Best Business Practices for Photographers [76]
In the Reese/Leipzig interview, Newman goes on to talk more about the strike he organized:
We just simply said we wouldn't work for them anymore. Their attitude was, if you didn't work for Life, you weren't a photographer. At that time, the only other magazine (which I'd already begun to work for) was Holiday. And there [were] Bazaar, Vogue and one or two others that didn't compete with Life…. We absolutely refused to accept any assignments until it was done. As an aside before I continue, I discovered during that year that I earned more money working for other magazines than I did for Life, and it made me much more independent. I had already begun to worry that I had too many eggs in one basket.
An excerpt from Newman's 10,000 Eyes foreword wraps up the point:
Alternate contracts were offered and refused, again and again…. The turning point came when Life, attempting to divide and conquer, claimed that they could do without five of us. [One photographer] became furious and confronted his friend, Life's editor-in-chief Ed Thompson, saying, "I think Kessel [Dmitri Kessel, a staff member] is going to have one hell of a time crossing any picket line I'm on." Life at this point gave up and offered us a fair agreement, restoring all our rights. What would have been a disastrous precedent for all ASMP members was avoided.
In some instances, agreements, if not properly scrutinized, appear at first to be fair, but upon closer inspection turn out to be unfair and unreasonable. I call them "stealth" WMFH contracts. They are all-rights/work-made-for-hire/copyright grabs. Here's an example of one publication's attempt:
Copyright License – Freelancer shall retain ownership of copyright in the Content, and grants an unlimited worldwide license, for the full duration of copyright, and any extensions thereof, to [publication] to use and to freely sub-license the Content by any means, without further compensation to Freelancer. For greater clarity, this means that [publication] may, for the full duration of copyright, and any extensions thereof, use, publish, re-publish, store, sell, re-sell, distribute, license or otherwise deal with the Content in its sole and absolute discretion.
While this is egregious, it leaves you to think that at least you can license your assignment images as stock. However, it's clear that they too could do this, so you would be competing with the publication for that stock license. And, because the potential photo buyer would be contacting the publication where you were credited for the image, the publication would be offering to license the image, rather than doing what it should—directing the interested party to you, the photographer, for a stock license. However, all of this becomes null and void because of the next clause:
Exclusivity of License – The above license is exclusive in [country]. [Publication] may make exceptions to this exclusivity to allow Freelancer to publish the Content in another media in [country], but that exception is not valid unless obtained in writing from [publication].
Tricky, isn't it? They have an exclusive license, meaning that all of the rights you grant them are exclusive to them, and you may not exercise any of those same rights without their permission. This is essentially a work-made-for-hire in disguise. What rights do you retain? I see few, if any.
When you are dealing with contracts that prospective clients present to you, be absolutely certain of what you are agreeing to and how, when spread across a multipage document, terms become less offensive one at a time than if they were all lumped together. Yet, in the end, these terms all apply just as if they were lumped together, and you then are signing away rights you thought you were retaining.
Working Around Work-Made-for-Hire Clauses
Everyone's complaining about