‘NY Times’ Freelance Contract Angers Photographers

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By: Jay DeFoore

The New York Times angered hundreds of freelance photographers last week when it distributed a contract some are calling “outrageous,” “insulting” and just plain “sad.”

The contract asks freelance photographers to assign joint copyright ownership to the Times (Click for QuikCap), giving the newspaper the absolute right to exploit the photographs for the life of the copyright and collect all licensing fees, without payment to the photographer.

The Times had no previous written agreement with freelancers. Photographers, copyright lawyers and industry trade groups have objected to the new contract, saying it puts the freelancer at a distinct disadvantage. The joint copyright ownership provision takes away the photographers’ ability to market his or her material with any exclusivity, and various sources describe the contract’s embargo provisions as vague.

Several regular contributors have refused to sign the agreement in its current form, citing a number of objections. The Times has not increased its assignment fees since the 1980s. Many photographers feel the rights they would be giving up with the new contract make working for the paper a losing proposition.

Atlanta-based photographer Robin Nelson says he’s only willing to sign the contract if changes are made, or if the day rates are increased.

“I want to believe if enough photographers say there needs to be a few things amended, maybe The New York Times’ management will be forced to take another look at this with more fairness,” Nelson says. “I don’t think they want photojournalism students working for them, but I’m afraid that’s ultimately what will happen.”

New York freelancer Aaron Lee Fineman also says he won’t sign unless day rates are increased. Like many who rely on the newspaper for a large percentage of their income, Fineman says the contract has taught him a hard economic lesson.

“The Times comprises over 70% of my income, [and it] is a big mistake to have one client be that big of an income source,” Fineman says.

So far, the Times has shown no willingness to negotiate.

“Each photographer can decide for himself or herself whether or not they want to take an assignment with the Times,” says newspaper spokesman Toby Usnik. “It’s our hope that they would want to continue to work with us because certainly we value their work, but ultimately the decision lies with the freelancer.”

As for the day rate, Usnik says the Times does “not have any increase planned at this time.” Rates are currently $150 for assignments in the New York metropolitan area, $200 for U.S. assignments and $250 for foreign assignments.

The American Society of Media Photographers (ASMP) and Editorial Photographers (EP) are urging their members not to sign the contract unless concessions are made. ASMP has posted a detailed analysis of the contract on its Web site.

Although the contract was in the works at the Times for years, independent attorneys who have examined the two-page document say it includes a number of ambiguities that need clarification.

“For the price of a day rate, The New York Times is getting all the benefits of work for hire, without the burden of employing a staff photographer,” says New York copyright lawyer Nancy E. Wolff. “Photographers should grant the rights that are necessary for the Times’ publication needs and negotiate additional fees for additional usage.”

New York attorney Joel Hecker says the contract’s conflict of interest clause (7a) is “such a wide-open concept it’s almost meaningless.”

Although some photographers say it would be short-sighted for any freelancer to sign the contract, others argue that publication in The New York Times can be a valuable promotional tool. New York freelancer John Marshall Mantel says he signed the contract the moment he received it.

“The amount of creative and professional satisfaction I get working for the Times gives me no reason to quibble with the contract,” Mantel says. “Is it a paradise of a contract? No. But on balance, the limitations put on me are vastly outweighed by the fact that I work with them on a daily basis.”

The Times contract is the latest editorial agreement to erode the rights of freelance photographers. Many freelancers feel it is still better than contracts issued by the Associated Press, Newsday of Melville, N.Y., and The Boston Globe. That paper, which is owned by the parent company of The New York Times, issued a contract in 2000 that granted the paper retroactive rights to works created before the contract was put in place.

A group of Globe contributors formed the Boston Globe Freelancers Association (BGFA) to protest the contract; the association later sued the paper. The Massachusetts judge who heard their case called the contract “heavy-handed” but ultimately ruled that the paper’s action “falls within the realm of reasonable commercial standards of fair dealing.”

New York Times photo editors refused to comment on the contract. Newspaper spokesman Toby Usnik answered the following questions via e-mail.

PDN: The Times agrees to pay photographers 50% of net receipts from syndication sales. Who are the Times’ syndication clients?

NYT: The Syndicate has a couple of thousand clients representing news organizations from around the world, including newspapers, magazines and other kinds of periodicals.

PDN: You said photographers’ cut of advertising or commercial sales were capped in accordance with the Times’ internal conflict of interest standards. How high is the cap?

NYT: I’m unable to give you an exact figure but please note that the cap is meant to approximate the amount a photographer might receive on a New York Times sale for a typical inside editorial use.

PDN: How is the work handled physically after it is turned over to the Times?

NYT: Almost all of our photographs are digital, so generally there is nothing to return to the freelance photographer. In the event that the work is provided on film, we have always returned the material upon request by the photographer.

PDN: Does the contract apply to freelance assignments commissioned by The New York Times Magazine?

NYT: No.

For more information, including a copy of the Times contract, visit PDN Online.

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