Pacific Magazines contract - if you sign, you lose your copyright!

 In light of  a number of new  editorial contracts being  distributed currently the ACMP  is  addresseing these  contracts directly with the publishing houses,  but would also appreciate any feed back from members and nonmembers  who may be considering signing  these new contracts.

Pacific Magazines (now known as Pacific+ as of a few weeks ago) have been distributing a new contract to their contributing photographers and illustrators. A number of our Members have contacted the ACMP with strong concerns about what they are being asked to sign and with good reason. In response the ACMP formally lodged our concerns in writing with Pacific and pointed out that this contract goes against industry accepted practice and that as it stands we will strongly be advising our members not to sign.

 We also pointed out that by sticking with their current contract they will be limiting their talent pool and have offered to help re-write a more equitable contract.

Below are the specific points we identified as being unworkable and the changes we feel that should be made:

 The points of concern that were expressed to Pacific are as follows:

 Clause 2 - Material

This clause states in part that all material is to be supplied from a shoot and that "Material includes all outtakes and illustrations"

 It not usual practice for a photographer to supply outtakes but rather edit the shoot down to the best images that suit the brief, provide proofs of these and then supply calibrated and retouched (optional) hi-res files of the images chosen by the client. We feel this stipulation is unreasonable and should be removed from the clause.

 Clause 5 - Material

There are a number of glaring problems with this clause.

 The clause states that the Publisher may use the images in any of their magazines without any additional payments, and furthermore, may license the images to third parties worldwide with a 40% commission paid to the photographer. 

 A photographer is usually commissioned to shoot an assignment for a particular publication for the duration of that publication's life; e.g; it may be a monthly in which case the Usage License may extend to 3 months to cover the cross-over of the next issue or two. This is and always has been standard practice for editorial assignments. 

 If the Publisher then syndicates the images to sister publications within the Publisher's stable the Photographer should receive the appropriate standard payment for the particular usage as normally paid by each publication for freelance submissions.

 Clauses 6 - The Publishers Rights to Material

Again, there are a number of important issues that need to be addressed in this clause.

 The clause starts off by stating "In consideration for the compensation referred to in Clause 4, the Photographer assigns to the Publisher all present and future rights (including copyright) subsisting in the Material anywhere in the world (including any renewals or extensions to such rights)." It then goes on to say that this arrangement will be "in perpetuity".

 If the Publisher wishes to act as an agent to distribute the images to third parties and retain a 60% commission for their effort and costs (as stated in Clause 5), fair enough. For the Publisher to claim ownership of the images, commissioned or otherwise, is totally unreasonable and against all industry practice. There is no precedent for the Publisher to own the copyright of freelance contributors. If the Publisher wishes to own the copyright and the Photographer wishes to relinquish their rights, a separate copyright buyout fee needs to be negotiated.

 This whole Clause needs to be removed from the contract.

 Clause 7 - Photographer attribution

Clause 7 starts with "If the Material or a substantial part of the Materials is published by the Publisher, the Publisher will provide a credit to the Photographer on the same page as the Material provided always that any failure to provide the credit will not be a fundamental breach of this agreement and the Publisher will not be liable for the default of any third party not under it's control to correctly provide this credit."

 Firstly, the words "substantial part of" should be replaced with "any part of". The Photographer should be attributed for their works if any part of their image is used in any way.

 Secondly, there is no incentive for the Publisher or third parties to provide a credit. It is basically saying, "if we or a third party forgets to attribute the image then bad luck for the Photographer".

 As we all know, editorial rates are far lower than commercial and advertising rates and this is partially compensated for by the Photographer's work being properly credited in the publication. If this is not provided then the Photographer loses on both counts. A fairer system, and one often used by freelancers contributing work to publishers, is to have a higher rate for work that is not attributed correctly. This is something that should be written into your contract as without it, the clause is totally one-sided and worthless.

 Clause 12 - Warranties and Indemnities

Clause 12 d) states "the Material will not be defamatory, and will not infringe the rights (including copyright) of any third party or otherwise be contrary to law"

 The Publisher is commissioning and publishing the works so it should be the Publishers responsibility to determine whether what they are publishing will be defamatory or not. The Photographer also does not know exactly in what context the works will be used and should not be bought into any legal disputes that may result from the Publishers own legal negligence. 

 The same goes for infringing on any third parties copyright or intellectual rights. If a photographer is commissioned to shoot an assignment and submits images that may for example include a sculpture, building or other artwork, it is the responsibility of the Publisher to ensure they are not breaching a third parties copyright or intellectual rights by publishing the images.

If the Publisher is also distributing and sub-licensing the images to third parties then the Photographer has absolutely no idea who these third parties are and in what context the images will be used. 

 Clause 12d) should be amended in the Photographers favour and state something along the lines of "The Publisher will determine whether publishing the Photographers work or any part of the work will be defamatory, infringe someone else's copyright (with the exception of the Photographer knowingly submitting images they did not shoot themselves, i.e; the copyright belongs to another photographer), or is contrary to law. The Publisher will not hold the Photographer liable for any claims that may arise from the publication of the Photographer's works including by third parties that the Publisher has sub-licensed the works to".

Clause 18 - Termination of agreement

This clause states that clauses 4-14 will survive termination of the agreement.

Clause 12 d) should be included here, the remaining clauses will need to be reviewed for inclusion once the appropriate amendments have been made.

 In a subsequent telephone conversation with Pacific's Legal & Compliance Manager, Chris Bullock, he now advises they have removed the indemnity Clause 12.  He also states that they will waive the copyright clause for freelance 'non-commissioned' contributions but it will remain for commissioned work, along with all other clauses.

 The ACMP urges all photographers being offered this contract not to sign it in it's current form and to let Pacific know what your concerns are and that the contract is against all current industry practice. By signing, you are endorsing it and this will only encourage them and other publishers to erode our rights even further. Not that there's much left to give away after signing this one ... the more we roll over, the further they'll prod.

 Be aware - if you sign this contract you are signing away your copyright!!

 The ACMP will continue to communicate our concerns to them and we will now make our objections public. 

 It would also be very helpful in our negotiations if we had some idea of how many members have refused to sign. Either post in Members Only forum (there is currently a thread on this) or if you prefer, contact me at stefan@acmp.com.au

 Stefan Jannides ACMP Board member

 

Author: ACMP