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Argument
PPro-action wrote to the senior legal advisor for The Times and The Sunday Times in August 20120 requesting a meeting to discuss the points below. These are the points raised concerning The Times’ Standard Contributor Agreement
Copyright/ Fees
Clause 4 – although the Contributor retains copyright, this provides for such a broad outright assignment that it is tantamount to a copyright assignment.
We would argue that such an extensive rights assignment should only be requested where it is actually needed, and that there should be an uplift in the fee payable to the Contributor to reflect this.
Illustrators rely on the income generated from secondary or additional rights and the current Contributor Agreement removes this potential income. Pro-Action maintains that it would be fairer to commission illustrations based on a widely accepted fee structure in consideration of an agreed license structure setting out usage, territory and duration.
We feel very strongly that the current terms and conditions are inequitable and undermine the industry wide pricing structure for commissioning freelance illustration.
- why does the Times insist on such a broad assignment as a standard term?
- and further, why do the fees offered not reflect such a grant of rights?
Payment
Clause 3 – although this states that an agreed fee will be payable, it doesn’t state when, or what will happen if the assignment is cancelled or the work rejected. The usual provisions should be made for:
- payment within a certain number of days
- cancellation fees
- rejection fees
Syndication
Clause 5 – the words “net identifiable revenue” in relation to artwork being syndicated to other organisations/publications are vague, and we would ask for this to be clarified (or deleted), as revenue from syndication should be specifically identifiable so that it can be paid out to the artist.
Material to be Submitted
Clause 7 – this provides that the commissioned work and “any other items produced by the Contributor in relation to the Assignment, or in the course of fulfilling the Assignment (whether preparatory or otherwise) … shall be the property of and be retained by the Times, whether or not selected for publication … the Contributor shall deliver all such items to the Times as soon as…”
This is broad enough to include sketchbook work, and is unacceptable.
- why is the Times insisting on ownership of ancillary work that hasn’t been paid for?
- in relation to the work that has actually been commissioned and paid for, why isn’t physical artwork automatically returned once published? i.e. why does the Times seek to retain possession of the physical a/w once it has been scanned? One of the reasons the AOI was set up in 1973 was to ensure the return of artwork to the creator, and it is unacceptable that the practice of retaining artwork is still applied by the Times.
Self Promotion
Clause 7 - as currently drafted this doesn’t allow use for self-promotion. It only permits personal non-commercial use for the Contributor’s own projects. It also stipulates that written consent has to be obtained, which seems unnecessarily onerous.
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A further point on this clause, is that it is unclear what is meant by the obligation to provide a “perfect copy” in relation to digital art work – does this mean a colour correct hard copy?
- use for self-promotion by the Contributor should always be permissible
- please clarify “a perfect copy”
Contract Practice
We understand from our members that the Times Contributor contracts may be sent to them for agreement and signature once the work has been completed, but before they have received payment.
Even if this is an over sight on the part of commissioning editors, it is an unacceptable practice. It puts an unfair pressure on the Contributor to sign an agreement that they may have serious concerns with, just so that they can get paid. It also makes the agreement invalid in relation to any completed commissions.
A fairer Times standard contract would give Pro-Action the opportunity to actively promote this fact to the members of the Pro-Action organisations, increasing the Time’s access to over 3000 professional visual artists that it may wish to commission.
Response
The Times have not responded to Pro-Action’s request for a meeting nor answered our questions at time of writing.
Recommendation
Pro-Action advise all visual artists not to accept commissions under terms such as those requested in The Times’ Standard Contributor Agreement. See Argument section for points raised by Pro-Action over The Times’ contract.
Pro-Action recommend that all illustrators offered an agreement which is the equivalent of a copyright assignment 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.
If you are given a contract retrospectively (after you have delivered artwork) it is not legally sustainable. See the Pro-Action Advice section for advice on how to respond to this situation.
Physical artwork should never be retained by the commissioner. Always ask for its return promptly after use. Any work created to complete your commissions (ancillary work) should remain your property and not be retained by the client.
Cancellation and rejection fees ensure you receive some payment if jobs are terminated or rejected at various stages of a commission, and should be included in agreements.
Unless a commission has yet to be published, or the client has relevant sensitivities about its exposure, images should be available for self-promotion by the artist.
AOI AOP and PCO members may contact their associations for further advice. Illustrators represented by an SAA member agent should contact their agent for additional advice.
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