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November, 2015

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ASMP Issues An Alert regarding Their Position on Time Inc. Contract

ASMP issued the following alert to exercise “extreme caution”, which we are posting here, in it's entirety on the Time Inc (NYSE: TWX) contract:

Open letter to Time Inc. regarding one-sided independent photographer contract

ASMP has joined with the National Press Photographers Association (NPPA), the Digital Media Licensing Association (DMLA)American Photographic Artists (APA), and the Professional Photographers of America (PPA) in a letter to Time Inc. regarding our collective objections to the terms and conditions under which professional photographers are being required to operate come January 1st, 2016. Under the terms of the new contract, first detailed by Photo Business News ( here ), many of the fees and rights demands are unfair to professional photographers and will severely limit the ability of ASMP members to earn a sustainable living. The letter which ASMP co-authored with theNPPA and others can be viewed here.
ASMP continues to work both publicly and behind-the-scenes tirelessly on behalf of professional photographers. Just as it has in the past with Conde NastGetty Images, and Knight Ridder.

Founded in 1944, the Society amended it’s charter in 1949 to begin “the fight to represent magazine photographers in matters of wages and working conditions.” In 1967, ASMP issued a “Declaration of Conscience” stating that “reproduction rights and ownership belong to the photographer; that each use of a photograph must be compensated for; that limitations on a photographer’s freedom to reuse his own creations must be related to the purpose and protection of the publication and must be limited in time; and that no ASMP member or unaffiliated photographer should agree to terms inconsistent with the resolution.” A two-year battle with Time Inc. was waged, and many ASMP members jeopardized their livelihoods before this basic right was recognized by the publishing industry. The stock photography business, and the benefits photographers realize from it, is a direct result of ASMP’s stand.

Just as in 1967, when ASMP engaged directly with Time Magazine, and served the interests of not just ASMP members, but all photographers, ASMP continues to work hard to foster good and fair working conditions for photographers in all of Time Inc.’s publications. You can read more about the founding of ASMP and the efforts on behalf of photographers here.
ASMP Executive Director Tom Kennedy states:

“I believe photographers are willing to work with Time Inc. to enable a new management system that would enable better tracking of assignments and to foster a consistent assignment approach across its properties. But it is essential that such an agreement not be done on the basis of an effort to unilaterally impose draconian contract terms that do not take into account the needs of photographers in their employment. I think it is far better to enter into discussions with photographers to produce a fair and mutually beneficial contract solution that also addresses Time Inc. business needs.”

ASMP urges any photographer considering signing this contract to proceed with extreme caution.
Follow updates on Time Inc. independent photographer contract on the current ASMP News page.
If you have any questions, please feel free to ask.


Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.

EyeEm – The Joke Is On Us

The sad joke amongst photographers is how many clients seem to think “will work for photo credit” is fair and reasonable; and the varied responses include “my landlord won't take photo credit for my rent” and “I can't eat a photo credit”. Unfortunately, EyeEm is capitalizing and compounding on the joke “there's a sucker born every minute” because many of those suckers are talking themselves into shooting for credit.

That's right.

There are several over-arching concerns any professional photographer should have with the EyeEm business model. David Robin, photographer and advocacy lead for the American Photographic Artists (APA) trade association , has outlined several problems. Among them –

  1. EyeEm's pricing model undercuts the established market and extremely undervalues and commodifies professional photography. EyeEm's compensation rate to photographers for stock imagery with unlimited rights in perpetuity is as low as $10 ($5 if split with a third party). Even more egregious, EyeEm has dredged the bottom and doubled down on their exploitation model by only offering a credit line as compensation for photographer-funded spec work with unlimited rights in perpetuity for use by Fortune 500 corporations. Clearly their pricing sets a dangerous precedent that, if it supplants established pricing models, will in the end deprive pros from making a viable living. 
  2. The fact that EyeEm is based in Germany with no established legal entity in the U.S. should be a concern for any U.S.-based photographer. The cost and logistics of a U.S. citizen pursuing any legal recourse against a German based company for any breach or cause would be extremely prohibitive. There are many examples of companies based overseas that have been guilty of a breach of contract and/or illegal activity that went un-pursued leaving victims with limited to no recourse. 
  3. EyeEm has inappropriately portrayed their business model as a benign social media site rather than the for-profit stock photo and spec-assignment agency they are. 
  4. EyeEm has inappropriately lifted many of their contractual stipulations from social media TOS agreements. This deception is financially convenient for EyeEm, their investors and image buyers, but devastating for photographers and image creators. 

Here is an outline of the concerns with EyeEm's Terms of Service and Third Party Distribution Agreement. Here is the delineation of the most troubling stipulations in these documents:

