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Argument
Pro-Action wrote to Time Out magazine in June 2007 requesting that they explain their Illustrators’ Commission Form which is heavily weighted against the illustrator. The Form requests an assignment of copyright, a waiver of moral rights, the right to alter, amend or adjust artwork and possible exploitation of artwork through their Picture Library, all for a standard editorial fee.
Time Out is a prominent commissioner of illustration and champions the rights of Londoners. In light of this, it is all the more regrettable that the magazine should decide to put itself in the forefront of commissioners who seek to use exploitative contracts. This contract reflects badly on the perceived ethos of the company.
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 Time Out Illustrators’ Commission Form (“the Time Out Commission Form”) unjustifiably removes this potential income.
We asked Time Out to respond to the points and questions raised about their Commissioning Form. These points include:
- Why does Time Out require six weeks from the date of receipt of an invoice from a contributor to pay a fee? Payment should be made no more than four weeks after receipt of the invoice.
- Why does Time Out seek an assignment of copyright in the artwork when the commission - and the fee - is for a single usage only? The remuneration offered does not reflect the level of rights that Time Out seeks to acquire. Pro-Action maintain that a copyright assignment is inappropriate.
Agreements such as Time Out’s are exploitative and undermine the industry wide pricing structure for freelance illustration.
- What does Time Out do, or intend to do, with the extra rights that will be received from this contract beyond the rights the actual commission requires?
- Why is Time Out building a Picture Library incorporating works created, not for stock imagery, but as individual commissions? This agreement allows for licensing of works for no fee, or a 50% of net sales income. Why should illustrators assign the sales rights in the work commissioned by Time Out with no control over subsequent usages?
- Why does Time Out request a waiver of moral rights and the right to ‘edit alter amend and/or adjust the Work’ when commissioning illustration? Moral rights protect the integrity of the creator's work, and ensures it is not treated in a derogatory manner. It does not forbid normal cropping and/or overprinting.
Response
Inspite of being contacted several times, neither the Managing Director nor the Group Art Director responded to Pro-Action’s letter of 19 June 2007.
In March 2008, following a Pro-Action letter to the new MD stating that we would publish our recommendations on this website, the Group General Manager contacted us requesting the original correspondence which was sent to herself and the new publisher, Mark Elliot.
Below is the response Pro-Action gave to Mr Elliot’s August 2008 reply to our letter:
Regarding Time Out paying 6 weeks from date of receipt of an invoice, Pro-Action would expect fees to be paid within four weeks. Fees for editorial work are at the low end of the scale, and as such should be paid within a short time period.
You state that the commission form does not say it is for single use only when we comment that the fee reflects that limited usage. Editorial illustration is generally commissioned for a single usage, and the fees reflect that. The fees offered by Time Out are insufficient for an assignment of copyright. Are all the usages allowed by the contract presented to the illustrator prior to commencement of artwork?
Why should Time Out Group’s international licensees or associates be allowed to use the work with no additional payment to the illustrator? We maintain that no publishing Commission Form should request the assignment of copyright unless adequate remuneration is offered. This agreement allows Time Out total control of syndication and reuse, with no guaranteed income to the creator.
You state ‘If Time Out did not commission the work, the work would not exist.’ This is not a defensible comment. Commissioning of the
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work does not confer the right to exploit the resultant image beyond the initial commissioned use.
You refer back to your previous comment on why Time Out seeks an assignment of copyright when asked what you intend to do with the extra rights acquired with the Time Out agreement. Pro-Action are challenging what is done with these rights for the reason that fees offered by Time Out do not reflect the extra rights that are assigned with the Time Out Commission Form.
These additional rights generate more income for Time Out, but the commissioned illustrators are paid only for the original usage, whilst still being required to assign all rights. Assigning additional rights would only be acceptable should agreed fees be attached to those rights.
Time Out has a Picture Library which controls artwork under this agreement. As we have stated, commissioning of an illustration should not give the commissioner the right to exploit it beyond the original usage. Any exploitation should attract an additional fee and the Time Out Commission Form allows for further licensing of work without a fee. Also, as the Commission Form states that Time Out is not required to place work in its Picture Library Time Out is effectively warehousing rights for up to 12 months before the illustrator is allowed to request the rights back. 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.
Why do you mention work sent in on spec by illustrators in relation to our question about the Time Out Picture Library? Your Commission Form only covers commissioned imagery.
Media companies should treat their freelance commissioners with respect, and assignment contracts such as Time Out’s fail to do this. It is not, as you state, standard practice for media companies to assume control of all commissioned artworks. Pro-Action considers it unfortunate that Time Out takes this stance. Time Out has a history of commissioning strong illustration, and we believe that your art directors are experiencing some difficulties securing leading illustrators due to your contract.
Time Out contract should contain provisions that (i) guarantee an appropriate credit for the illustrator and (ii) guarantee that the integrity of the work will be maintained. You mention that studio staff have to "ensure the work fits with the rest of the magazine, without compromising the artist's integrity", therefore accepting that this is the responsibility of the staff and so Time Out can have no objection to that being in the contract.
Recommendation
Pro-Action advise all illustrators not to accept commissions under terms such as those requested in Time Out’s Commissioning Form. See Argument section for points raised by Pro-Action over Time Out’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.
Please note that the Copyright, Design and Patents Act 1988 has an exception to moral rights and the right to object to derogatory treatment of work, meaning they are not applicable to the below:
79 (6)
The right does not apply in relation to the publication in—
(a) a newspaper, magazine or similar periodical, or
(b) an encyclopaedia, dictionary, year-book or other collective work of reference, of a literary, dramatic, musical or artistic work made for the purposes of such publication or made available with the consent of the author for the purposes of such publication.
Instead negotiate a licence consisting of terms and fees priced on usage of the image, territory and duration, i.e. so that the fee offered is sufficient to cover the rights requested.
Any contract clause requesting that the client may ‘edit alter amend and/or adjust the Work’ should be struck out
Any artwork in a stock library should be available solely because the illustrator wishes it to be there, not because a contract stipulates it. Unlike Time Out’s library, stock sales should have a guaranteed fee attached to any artwork purchase.
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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