGOTIATING: Three simple tips

Contracts are not always a black and white choice. The Monitor has repeatedly advised against rigid "take it or leave it" contracts. There is always some wiggle room with which to negotiate for better terms. However, you have to be specific and know what you want. First educate yourself so you know exactly what the contract says and means. Remember, written contracts were developed to avoid problems and should be understood by both parties. A written contract is a formalized handshake. If you do not like the terms, negotiate. As my Mom has always said, "you'll never know if you don't ask".

Here are a few tips on negotiating:

Tip #1: Understand the terms of the contract

You have to decipher the legalese. In the Carus standard contract, what exactly does "sell, transfer, assign and convey" mean? Look up confusing terms in the dictionary, in the Guild's "Pricing and Ethics Guide" or at the Guild's Contract Monitor web site http://www.gag.org/contracts/contracts.html. <http://www.gag.org/contracts/contracts.html>

Tip #2: Consider the contract as a whole

What is the connection between one clause and another? Is the fee (usually in one clause) adequate for the deadline (in another)? In previous Carus contracts that our illustrator was given, there was a lot time to do the work but a not so great fee. However, he was able to retain the right to re-use his work and the compensation from the secondary market made up for the low fee that Carus and the contract paid.

Tip # 3: Know what you need

Remember the Rolling Stones’ song "You can't always get what you want, but if you try sometime, you might find, you get what you need". What is doing this project worth to you? Carus publishes magazines that have the reputation as a showcase for up and coming illustrators but is the exposure worth giving away all rights to the work you created?

Learn More about negotiating at http://www.gag.org/contracts/contracts.html click on the link Negotiate It. There are tips and a handy checklist that will help you wade though the legalese of your next contract. Also at the site is a useful link to a full glossary of contract terms.

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Without you, we're nothing! The Contract Monitor needs you to make it work and we encourage you to participate with us. We welcome contracts for review and possible inclusion in future issues of the Monitor. We are looking for contracts that encompass all aspects of graphic design - retainer contracts, temporary work agreements, web design contracts and teaching/course development contracts as well as illustrator/publisher. The contracts, however must not have any non-disclosure agreements. We follow the rule of strict confidentially.

You can e-mail us at contractmonitor@gag.org with your questions and comments.

The Contract Monitor is a bi-monthly email newsletter geared towards the creative visual media community. Information provided in the Contract Monitor is accurate to the best of our knowledge as of the date shown above. The Guild proves this information to members to help them make better business decisions.

The Guild encourages reproduction and distribution of this document for the benefit of freelance artists, illustrators and designers.

Past issues of the Contract Monitor can be found on the Graphic Artists Guild's web site at: http://www.gag.org/contracts/contracts.html

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Inquires and information are always welcome.

Graphic Artists Guild
Contract Monitor
90 John Street, Suite 403
New York, NY 10038