  • Clause 5.2 Undermines the creators copyright (and future value of their work) by allowing EyeEm to have the unlimited royalty free ability to sub-license the User's work worldwide in perpetuity to any and all unnamed third parties without express approval nor compensation to the creator. 
  • Clause 5.2.3 Undermines the creators' copyright (and future value of their work) by allowing EyeEm to use the work for any and all advertising for EyeEm and any unknown affiliates in perpetuity without express approval nor compensation to the creator. This clause goes on to allow EyeEm to modify or change in any way they see fit the creators' images without express approval. Even if that modification might expose the creator to undue legal and financial ramifications caused by infringement, privacy violations, defamation etc. not of the creators' making. 
  • Clause 5.3 This inequitable clause allows EyeEm to post or use a creators' images without proper copyright notice or identifying the creator in any way. In this way EyeEm potentially undermines the creators' ability to prove ownership if infringement should occur. This is especially troublesome as it sets up a claim of Fair Use by an infringer under the Orphan Works carve out. 
  • Clause 7.2 EyeEm forces creators to take full legal and financial responsibly for their content even if that content might have been altered and / or modified without their approval by EyeEm (see 5.2.3) and in so doing exposed the creator to potential infringement, privacy violations, defamation etc. without their knowledge nor approval. 
  • Clause 8.1 This extreme indemnification clause places an undo financial and legal burden on creators to protect EyeEm, a wealthy global corporation and any and all third parties they associate with, against any and all damages or lawsuits arising from events that the creator may have no control over including defamation, infringement, privacy violations etc. In addition this section fails to provide any reciprocal indemnification for the photographer by EyeEm and it's affiliates. 
  • Clause 9.2 This places the undue burden to ensure the “legality of any Content” on the creator even if EyeEm or it's affiliates should alter that Content without the creators' knowledge nor consent and by so doing expose the creator to legal ramifications not of their making. 
  • Clauses 9.5 – 9.6 These clauses expressly release EyeEm and its affiliates from having to pay for any and all legal or financial damages if EyeEm or it's affiliates should alter content without the creators' knowledge nor consent and by so doing expose the creator to legal ramifications not of their making. 
  • Clause 10 Allows EyeEm to change this signed and executed agreement at any time and for any reason at their sole discretion without being obligated to directly notify creators via email in advance. A legal and binding agreement such as a TOS is not changeable under the law unless all parties proactively agree to the changes. Short of that, the accepted and ethical way for EyeEm to go about changing the terms of the TOS is to send an email to each and every member with an appropriate amount of lead-time to either accept or reject the changes, as banks have done for decades. 

There are also several critical omissions from their TOS that are standard and required to ensure all parties are protected:

  1. EyeEm has purposely omitted any stipulations that outline their responsibility to collect and hold funds in a fiduciary capacity and further fails to stipulate that these funds are being collected on behalf of the creator and are not the property of EyeEm. This clause is standard in any agreement between an entity or person collecting funds on another's behalf. 
  2. EyeEm has failed to delineate the method and timeline for the distribution of monies being collected and held on the creators' behalf and have failed to provide remedies should EyeEm default on their required duties in this regard. 
  3. EyeEm seems to purposely fail to delineate the prevailing law, venue and method for resolving disputes with creators. While deceptive and non-standard for American based companies, this glaring omission seems to be a common tactic used by overseas corporations doing business with U.S.-based photographers by unnecessarily withholding this critical information from the creator, EyeEm anticipates that U.S.-based creators won't realize the extreme cost and prohibitive logistics of bringing a case against EyeEm for breach, in German courts. If EyeEm wanted to be truly transparent and supportive of U.S.-based photographers, they would create a legal entity in the US to facilitate the fair resolution of disputes. At the very least EyeEm should state the venue, prevailing law and method for reparations in their TOS. 

In terms of their third party Distribution Agreement, there are several areas in the Agreement that appear purposely opaque (and/ or omitted) which hold a potential for the photographer to be unwittingly exploited. The key areas of concern are:

  1. EyeEm fails to list the third parties the creator is agreeing to have their images sold through. 
  2. EyeEm fails to provide the unnamed third party's terms and conditions the creator is expected to adhere to. 
  3. EyeEm fails to acknowledge that they have partnered with Getty Images as a third party and does not delineate the onerous terms of the Getty Images in the Agreement though they require the creator to adhere to them. 
  4. EyeEm fails to outline how the funds will be split between the third parties and the creator. 
  5. EyeEm fails to delineate the method and timeline for the distribution of monies being collected and held on the creators' behalf and have failed to provide remedies should EyeEm and / or the third party defaults on their required duties in this regard. 

So, how does EyeEm do this? They entice you with “missions” you don't get paid to complete. Here's one for Mercedes Benz:

Your Mission: The sheer beauty of nature, an incredibly stylish couple or perhaps some breath-taking architecture… this mission is all about finding the elegance all around us. If elegance is the quality of being graceful and stylish in appearance or manner, what images convey this? Show us to take part in this mission.

Your Reward: The winning five images will be featured across Mercedes Benz social media platforms, which have a cumulative reach of over 17.5 million people. The top images will also be featured on the EyeEm blog as part of an image collection.

Then there's one for Motorola, where they pitch it as:

What’s super cool about these missions is that your photo could end up as a featured wallpaper on one of Motorola’s phones. Motorola are putting together a range of images to be featured as wallpapers on their devices, and are looking for your colorful photos to be included!

In the end the EyeEm business model is representative of the pervasive devaluation of professional photography and a race to the bottom to see which entity can charge the least for photographs while covering their risk on the backs of the ones they rely on for their product. Without the proactive participation of pro photographers, however, this practice could not succeed.

(Comments, if any, after the Jump)

Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.

Equality for None, Time Inc Lowers the Hammer on Creatives

On November 6, Photo Business News reported and provided commentary on the new Time Inc (NYSE: TWXcontract which they unceremoniously presented to their contributors (Times' Failed Attempt At Fairness and Equity, 11/6/15). On November 10, Time Inc contacted Photo Business News and provided the following statement in response to the article:

We have equalized our photography rights and rates across our 23+ brands. This is an industry standard. Our new contract is fair and equitable. A huge number of photographers have already signed the new agreement.”

Let's break down the statement:

equalized our photography rights and rates across our 23+ brands”

  • so work done for the smallest circulation publication of the 23+ brands gets paid at the rate of the flagship publication.  Time no longer thinks that circulation should be a factor in usage, apparently. This does not square with the fact that their advertising rates are absolutely affected by circulation.
  • The demand for copyright to your work (in their requirement of a work-made-for-hire clause) on all video content is a massive rights grab that is completely unnecessary, and certainly not a factor in what they are paying.




“This is an industry standard. “

  • Simply saying it's a standard does not make it so. Time actually has a leadership role to play here in providing a living pay scale, and this is not it. 

“Our new contract is fair and equitable. “

  • Again, saying it's fair and equitable does not make it so. The rights demands are unreasonable, and as outlined in the previous article, the actual passage of time shows that equity is definitely not a part of the equation in determining fair rates and terms. 

