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Argument
Pro-Action wrote to the Managing Director and Senior Designer at Harcourt Educational Ltd in December 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 Harcourt (now part of Pearson as of late 2007) puts itself in the forefront of those who seek to use exploitative contracts.
The Pro-Action letter to Harcourt 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 Harcourt Artwork Agreement copyright assignment removes this potential income.
Pro-Action also informed Harcourt that they were aware that staff at Harcourt had misrepresented to illustrators that the Harcourt Agreements had been created in conjunction with the AOI. This is wholly incorrect. The AOI do not support the Harcourt Agreements, indeed the AOI opposes them.
We asked Harcourt to respond to the points and questions raised about their Agreement in the letter. These points include:
- Why does Harcourt demand an effective assignment of copyright and thus all proprietary rights in artwork commissioned for their publications when the fees offered do not reflect such an assignment? Agreements such as these are exploitative and undermine the industry wide pricing structure for commissioning freelance illustration.
- What does Harcourt do, or intend to do, with the extra rights that will be received from these contracts beyond the rights the actual commission requires? So called warehousing of rights in order to prevent third parties exploiting them is inequitable and in our view should be reported to the Office of Fair Trading. Pro Action maintains that it would be fairer 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 Harcourt insist that the right of integrity is waived when commissioning illustration? We accept that a publisher will need some editing rights – possibly to crop the image (but not to distort it) but why does Harcourt need an adaptation right. It should not interfere with the work itself without the illustrator’s express permission.
- Moral rights protect the integrity of the creator's work, and ensure it is not treated in a derogatory manner. The Harcourt Agreements should allow them to assert all their moral rights. Further, an illustrator should be consulted over any alterations to their illustrations; consequently this should be an express term in the Harcourt Agreement.
Response
Pearson Primary (formerly Harcourt) managing Director, Kath Donovan, responded in February 2008 stating that she believes Pearson can only
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access commercial ventures across a variety of media by acquiring copyright from illustrators. She goes on to state ‘without full rights over our materials we would not be meeting our customers’ demands.’
Pro-Action have replied, pointing out that commercial opportunities across a variety of media, formats and technologies can be exploited with an exclusive licence.
Regarding the extra rights attained by Pearson through copyright assignments, she states that as the industry demands that products have a quick turn around, ‘rights restrictions are effectively a restriction on our ability to operate’, continuing that Pearson’s acquiring of rights gives the company ‘flexibility’. Pro-Action questioned what is done with these rights as the fees offered by Pearson and other sectors of the educational publishing industry do not reflect the extra rights that are assigned with the Harcourt/Pearson agreements.
These additional rights acquired by Pearson generate more income for the company even in a competitive market place, but the freelance illustrators are only paid for the original commissioned usage, whilst still being required to assign all rights. The ‘rights restrictions’ would not exist if illustrators were paid for those rights.
Pro-Action asked why Pearson insist that the right of integrity is waived when commissioning illustration. Ms Donovan said they intend looking at the use of the word ‘adaptation’ to ‘reflect a definition of adaptation’ in their contracts. Pro-Action welcome clarifying ‘adaptation’ in the context of the current agreement, as an expanded capability in the work, ‘to adapt’, therefore creating new versions, should attract an additional fee. We maintain any clarification would need to be specific, and with the right of approval/reasonable consent of the illustrator.
Ms Donovan acknowledged that Pro-Action’s general comments on Moral Rights are justified and she stated that Pearson will include an express clause in agreements giving illustrators the opportunity to assert their Moral Rights. Authors are already credited by Pearson.
Pro-Action hope that Pearson follow through with their intention of giving illustrators the opportunity to assert their Moral Rights.
Recommendation
Current recommendations as follows, pending conclusion of our correspondence with Harcourt/Pearson. Pro-Action advise all illustrators not to accept commissions under terms such as those requested in the current Harcourt/Pearson Educational Artwork Agreement. See Argument section for points raised by Pro-Action over Harcourt’s contract. Pro-Action recommend that all illustrators offered a copyright assignment, or an agreement which contains a moral rights waiver should not sign it. Instead negotiate a licence 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. Check to see if Pearson have included the opportunity to assert your Moral Rights in their agreement.
AOI members may contact the association for further advice. Illustrators represented by an SAA member agent should contact their agent for additional advice.
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