Case 4: Future Publishing

Argument

Pro-Action wrote to the Managing Director and Group Art Director at Future Publishing Ltd in January 2008 requesting that they explain their Standard Terms of Commission which are heavily weighted against the illustrator. As a prominent commissioner and appraiser of illustration Pro-Action finds it regrettable that Future Publishing puts itself in the forefront of those who seek to use exploitative contracts.

The Pro-Action letter to Future Publishing defined our agenda and pointed out that it is imperative that illustrators and agents, when negotiating a commission, are able to secure terms and conditions that consider the needs of commissioners whilst securing illustration as a viable profession for the future. 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 Future Standard Terms of Commission copyright assignment removes this potential income.

We asked Future Publishing to respond to the points and questions raised about their Agreement in the letter. These points include:

• Why does Future demand an assignment of copyright and other proprietary rights in artwork commissioned for their publications when the fees offered do not reflect such an assignment? Publishing Rights clause: ‘the entire world-wide copyright in the Work for the full period of copyright…and all other rights of a like nature whenever and wherever existing. For the avoidance of doubt this includes all print and electronic media’ Agreements such as these are exploitative and undermine the industry wide pricing structure for commissioning freelance illustration
  
• Future request the right to ‘edit, adapt and translate the Work’.’ We accept that a publisher will need some editing rights – possibly to crop the image, but why does Future need an adaptation right? It should not interfere with the work itself without the illustrator’s express permission. Moral rights protect the integrity of the creator's work, and ensure it is not treated in a derogatory manner. It does not prohibit normal cropping and/or overprinting. A contributor's livelihood is built and maintained by the quality and integrity of their published work. Further, an illustrator should be consulted over any alterations to their illustrations; consequently this should be an express term in the Future agreement.
  
• What does Future do, or intend to do, with the extra rights that will be received from this contract beyond the rights the actual commission requires? 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.
  
• Submission and Acceptance clause: Why does Future wait up to 20 working days from Delivery Deadline to inform the if work is unacceptable? Illustrators should be informed within 2 working days if the work is deemed unacceptable.
  
• Payment Clause: Why does an option for PAYE payment exist in the Future Standard Terms of Commission? Under what situation would Future consider an illustrator be paid on a PAYE basis?
  
  Why does Future make payment 45 days following delivery of the Work and invoice to Future? Date of Payment should be no longer than the 30 days stated for a ‘Kill Fee’ payment in the Submission and Acceptance clause.
  
  The Standard Terms of Commission are often tendered retrospectively by Future following completion of the commission created under a previously agreed verbal contract. In this circumstance the paragraph below from Future’s covering letter is not legally sustainable:
  We are unable to pay you unless you have returned a completed and signed contract. The Contract ensures that both you and Future Publishing Ltd are agreed on the terms under which we may publish your work’
  These terms cannot form a part of the contract unless agreed before the work has been done. The contract has already been concluded and threatening artists with non-payment unless they retrospectively assign their rights is unethical. Non payment by Future in these circumstances is a breach of contract.
  

Response

Future Publishing have acknowledged receipt of the Pro-Action letter in January 2008. This section will be updated following conclusion of Pro-Action’s correspondence with Future.


Recommendation

Current recommendations as follows, pending a response from Future Publishing.

Pro-Action advise all illustrators not to accept commissions under terms such as those requested in the Future Publishing Standard Terms of Commission. See Argument section for points raised by Pro-Action over Future Publishing’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.

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.

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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