A huge number of photographers have already signed the new agreement.”

  • Saying a variation of “everyone else is doing it so you should too” doesn't make it right, reasonable, or fair. In fact, I've heard from more than one photographer who has signed it and when asked further, said “I didn't even read it, I do like one shoot a year for them…” – not smart business, in that case. Growing up in the San Francisco Bay Area, the common refrain when I tried the “everyone else is doing it” excuse with my mother, was always responded to with “well, if everyone else was jumping off the Golden Gate Bridge, would you?” 
  • Not everyone is going to sign it. We are aware of a number of photographers who have stated they will not.
  • When you are a contract photographer and committed 100 days a year under that contract, you have a significant amount of sway over someone because they are essentially beholden to Time Inc for 50% of their income, and with 60 days, not likely to be replaced in that period of time. You can be sure though, that more of them will be disgruntled and otherwise feeling taken advantage of. This will reveal itself in their commitment, no doubt.  Many photographers use 100 days of work per year as basis for calculating all their costs, so for many, this represents their entire client base, which is reasonable when you factor in that there is prep time and travel time as well. 
  • Thus, this is akin to going to an employee and substantially and materially changing the terms of their employment. Except here, Time Inc can (and has) terminated all contracts effective 12/31/15 and is requiring this contract be the new terms under which they will work.

Sign this contract at your own peril. It will not work out well for you in the long run. You will be, effectively, jumping off a bridge without a safety net, and, rest-assured, the next contract they demand you sign will be even worse. History has not shown contracts to get better over time. This TIME is no different.

(Comments, if any, after the Jump)

Please post your comments by clicking the link below. If you've got questions, please pose them in our Photo Business Forum Flickr Group Discussion Threads.

Times' Failed Attempt At Fairness and Equity

On November 2nd, Norm Pearlstine (LinkedIn) penned a missive to “Photographers Who Work with Time Inc.” where he harkened back to the roaring 20's and the origins of Time and Life magazines (NYSE: TWX), and mentioned the “power of iconic photography” and suggested that “our commitment to original photography is as true today as ever”, yet what Norm fails to recognize, in the new Time contract he's proffering, detailed and analyzed below, is that  Time has NOT factored in any kind of cost-of-living into what Time is paying their photographers, and is trampling on the rights of photographers like a 20's flapper stomping on the dance floor.

Perhaps they should remember that it's the talents of these photographers to create striking visuals that boost single-copy sales, and the talents of writers, reporters, and photographers, to create compelling content that readers will want to consume. This contract fails at facilitating a living wage.

First, check out this Bureau of Labor Statistics calculator (here) and you'll see that to have the same buying power in 2015 as $1.00 in 1925, you'd need $13.60. So, has Time increased their assignment rates 13X since then?

Let's start with 1980 rates.

Going back to 1980, and adjusting for inflation their rates should be over $1,000 for what used to be a $350 assignment back in 1980. Exhibit A in the contract shows a 2015 rate of $650. That means, that what you were earning at $350 in 1980 only gives you $191 in buying power today. We wrote about this extensively in December of 2014 – The Pathetic and Paltry Time Magazine Assignment Rate & Rights Grabs (12/31/14). I would love to find out what Time paid as an assignment in 1925 and plug it into the same calculator, because if they paid even $100.00 for an assignment in 1925 the same assignment would be $1,359 today. So, to reverse the equation, $650 in 2015 means that an assignment rate of $225 in 1980 was fair, and just shy of $48 an assignment in 1925. In neither case was it fair, and in 1980 they paid much more than that.

But I digress.

Pearlstine's missive uses several softening touches to what is a really really horrible contract. He even says “Some photographers have already signed a cross-brand agreement” as if to say “others don't have a problem with it so you shouldn't either. ” An attached letter by Jeniqua Moore, Time's Associate Director, Digital Asset Contracts and Rights Management, requires you to agree to what's written or “No new assignments will be made to you after January 1, 2016 unless you confirm your agreement to the attached new Time Inc. commissioned photography agreement by signing the agreement.” They also include a notice of termination, writing:

“On behalf of Time Inc. and each Time Inc. division, affiliate, subsidiary, brand, and publication, this letter constitutes notice of termination of each Prior Agreement, effective as of January 1, 2016. All rights to photography you created under previous agreements between you and Time Inc., or any Time Inc. division, affiliate, subsidiary, brand, or publication, will continue to be governed by those agreements.”

So, what does the new contract dictate?

(Continued after the Jump)

Let's look at the contract and break it down:

TIME INC. COMMISSIONED PHOTOGRAPHER AGREEMENT 

This agreement (“Agreement”) is made and entered into as of January 1, 2016 (the “Effective Date”), by and between Time Inc., including its affiliates, subsidiaries, and divisions (each, a “Publisher Brand”), including editorial publications published, managed and/or operated by Time Inc. for third parties (unless such publications send you a separate agreement), and __________________ (“you”). Collectively, Time Inc. and Publisher Brands are referred to in this Agreement as “Publisher.” This Agreement governs the rights and obligations of Publisher and you with respect to Photographs and Videos you create in connection with each Assignment (as defined in Section 1) after the Effective Date of the Agreement, but not any photographs, videos, or other content you created or submitted to Time Inc. or any of its affiliates, divisions, or subsidiaries under any prior agreements. Rights granted by you are specified in Sections 3 and 4 and payments to be made to you are described in Section 6. Your performance of any Assignment or submission of any Photographs and Videos constitutes your acceptance of this Agreement.  

COMMENTARY:
The above is standard boilerplate. Nothing wrong with that.Keep in mind here, all video you produce, and make no mistake about it, all smart phone photos you produce, are also governed by this agreement. Just because you used your professional cameras for much of the assignment, if you are using a different camera that happens to be a smart phone too, all the content you shoot with that device is also governed by this agreement.

