March 29, 2001

Arthur Ochs Sulzberger Jr.
Chairman of the Board
The New York Times Company
229 W. 43rd Street
New York, N.Y. 10036

Dear Mr. Sulzberger:

I have been proud to work on numerous occasions for The New York Times, and most of your company's staff have treated me and our work together with the highest professionalism. The stories - hurricanes, presidential primaries and in-depth feature projects - have been fascinating. Moreover, I must admit my photo credits and bylines (I have written and researched several articles for the National Desk) have helped my career on occasion.

However, I have not and will not sign, without considerable alteration, the contracts your company has begun handing to contributors. And I'm not sure I can continue to work for what you have labeled full compensation for my efforts. In case you don't recall that statement, I have pasted below a direct quote from your newspaper of March 19:

That quotation was contained in an article about the Tasini case, which was argued on March 27 before the U.S. Supreme Court. I believe that lawsuit, which thanks to your multiple appeals has drained the coffers and energies of several professional organizations to which I belong, is critical to the future of independent creators in America. If we cannot control the rights to the images and words we produce - or be fairly and fully compensated for their appropriation - we cannot continue to create and share our work (and the history it documents) with the world.

Your publishing company, and the others who have joined you in hiring a couple of the most infamous attorneys of our time to fight against us, has even made the specious argument that, by limiting your resale of our work, we would be risking the historical record. Below, you will see that I believe your stance risks a far greater share of that record. But more importantly, for a fraction of what this fight has cost us all, the same database wizards who are helping you and your partners exploit our creative work could devise a method for tracking the use of our work and compensating us fairly.

Costs of Contributing - Perhaps you'll understand my position better if I outline the true costs of contributing to your great news organization. Judging from your statement quoted above, you seem ill-informed of the economic realities we face. As independent journalists, we must each maintain an automobile, two business telephone lines (one for voice calls and one for data and faxes), a computer, office space, a tape recorder, and appropriate clothing for both dangerous and auspicious assignments. As a photographer, I must also acquire, maintain, insure and learn how to operate an additional $25,000 in sophisticated equipment, most of which is extremely fragile and must be upgraded every few years. We pay our insurance. Our copyrights are our retirement.

The Times' National Photo Desk, in my experience, pays $200 per day and no space rates for assigned photography. It requires receipts for all expenses, refusing to allow markups for the cost of acquiring (transportation, time, etc.) supplies and carrying those expenses until reimbursement, which for me, has averaged 60 days and two dunning calls per assignment. If I digitally scan and transmit my images from an assignment, I receive an extra $100, which I must bill separately to a different address. Having sent raw film on one occasion, only to have it lost for several months, then returned scratched, I have chosen to go to this trouble and accept this fee. I have also allowed your company to use on its web site, for temporary display, the images that have appeared in your paper. Any other use, including archiving, would take place without my permission, and under current law, as I understand it, be illegal.

Many of the assignments I have completed for your newspaper have put my equipment, and my person, at considerable risk. On one occasion, a camera of mine was fully submerged in dirty flood waters (which almost swept me away, too). Picture Editor Lonnie Schlein reluctantly paid a repair bill - although under your contract, as I understand it, he would not be so obligated.

Where We Come From - Now, how do these figures and practices add up to a problem in compensation? If you look back a few years to the early 1950s, you will see editorial photographers and publishers struck a deal - tacit and officially defined, in some cases - that we would be paid less than commercial rates for editorial photography in exchange for several caveats:

1) The lower assignment rate was a guarantee against space. If the publisher extracted more value (full page, multiple images, covers, etc.) from our images than the day rate covered, we would receive the difference.

2) We would receive full credit, with our names spelled the way we wished, on the images themselves, with any use.

3) The assignment rate covered rights to one-time use, with limited (usually 30 days or less) exclusivity, in North America only. Any additional uses by the contracting publisher required additional payments.

4) Other than the above "embargo," we retained all copyright to our work and could profit from it in future sales to whomever we chose, for whatever price we, or our agents, could negotiate. Potential clients included the contracting publication.

For a number of years, photojournalists did fairly well in this relationship, although few could be considered financially well off. Then the 1960s increased the profile (and impact) of our work, professional-quality imaging became a less-technical pursuit (with the evolution of the 35mm camera and modern films) and our ranks swelled. Similar developments affected other creative fields, and by 1976 our country had revised its copyright laws to better protect independent creators against predation.

Apparently, that wasn't enough.

