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Argument
Pro-Action wrote to Harriet Wilson, Editorial Business Director, in October 2011 regarding the Condé Nast Publications Ltd Contributor's Agreements. These Agreements, which is issued to visual artists commissioned by the organisation, may ask for an assignment of copyright or ongoing rights beyond the initial usage. Condé Nast publish many titles including: Vogue, Glamour, GQ, Vanity Fair, Wired, The New Yorker, Traveler, Golf World and Architectural Digest.
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.
The following are the main points that we raised with Ms Wilson regarding the Condé Nast Publications Ltd Contributor's Agreement:
Pro-Action have been supplied with several versions of the Condé Nast Publications Ltd Contributor's Agreement from 2011. One version is a copyright assignment, and the other a licence which is exclusive for 6 months and non-exclusive in perpetuity. We also have an exclusive 12 month licence agreement.
The Grant of Rights on all the agreements covers the current commission as well as work 'hereafter commissioned', and defines the right for exclusivity and a licence to syndicate it. This means it acts as a blanket agreement covering all future commissions, and any such blanket agreement should be in plain English and be made very clear to suppliers.
Copyright
Why does Condé Nast demand an assignment of copyright in the Copyright agreement and thus all other proprietary rights in artwork commissioned for their publications when the fees offered do not reflect such an assignment?
Copyright in an illustration should only be assigned to the client with sufficient and fair remuneration to the artist. Agreements such as these are exploitative and undermine the industry wide pricing structure for commissioning freelance illustration.
Cover images
The Licence agreements state that copyright must be assigned in images used on covers 'in conjunction with one or more of the trademarks belonging to Condé Nast'. This appears to be primarily aimed at photographs as 'cover photograph' is mentioned.
Why is a higher level of rights requested?
Is an additional fee supplied to cover the value of an assignment of copyright in the image?
Exclusive licence
The exclusive licence (6 months) requests a 'non-exclusive licence to use and reproduce the commissioned work(s) for any purpose in any medium now or hereafter extant from origination of the commissioned work(s) wheresoever.' This means they can reuse the artwork after the exclusive 6 month period has elapsed in any way they wish. Any re-uses of a commissioned work should attract additional payment.
The exclusive licence also permits 'others to use and reproduce the commissioned work(s)' in the Grant of Rights (Terms and Conditions).
Does this then permit the syndication of the work? As stated additional uses of the work should always attract a fee.
Re-Use
Non-fee paying re-use of the work in Condé Nast books or anthologies based on the commissioning magazine is included. These will be generating income for Condé Nast.
Why are the creative suppliers of the material excluded from benefiting financially from further income generating projects by Condé Nast?
Additional Rights
What does Condé Nast do, or intend to do, with the extra rights assigned with the Copyright agreement?
Illustrators rely on the income generated from secondary or additional rights and the copyright assignment version of the Contributor's Agreement removes this potential income except in instances where Conde Nast may syndicate or licence on. It is possible that Condé Nast may never syndicate or licence on, when the artist may be in a position to do so if they retained their copyright in the work.
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Syndication
All the Condé Nast Agreements we have seen state that syndication is available ('third party syndication' in the Licence agreements). They state 'a fee' will be paid, but there is no indication of what that fee would be on the agreement, not how that fee would be defined. Syndication fees structures should be stated at the point of commission.
Pro-Action has seen a letter sent with Agreements which states the re-use fee would be 50%.
Pro-Action asked if this letter sent is with every agreement? Pro-Action members have reported that they consider the syndication fees quite low and that they require a high level of administration.
Retrospective issuing
Pro-Action have been advised that the Agreements are often sent after completion of the assignment for the magazine.
Why are contracts issued retrospectively?
All negotiation of rights being requested should be completed and agreed prior to commencement of the work.
Warranty
(All contracts mentioned) 'The Contributor will not allow any of the material to be used at any time for any commercial and advertising purpose.' “commercial'”use could apply to any selling on of the work by the artist to a client.
Why does Condé Nast forbid these usages?
Does Condé Nast expect every contributor to get 'express written consent' for every re-sale of the work?
Condé Nast Publications Ltd is a prominent commissioner of illustration and publishes an extensive range of quality publications involving illustration. It is thus all the more regrettable that Condé Nast should put itself in the forefront of those who seek to use exploitative contracts, especially in the practice of 'trying it on' with an initial offering of a copyright assignment Agreement.
A fairer standard contract provided by Condé Nast would give Pro-Action the opportunity to actively promote this fact to AOI, AOP and PCO members and SAA illustrators, thus increasing Condé Nast's access to several thousand professional visual artists they may wish to commission, as well as boosting Condé Nast's ethical standing. This could ultimately lead to a higher standard of artworks for your publications.
Response
Pro-Action have yet to receive a response from Harriet Wilson
Recommendation
Pro-Action advise all visual artists not to accept commissions under terms such as those requested in the Condé Nast Publications Ltd Contributor's Agreement. See Argument section for points raised by Pro-Action over Condé Nast'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 respective associations for further advice. Illustrators represented by an SAA member agent should contact their agent for additional advice.
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