1. Assignments. This Agreement will commence on the Effective Date and will continue unless and until terminated as provided in Section 16 (the “Term”). Each Publisher Brand based in the United States (an “Assigning Brand”) may engage you from time to time during the Term to create for, and deliver to, the Assigning Brand: (i) photographs, including outtakes if requested, suitable for the Assigning Brand (each, a “Photograph”) and, if also requested and agreed, (ii) video, motion pictures, and audiovisual works, including outtakes, suitable for the Assigning Brand (each, a “Video”). The Assigning Brand will communicate to you, before the applicable shoot, in an email or other writing, the Photograph/Video subject(s), due date, photo shoot expense budget, and other information relating to the particular project (the “Assignment”). Publisher Brands retain sole discretion over whether and when to use, and authorize the use of, the Photographs and Videos.

COMMENTARY:
Now it starts to get murky. “Assigning Brand” isn't defined.  It may be obvious where they are saying related brands could be for Time and Time for Kids, or People and People en Espagnol,  but what about Golf Magazine and Money and Fortune? Consequently you really don't know what rights you are assigning away to whom, or from whom you can expect to receive reuse payments under the “Affiliated Brands” schedule.Throughout this contract, video is referred to, and it should be noted that these could be full on productions requiring an entirely separate crew, or a simpler behind-the-scenes video of the shoot. Make certain you're estimating a completely different fee set for also being the producer of those videos.

2. Delivery. You shall deliver to the Assigning Brand all Photographs and Videos created pursuant to each Assignment, as specified in the Assignment or otherwise requested by the Assigning Brand editor, whether in the form of original transparencies, negatives, contact prints, high resolution, low resolution, digital media, video, audio-visual, computer generated work, or any other format now known or hereafter developed, no later than the due date set forth in the applicable Assignment, time being of the essence, or after such due date if requested at any time by the Assigning Brand.

COMMENTARY:
This requires you to deliver all your raw files (stills and video) on request. Be sure to allocate extra DAYS for the FTP time on this.

3. Rights Granted. You reserve and retain all rights in and to the Photographs (excluding the Idea House Assignments, as defined in Section 4) that are not specifically granted to Publisher under this Agreement, including ownership of the copyright. You hereby license to Publisher, the Rights (as defined below) to each Photograph created pursuant to an Assignment (excluding the Idea House Assignments), exclusively to the extent specified in Section 5 (Embargo). “Rights” means, collectively, the Assigning Brand Use & Reuse Rights, the Affiliated Brand Use & Reuse Rights, the Syndication Rights for Sports Illustrated, and the Time Inc. Photo & Food Studio Rights, each as defined below, each and all including the rights to reproduce, distribute, publish, publicly perform, display, download, transmit, and store the Photographs, and authorize and license the exercise of such rights to and by third parties, each and all throughout the world, in perpetuity, in any and all media, formats and methods of transmission now known or hereafter developed.

(a) “Assigning Brand Use & Reuse Rights” means the following rights:
(i) The rights to use and reuse, and authorize and license the use and reuse of, the Photographs in and in connection with any and all publications, products, content, and services now existing or hereafter created and displaying or exhibiting the name, trademark, or logo of the Assigning Brand, including the same or a related brand or title (for example, TIME and TIME for Kids, TIME-branded books and bookazines, and any TIME foreign editionspublished by Publisher) (each, the “Assigning Brand Product”), including in connection with the sale, licensing, and distribution of Assigning Brand Products to and by Affiliated Brands and third parties;

(ii) the rights to use and reuse the Photographs in connection with the marketing and promotion of the Assigning Brand or any Assigning Brand Product (including any distributor or licensee of such Assigning Brand Product); 

(iii) and, without limiting the generality of the foregoing, includes the “Cover Use & Reuse Rights,” defined as the rights: (A) to use a Photograph on the cover of any magazine published by the Assigning Brand (the “Cover”) and (B) to use and reuse, and authorize and license third parties to use and reuse, at any time for any purpose, a Photograph in the context of any Cover; 

(iv) and, without limiting the generality of the foregoing, includes the “Foreign Licensed Edition Rights,” defined as the rights, during the Embargo/Exclusivity Period, to sublicense the Photographs for use in a magazine outside the United States published under a license to a third party from the Assigning Brand (a “Foreign Licensed Edition”); 

(v) “Editing Rights” (meaning the rights to crop and re-crop, size, resize and otherwise modify the Photographs in any ways that an Assigning Brand deems appropriate in connection with the exercise by Assigning Brand or any authorized third party of any of the Rights); and 

(vi) “Crediting Rights” (meaning the non-exclusive rights, in connection with the exercise of the Rights, to use your name, likeness and/or biographical information in order to credit you as the creator of the Photograph). Each Assigning Brand and authorized third party will have the right to credit you in connection with the exercise of the
Rights in accordance with its respective customary practices.

(b) “Affiliated Brand Use & Reuse Rights” means the rights for any and all Publisher Brands except the Assigning Brand (the “Affiliated Brands”), to exercise the Assigning Brand Use & Reuse Rights as if each such Affiliated Brand were the Assigning Brand. 

(c) “Syndication Rights” means the rights for the Assigning Brand, only if the Assigning Brand is Sports Illustrated, to sublicense to third parties the exclusive right to license the Photographs directly and through sub-agents, including Getty Images, for editorial and commercial use by third parties. 

(d) “Time Inc. Photo & Food Studio Rights” means the rights for Publisher to use and reuse, and authorize and license the use and reuse of, for any purpose, Photographs created by you in the Time Inc. Photo Studio, the Time Inc. Food Studios, The Drive studio, or any other studio operated by Time Inc. or on premises owned or leased by Time Inc. (individually and collectively, the “Time Inc. Photo & Food Studios”) and commissioned in Assignments by the applicable Time Inc. Photo & Food Studios (and not another Assigning Brand) (the “Time Inc. Photo & Food Studio Photographs”); and Editing Rights and Crediting Rights for the Time Inc. Photo & Food Studio Photographs.

