Case 6: Pearson Educational Limited 2009

Argument

Pro-Action wrote to the Contracts Director and Head of Resources and Content Management in July 2009 requesting that they explain their Artwork Agreement, which is heavily weighted against the illustrator. As a prominent commissioner of illustration Pro-Action finds it regrettable that Pearson puts itself in the forefront of those who seek to use exploitative contracts.

Pro-Action have been supplied with the 2009 Pearson Artwork Agreements. One is an assignment of copyright, the other is drafted as a licence agreement, but the licence is sole and exclusive, and its terms so wide that that it is tantamount to an assignment of copyright.

These contracts remove any potential future income for the illustrator when the works are repackaged for sale or published in other territories. We asked Peason to respond to the points and questions raised about their Agreements.

• Why does Pearson demand an effective assignment of copyright and thus all proprietary rights in artwork commissioned for Pearson’s publications when the fees offered do not reflect such an assignment? Pearson’s fees have not increased since the new agreements have been tendered. Agreements such as these are exploitative and undfreelance illustration..
  
• What does Pearson do, or intend to do, with the extra rights that will be received from these contracts beyond the rights the actual commission requires? So-called ‘warehousing’ of rights in order to prevent third parties exploiting them is inequitable. Pro-Action maintains that it would be fairer to commission based on the widely accepted fee structure of a mutually agreed defined license consisting of terms and fees priced on a defined usage, territory and duration.
• Why does Pearson insist that the right of integrity is waived when commissioning illustration (Clause 4)? Copyright agreement Clause 2.2 ‘...the right to create, publish and adapt and further license the creation, publication and adaption of the Artwork... Licence agreement Clause 2.1 ‘...to licence the production, publication, sale, sub-licensing and exploitation of the Artwork or any adaptation, abridgement or substantial part of the Artwork...’ (our italics). We accept that a publisher will need some editing rights – possibly to crop the image (but not to distort it) but why does Pearson need an adaptation right. 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. We believe that in fairness to the illustrator, the Pearson Agreements should allow them to assert all their moral rights. Further, an illustrator should be consulted over any alterations to their illustrations; consequently this should be an express term in the Pearson Agreement. As recently as March 2008, Pearson continued to offer an additional fee for ‘future re-use’ , and stated that any adaptations would not be significantly altered ‘...without having maobtain the illustrator’s permission to do so.’
  

Response

Pearson’s Contract Director responded in September 2009 to our letter and Pro-Action have covered the points in that letter in our reply. The following text reports on the main issues covered.

Responding to the question Why does Pearson demand an effective assignment of copyright and thus all proprietary rights in artwork commissioned? The Contract Director said that as commissioned artwork constitutes ‘a very small part of the whole’ and is tightly briefed it would have’ ‘limited potential for reuse’. Pro-Action replied ‘The work you are commissioning may be tightly briefed, as many commissions across publishing, advertising and packaging etc are, however this does not prevent potential reuse of the artwork, not least by yourselves. The extra rights demanded by Pearson are, in fact, reuses of the original commission by Pearson, and those additional rights are not reflected in the fees offered.’

Pearson stated that they ‘may have to alter the way in which we do business with our suppliers in the interests of all our futures’. Pro-Action pointed out that although illustrators constantly adapt to the demands of the market, Pearson’s agreements serve solely to benefit the publisher, not the creatives supplying artwork. They are not sharing Pearson’s future income.

To the question What does Pearson do, or intend to do, with the extra rights that will be received from these contracts beyond the rights the actual commission requires? They replied that they need to respond to demands for additional support materials to ‘drive’ sales of printed materials. We said Pearson may be offering non-print support materials free of charge, however this supports sales of print materials, promotes their business and potentially increases their market place share. The illustration work being used for free by the commissioner to support their business does not benefit the illustrator and therefore should be paid for at the point of commission or as a reuse fee.

Pearson’s wish to reuse the material in various formats would be acceptable if a fee was paid for these potential uses. The fees paid by Pearson that Pro-Action have seen reflect UK volume rights only, and any ‘reinvention’ of the material for global and local markets serves to increase Pearson’s income – which the supplier of the artwork receives no share of. They stated that they are ‘paying for rights for global and market specific versions up front’, however, as stated above, Pro-Action does not believe the fees cover the global rights they wish assigned.

Why does Pearson insist that the right of integrity is waived when commissioning illustration? Pearson stated that ‘...there is little case law in this area which would afford us comfort as to specifically which acts...do or do not amount to derogatory treatment...’ Robert Lands, our legal advisor, referred them to relevant information in Copinger and Skone James on Copyright (15th Edition) publication regarding the test for derogatory treatment as set out in the Confetti Records case. It is clear from this case that cropping and editing of works in the usual course of design are not considered infringements, and therefore a waiver is not required. Pearson said that they do not intend to breach the right of integrity, but waiving of the right does give Pearson the potential to change the work in many ways, and therefore increasing possible usages.

Pearson claim the introduction of new terms and conditions in January 2009 has received few objections, so Pro-Action pointed out that as freelance suppliers, illustrators are put in a position where they may have no choice but to accept the terms from a large commissioning organisation, or they may not receive the commission. They are not faced with an equal negotiating situation, and this can be used to their disadvantage.

Our reply has been copied into Rob Bristow President of Higher Education, Schools and Professional at Pearson Educational. .


Recommendation

Pro-Action advise all illustrators not to accept commissions under terms such as those requested in the Pearson Educational Artwork Agreement. See Argument section for points raised by Pro-Action over Pearson’s contract, and Response for our challenge to their reply.

Pro-Action recommend that all illustrators offered a copyright assignment, or an agreement which contains a moral rights waiver should not sign it. .

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.