Give The Customers
What They Want
By Peter Howe
The first publication
that I ever worked for as a freelance photographer was a wonderful British
magazine in the early seventies called Nova. It was still to this day
the smartest "woman's" magazine that I've seen. It had no
recipes, dress patterns or diet tips which in itself was revolutionary
in those days. What it did have was intelligent stories on current affairs,
the sexiest fashion you've ever seen, and photojournalism that would
blow away any of today's publications in its content and display. The
stories I photographed for Nova included child poverty in the United
Kingdom; I accompanied the British Ballroom Dance Team on a tour of
Denmark; I followed a Roman Catholic priest, a Protestant minister and
an Army chaplain in Northern Ireland; I photographed the Burlington
Horse Trials, a celebration of the upper-classes featuring Princess
Anne and Captain Mark Philips; I did a number of environmental portraits
including a very young Manolo Blahnik along with politicians, philosophers
and pop stars. We should be so lucky to be blessed with a magazine with
its intelligence and courage today.
At the time I was one of those photographers that cause the founders
of EP to tear their hair out. I was young; I had a wife and child to
support; I wanted to make a name for myself; I thought I was the luckiest
guy on earth to be allowed to photograph for the publication. I was
therefore exploited, not by the editor and art director, but by the
terms and conditions imposed upon them by the parent company, which
if I recall correctly was then called the Imperial Publishing Corporation,
known by the initials IPC. Because of this experience some postings
on the EPUK site recently caught my attention. Reading through these
it seems that you can take imperialism out of the company name but not
out of the company. Mark Winterton, IPC's Intellectual Property Manager,
recently sent out a letter to what are described as "core contributors".
The letter notified them that because the company was recently bought
by AOL Time Warner they are "consolidating our rights agreements
with our contributors to provide uniformity across the group."
It goes on to ask the photographer to "re-sign a re-worded core
contributor agreement to allow us to conform with AOL Time Warner's
requirements." Although this is ostensibly a request, it is a request
with teeth because the next paragraph states that: "Your current
core contributor account will be de-activated on the 1 August 2002 so
your swift response is appreciated to enable your account to remain
active." In other words, take the IPC way or the freeway.
Although apart from this one paragraph the letter is reasonably worded
and friendly in tone, the agreement to which it refers has neither of
those qualities. It's opening salvo is: "As a core contributor
it is understood that any future Work(s) you are commissioned to do
by XXXXX will be on an "all rights" basis unless otherwise
agreed in writing." Just in case you're in a state of shock after
reading this statement it goes on to describe in painful detail exactly
what all rights means. "All Rights means that you assign, transfer
and make over to IPC Media Limited absolutely the entirety of your right,
title and interest in and to the copyright and all other rights of every
kind or description now or hereafter subsisting anywhere in the world
in or in relation to the Work(s) for the full term thereof and all renewals
or extensions thereof, and you unconditionally and irrevocably waive
your rights under Sections 77 and 80 of the Copyright Designs and Patents
Act 1988 in the Work(s). This includes ownership of the materials used
e.g. film, artwork etc." So don't say you didn't understand the
nature of the disaster about to befall you.
Needless to say this communication did not receive a standing ovation
from the British photographic community and the organizations that represent
it. Standing outrage would more precisely describe the reaction, to
such an extent that the Chief Executive of IPC, a woman with the appropriate
name under the circumstances of Sly Bailey, felt it necessary to write
a letter to the UK Press Gazette. It is a masterpiece of back-pedaling
and obfuscation, in which she reveals that IPC has five different rights
categories used throughout the company, something that they had clearly
forgotten to mention in the Winterton letter. She too takes the position
that when all else fails you can always blame the Americans by stating:
" As a result of IPC Media's acquisition by AOL Time Warner at
the end of last year, wording of all agreements covering all rights
commissions needed to be updated, but without any change to their substance.
We have also taken the opportunity to tidy up our commissioning system
and ensure that all parties are fully aware of the rights category under
which the specific work was being commissioned." It would seem
to me that if you want to tidy up a commissioning system the worst way
to do it is to have five separate rights categories. Her claim contained
in the letter that this new agreement was only sent out to contributors
who had signed a previous all rights agreement is strenuously denied
by many of the photographers who received the Winterton correspondence.
Oh, by the way, in case you're still fretting over that August 1 deadline,
go down to the pub, have a pint and relax. According to Sly this was
"simply the date on which the previous agreements would expire
and the new ones take effect. This in no way suggests that that a contributor
will no longer be able to have work commissioned by IPC Media after
that date." I hope that makes you feel better.