COMMENTARY:
It's sad that they try to say “You reserve and retain all rights in and to the Photographs…that are not specifically granted to Publisher” but then effectively take all the rights, leaving little to nothing for you to “reserve and retain.” Typical trick. Don't fall for it. Additionally, there are no additional fees for space payments (except cover/cover insets) for Assigning Brand assignments outlined in the rate card, Exhibit A. Therefore presumedly there will be no space rates paid for any usage (except a cover) whether on first use or for any future use.

Further, when they write “You hereby license to publisher the Rights to…authorize and license the exercise of such rights to third parties”that Time Inc. can relicense the images to third parties.  Thus, you begin to be competing on re-licensing with Time.  Additionally, Section 3 (a)(i) grants the following usage rights to the Assigning brand AND “related brand or title” without further compensation:

Foreign editions
Books bearing the Assigning brand’s logo (i.e. Sports Illustrated books)

So you've lost re-use there.

Further:

 Section 3(b): “Affiliated Brand Use & Reuse Rights” means the rights for any and all Publisher Brands except the Assigning Brand (the “Affiliated Brands”), to exercise the Assigning Brand Use & Reuse Rights as if each such Affiliated Brand were the Assigning Brand

This mean that Affiliated brands (i.e. other Time Inc brands/titles that are not under the umbrella of the assigning brand) can use images created on an assignment as if they were assignments from them and thus this would seem to be at odds with 6(a)(iv) which stipulates that some kind of payment will be made for such new use by affiliated brands.

4. Videos & Idea House Projects. With respect to any and all “Idea House Assignments” (defined as Photographs or Videos taken of or in connection with an Idea House project in connection with any Assigning Brand), and any and all Videos (as defined in Section 1), created by you in connection with any Assignment for Photographs, you hereby acknowledge that each Idea House Assignment or Video you create will be the sole and exclusive property of the Assigning Brand as a “work made for hire” within the meaning of the United States copyright laws, unless this would render you an employee of Publisher for purposes of an applicable unemployment insurance or workers’ compensation law, in which case each Idea House Assignment or Video will not constitute a work made for hire. If for this or any other reason each Idea House Assignment or Video does not constitute a work made for hire, you hereby transfer and assign all right and title, including copyright, in and to each Idea House Assignment or Video to the Assigning Brand. You also grant Crediting Rights to the Idea House Assignments and Videos to the Assigning Brand.

COMMENTARY:
ANY video you shoot while on a Time Inc. assignment is a work made for hire.

ANY photographs you shoot when on an “Idea House Assignment” are works made for hire.

This clause should be struck. Why does Time/et al need a WMFH? They don't.

5. Embargo. “Embargo/Exclusivity Period” means, with respect to Rights granted in Section 3 to Photographs, the period beginning on the date of the Assignment and ending on a date that is 90 days after the date of first publication by the Assigning Brand in the United States of any one or more of the Photographs created under the Assignment, or 180 days for Time Inc. Photo & Food Studio Photographs, or any longer period of time specified in any Assignment. Unless and to the extent you have the prior written authorization of the Assigning Brand, as applicable, you will not exercise, or grant to any third party for exercise, during the Embargo/Exclusivity Period, any rights throughout the world in any and all media, formats and methods of transmission now known or hereafter developed (including any of the Rights), with respect to any Photographs in the Assignment.
Cover Photos & Videos. Unless and to the extent you have the prior written authorization of the Assigning Brand in each instance, you will not at any time (i.e., during or after the Embargo/Exclusivity Period and the Term) use, or authorize the use of, in any media, any Photograph that appeared as the primary photograph on a Cover (a “Cover Photograph”), any Idea House Assignment, and any Video, except for permitted Self-Promotional Use described below for such Cover Photograph or Video. Self-Promotional Use. After a 90-day Embargo/Exclusivity Period, without prior written authorization from the Assigning Brand, you may use and reuse Cover Photographs or Videos created by you solely to promote you and your work, if you clear any and all third-party rights that are required by applicable law and you do not receive any payment or other
consideration directly attributable to such Self-Promotional Use.

COMMENTARY:
Using this language, if an assignment is never published, photographs will be embargoed forever and cannot be used for any other purpose.  Many photographers accept an assignment knowing there will be re-use revenue down the line. Further, you cannot use any images on your personal website, Twitter, Instagram, Facebook, or any other social media, promotional materials during the embargo/exclusivity period. See above about unpublished images. This also section makes mention only of the use of cover photographs after the 90-day embargo period without prior written authorization. It makes no mention of the possibility of using any other images generated on assignment for such purpose. Why the omission? Further, an image made with, say, a smart phone could be deemed to be a part of the assignment, so a photographer who instragramed out a photo would be in breach of this clause. So, for example, those photographers on the campaign trail in 2015/2016 had better have expressed written permission to be tweeting, instragramming, and facebooking photos from the assignment.

