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The Pro-Action committee held a meeting in February 2008 with Robert Hahn, Guardian News & Media (GNM) Rights Manager, to discuss the recently changed contract being issued by GNM commissioners. This agreement lasts for the full period of copyright, and is exclusive to GNM. The rights detailed in the agreement do not give the full picture, and are expanded upon online in the Guardian’s Freelance Charter. Percentages of reuse fees are only revealed in the Charter.
GNM have added a clause on Spot Sales (sales which are made of the stand alone image, rather than with the related article), which gives the right to make Spot Sales for ‘60 days after use in the Licensed Publications and the non-exclusive right to make Spot Sales thereafter.’ Spot Sales income would be shared if there is ‘identifiable revenue attributable to Spot Sales’ and net revenue would be divided on a 50:50 basis. Pro Action queried when revenue might not be ‘Identifiable’ but this was not clearly explained by Robert.
Commissioned images may be re-used only provided the Guardian Syndication Department is ‘consulted and there is no conflict of interest’. Illustrators must also use their ‘best endeavours to include an acknowledgement such as "First published in ..." and a link to the Guardian Unlimited network of websites.’
These points have concerned illustrators and agents, and as this agreement covers writers too, the National Union of Journalists has also met with Robert Hahn.
The Pro Action group stated our concerns with this contract and emphasised that we represented around 2000 illustrators (AOI and Society of Artists Agents illustrators). The points we raised were:
- The GNM agreement and it’s new terms
- The fact that it was altered without notification
- That it is issued retrospectively
- Addition of Spot sales syndication
GNM agreement: Pro-Action believe the changes to the agreement should have been flagged up when they were changed in late 2007. This had not been done. Robert blamed administrative issues. He also claimed that GNM illustration fees are index linked, though Pro-Action disputed this.
Retrospective contracting: Robert Hahn commented that commissioning staff had been briefed by himself to issue the agreement at the point of commission. This has not always happened, and he said he would emphasise this point during a commissioner’s rebrief.
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Spot sales: GNM syndication works in two ways: Annual subscription from global newspapers; and spots sold as individual artworks. Illustrators would have no control over images sales. Robert stated that the syndication department would confer with the illustrator over any perceived ‘ethical’ considerations attached to sales of their images. No SAA member agent can recall ever having received a Syndication Payment from GNM for the illustrators they represent. Robert also stated that, with regard to Syndication Payments to illustrators, GNM reserved the right to make no payment to illustrators if the Syndication was deemed, at GNM’s sole discretion, to be part of a wider GNM deal with the party it was Syndicating to.
Can illustrators opt out? GNM feel that as they have a role in the creation of the artwork they therefore want a stake in it’s future. Robert stated the charter is not an umbrella contract, and that terms have been varied for some contacts.
Spot sales negotiation is a possibility – less than the stated 60 days exclusivity/or no syndication in certain territories.
AOI members/illustrators/agents can discuss the terms with their commissioning editor. The current GNM agreement states changes have to be approved by managing editor, but Robert said they may not always need to be involved.
Robert agreed to Pro-Action’s suggestion that the line stating the commission terms are ‘summarised’ be moved from near the end of the agreement to before the terms for clarity. However, the agreement still contained the original wording in April 2008.
Robert was also asked via email to substantiate/provide further details relating to the statement he made in the meeting that every year GNM executives met to increase illustration rates by an amount related in some way to inflation. Robert did not respond to the request.
Recommendation
Pro-Action recommend that illustrators and agents negotiate over clauses they do not wish to agree to with their commissioning art editor using the information above. Illustrators and photographers have successfully adapted the agreement.
GNM Freelance Charter:
www.guardian.co.uk/Archive/Article/0,4273,4103718,00.html
NUJ response to GNM meeting:
www.epuk.org/News/777/ethical-guardian-lied-about-nuj
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