|
Argument
Pro-Action wrote to Geoff Campbell, Managing Director Men’s Lifestyle brands at Bauer Media in November 2010 regarding the Bauer Media 2010 Commission Agreement (full transfer). This Agreement, which is issued to visual artists, assigns copyright to Bauer and waives the creator’s moral rights. Bauer publish many titles including: Take a Break, Grazia, FHM, Heat, Empire, Q, Spirit and Destiny, Bella, TV Choice and Take a Break’s Wordsearch.
Bauer’s letter to contributors sent along with the new agreement states they seek ‘new opportunities’ through mullti platform products beyond their brands as they currently exist. This will attract new revenues for Bauer, and Pro-Action commented that the use of imagery commissioned for Bauer beyond specific existing avenues should attract payment for additional uses of artists work. This agreement makes no provision for further income being passed back to the artist if their work is used in different contexts.
Pro-Action maintains that commissions should be based on the widely accepted fee structure of a mutually agreed licence consisting of terms and fees priced on usage, territory and duration. The pricing structure for the visual arts industry depends upon quoting different rates for the licence granted, on a commission by commission basis.
Bauer’s letter to contributors also says that ‘we look forward to sharing future successes with you.’ This Commission Agreement (full transfer), in fact, ensures that contributors share none of Bauer Media’s future success by removing any possible future remuneration for all the rights that the Agreement demands.
The following are the main points that we raised with Mr Campbell regarding the Commission Agreement (full transfer).
Copyright
The Bauer Agreement requires that the entire copyright and all other rights in the commissioned works are unconditionally assigned to Bauer This demand for an assignment of copyright and all other proprietary rights in work commissioned for Bauer publications is not dependent on payment. Pro-Action pointed out that rights in a commission should only pass on condition of payment. Fees offered should also reflect the rights requested.
Agreements such as these are exploitative and undermine the industry wide pricing structure for commissioning freelance imagery.
Moral Rights
Why does Bauer Media demand a waiver of moral rights? We accept that a publisher will need some editing rights – possibly to crop the image (but not to distort it) but it should not interfere with the work itself without the artist’s express permission. 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 and we believe that in fairness to the artist, the Commission Agreement (full transfer) should allow them to assert all their moral rights.
Amendments
Clause 6 Bauer ask for the right to ‘edit and amend’ to meet their ‘usual or reasonable editorial standards.’ This right does not require a moral rights waiver as they have already. Pro-Action would expect Bauer’s usual editorial standards to be reasonable, and ask that this be reworded to ‘Bauer’s usual and reasonable editorial standards.’
|
|
Credit
Bauer have the right to credit contributors for works in their original form as well as any amended form. As this could mean that adapted works which the creator is not happy with are credited, Pro Action said visual contributors should have the right to not be credited if amended works are considered detrimental to their reputation.
Cancellation
Should any commission be cancelled, Bauer offer payment solely of ‘expenses reasonably incurred’ which Pro-Action do not consider sufficient. Any cancellation payment should be a percentage of the commission fee commensurate with the amount of work done up to the point of cancellation.
Pro-Action stated that a fairer standard contract provided by Bauer Media would give Pro-Action the opportunity to actively promote this fact to AOI/AOP/PCO members and SAA illustrators, thus increasing Bauer Media’s access to around 4000 professional visual artists they may wish to commission, as well as boosting Bauer Media’s ethical standing. This could ultimately lead to a higher standard of imagery for their publications.
Response
Mr Campbell replied in November 2010, though without responding to any of the questions Pro-Action asked. He stated that Bauer were introducing new standard terms, and that Bauer believe the new terms and conditions for contributors ‘are still among the very best in the industry.’ Pro-Action refute this statement. We asked to meet Mr Campbell to discuss the contract.
Recommendation
Pro-Action advise all visual artists not to accept commissions under terms such as those requested in the Bauer Media Commission Agreement (full transfer). See Argument section for points raised by Pro-Action over Bauer’s contract.
Pro-Action recommend that all artists offered a copyright assignment, or an agreement which contains a moral rights waiver should not sign it. Remember that moral rights do not apply to newspapers or magazines, however they can still be included in an editorial agreement it the client wishes. 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. Copyright, if assigned, should attract a fee that would cover all the potential uses your artwork could be utilised for.
AOI members (including 1+ affiliates), AOP and PCO members should contact their associations for further advice. Illustrators represented by an SAA member agent should contact their agent for additional advice.
|