6. Fees & Expenses.
(a) In connection with each Assignment, provided you have complied fully with your obligations hereunder and pursuant to the Assignment, you will be entitled to receive the following payments, each as specified in the Assignment Photo Use & Reuse Rate Card attached to and made a part of this Agreement as Exhibit A (the “Rate Card”), in consideration for the grant or exercise of the applicable Rights:

(i) payment at the Assignment Day Rate by the Assigning Brand for each day of an Assignment (excluding any Idea House Assignments, which are addressed in Section 6 (a) (vi));
(ii) only if an Assigning Brand first exercises the Cover Use & Reuse Rights on a print magazine cover for each Photograph in an Assignment, a one-time per Photograph Cover Fee (or Cover Inset Fee), as applicable (excluding any Time Inc. Photo & Food Studio Photographs and Idea House Assignments);
(iii) only if Foreign Licensed Edition Rights are exercised for foreign licensed editions of Assigning Brands specified in the Rate Card, and excluding any Time Inc. Photo & Food Studio Photographs and Idea House Assignments, an additional Foreign Licensed Magazine Edition Fee;
(iv) only if any Affiliated Brand first publishes any Photograph in a new context (without the Assigning Brand name, trademark, or logo and with the Affiliated Brand name, trademark, or logo) (excluding Time Inc. Photo & Food Studio Photographs and Idea House Assignments), an Affiliated Brand Fee (a one-time per Photograph Cover Fee (or Cover Inset Fee), if applicable, for first use of a Photograph on a print Magazine, print book, or print bookazine; another Affiliated Brand Reuse Fee; or, if applicable, a Foreign Licensed Magazine Edition Fee) (new payments will  not be made for any republications of the same Photograph in the same context, to promote an earlier publication
of the same Photograph in the same context, or if previously published as part of the same Cover);

COMMENTARY:
It's unreasonable for this to apply to only a cover or cover inset fee.

(v) only if Syndication Rights for Sports Illustrated are exercised with respect to a Photograph, a Syndication Fee;

and
(vi) only if an Idea House Assignment fee or a Video fee is negotiated and agreed, an Idea House Assignment Fee or a Video Fee.

(b) All payments will be made to you in accordance with Publisher’s standard payment practices after delivery and acceptance of the Photographs and Videos and receipt of tax, expense, independent contractor verification, and any other documentation as reasonably required by Publisher. Publisher reserves the right to change the Rate Card at any time upon written notice to you for Assignments made thirty (30) days or more after any such Rate Card change notice. You will be solely responsible to pay your business expenses, except that Assigning Brand will reimburse you for, or pay,
expenses (e.g., film, travel, lodging, meals) that are pre-approved in writing (e.g., by email) and any other reasonable unforeseen expenses if subsequently approved in writing (e.g., by email), provided that all such expenses are necessarily incurred directly in the course of carrying out each Assignment and after your submission of a written expense report with receipts. Each Assigning Brand may provide you with an Assignment budget and Assigning Brand photo shoot expense caps. You shall send an electronic invoice to the Assigning Brand via the Coupa Supplier Network
(CSN) (or any other system designated by Time Inc.) for payment following completion of the Assignment. Submission of the invoice requires enrollment in the CSN (or any other system designated by Time Inc.). Payment by Assigning Brand is due net sixty (60) days of receipt of the invoice unless early payment discount terms are selected during invoice submission within the CSN (or any other system designated by Time Inc.). For further information regarding the CSN,
you may email coupa.supplierenrollment@timeinc.com or the Coupa Supplier Help Desk at tiap_coupa@timeinc.com.

COMMENTARY:
As it relates to “1. All payments will be made only “after delivery and acceptance” of the photographs”, In other words, if the photographs are rejected as insufficient or lacking (a purely subjective exercise), or if a story gets cancelled and the images are no longer needed before photographer has a chance to deliver them, Time Inc, is under no obligation to pay the photographer’s invoice.

As it relates to “2.) All expenses must be pre-approved in writing. ” There is NO way this is feasible. General expenses can be, but “all”. Not a chance.

As it relates to “3). “Payment by assigning brand is due net 60 days of receipt of invoice unless early discount payment terms are selected during invoice submission.” 

Currently under the Coupa system (CNS), the options are for either a net 25 day net payment or a .5% discount on a net 10 day payment. Why the change to net 60? This isn't fair given that every other expense a photographer has is a 30 day expense. This contract calls for photographers to carry interest expenses on credit card charges, for example, until the next billing cycle.

7. Photo/Video Subjects. As between you and Publisher, Publisher will be responsible for clearing all rights and permissions (excluding copyright) required by any other people or entities (e.g., Photo/Video Subjects, sports leagues or conferences) for Publisher’s exercise of any of the Rights granted by you to Publisher, provided that you have fully informed the Assigning Brand in writing of any requested or asserted restrictions as specified in Section 7 (a).

(a) without prior express written approval of an Assigning Brand photo editor (email is sufficient), you will not agree to any restrictions limiting the ability of Publisher to exercise any of the Rights (including any limitation on the ability of the Assigning Brand or any Affiliated Brand to use, reuse, or license any Photograph or Video) that may be requested or asserted by any person depicted or identified in any Photograph or Video or whose voice is heard in any Video (each a
“Photo/Video Subject”), any employer, agent, manager or representative of any such Photo/Video Subject (“Photo/Video Subject Representatives”), any sports leagues or conferences, or any other person or entity. You will inform the Assigning Brand Photo Editor in writing (email is sufficient) of any such request or demand.

(b) Notwithstanding Section 7 (a), upon request of the Assigning Brand Photo Editor, you will request from all Photo/Video Subjects, owners of locations pictured in the Photographs and Videos, and any other third parties, releases in a form supplied or approved by the Assigning Brand, and you will provide to Assigning Brand any signed releases you receive. In addition, if you deliver any Video including any music, you will make reasonable efforts to inform the Assigning Brand Photo Editor of all relevant contact information for music rights clearance.

COMMENTARY:
7b is a problem, because, for example, it then prohibits any Sports Illustrated contributor from signing any agreement to get a photographer's vest on a football sideline or other similar “sign this or you don't get access” credential authorization.  It also requires you to have what amounts to an entire “rights and clearances” team securing releases from everyone and anyone, including property owners. Oh, and if there's any music in your videos, you're responsible for clearing all that too.

8. Captions. You will give the Assigning Brand written descriptive information relating to each of the Photographs and Videos sufficient to enable the Publisher to write captions and video descriptions, and upon request and where available to you, documentation verifying the descriptive information. You agree to cooperate with Publisher and its employees, editors, researchers, agents, and legal counsel in connection with any editorial or legal review before or after publication of any of the Photographs and Videos.

