When we were researching our story “What Lawyers See When They Look at Editorial Photography Contracts,” which appeared in the June issue of PDN, we asked photographers to tell us about editorial contracts they feel are unfair to photographers. We received a copy of a Condé Nast contract sent to a photographer in 2013 as that photographer was preparing to work for the media company for the first time. It was a work-for-hire agreement, and the “Grant of Rights” clause reads as follows:
It is agreed that the Work(s) shall be work(s)-made-for-hire within the meaning of the U.S. Copyright Act, and Company shall own all rights, including copyright, therein throughout the world. In the event any of the Work(s) are determined not to be work(s)-made-for-hire for any reason, Contributor hereby transfers and assigns the entire copyright (for the full term of copyright), throughout the world, in any and all media and forms of publication, reproduction, transmission, distribution, performance, adaptation, enhancement and display now in existence or hereafter developed, in each Work to Company. Company may also use the Work(s) and/or Contributor’s name and/or likeness in publishing, promoting, advertising and publicizing anything in which a Work appears, and authorize others to do so.
A cover letter addressed to the photographer indicated that this was the publisher’s “standard contributor agreement” and that it would cover “all of your projects for Advance Magazine Publishers Inc.,” the parent company of Condé Nast, which owns Vogue, Bon Appétit, The New Yorker, Glamour, Wired and Pitchfork, among several other publications.
Had the photographer signed the agreement, it is feasible that any photos created under that agreement could be used by any publication or media outlet owned by Advance Magazine Publishers Inc. Their holdings also include several local newspapers and websites.
The photographer refused to sign the work-for-hire agreement, and was then sent a different agreement. The second agreement specified that the photographer owned the copyright for works created for Advance Magazine Inc. and Condé Nast.
The second contract was not without its problems, however. In our story “What Lawyers See When They Look at Editorial Photography Contracts,” Mickey H. Osterreicher, Esq., who is General Counsel for the National Press Photographer’s Association, noted several problematic provisions in a Condé Nast contract we received. “While the freelancer may own the copyright, the broad rights granted to the company herein may severely reduce and limit the freelancer’s ability to market and use his or her own work under that copyright,” he wrote. Osterreicher also felt there were “Very favorable rates to the company for foreign republication” of the images.
While the second agreement was more fair to the photographer, it’s notable that Condé Nast tried to get the photographer to sign an unfair agreement in the first place and only offered the photographer a more equitable agreement when they stood up for their rights.
Related: Unfair Editorial Photo Contracts: VICE Wants “All of Photographer’s Rights”
Survey Results: Why is the Editorial Market Unfair to Photographers?
What Lawyers See When They Look at Editorial Photography Contracts (For PDN subscribers; login required)
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