These days, credits have become more obscure, payment times (as noted above) have grown steadily longer, our overhead expenses have ballooned and our compensation rates have stagnated. Space payments are evaporating, and acts such as those that prompted the Tasini case, along with contracts containing obtuse wording that entice the uninformed to sign away their copyrights, have eroded our profession to the point that precious few folks can feed their families on editorial fees. Many talented photojournalists leave the profession after only a few years. Most of us who remain, including myself, must photograph corporate assignments, commercial projects, even weddings, in order to pay for our documentary photography habits. We like to think these jobs don't compromise our journalistic integrity, but the risk for such clearly exists -- and probably should worry our journalistic clients.

My Modest Plan to Profit - You're a businessman. You understand every business activity carries with it costs. In my case, I have done a little computing of what it would take me to earn enough money to declare my business viable. My rough equation goes something like this:

1) There are 250 working days in a year, excluding weekends and two weeks vacation.

2) In order to earn a modest net income/profit of $30,000 to $50,000, I must collect at least $100,000 from my clients. That extra cash pays for: marketing myself, my expenses, my taxes, my insurance, other fees, my vehicle, required education in emerging technologies and business tactics, and maintaining a complete set of professional equipment. (I could detail this further, but I'm confident you will agree this represents a very efficient, perhaps overly optimistic, return.)

3) That means on each of 250 working days I must earn $400 in order to meet my goals.

It's easy to see that if you're offering me $200 or $300 for a day's work, I'm being asked to subsidize your operation. Furthermore, I must charge my expenses to a credit card, which requires payment within 30 days or less. If my clients don't pay me promptly (and your company is one that generally does not), I must finance their tardiness, either serving as banker for them or incurring interest charges on my unpaid balance.

But wait: the above, taken alone, drastically understates the generous contribution independent creators make to your bottom line. You see, besides making pictures, I have to take care of all those details listed in item No. 2 above, as well as other concerns not listed, such as processing film, filing it, scanning it and registering its copyright. I figure (based on my experience and that of others) that as a company of one person I can make photographs on assignment for no more than 50 days each year. That would put the day rate at $2,000 to attain my modest goal of $100,000 in gross income.

Of course, if I haven't signed away my rights or had them appropriated from me by actions such as the one Mr. Tasini has taken you to court over, I have images that can be sold elsewhere. They can produce some income, but the state of the stock photography industry, as your newspaper has reported, is in rough transition. Multi-national corporations are purchasing stock agencies, mass marketing their imagery at reduced rates and issuing rights-grabbing contracts to naive photographers hired to produce fresh pictures. It's not clear that future stock revenues to photographers will ever again be high as they were in the past.

Whose History Is It? - You might argue that although I claim I can only work 50 days in a year, other photographers work 100 days or more for your paper alone. I'm aware of this. But I also know some of these folks. They just aren't making a living, and many don't really have a life outside their daily photo-dog grind. They receive financial support from significant others, from trust funds, or they live in conditions that a slumlord would term substandard, don't pay for insurance, dodge taxes and otherwise exist on the edges of society. Their images - other than the ones you archive in your rights grab - aren't properly filed, stored or registered.

History - other than that you have chosen - fades like an unfixed photographic print. And most photojournalists leave the profession before age 30. Their experience and skills for recording history go with them.

Is that what it takes to work for your organization? Are newspaper database editors to be the only arbiters of history? Isn't it a crime against history (and the power photographs and words have to change it) to lose so many of our best documentarians to other professions, such as public relations, advertising and real estate sales?

The fair compensation I'm seeking is not extravagant. While I certainly don't begrudge you the comfort in which you live as you manage one of the world's most important media empires, I suspect my income goal probably wouldn't pay for a week of upkeep on your home(s), car(s), boat(s) and significant other(s). But I have never had any illusions about financial rewards in my profession. And my spouse does a sufficient job of supporting our family's needs, while I merely support my picture-making habit and hope for reward some day from stock sales and books. Don't get me wrong. I certainly appreciate the trappings of a wealthy lifestyle. In fact, by carefully arranging my life, I can afford a few of them (in scaled-down versions).

That stated, I do take exception to your baseless assertion that your contributors are "fully compensated" for their efforts. That's bunk. And if you didn't know better before saying it, you should now, after reading this.

I welcome your questions and I'm quite prepared for any counter arguments. But frankly, I think a reversal of your stance and an exponential increase in your compensation to contributors would be more appropriate.

Sincerely,

Gregory W. Smith
http://www.hargray.com/~mediasmith/