Don't 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. Silly you.

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
Contributing Editor
peterhowe@earthlink.net