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Argument
Pro-Action wrote to Cambridge University Press (CUP) in June 2007 requesting that they explain their Artwork Agreement which is heavily weighted against the illustrator. As a prominent commissioner of illustration Pro-Action finds it regrettable that CUP puts itself in the forefront of those who seek to use exploitative contracts.
The Pro-Action letter to CUP defined our agenda and pointed out that it is imperative that illustrators and agents, when negotiating a commission, are able to secure terms and conditions that consider the needs of commissioners whilst securing illustration as a viable profession for the future. Copyright in an illustration should only be assigned to the client with sufficient and fair remuneration to the artist. Illustrators rely on the income generated from secondary or additional rights and the current CUP Artwork Agreement copyright assignment removes this potential income.
We asked CUP to respond to the points and questions raised about their Agreement in the letter. These points include:
- Why does CUP demand an assignment of copyright and all other proprietary rights in artwork commissioned for their publications when the fees offered do not reflect such an assignment?
- What does CUP do, or intend to do, with the extra rights that will be received from this contracts beyond the rights the actual commission requires? Pro Action pointed out that it would be fairer for them to commission based on the widely accepted fee structure of a mutually agreed license consisting of terms and fees priced on usage, territory and duration.
- Why does CUP insist that all rights, inclusive of moral rights, are assigned when commissioning illustration? Moral rights protect the integrity of the creator's work, and ensure it is not treated in a derogatory manner. A contributor's livelihood is built and maintained by the quality and integrity of their published work.
- The term ‘Work made for hire’ is included in the CUP Agreement. This term has no recognised legal meaning in the UK and therefore has no force in a contract governed by UK law. The phrase creates the impression that it is usual for copyright to be assigned. Pro Action maintained that a copyright assignment is inappropriate, and asked them to explain why they consider this term to be necessary.
Response
Kevin Taylor, CUP’s Press Intellectual Property Director replied to Pro-Action in July 2007
Mr Taylor failed to respond to many of the points raised in our letter. He commented that CUP issue a range of Artwork Agreements, and stated ‘The ‘work for hire’ version is in minority use’. He said more commonly used CUP agreements are copyright assignments or grants of exclusive licences, and he claimed that many of them ‘do include the assertion of moral rights’. We had queried CUP’s requests for assignments of copyright and their insistance on the waiving of moral rights in the Work for Hire contract,.
He stated that CUP ‘need’ to buy as many rights as they can up-front for certain areas of their business and this is where the ‘more extreme form of the licence’ is in use. He failed to explain why these rights are ‘needed’.
Mr Taylor further commented, ‘I support the principle that the fee should reflect the rights acquired’ and agreed that the fee structure should vary according to the commission, the type of use and the rights acquired.
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He suggested that CUP would still want to deal with illustrators individually, and that they should bring to CUP’s attention ‘any agreement they are asked to sign which they consider unfair, and that will then become the subject of a negotiation.’ He indicated that this arrangement would assist CUP assess attitudes within the industry and therefore their future rates.
Recommendation
Pro-Action advise all illustrators not to accept commissions under terms such as those requested in the Cambridge University Press (CUP) Artwork Agreement. See Argument section for points raised by Pro-Action over CUP’s contract.
The statement from Mr Taylor, CUP’s Press Intellectual Property Director, that he supports ‘the principle’ that the fee for a commission should reflect the rights acquired is not backed up in the CUP contracts issued that Pro-Action has seen.
Pro-Action have responded to Mr Taylor’s reply, requesting that he respond more fully to our original letter.
Pro-Action recommend that all illustrators offered a copyright (or ‘work for hire’) assignment, or an agreement which contains a moral rights waiver should not sign it.
Instead negotiate a licence (as CUP have suggested) consisting of terms and fees priced on usage, territory and duration, i.e. so that the fee offered is sufficient to cover the rights requested.
AOI members may contact the association for further advice. Illustrators represented by an SAA member agent should contact their agent for additional advice.
Additional Developments
Successful negotiation with CUP Adaptations and Versions Manager
UK agents/illustrators have been approached in 2008 by CUP’s Adaptations and Versions Manager offering just £500 per title for "CUP to re-use the artwork in all media, Worldwide for the conceivable life of the product". The offers are on books published by CUP up to 20 years ago – emphasising the value of illustrations long after their original usage. One illustrator had been offered this sum per book for five picture book titles, but was compelled to refuse as that sum reflected less than 10% of the original fee (from the mid nineties) - a derisory figure for a reuse fee.
This offer underlines CUP’s undervaluing of artwork. See Pro-Action’s Argument against CUP’s Artwork Agreement above.
CUP also offered only £100 for production of the titles in a single EU country. This was refused with the suggestion that £600 per title was more realistic. This negotiation was successful, and CUP are now compelled to renegotiate every new deal, depending on the territory requested.
Another agent was approached over a similar buyout of extensive rights for an existing picture book, and was again turned down. CUP came back with a slightly higher offer which the illustrator involved did not consider sufficient. The Adaptations and Versions Manager admitted that many illustrators were rejecting his offers, and that the projected range CUP had hoped to produce with little outlay on content would have to be curtailed.
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