COMMENTARY:
This makes sense, however, you could be required to caption each and every photograph. That'll be a lot of time if you're shooting for SI and deliver 6,000 raw files from one game.

9. Representations & Warranties. With respect to each of the Photographs and Videos, you represent and warrant that:

(a) You are and will be the sole creator and owner of the Photographs and Videos, and all rights in and to the Photographs and Videos, or you will obtain from any creative contributors retained by you for each Assignment signed “work for hire” agreements assigning to you or Publisher all copyright ownership in their contributions to the Photographs and Videos; 

(b) The Photographs and Videos are and will be wholly original; will not infringe any copyright of any third party; and, as of the date of delivery to Publisher, will not have been published or distributed by you or others (except for any of the following if identified by you and with prior written approval of Publisher (e.g., by email): (i) content in the public domain or (ii) content used with permission by its owner); 

(c) You will not manipulate, digitally alter, or otherwise modify the Photographs and Videos from the original depiction, except to the extent requested or approved by the Assigning Brand in writing (e.g., by email); 

(d) You will comply with all applicable laws, rules, and regulations in performing the Assignment and creating and delivering the Photographs and Videos.

COMMENTARY:
Clause 9a means that you have to get WMFH contracts from all your assistants who might trigger a remote camera for you, for example.  9b creates problems where you are proving you have all rights to the content, so music in videos, or trademarks in still photographs, while not likely to be an issue, could well be here.

10. Editorial Guidelines. You agree that you will perform the Assignment and create and prepare the Photographs and Videos in compliance with the Time Inc. Editorial Guidelines, which can be found at http://www.timeinc.com/wpcontent/uploads/2014/04/editorial_guidelines_2012.pdf, and any updates by Publisher from time to time upon written notice to you.

COMMENTARY:
Reasonable.

11. Loss/Damage/Limitation of Liability. You acknowledge and agree that Publisher is not liable for any loss of or damage to the Photographs at any time, except to the extent caused by Publisher’s gross negligence, in which event Publisher’s maximum total liability is $1,500 per Assignment. Publisher may retain digital images of the Photographs to exercise the Rights, and Publisher has no obligation to return disks (or any other media) or digital copies. Notwithstanding anything to the contrary expressed or implied herein, in no event will Publisher be liable for consequential, incidental, exemplary, special or punitive damages, or lost profits, even if it has been informed of their possible existence.

COMMENTARY:
Normal but not fair unless there is parity for you.

12. Independent Contractor. You agree that you are an independent contractor and that you are not entitled to and will not claim any of the rights, privileges or benefits of an employee of the Publisher. You understand that you will not receive any of the rights, privileges and benefits that the Publisher extends to its employees, including, but not limited to, pension, welfare benefits, vacation, termination or severance pay or other perquisites by virtue of this Agreement or by virtue of your provision of services to the Publisher. You hereby release any and all right, claim, or interest to any
privileges or to any benefit, welfare plan or other employee plans or perquisites, including but not limited to pension, welfare benefits, vacation or termination pay, provided by, or on behalf of, the Publisher to its employees. You will be solely responsible for payment and withholding of all income, employment and other taxes.

COMMENTARY:
Normal. They don't want you claiming you're an employee when you're not.

13. Confidentiality. You agree that you will keep confidential, and will not disclose (including on social media) to third parties (including other people, other entities, or the public), the subject, location, and details of each Assignment, related Assigning Brand communications and plans, and nonpublic proprietary information of Assigning Brand, Publisher, and any third parties (“Confidential Information”), unless and to the extent you have prior written approval from the Assigning Brand (e.g., by email) to disclose such Confidential Information. You may disclose Confidential
Information to your employees, agents, and subcontractors (“Photographer Agents”) only to the extent necessary to enable you to fulfill your obligations under this Agreement and for any Assignment, provided that Photographer Agents agree to keep confidential, and not to disclose to third parties, the Confidential Information. Without prior written approval of Assigning Brand (e.g., by email), you will not permit any third parties, including but not limited to Photo/Video Subject and Photo/Video Subject Representatives, to view Photographs or Videos prior to publication.

COMMENTARY:
Make sure you don't shoot images with a smart phone that embeds GPS data in images you send, or you'll be disclosing the location of where you were photographing the assignment. Otherwise, this is pretty standard.

14. Assignment. Publisher will have the right to assign this Agreement and to assign, subcontract, or license any or all of its rights and obligations hereunder (including the Rights granted pursuant to Section 3 above) to any other person, firm, corporation, or entity. This Agreement will be binding upon and inure to the benefit of any firm, corporation, or entity into which Publisher or any Publisher Brand is merged, or which purchases, acquires, or becomes the successorin-interest of Publisher or any Publisher Brand. This Agreement is being entered into in reliance upon and in consideration of your unique experience, knowledge, skills, and qualifications, and therefore you will not assign this
Agreement or assign, subcontract, or license any or all of your rights or obligations hereunder without Publisher’s prior written approval (e.g., by email), which may be withheld in Publisher’s sole discretion.

COMMENTARY:
This makes sense and is fair. However, keep in mind, If Time Inc sells a title or brand to a third party, all the usage rights herein are automatically transferred to the new owner. ALL OF THEM.

15. Miscellaneous. This Agreement will be governed by, and construed and interpreted in accordance with, the laws of the State of New York, without regard to its conflicts-of-law principles that may result in the application of the law of any other State. Publisher and you acknowledge and agree that any dispute arising out of or relating to this Agreement may be brought and adjudicated only in the courts, federal or state, located in the County of New York, State of New York, and Publisher and you submit to the exclusive jurisdiction of such courts and waive any objections based upon
improper venue or inconvenient forum. Publisher and you also acknowledge and agree that neither will seek to litigate any claims against the other on a class action or representative party basis and that each shall pursue any claims solely on an individual basis.