What didn't make US photographers feel better was the claim that this
was all being done at AOL Time Warner's behest. It is impossible to
tell whether this a smokescreen to provide an excuse for actions that
IPC knows will be unpopular, or AOL Time Warner using the British subsidiary
as a proving ground for policies that they intend to introduce into
the United States. I called Time Inc. spokesperson Peter Costiglio to
see if he could shed light on the matter. It took some time to get through
to him, which is understandable given the chaos that reigns in that
corporation at the moment, but when contact was made he was less than
reassuring. When asked if Time Inc, which is the publishing division
of AOL Time Warner, had any plans to introduce all rights contracts
his reply was: "We never discuss plans or anything like that. If
we have an announcement to make we will make it at the appropriate time."
His advice to me was to "take the IPC contract at face value"
which is exactly what Sly in her letter to the UK Press Gazette is telling
us not to do. At face value it's a contract that wants all the rights
that the photographer owns every time it makes an assignment.
But wait, it gets even more Byzantine and convoluted. Time Inc has just
appointed a new Chairwoman and Chief Executive, Ann S. Moore. According
to a piece by David Carr in the New York Times dated July 22nd: "Ms.
Moore just returned from IPC Media, the largest publisher of consumer
magazines in Britain, that Time Inc. purchased last year for $1.6 billion
dollars." Life's just full of coincidences, isn't it? Carr's piece
runs under the headline "Inheriting the Burden of Success at Time
Inc." in which he claims that her biggest problem will be to maintain
the growth rate bequeathed to her by her predecessor Don Logan. Time
Inc has had 41 consecutive quarters of growth, more than a decade of
increasing revenues. And you thought the reason that they haven't increased
the day rate was because the magazine business was in such bad shape.
In fact the thin edge of the all rights wedge may be already in place
at This Old House Magazine, one of Time Inc's properties. They are demanding
3-year exclusives on all assignments, which is one hell of an embargo
period for photographs of replacement windows. The magazine will hold
the film for the entire period during which time they can use it in
any books, reprints or other products associated with This Old House
and pay their prevailing page rate that at the time of writing is $200
for a full page, $100 for a half page, and $75 for a quarter page.
There is no doubt in my mind that we are going to see a push towards
all rights contracts from major media companies, and that this demand
for greater rights will not be accompanied by adequately greater compensation.
Home Magazine has already gone to an all rights policy, and Veranda
magazine has a Work for Hire contract. What is it about shelter magazines
that they feel they need total rights to the photography that they publish?
Given the percentage of a photographer's income, especially that of
a photojournalist, that is dependent on resale this is a bit like going
into a car dealership, offering ten thousand dollars for a twenty thousand
dollar car and demanding a cut of the car dealer's future revenues as
well. You had better believe under those circumstances that you'd walk
not drive out of the showroom, and only then if you haven't been beaten
into a bloody pulp.
I was a magazine photographer for 13 years, and a magazine picture editor
for 12, and I loved being in that business. It saddens me that photography
has become so much less relevant to these publications, and that magazines
have become an increasingly less reliable source of income for photographers.
I recently received an email from Neil Burgess, a veteran photography
agent whose resume includes periods as director of Magnum in New York,
and Network in London, and who has recently set up his own agency, NB
Pictures, in that city. The premise of his business is to cross the
barriers between commercial, editorial and art so that the photographers
that he represents can have a presence in each market. He reflected
my own feelings when he said in the email: "I guess it's the subtle
shift away from editorial photography as a primary driving force. Galleries,
books, NGO's, commercial, all support photographers personal and important
work these days, probably more than the magazines. It's a strange contradiction
that there is more photography produced than ever before for magazines
and photography in magazines is becoming less important."
It's also a strange contradiction to me that the primary principle of
any business is to give the customers what they want. In editorial photography
the situation is becoming reversed. If photographers give into all rights
demands without a massive increase in compensation then they are essentially
putting themselves out of business, the logical culmination of which
will be to put editorial photography out of business. The example of
the IPC contract should be a lesson to all editorial photographers.
If there had not been such a strong and swift reaction to it organized
mainly by EPUK, the National Union of Journalists and the Association
of Photographers, then photographers would not have known about the
four other rights alternatives offered by IPC, and the company would
not have been put into a defensive position which has forced it to be
more flexible (or at least appear to be more flexible since to date
there have been no tangible results.)
In the 13 years that I was a photojournalist I never signed any contracts
related to photography. The picture editor called me up, gave me the
assignment, and trusted me to do it. I trusted them to pay me, the film
was returned and that was it. Since most of the magazines I worked for
(with the unfortunate exception of Nova) are still in business I presume
that this handshake system wasn't too catastrophic to their bottom line.
To expect those days to return is unrealistic. What is realistic to
expect is that every photographer who is offered an assignment on terms
that are unacceptable should re-negotiate those terms, and if this fails
to politely refuse the job, clearly and calmly expressing their reasons
for doing so. Remember the advice of Nancy Reagan. Just say no.
© 2002 Peter Howe