This Agreement constitutes the complete understanding and agreement of you and Publisher with respect to Assignments to you after the Effective Date and supersedes any and all prior or contemporaneous written or oral agreements between you and any Publisher Brand with respect to such Assignments. Prior agreements between Publisher Brands and you relating to any prior assignments will continue to govern those prior assignments.

The parties agree that the language of any clause or term of this Agreement will not be construed for or against the drafter. No right or term of this Agreement or any Assignment will be deemed waived, and no breach of this Agreement or any Assignment excused, unless the waiver or consent is in writing signed by you and any Publisher Brand. Any modification or amendment to this Agreement must be made in a mutually signed agreement between you and an Assigning Brand with respect to a specified Assignment. Handwritten comments added to this Agreement will have no force or effect. Each instance of the word “including” herein will be interpreted as if it were followed by the words “without limitation” unless expressly indicated otherwise in a particular instance. All rights granted to Publisher under this Agreement are irrevocably vested (including for the full term of copyright protection everywhere in the world and any renewals thereof). Your rights and remedies in the event of any breach of this Agreement are strictly limited to the right, if any, to recover damages in an action at law, and you acknowledge that your remedy of money damages is adequate. You will not be entitled by reason of any such breach, and you will not seek, any equitable relief, whether
injunctive or otherwise, with respect to any rights in any Photograph or Video or any grant to or exercise by Publisher of any of the Rights. Electronic and facsimile signatures will have the same force and effect as original and handwritten signatures.

COMMENTARY:
While Time may want the Agreement to be governed by New York law, and honestly, it does make some sense, if you're doing the assignment in another state or country, and your business is also in another state or country, this clause ensures the contract will be governed by NY law. Keep in mind, NY law is pretty favorable to the publishing industry. 

It's laughable that they would expand and arguably re-define the word “including” to also mean “without limitation”.  

Also, keep in mind that “Handwritten comments added to this Agreement will have no force or effect” so don't think you can line-out and hand-notate changes, they don't count. 

16. Termination. This Agreement may be terminated by either you or Publisher for any reason or no reason, effective thirty (30) days after written notice (the “Term”). Termination of this Agreement will not terminate any grant of rights or copyright transfer made herein with respect to the Photographs and Videos that were created on Assignment while this Agreement was in effect. After any termination, Publisher retains and will continue to have the right to exercise the Rights, and the obligations of Publisher will remain in effect, with respect to the Photographs and Videos that were created on Assignment while this Agreement was in effect. Sections 3 – 7, 9, and 11-17 will survive any expiration or termination of this Agreement with respect to the Photographs and Videos that were created on Assignment while this Agreement was in effect.

COMMENTARY:
The above is a standard clause.

17. Notice. All notices and other communications under this Agreement shall be: (i) in writing; (ii) delivered by email, to Time Inc. at Digital_Asset_Contracts@timeinc.com and to you, at the email address at which you received this Agreement; and (iii) effective the first business day after the date of emailing. You and Time Inc. may provide written notice to each other of any new email address by written notice in accordance with this Section.

COMMENTARY:
The above notice is required, and which also is the reason that photographers are getting a November 2 2015 notice, as it's 60 days prior to January 1, more than enough time to terminate existing contracts.

AGREED TO AND ACCEPTED:

Photographer Name (printed):

_______________________________________

Here is Exhibit A:

Exhibit A
Photo Use & Reuse Fees
Assigning Brand Use1

Assignment PhotoDay Rate Up to $650
Print Mag Cover Up to $1,000
Print Mag Cover Inset Up to $250

Affiliated Brand Reuse

Print Cover $1,000
Print Cover Inset $250
Spread $500
Full page $250
3/4 page $187.50
1/2 page $125
1/4 page $85
Spot $62.50
Digital image $25


Syndication Fee Fifty percent (50%) of the net revenue received by Sports Illustrated (SI) from the sublicense of Photographs assigned by SI (after payment of all applicable direct expenses of the sublicense, including commissions to sub-agents)

Foreign Licensed Magazine
Edition Fees (Except for People2, InStyle, and the Affluent Media Group3)

Circulation of Edition % Applicable Affiliated Brand Reuse Fee Above

Less than 50K 20%
50K to 100K 25%
100K to 200K 30%
200K to 400K 35%
Over 400K 40%

People& InStyle Foreign Licensed Magazine Edition Fees to be negotiated per Assignment
Affluent Media Group No Foreign Licensed Magazine Edition Fees
Idea House Assignment Fee To be negotiated per Idea House Foreign ssignment (no Day Rate; no separate Video Fee)
Video Fee To be negotiated per Assignment
——–
1 All Assigning Brand Fees above are maximum fees. If reduced Assigning Brand Fees are specified in the Assignment, those reduced
Assigning Brand Fees will apply.
2 For People, the foreign licensed edition in Australia & New Zealand is Who Weekly.

3 For purposes of this agreement, Affluent Media Group includes Food & Wine and Travel + Leisure.
_______________________________________
Here's the full page of Exhibit A in graphic form (click it to open full page):

SUMMARY:
This is a horrible contract and is unfair to photographers. There are other egregious terms, and after awhile there are so many that the entire contract needs to be re-written with fairness to both parties. It comes across as non-negotiable, and likely will not be negotiable unless a majority of photographers stand up and say no to this deal. Back in the day, the collective Editorial Photographers group (http://www.editorialphoto.com) would be stepping in and re-negotiating this contract like they did with Fortune, Business Week, and others, with much success. EP is now a part of APA, American Photographic Artists.  Perhaps the old EP can re-engage on this?

Feel free to email Norm at his personal email address, which I found here on his website, at norm@normanpearlstine.com and let him know how horrible he is treating those who make people want to buy and read his publications.

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